The Judicial Committee of the Privy Council Decisions

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REASONS FOR REPORT OF THE LORDS OF THE

Sir Patrick Russell

Sir Andrew Leggatt

1. This is an appeal against a decision of the Professional Conduct Committee of the General Medical Council judging that the appellant had been guilty of serious professional misconduct and directing that his name should be erased from the Medical Register. At the end of the hearing of the appeal their Lordships announced that they had agreed humbly to advise Her Majesty that head 4 of the charge and the direction that the appellant’s name be erased from the Register should be quashed, that subject thereto the findings of the Professional Conduct Committee should be affirmed and that the matter should be remitted to the Professional Conduct Committee, differently constituted, to decide what, if any, directions to give under section 36(1) of the Medical Act 1983 in the light of their report and the reasons therefor, which would be given later. The following are the reasons which their Lordships now give for their report.

 

Introduction

2. The case had been referred to the Professional Conduct Committee for inquiry as to the appellant’s conduct on a Notice of Inquiry which set out the factual allegations in a charge which contained a total of thirteen heads. Six of these heads were held to have been proved in the light of the evidence. The allegations which they contained fell into two categories. There were four allegations of sexual misconduct, and there were two allegations of dishonesty. The Chairman summed the matter up in his closing remarks with these words:-

"Dr. Nwabueze, the relationship between doctors and patients depends on trust. The Committee are seriously concerned that you flagrantly abused that trust by forming an improper sexual relationship with Mrs. D who was a particularly vulnerable patient. You also abused your professional position by behaving inappropriately towards one of your practice staff, who was also a patient, and towards another patient.

 

In addition on two occasions you behaved with deliberate dishonesty.

 

Your behaviour fell far short of that expected of a registered medical practitioner.

 

The Committee have judged you to have been guilty of serious professional misconduct in relation to the facts proved against you in the charge and have directed the Registrar to erase your name from the Register."

 

3. Immediately after this decision had been taken the appellant told his legal advisers that he wished to appeal against it. But events then took an unusual course which the Lordships must first relate before they come to deal with the substance of the appeal.

 

The Preliminary Hearing

4. Shortly after the hearing before the Professional Conduct Committee was concluded on 30th April 1999 one of the members of the Committee, Dr. Colman, contacted the chambers of the appellant’s counsel, Mr. David Foskett Q.C., indicating that he had concerns about the way in which the case had been handled by the Committee. Mr. Foskett’s clerks invited Dr. Colman to write about this to the appellant’s solicitor, Mr. Ralph Shipway, which he then did on 4th May 1999. On receipt of his letter Mr. Shipway decided to meet Dr. Colman to find out whether he would be prepared to state his concerns openly with a view to assisting the appellant with an appeal. A meeting took place between them on 11th May 1999. After taking independent legal advice Dr. Colman informed Mr. Shipway on 9th August 1999 that he felt entitled to assist the appellant in this way. Arrangements were made, after consulting the Bar Council, for a meeting to take place between Dr. Colman and the appellant’s counsel and solicitors. Mr. Shipway’s firm informed the General Medical Council on 5th November 1999 that it was proposed to meet Dr. Colman on 8th November 1999 to discuss his concerns. These were understood to relate to what had taken place during the Committee’s deliberations in camera before the decision was announced. The General Medical Council objected to the appellant’s counsel and solicitors entering into discussions with Dr. Colman about what had occurred while the Committee were deliberating in camera. The appellant’s solicitors informed the General Medical Council that their view of the law was contested, so the General Medical Council took steps to obtain an injunction against Dr. Colman. It was decided not to proceed with the meeting until the matter had been resolved by the court.

 

5. On 3rd February 2000 Pumfrey J. ordered that, save as might thereafter be directed by the Privy Council, Dr. Colman was to maintain the confidentiality of, and was not to disclose to anyone, any information concerning what was said or had occurred in the course of the in camera deliberations of any proceedings of the Professional Conduct Committee including that which heard and determined the appellant’s case. The Order provided that that nothing in it was to prevent or prohibit Dr. Colman from disclosing any such matters to the Privy Council and that, while all witness statements made in the application to the court and the court’s judgment and any information contained therein were to be sealed and not disclosed to anyone without the permission of the court, both Dr. Colman and Mr. Shipway were to be at liberty to provide to the Privy Council copies of the witness statements which they had made in those proceedings together with, in Mr. Shipway’s case, the exhibits thereto. A public version of the judgment, with confidential matter excluded, was to be made available as soon as possible.

 

6. Arrangements were then made for the matter to be brought before their Lordships’ Board for a hearing for directions. The appellant’s petition for directions stated that information had been received by his advisers indicating that there may have been bias or an appearance of bias on the part of a member of the Committee and use of evidence other than that received during the proceedings. It was said that it would materially assist in the determination of whether such bias or appearance of bias existed, or the use of evidence other than that received during the proceedings had occurred, if the transcript of the private deliberations of the Committee on his case were disclosed to the appellant. Their Lordships were invited to make an order to that effect.

