Silver v General Medical Council

JurisdictionUK Non-devolved
JudgeSir Philip Otton
Judgment Date14 April 2003
Neutral Citation[2003] UKPC 33
CourtPrivy Council
Date14 April 2003
Docket NumberAppeal No. 66 of 2002

[2003] UKPC 33

Privy Council

Present at the hearing:-

Lord Hutton

Lord Rodger of Earlsferry

Sir Philip Otton

Appeal No. 66 of 2002
Dr. Michael Ellman Silver
Appellant
and
The General Medical Council
Respondent

[Delivered by Sir Philip Otton]

1

The appellant, Michael Ellman Silver, appeals from a direction of the Professional Conduct Committee (PCC) of the respondent Council given on 2nd August 2002 that the appellant was guilty of serious professional misconduct and that for a period of 12 months his registration should be conditional on his undergoing a performance assessment.

Background

2

The appellant is a registered medical practitioner. He qualified in 1961 and joined his father's family practice at 277, Fore Street, Edmonton, London N18. He became the sole practitioner in the practice. The patient in question had been a patient of his for some 35 years. There was no history of complaint from the patient or her family prior to the events of November 1999.

3

The patient, in her 80th year, suffered from arthritis and in the months prior to November 1999 had been predominantly confined to a wheelchair. Her primary carer was her son, Mr Raymond Smith, also a patient of the appellant's and also disabled, suffering from "brittle bone syndrome".

4

The essence of the complaint was that over a nine day period despite a number of prompts from the son, a daughter and two other health care professionals, the appellant failed to ensure that the patient received suitable or prompt medical attention following a fall in her home. The patient was eventually admitted to hospital by the emergency services and found to be suffering from a fractured neck of the left femur. The relevant events and chronology are contained in the Notice of Inquiry, the facts admitted by the appellant and the findings of the PCC:

"2 At the material times you knew,

(a) the patient (d.o.b. 25.10.19) to be suffering from arthritis … admitted and found proved

(b) the patient's primary carer to be her son, Mr Raymond Smith, who was himself disabled suffering from oesteogenesis imperfecti; admitted and found proved

3 On Thursday 18 November 1999 Mr Smith informed your surgery;

(a) that the patient had suffered a fall at home, found proved

(b) that the patient had been visited by paramedics, found proved

(c) that the paramedics had advised that the patient may be suffering from a urinary tract infection, found proved

(d) that the patient required a domiciliary visit, found proved

4 (a) …

(b) No domiciliary visit took place, admitted and proved

5 On Friday 19 November 1999 Mr Smith informed your surgery,

(a) that the patient continued to suffer from a suspected urinary tract infection, found proved

(b) that the patient was unable to attend the surgery in person, found proved

(c) that the patient required a domiciliary visit; found proved

6 (a) …

(b) No domiciliary visit took place, admitted and found proved

7 On Monday 22 November 1999 Mr Smith informed your surgery …

(a) …

(b) that the patient was in a lot of pain, found proved

(c) that it had not been possible to obtain a urine sample, found proved

(d) that he was unable to bring her to the surgery, found proved

(e) that the patient required a domiciliary visit, found proved

8 No domiciliary visit took place, admitted and found proved

9 On Tuesday 23 November 1999 Mr Smith telephoned the out-of-hours emergency service for your practice and a doctor, Dr Maung, from the deputising service Healthcall, attended the patient at 8.30 pm that evening, admitted and found proved

10 On Wednesday 24 November 1999 before 7.00 am Mr Smith delivered to your surgery Dr Maung's visit slip, indicating, amongst other matters, that the patient, admitted less date and found proved

(a) had suffered a fall, admitted and found proved

(b) was urine incontinent, admitted and found proved

(c) had a probable urine tract infection, admitted and found proved

(d) required a revisit within 3 days, admitted and found proved

11 On the morning of Thursday 25 November 1999 the patient's daughter, Mrs Barbara Portlock, informed your surgery that the patient

