Selvarajan v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Blake |
| Judgment Date | 08 February 2008 |
| Neutral Citation | [2008] EWHC 182 (Admin) |
| Docket Number | Case No: CO/3515/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2008 |
[2008] EWHC 182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON MR. JUSTICE BLAKE
Case No: CO/3515/2006
David Cocks QC and Shaun Murphy Esq. (instructed by Edwards Duthie) for the Appellant
Miss Fenella Morris (instructed by General Medical Council) for the Respondent
Hearing date: 16 th January 2008
This is an appeal against a decision of the General Medical Council (GMC) directing the sanction of erasure from the register for an admitted charge of professional misconduct committed by Dr Selvarajan (the Appellant).
On the 30 th March 2006 the Fitness to Practise Panel (Professional Conduct) hereafter “the Panel” of the General Medical Council (GMC) determined that the Appellant's name be erased from the Medical Register. Three days earlier he had admitted that he was guilty of serious professional misconduct in that between March 1994 and November 1996 he had written and signed a number of prescriptions relating to 2649 items of medication that were not recorded in the patients' records but were purported to have been prescribed by a neighbouring chemist. The substance of the allegation was a sustained course of dishonest conduct by this Appellant together with the chemist whereby the local health authority now known as the Ealing Primary Care Trust were fraudulently deprived of a sum of about £150,000, and the proceeds split between the chemist and this Appellant.
The Appellant now appeals to this court against the severity of this sentence pursuant to the Medical Act 1983 as amended. He does so on the ground that the Panel misdirected itself on the relevance of the passage of time between the conduct admitted and the sanction imposed to the mitigation that he sought to advance.
In order to understand the submissions made, it is necessary to set out some of the history. The Appellant is a General Practitioner of medicine whose professional care for his patients is spoken highly of by a great many testimonials brought to the attention of the Panel in these proceedings. His medical skills and devotion to the welfare of his patients is not in question. His character and reputation were unblemished until the events that gave rise to these proceedings. According to the mitigation advanced the dishonest conduct started in 1994 as a result of financial difficulties that the Appellant was then facing.
In 1994 an investigation was begun by the health authority. In April 1996 the investigation was taken over by the Metropolitan Police. There was evidently some liaison between the health authority and the police because in December 1996 the Appellant and the chemist were arrested at a time when representatives of the health authority were present. In March 1997 civil proceedings for recovery of the sums paid out in respect of the false prescriptions were commenced although they were stayed by consent whilst the criminal investigation took its course.
On the 20 th April 1998, the Appellant was charged with conspiracy to defraud by the police. The following month in May 1998, the GMC were informed of these facts by the police. The GMC awaited, and was plainly entitled to await, the outcome of criminal proceedings before deciding whether and how to proceed with any proceedings of its own with respect to professional misconduct.
The criminal proceedings came to an end on the 6 th April 2000 when the Appellant was acquitted on a judicial ruling, an earlier jury having failed to agree a verdict. The solicitors acting for the health authority in the civil recovery proceedings informed the GMC of the acquittal on the 3 rd July 2000. The Appellant alleges that from this time on the GMC were obliged to consider within a reasonable period of time whether to bring professional disciplinary proceedings against him and if so for what charge and pursue any proceedings with due expedition.
The GMC were doubtless assisted in their inquiries by the fact that Radcliffes (solicitors for the health authority) conducted a full investigation into all prescriptions issued by the Appellant and dispensed by the chemist, from which fraudulent ones (not entered into any patient's record) could be distinguished. A schedule of such material was served on the GMC by Radcliffes on the 1st November 2001. This is of course 18 months after the Appellant had been acquitted; three and half years after the GMC had been told that he had been charged, and nearly five years after he had been arrested.
It was not until the 27 th May 2002 that Dr. Selvarajan was informed that the information supplied by the health authority (which had now become the Ealing Primary Care Trust) would be referred to the Preliminary Proceedings Committee of the GMC to consider disciplinary charges. It was accepted that this was the relevant starting date for the purposes of Article 6 of the European Convention on Human Rights, that provides that “everyone is entitled to a fair and public hearing within a reasonable period of time” (see AG Reference No 2 of 2001 [2003] UKHL 68 [2004] 2 AC 72 at para [27] as applied to disciplinary proceedings; see also Haikel v GMC (2002) UKPC 37 of 4th July 2002 [14]). It is common ground that disciplinary proceedings that might deprive the Appellant of his livelihood engage the Article 6 obligation and that therefore the GMC and its panels were under a statutory duty imposed by Human Rights Act 1998 s.6 to prosecute the proceedings to final determination within a reasonable period of time.
Even in May 2002 the charges brought were not of dishonest or fraudulent conduct where the seriousness of the allegation was likely to lead to the sanction of erasure, but charges of inappropriate prescribing and record keeping. Apparently the GMC and its committees were acting on erroneous legal advice that it could not frame a charge of dishonest conduct that traversed the same activity as the conduct alleged in the criminal proceedings for which he had been acquitted.
The court was surprised to hear that in 2002 such advice was tendered and acted on as accurate. S.36 (1) Medical Act 1983 (as well as its predecessors) makes a clear distinction between practitioners a) who have been found guilty of a criminal offence and b) those guilty of professional misconduct. Well established authority including the case of Bolton v Law Society [1994] 1 WLR 512, establishes the general principle that the purpose of professional disciplinary proceedings is not to punish the individual practitioner as to preserve the integrity of the profession, and therefore decisions in criminal cases are very different from the issues that the GMC have to consider. Indeed the Respondent in this appeal relies on these well known words of Lord Bingham at 519B-E
“Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”
The absence of any common law double jeopardy rule in professional misconduct proceedings was specifically noted in the case of R v Statutory Committee of the Pharmaceutical Society of Great Britain [1981] 2 All ER 805 where disciplinary proceedings had been brought in respect of conduct for which there had been an acquittal. The absence of such a common law rule was assumed by the police disciplinary authorities in the case of R (on the application of Reynolds) v Commissioner for Police for the Metropolis [2003] EWCA Civ 4 22nd January 2003 (unreported). Police officers once had the benefit of a statutory prohibition on double jeopardy, but that had been removed. Following a refusal of a voluntary bill on criminal charges that was treated as the equivalent of an acquittal, a police officer was charged with misconduct in September 2000; in March 2001 a Police Disciplinary Board ruled that no issue of double jeopardy arose; in May 2002 Moses J as he then was upheld that conclusion in dismissing judicial review proceedings and on the 23 rd...
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