 

7. A hearing for directions on this matter was held on 9th February 2000. The appellant and the General Medical Council were represented at this hearing, as was Dr. Colman. After hearing counsel their Lordships decided that, except in regard to one matter, insufficient grounds had been made out for outweighing the very strong presumption which exists in favour of preserving the confidentiality of the deliberations of the Professional Conduct Committee when they are considering their decision in camera. They held that the appellant was not entitled to any information as to what took place during those deliberations either by way of interviewing Dr. Colman or by way of seeing a transcript of them or by way of seeing the full judgment of Pumfrey J. of 3rd February 2000. In reaching their decision their Lordships had in mind the following observations which Lord Steyn made when he was delivering the judgment of the Board in Roylance v. General Medical Council (19th January 1999, reported in The Times 27th January 1999) in which an application for disclosure of a transcript of the deliberations of the Professional Conduct Committee in Dr. Roylance’s case was refused:-

"Their Lordships are satisfied that such an order would be inappropriate. It is acknowledged to be an unprecedented attempt to probe into in camera discussions. Counsel submits that the exceptional circumstances of the case warrant such an order. Their Lordships are wholly unpersuaded that this case can be so categorised. If the submission were to be accepted it would seriously inhibit freedom of discussion during in camera sessions. It is ruled out in the present case by public interest immunity attaching to the in camera discussions of the Professional Conduct Committee. Their Lordships are not satisfied that there are any good or sufficient reasons for overriding that immunity."

 

8. The one matter on which their Lordships were of the view that information as to what took place during the in camera deliberations should be made available to the appellant related to an alleged breach of the proviso to rule 4 of the General Medical Council (Legal Assessors) Rules 1980. Their Lordships were satisfied that the appellant was entitled to the basic factual material which he needed to advance the argument that advice which the legal assessor gave to the Committee while they were deliberating in camera was given in breach of this rule. Leading counsel for the General Medical Council, Mr. Englehart Q.C., was invited to read the transcript with a view to seeing whether he could assure the appellant that there was no discussion by the Committee as to whether it would be prejudicial to the discharge of their duties for the legal assessor to have tendered the advice in the presence of the parties which he tendered in the absence of the parties while the Committee was in camera.

 

9. On 14th February 2000 Mr. Englehart wrote to Mr. Foskett to inform him of what he had found on reading the transcript of the deliberations in camera. He said that the advice which the legal assessor tendered during the in camera discussions, which he announced to the parties as soon as the Committee had completed these discussions and resumed the hearing in public, was not tendered in response to any question from the Committee but was proferred by the legal assessor spontaneously of his own motion in the course of the discussions. He also said that there was no discussion within the Committee about whether or nor it would be prejudicial to the discharge of the Committee’s duties for such advice to be tendered in the presence of the parties or their legal representatives.

 

Factual Background

10. Their Lordships can now turn to the main appeal. They propose first to summarise the factual background and the various allegations of conduct amounting to serious professional misconduct which the Committee had to consider in this case.

 

11. The allegations all relate to the period between September 1993 and November 1996 when the appellant was in practice at the Bryntirion Surgery, 35 Meliden Road, Prestatyn, Clwyd. Prior to September 1993 he had been working at the Hope Family Medical Centre, Hawarden Road, Hope, Wrexham, Flintshire. He had been appointed to that practice in August 1992 as a trainee. In May 1993 he began working as a locum at the Bryntirion Surgery. In September 1993 he entered into partnership there with Dr. Anne MacLeod, who was planning to retire in about one year’s time. Dr. MacLeod retired from the practice on 31st October 1994, after which date the appellant occupied the surgery as her tenant under a lease. Among the staff working at the surgery in September 1993 were Mrs. B, who held the position of practice nurse and manager and whose mother was a close friend of Dr. MacLeod, and Mrs. C, who held the position of medical secretary and receptionist. Among the patients registered on the NHS list at the surgery were Mrs. D and the son of Mrs. E.

 

12. The first five heads of the charge in the Notice of Inquiry alleged that the appellant had engaged in improper conduct with Mrs. B, Mrs. C, Mrs. D and Mrs. E. Head 1 alleged that on a number of occasions between early September 1991 and 1st October 1993 he behaved inappropriately by making unsolicited comments to Mrs. B of a sexual nature, stroking her hair and asking her to have sex with him. Head 2 alleged that on or about 16th and 17th September 1993 he behaved inappropriately to Mrs. C by touching her without her consent and making unsolicited comments to her of a sexual nature. Head 3 alleged that Mrs. D was a patient at the surgery between about 1980 and an unknown date in 1995, that during 1994 he was consulted by her on several occasions and prescribed Prozac, that during these consultations he kissed her and touched her and that during 1994 he pursued and formed an emotional and sexual relationship with her and had sexual intercourse with her at his home address. Head 4 alleged that on 26th December 1995 he had sexual intercourse with Mrs. D in his consulting room at the surgery. Head 5 alleged that between about 26th June and late August 1994, when Mrs. E was attending the surgery with her son, he behaved inappropriately to her by kissing her on the forehead without her consent. Heads 6 and 8 – 12 were either departed from or not proved, so it is not necessary to mention them. The two remaining heads contained allegations of dishonesty. In head 7 it was alleged that on 1st April 1995 he signed a form stating that he had accepted Mrs. Margaret Forman as a temporary resident and giving a temporary address for her which he knew to be false as she was staying with him. In head 13 it was alleged that on 28th November 1996 he made arrangements for the removal from the surgery of property belonging to Dr. Anne MacLeod and that he did not have her permission to remove that property.

 

13. In the course of the proceedings, which lasted for five days from 26th to 30th April 1999, the Committee heard evidence from, amongst others, Mrs. B, Mrs. C, Mrs. D, Mrs. E, Dr. Anne MacLeod and the appellant. The legal assessor addressed the Committee in the presence of the parties on several matters before they deliberated on the case in camera. When they had completed their deliberations he informed the parties that during the course of the Committee’s discussions in camera he had given advice to the Committee on two other matters, which he then narrated before the Chairman announced the decision that had been reached by the Committee.