(a) was in pain, admitted and found proved

(b) had a swollen left leg, admitted and found proved

(c) required a domiciliary visit, admitted and found proved

12 …

13 The patient was visited at home by a doctor from Healthcall, Dr Surtees, at 3.13 pm that afternoon, admitted and found proved

14 (a) …

(b) …

(c) …

(d) …

(e) …

15 No domiciliary visit took place on Friday 26 November 1999, admitted and found proved

16 You did not ensure that your patient received suitable and prompt medical attention in that,

(a) you failed to respond adequately or at all to the requests for domiciliary visits made by Mr Smith … found proved

(b) you failed to act on the request by Dr Maung to revisit the patient within 3 days, found proved

(c) …"

5

Following further submissions under rule 28 and a reading of testimonials on behalf of the appellant, the PCC again deliberated in camera and the Chairman announced the PCC's determination and direction:

"… The Committee finds you guilty of serious professional misconduct … We consider that our findings demonstrate a managerial, organisational and communications failure within your general practice. As a sole practitioner you have responsibility and are accountable for the organisation of your practice which includes ensuring effective lines of communication. We note that you have already taken some steps to remedy the situation.

The Committee have considered what action to take that is proportionate to your case. The Committee have decided to impose the following condition of your registration for a period of 12 months: that you should undergo a performance assessment of the organisation of your general practice by assessors appointed by the Council, and at the Council's expense."

The Appeal

6

Mr Andrew Hockton (who also appeared for Dr Silver before the PCC) contended that both the finding of serious professional misconduct and the penalty were wrong.

7

His primary complaint is that the PCC failed to reject as unreliable the entirety of Raymond Smith's evidence and, save where admitted, find that the facts were not proved. This witness was obliged to admit to the Committee in the course of his evidence that he had made a false allegation of a graphic exchange with the appellant on Friday 26th November 1999 (compounded by false evidence, in part retracted, that this discussion took place on Monday 22nd November). Moreover the contents of Mr Smith's affidavit and a diary entry compiled by him and his sister were also untrue. This false testimony did not relate to a peripheral issue but it was crucial to and linked with the critical events of the previous Thursday and Monday. Consequently the PCC were in error in rejecting a submission at the close of the respondent's case or at the conclusion of all the evidence that the evidence of the principal witness was so tainted with dishonesty that it could not be relied on in respect of any of the allegations in the Notice of Inquiry which were not admitted.

8

Their Lordships have examined the Record of the Proceedings with great care. Following the submission of counsel at the close of the respondent's case the Committee retired and on their return they upheld the submission in respect of heads 7(a), 7(c) in respect of the doctor personally, 12, 14 and 16(c). Thus the Committee had some reservations about the reliability of part of Mr Smith's evidence and acted accordingly. It did not automatically follow that they were obliged to reject the whole of his testimony. The Committee heard the witness subjected to sustained cross-examination and their own questioning and were well placed to assess his veracity, those parts of his evidence which they could not rely upon and those parts which they could safely accept.

9

It was thus open to the Committee to conclude that the manifest errors in Mr. Smith's evidence, grave as they were, did not wholly undermine the integrity of his evidence. Their Lordships can find nothing illogical in the Committee's approach to the issues of fact and are not persuaded that this is a case where it would be appropriate to substitute an alternative finding on these issues.

10

Counsel's second complaint was as to the finding of the Committee under head 16(a) that the appellant failed to respond adequately or at all to the request for domiciliary visits made by the son. Mr Hockton averred that this finding was unsustainable in the light of the PCC's finding under head 7(a) that the appellant never knew personally of this request. The evidence was that he was not in the surgery on the 24th November when Dr Maung's slip was delivered by Mr Smith. Consequently the only rational explanation for the adverse finding was on the basis of vicarious liability which was never the respondent's case.

11

Their Lordships are satisfied that there...

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