 

14. At the end of the proceedings four out of the five allegations of a sexual nature were held by the Committee to have been proved. These were heads 2, 3, 4 and 5. Head 1 was held not to have been proved. Serious questions had been raised about Mrs. B’s credibility as she was giving evidence. In the course of her cross-examination she denied making a telephone call to the appellant, of which he had made a tape-recording, in which she threatened to leave the surgery unless he agreed to her wishes about her hours and terms of work and asserted that, if she left, the lease of the surgery to him would go too. When the tape-recording was played back to her she at first tried to maintain her denial by saying that she did not think that the voice on the telephone was hers (transcript 1/49). But when it was played back to her again the next day she conceded that the voice was hers and admitted that she remembered the conversation (transcript 2/3). It is reasonable to assume that the Committee rejected head 1 because they suspected that she had a grievance against the appellant and because they had serious doubts about her credibility. At the end of the case for the General Medical Council head 3 was amended by changing the date when Mrs. D was said to have ceased to be a patient at the surgery from an unknown date in 1995 to October or November 1994. At the end of the proceedings the Committee found that this head had been established as so amended. Although this change of date had a significant bearing on the relevancy of head 4, for reasons which their Lordships examine later in this judgment, it was not amended. At the end of the proceedings head 4 was found to have been established. Head 5 was amended at the end of the proceedings by a finding that the appellant had kissed Mrs. E on the head, not on the forehead as had been alleged. The two heads that contained allegations of dishonesty, which were heads 7 and 13, were also held to have been established.

 

The allegation of bias

15. In view of the decision which their Lordships took at the Preliminary Hearing Mr. Foskett did not seek to make anything of the exchange which had taken place between Mr. Shipway and Dr. Colman about the way in which the hearing of the appellant’s case had been conducted by the Committee. But he maintained that there was a real danger or possibility of bias on the part of the lay member of the Committee, Mrs. Eileen Walker, in view of her undisclosed local connections with the practice where the appellant had worked as a trainee, her undisclosed office with a statutory body concerned with nursing, midwifery and health visiting in Wales and the manner of her questioning of the appellant when questions were being put to him by members of the Committee at the end of his evidence.

 

16. The Senior Partner of the Hope Family Medical Centre in Wrexham where the appellant worked as a trainee from 1st August 1992 to September 1993 is Dr. Barry Graham. Their Lordships were shown a statement by Dr. Graham in which he said that three nurses work at the practice, that both the Community Midwife and the Health Visitor for the practice throughout the relevant period were employed by the Clywd Health Authority, that about 90-95% of the practice’s ante-natal cases are referred to Maelor Hospital where one of the three labour wards is Simpson Ward and that an area of Wrexham known as the Summerhill Estate falls within the practice boundary. Basing his argument on this information and on the fact that Mrs. Walker had been for a number of years a member of the United Kingdom Central Council for Nursing and chairman of the Welsh National Board for Nursing, Midwifery and Health Visiting, Mr. Foskett said that there were reasonable grounds for believing that she knew that the case had its origins in the health care service of Wrexham with which she also had local connections as she had worked as a midwife at the Maelor Hospital since 1997. As she was a resident on the Summerhill Estate at the time of the hearing, she was living in or close to the area from which the Hope practice drew its patients. Furthermore it was possible that she had trained some of the nurses who were working there. As soon as it became plain that the case had connections with the Hope practice she should have disclosed these connections, as they raised a doubt as to whether it was proper for her to sit on the case.

 

17. At the conclusion of the appellant’s evidence he was questioned by members of the Committee including Mrs. Walker. Among the questions which Mrs. Walker put to him were questions about Mrs. Margaret Forman, who was mentioned in head 7 as the person for whom he gave an address which he knew to be false as she was living with him. She asked the appellant whether he had met Mrs. Foreman at the practice where he had been working with Dr. Graham as a trainee. She also asked him a series of questions about passages in letters and cards which he had received from Mrs. D. Mr. Foskett said that when Mrs. Walker put these questions to him she adopted the role of the cross-examiner. She was seeking to undermine his case and to support the case which was being advanced for the Council. The questions were not appropriate for a member of the Committee to put. The fact that she put them should be weighed in the balance together with her association with the area of the Hope practice as indicating that there was a real possibility or danger of bias in her case.

18. The law relating to the disqualification of a judicial decision-maker on the grounds of bias was subjected to a full and careful examination by the Court of Appeal, Civil Division in Locabail (UK) Ltd. v. Bayfield Properties Ltd. [2000] 1 All ER 65. The membership of the court, which consisted of Lord Bingham of Cornhill C.J., Lord Woolf M.R. and Sir Richard Scott V.C., was specially constituted in the light of concerns arising from the decision of the House of Lords in Reg. v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272. At p. 73C-D of the court’s judgment Lord Bingham of Cornhill C.J. said that in practice the most effective protection of the fundamental right to an impartial judge is afforded by a rule which provides for the disqualification of a judge, and the setting aside of the decision, if on examination of all the relevant circumstances the court concludes that there was a real danger or possibility of bias.

 

19. As the Lord Chief Justice pointed out in Locabail at p. 73d-g, there was until 1993 some divergence in the English authorities as to the terms in which the test should be expressed. On the one hand there was the reasonable suspicion or apprehension of bias test (see, for example, Eve J. in Law v. Chartered Institute of Patent Agents [1919] 2 Ch. 276, 290) which has found favour in Scotland, Australia and South Africa and may be more closely in harmony with the jurisprudence of the European Court of Human Rights. On the other there is the real danger or likelihood of bias test (see, for example, Vaughan Williams L.J. in Rex. v. Sunderland Justices [1901] 2 KB 357, 371) which Lord Goff of Chieveley adopted in Reg. v. Gough [1993] AC 646, 670 and which has been followed in a number of English cases and Privy Council appeals applying English law.

 

20. As the jurisdiction of the Professional Conduct Committee of the General Medical Council extends to the whole of the United Kingdom, and appeals under the Medical Act 1983 may come to the Privy Council from Scotland as well as from England, Wales and Northern Ireland, the fact that a different test is used in Scotland from that which is used in England might have given rise to difficulty, had it not been for the fact that one can feel confident, as the Lord Chief Justice observed in Locabail at p. 74h, that in the overwhelming majority of cases the application of the two tests will lead to the same outcome. For present purposes therefore their Lordships propose to apply the test which was expressed by Lord Goff in Reg. v. Gough in these words at p. 670E-F:-

"… for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of the party to the issue under consideration by him …"

 

21. In the light of this guidance the test to be applied in English law is best expressed by adopting the composite phrase "danger or possibility of bias". The word "danger" on its own, if taken out of context, might be taken to suggest that a relatively high standard had to be met. But Lord Goff made it clear that in choosing this word he was thinking in terms of possibility, not probability.

 

22. One of the guidelines which was approved in Locabail at p. 75c-e was that the danger or possibility of bias will be eliminated if it is shown that the judicial decision-maker was unaware of the matter relied upon as appearing to undermine his impartiality. It was recognised that, in applying the real danger or possibility of bias test, it would often be appropriate to inquire whether the judge knew of the matter in question, and that to that end a reviewing court might receive a written statement from the judicial decision-maker specifying what he knew. With this in view the Council obtained, and then produced without objection, a statement from Mrs. Walker which discloses a number of important facts relevant to the question which has been raised about her impartiality.

 

23. In her statement Mrs. Walker explains that she has been a lay member of the Professional Conduct Committee since 1st November 1996 and that she is nominated for Wales. She is fully qualified in nursing and midwifery, and she worked for 33 years in that capacity until she retired in 1996. She was a member of the professional body, the United Kingdom Central Council for Nursing, for 10 years during which time she served on their professional conduct committee. For five of those years she chaired hearings of that committee as deputy chairman. From 1990 to 1993 she also chaired the Welsh National Board for Nursing, Midwifery and Health Visiting, which is an independent statutory body but is nevertheless part of the statutory framework of the UKCC. Her home town is Wrexham, but she left the town in 1983 and did not return until July 1996 when she retired. During this period she lived in various places in Wales. She now lives in Summerhill Road in Wrexham. Between April 1991 and August 1996 she was the Director of the South East Wales Institute of Nursing and Midwifery Education in Cardiff, which is 160 miles from Wrexham. From August 1996 to September 1999 she was retired and not working. In September 1999 she commenced a "return to midwifery" course at the Mealor Hospital and as part of the course worked on the Simpson Ward of the hospital.

 

24. From this summary it can be seen that Mrs. Walker was and is eminently well qualified to sit on the Professional Conduct Committee as one of its lay members. She brought to that membership an extensive knowledge of the Health Service in Wales, as a result of having worked there for many years as a nurse and midwife and her period of service as Director of the South East Wales Institute. It is in the public interest that those who serve as lay members on disciplinary bodies of this kind should be well-informed and have experience of working in the area within which cases are likely to arise on which they may be called upon to adjudicate. It could not possibly be suggested that there was anything in Mrs. Walker’s general background that would be likely to give rise to the danger or possibility of bias on her part when she was considering a case from Wales.

 

25. Mr. Foskett’s main criticism of Mrs. Walker was directed to her connections with Wrexham and especially with the Mealor Hospital. He invited their Lordships to infer that she must have known Dr. Graham and have had some awareness of what was going on in his surgery during the appellant’s time there during 1992 to 1993 as a trainee. But this criticism is conclusively answered by Mrs. Walker’s statement that she did not and does not know Dr. Graham or anyone working at his practice. She states that the only occasion prior to the commencement of the hearing of this case that she had ever heard of the appellant was when she was telephoned by the General Medical Council about her availability to sit. She was told that the case involved Dr. Nwabueze of Prestatyn and was asked, as she was now living in Wrexham, whether she knew of him or anything about him to which she replied, as she says was the truth, in the negative. She accepts that it is just possible that prior to 1983, when she left Wrexham, she was involved in training the nurses who work in Dr. Graham’s practice, but she says that their names mean nothing to her. Their Lordships are not bound to accept all that she says in her statement, but Mr. Foskett was unable to advance any reason why they should not do so. For their part, their Lordships are entirely satisfied that all that she says should be accepted and that any foundation for the allegation of the danger or possibility of bias on her part due to an association with Dr. Graham’s surgery or knowledge of what may have happened there during the appellant’s time there as a trainee has now been removed.

 

26. Furthermore their Lordships can find nothing in either the manner of Mrs. Walker’s questioning of the appellant or its subject matter which might suggest to a reasonable observer that it was possible that she was biased against him. It is plain from her questions that she had been taking a close interest in the case and that she had been studying the documentary evidence which had been mentioned by the appellant in the course of his evidence. Points had occurred to her which might have told against him if they were not clarified. The questions which she put were well within the bounds of legitimate questioning by a member of the Committee on matters which were relevant to the case. There was nothing in any of the questions which she put to suggest that she was drawing on any extrinsic material or private knowledge of the appellant or his circumstances which might given rise to a bias against him on her part.

 

27. For these reasons their Lordships had no hesitation in rejecting the allegation of bias which has been made against Mrs. Walker.

 

The legal advice given in camera

28. Paragraph 7(1) of Schedule 4 to the Medical Act 1983 provides that for the purpose of advising, amongst others, the Professional Conduct Committee on questions of law arising in proceedings before them there shall in all such proceedings be an assessor to the Committee who shall be appointed by the General Council and be a barrister, advocate or solicitor of not less than ten years’ standing. Paragraph 7(3) of the Schedule provides that the Lord Chancellor or, in relation to proceedings in Scotland, the Lord Advocate may make rules as to the functions of assessors appointed under that paragraph. Paragraph 7(4) of the Schedule provides that the rules made under that paragraph may contain such provisions as appear to the Lord Chancellor or the Lord Advocate expedient for securing, among other things, that where an assessor advises the Committee on any question of law he shall do so in the presence of every party or, if the advice is tendered after the Committee have begun to deliberate as to their findings, that every party shall be informed what advice the assessor has tendered.

 

29. The relevant rules are the General Medical Council (Legal Assessors) Rules 1980. Rules 2 to 4 of these Rules provide as follows:-

"2. It shall be the duty of the legal assessor to be present at all proceedings before the Committee and to advise on any questions of law arising which may be referred to him by the Committee.

 

3. It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that, but for such advice, there is a possibility of a mistake of law being made.

 

4. In proceedings before the Professional Conduct Committee or the Health Committee, the advice of the legal assessor shall be tendered to the Committee in the presence of every party, or person representing a party, attending the proceedings before that Committee:

 

Provided that in any case where the advice is tendered after the Committee have begun to deliberate as to their findings and the Committee consider that it would be prejudicial to the discharge of their duties for the advice to be tendered in the presence of the parties or their representatives, it may be tendered in their absence but the legal assessor shall, as soon as possible, personally inform them of the question which has been put to him by the Committee and of his advice, and the information so given by him shall be recorded and a copy of the record shall be given to every such party or representative."

 

30. In accordance with normal practice the legal assessor made a short statement, in the presence of the parties and before the Committee deliberated, in which he tendered his advice to the Committee on a number of matters of law which were relevant to the case. In the course of this statement he dealt with (1) the burden and standard of proof, (2) how to deal with evidence about complaints which the principal witnesses had made to third parties about the appellant’s conduct, (3) the fact that statements contained in the letters to the appellant by Mrs. D were not evidence of the truth of the contents, (4) the circumstances in which the Committee would be entitled in regard to some of the heads of charge to depart from the rule that each head of charge had to be considered separately, (5) the fact that the parties were agreed that the heads relating to Mrs. D and Mrs. E were to be considered separately from the other heads of charge, (6) a warning that the truthfulness of Mrs. B’s evidence had to be looked at very carefully in view of her alleged grievance against the appellant and what she had said about the conversation which had been tape-recorded and (7) advice that the approach which the Committee should take to head 13 of the charge was to ask themselves whether the appellant knew that the items belonged to Dr. Macleod and that he did not have her permission to remove them. Their Lordships will have to return to the contents of some parts of this statement at a later stage in this judgment.

 

31. The Committee then deliberated in camera and the legal assessor was present with them during their deliberations. This was in accordance with rule 48(3) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, which provides that the Committee may deliberate in camera (with or without the legal assessor) at any time and for any purpose during or after the hearing of any proceedings. When their deliberations were over and the parties had been re-admitted the Chairman said:-

"Just before I make any announcements, the Legal Assessor has something to say."

 

32. The legal assessor then made a brief statement in which he said that during the course of the Committee’s discussions in camera two matters had arisen, one in regard to head 4 and the other in regard to head 13, on which he had given advice to the Committee. In regard to head 4 Mrs. D’s evidence was that on 26th December 1995 she and the appellant had had sexual intercourse in his consulting room at the surgery. The appellant’s evidence was that he left the surgery shortly after 12 o’clock that day and did not return during the time when Mrs. D alleged they had sexual intercourse there. The legal assessor said that he had advised the Committee that it was for the Council to prove that he was at the surgery at the material time, not for him to prove that he was not there. In regard to head 13, which concerned the removal of property from the surgery, he said that he had advised the Committee that what they had to consider was the appellant’s state of mind including his knowledge and belief, not to judge the issue by what a reasonable man would have known or believed in the same circumstances. As soon as the legal assessor had completed his statement, and without offering the parties an opportunity to comment on the advice which had been given, the Chairman proceeded to announce the determination of the Committee which their Lordships have quoted at the beginning of this judgment.

 

33. Mr. Foskett’s argument about the legal advice given in camera was in two parts. The first related to the procedural aspects of what was done, which he said was in breach of rule 4 of the Legal Assessors Rules. The second related to the advice which the legal assessor gave with regard to each of these two heads of charge.

 

34. In regard to the procedural aspects, Mr. Foskett accepted Mr. Englehart’s assurance after reading the transcript of the deliberations in camera that the legal assessor’s advice on these two points was not tendered in response to any question from the Committee but was proferred by him spontaneously of his own motion in the course of the discussions. But he maintained that there was a breach of the proviso to rule 4 because there had been no discussion within the Committee about whether or not it would be prejudicial to the discharge of their duties for the advice to be tendered in the presence of the parties or their representatives. He said that it involved a denial of the right to address the Committee which was a breach of the rules of natural justice and an infringement of the right under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) to a fair hearing. He submitted that for these reasons the Committee’s determination in regard to heads 4 and 13 should be set aside and that their determination in regard to head 3 should be set aside also as it too related to conduct with Mrs. D and was closely related to head 4.

 

35. Their Lordships were not persuaded that there was a breach of the proviso to rule 4 of the Legal Assessors Rules. As the advice was given by the legal assessor of his own motion and not in response to a question from the Committee, what occurred in this case fits more easily into the provisions of rule 3 rather than those of rule 4 and its proviso. Rule 3 enables the legal assessor to advise the Committee forthwith where it appears that, but for that advice, there is a possibility of a mistake of law being made. The Procedure Rules enable the legal assessor to retire with the Committee so that he can offer this guidance during their deliberations when it is required. It is to be noted that the Professional Conduct Committee is responsible for deciding on the law as well as the facts. Lord Radcliffe explained the position in Fox v. General Medical Council [1960] 1 WLR 1017, 1021 in words which, although he was dealing with the Disciplinary Committee of the General Medical Council under the Medical Act 1956, can be applied equally well to this case:-

"There is no judge to conduct the proceedings, to direct the jury on matters of law or to sum up for them on issues of fact. Although the Disciplinary Committee has the assistance of a legal assessor at its hearing, as required by the Act, it is the President of the court and not he who is in charge of the proceedings, and his duties are confined to advising on questions of law referred to him, and to interventions for the purpose either of informing the committee of any irregularity in the conduct of their proceedings which comes to his knowledge, or of advising them when it appears to him that, but for such advice, there is a possibility of a mistake of law being made."

 

36. The proviso to rule 4, which requires the Committee to consider whether it would be prejudicial to the discharge of their duties for the advice to be tendered in the presence of the parties, assumes that the Committee are aware of the matter with regard to which that advice is to be tendered. One of its requirements is that the legal assessor shall inform the parties as soon as possible of the question which has been put to him. But where the legal assessor gives advice on his own motion under rule 3, to which the proviso does not apply, the position is different. His advice is not given in response to a question put to him by the Committee, which may not have any knowledge of the matter with which the advice is to be tendered until they receive that advice. The information which Mr. Englehart has provided after reading the transcript indicates that the legal assessor was acting within the discretion which was given to him by rule 3 and that there was no breach of the proviso to rule 4. The fact that rule 3 is not qualified by a similar but appropriately worded proviso is unfortunate in view of the indication in paragraph 7(4) of Schedule 4 to the Medical Act 1983 that rules made under that paragraph should secure that, if advice is tendered after the Committee have begun their deliberations, the parties shall be informed what advice the assessor has tendered. But it is normal practice for this to be done, and that practice was followed in this case.

 

37. That having been said, their Lordships consider that the principle which lies behind the requirement that the parties should be informed of the assessor’s advice to the Committee is that of fairness, and that fairness requires that the parties should be afforded an opportunity to comment on that advice and that the Committee should have an opportunity to consider their comments before announcing their determination. The transcript of the proceedings indicates that the Chairman regarded the legal assessor’s statement about the legal advice which he had tendered to the Committee while they were deliberating in camera as a mere formality, as the Committee had already arrived at their determination which he was about to announce. This was a misconception, as the reason why the legal assessor’s advice to the Committee must be given or made known to the parties afterwards in public is so that the parties may have an opportunity of correcting it or of asking for it to be supplemented as the circumstances may require. In this respect the requirements of the common law would appear to be at one with those of article 6 of the Convention, by which the Professional Conduct Committee will be bound when the Human Rights Act 1998 comes into force. Mr. Foskett said that in his experience it was not the practice for the parties to be invited to comment on the advice which the legal assessor gave to the Committee and that his impression was that any attempt to offer comments or criticisms of that advice was likely to be unwelcome. If that is so, consideration should now be given to altering the practice so that, in the interests of fairness, the parties are made aware of the fact that they are entitled to comment on or to criticise the advice which has been given by the legal assessor at any stage in the proceedings so that he may consider, in the presence of the parties, whether his advice to the Committee should be changed.

 

38. The question whether there is any substance in this part of Mr. Foskett’s argument must however depend on whether there were any material defects in the advice which the legal assessor gave to the Committee which could properly have been made the subject of comment or criticism. This matter must be considered against the background of the advice which the legal assessor had already given to the Committee in the presence of the parties before they proceeded to deliberate in camera.

 

39. In the course of that advice the legal assessor told the Committee that the burden of proving any disputed fact rested throughout on the Council and that the appellant did not have to prove anything. The advice which he gave to them on head 4 while they were deliberating in camera was an application of the advice which he had previously given to the particular facts of that charge. The advice which he gave to them on head 13 was no more than a repetition of the advice which he had previously given in the presence of the parties in relation to that head of charge. Mr. Foskett said that the advice as to head 4 was defective because the words used by the legal assessor might have been taken to indicate that, when they were examining the question whether the Council had proved that the appellant was in the surgery at the time when Mrs. D said they had intercourse there, the Committee were entitled to take into account the evidence on the other heads of charge as well as that relating to head 4 and that they would be entitled to find that head of charge proved merely by rejecting the appellant’s evidence. His complaint about the advice given in regard to head 13 was that the legal assessor did not make it clear that the appellant’s case was that he honestly believed that he was entitled to remove the items from the surgery.

 

40. Their Lordships were unable to find any points of substance in these criticisms or to detect any material defect in the advice regarding either head of charge which it would be reasonable to expect the assessor to have corrected if they had been drawn to his attention after he had made his statement. This ground of appeal also must be rejected.

 

The relevance of Head 4

41. Head 4 of the charge alleged that on 26th December 1995 the appellant had sexual intercourse with Mrs. D in his consulting room at the surgery. Conspicuous by its absence was any mention in this head of the reasons why this was being alleged against the appellant as an act of serious professional misconduct. Some explanation was needed because the narrative in that head of charge, which said nothing about any doctor-patient relationship at the time of the alleged act of intercourse, was equally consistent with its having nothing whatever to do with the appellant’s conduct of his profession as a medical practitioner.

 

In McCoan v. General Medical Council [1964] 1 WLR 1107, 1112 Lord Upjohn said that one of the most fundamental duties of a medical adviser, recognised for as long as the profession has been in existence, is that a doctor must never permit his professional relationship with a patient to deteriorate into an association which would be described by responsible medical opinion as improper, and that sexual intercourse with a patient has always been regarded as a most serious breach of the proper relationship between doctor and patient. In Bhattacharya v. General Medical Council [1967] 2 AC 259 the Board rejected the argument that the Committee were wrong in principle to find the appellant guilty of infamous conduct in a professional respect where he contended that the intimate relationship began before the woman became his patient. Lord Hodson said at p. 267 that the tendency of conduct to debase or degrade the standing and reputation of the profession will vary from case to case, that there may be cases when the maintenance of a long-standing, pre-existing association can be regarded as much less serious than those when the professional relationship has deteriorated into an improper association, but that this was not to exclude the former from the category of those cases which could be made the subject of disciplinary action. But in each of these cases the improper relationship continued after the professional relationship had been established, and it was this fact that formed the basis of the allegation of professional misconduct.

 

42. At the outset of the hearing the context for this head of charge was provided by head 3 which alleged that Mrs. D was a patient registered on the NHS list of the surgery between 1980 and an unknown date in 1995. It could be said, following the guidance in Reza v. General Medical Council [1991] 2 A.C. 182, that heads 3 and 4 taken together related to a course of conduct of an improper kind which the appellant had engaged in with Mrs. D during the time while she was a patient at the surgery, and that the whole course of conduct including that which was alleged to have occurred on 26th December 1995 was in breach of the requirements of the professional relationship. The determination which the Chairman announced at the end of the proceedings indicates that the Committee approached these two charges in this way. But the critical words which laid the basis for this approach were removed when head 3 of the charge was amended at the end of the Council’s case by changing the date when Mrs. D was said to have ceased to be a patient at the surgery from an unknown date in 1995 to October or November 1994. This amendment was in keeping with the evidence, which showed that the professional relationship was at an end as Mrs. D had ceased to be registered as a patient at the surgery more than a year before 26th December 1995 when the alleged act of intercourse took place.

 

43. Mr. Foskett did not ask for head 4 of the charge to be deleted from the Notice of Inquiry when head 3 was amended in this way. His position at the hearing before the Committee was that he was content for this head of charge to be considered in the light of the appellant’s evidence. He said that his understanding of the position was, in view of what was said in Reza, that it would not have been open to the Committee to have deleted head 4 at that stage as all the heads of charge were properly before them as a narrative of a course of conduct. Their Lordships consider that to be a misunderstanding of the position, having regard to rule 24(2) and (4) of the Procedure Rules. Under those rules the practitioner is entitled to submit any objection on grounds of law to any charge or part of a charge, and the Committee is entitled at any stage of the inquiry to make such amendments to the charge as appear necessary or desirable. A charge or part of a charge which contains an allegation which has no bearing on the practitioner’s conduct as a medical practitioner is irrelevant to a charge that he is guilty of serious professional misconduct. As such it is objectionable on grounds of law, and it should be deleted from the Notice of Inquiry.

 

44. Their Lordships do not wish to be taken as suggesting that the conduct which was alleged in head 4 could not under any circumstances have a bearing on a practitioner’s conduct as a medical practitioner. But what was lacking in this case, once head 3 had been amended in the light of the evidence that Mrs. D had ceased to be a patient more than a year previously, was any explanation to show that there were any circumstances which would have entitled the Committee to hold that this alleged act of intercourse was improper from the professional point of view and thus relevant to the charge of serious professional misconduct. The Committee were not invited by the Council to address their minds to the question whether there were any such circumstances, and the Committee’s determination shows that they did not examine the matter separately from the conduct which was alleged in head 3.

 

45. Their Lordships were of the opinion that in these circumstances the Council did not have a sufficient basis for a finding that the appellant was guilty of serious professional misconduct in relation to the act of intercourse narrated in head 4, and that the Committee’s finding in regard to that head of charge should be quashed.

 

Further criticisms of the advice by the legal assessor

46. In the course of the statement which the legal assessor made on matters of law before the Committee deliberated he advised them that the truthfulness of Mrs. B’s evidence had to be looked at very carefully. He did not give them any such advice in regard to the evidence of either Mrs. C or Mrs. D. Mr. Foskett accepted that there is now no mandatory obligation for a corroboration warning to be given in relation to allegations concerning sexual misconduct in sexual cases: section 32(1) of the Criminal Justice and Public Order Act 1994. But he submitted that the legal assessor ought to have warned the Committee to exercise caution when they were examining the evidence of Mrs. C and Mrs. D. The fact that he had done so in regard to Mrs. B tended to suggest that there was no similar need for caution in the case of the other two witnesses. This was unsatisfactory, as both of these witnesses had shown themselves to be potentially unreliable. This was always a significant factor for a judge to consider in the exercise of his discretion when deciding whether to urge the jury to exercise caution before acting on a witness’s unsupported evidence: Reg. v. Makanjuola [1995] 1 W.L.R. 1348, 1351 per Lord Taylor of Gosforth C.J.

 

47. Mr. Foskett pointed out that he had made the point in the course of his submissions that the Committee should only accept Mrs. B’s evidence if there was cogent independent evidence to support it and that the same applied to Mrs. D (transcript 5/34C). Although he did not specifically ask for a similar warning to be given in Mrs. C’s case, he had submitted that Mrs. C’s evidence had perhaps been prompted by some direct or indirect encouragement by or on behalf of Mrs. B (transcript 5/44B). The legal assessor had therefore been given notice of these points before he made his statement. He ought not to have omitted to mention them, especially in view of the robust warning which he had given in relation to Mrs. B.

 

48. The question to which their Lordships had regard in considering these criticisms was whether they could fairly be thought to have been of sufficient significance to the result to invalidate the decision of the Committee: Fox v. General Medical Council [1960] 1 WLR 1017, 1023 per Lord Radcliffe; Sivarajah v. General Medical Council [1964] 1 WLR 112, 116-117 per Lord Guest. They were satisfied that there was no substance in the criticism relating to the absence of a warning about Mrs. C’s evidence. There were no special features in her case which required to be drawn to the Committee’s attention, and they were well able to assess her credibility in the light of the points which Mr. Foskett made in his submissions about her evidence without any direction by the legal assessor as to how they should approach this task. Their Lordships also had regard to the fact Mr. Foskett did not ask for a direction in her case.

 

49. The absence of a warning in the case of Mrs. D raised a more substantial issue, as Mr. Foskett did ask for the same warning to be given in her case as in the case of Mrs. B. There was also an acute conflict between the appellant and Mrs. D as to whether he was in the surgery on 26th December 1995 at the time when, according to Mrs. D, they had sexual intercourse in his consulting room. Her credibility as against his lay at the heart of this dispute, and it was likely to have an important bearing on the view which the Committee would take of his evidence generally. On the other hand, as Miss Sullivan for the Council pointed out, Mrs. D’s evidence was in a quite different category from that of Mrs. B. Mrs. B’s evidence was clearly under suspicion in view of the position which she adopted in regard to the telephone conversation which had been tape-recorded. She had been shown to have been lying, while the most that could be said by way of criticism of Mrs. D was that her evidence contained inconsistencies. She also had a quite different relationship with the appellant from Mrs. D, as she was an employee not a patient or a friend with whom he was in continuous contact.

 

50. The question whether or not a warning should be given in the case of Mrs. D was for the legal assessor to consider in the exercise of his discretion. Mr. Foskett said that it would be wrong to assume that he had exercised his discretion when he gave no warning in her case, but their Lordships were unable to take this view. There were substantial grounds for distinguishing her case from that of Mrs. B, and the legal assessor could quite properly have considered in the exercise of his discretion that a warning was appropriate only in the case of Mrs. B in view of the impression given that she had a grievance against the appellant and her lack of veracity as to the telephone conversation. Neither of these points applied to Mrs. D. In these circumstances their Lordships considered that he could not be said to have exercised his discretion unreasonably. In any event the question whether the omission of a warning in regard to Mrs. D could fairly be thought to have been of sufficient significance to invalidate the decision must be judged in the context of the case as a whole and having regard to the experience which a Professional Conduct Committee can be expected to bear when examining issues of this kind in their assessment of the evidence. Their Lordships were not persuaded that there was sufficient force in this criticism for the decision of the Committee on the heads of charge relating to Mrs. D to be invalidated.

 

Inconsistency in the Committee’s findings

51. Mr. Foskett’s final point was that there was such a lack of consistency between the findings by the Committee to reject the allegation in head 1 of the charge and to find proved the very similar allegation in head 2 (touching without consent and making comments of a sexual nature to a female employee in the surgery) as to raise doubts as to whether the Committee fully appreciated the approach which they ought to take to the evaluation of the evidence. He made the same point with regard to their decision to reject the allegation in head 8 that the appellant had behaved with gross insensitivity to a woman and her son in the waiting room of the surgery. Both the woman and Mrs. B had given similar accounts of the incident. If they had decided to reject the allegation simply because Mrs. B had supported it and in view of the warning which they had been given about her evidence, this was a perverse decision which cast further doubt on their approach. He said that these points had to be examined very carefully, in view of the fact that a Professional Conduct Committee is not obliged to give reasons for its decision (unlike a Health Committee which must now do so: Stefan v. General Medical Council [1999] 1 WLR 1293) and the Committee in this case had not given reasons.

 

In Libman v. General Medical Council [1972] AC 217, 221A-B Lord Hailsham of St. Marylebone L.C. said that the only circumstances in which an appellate court can reverse a view of the facts taken by the Disciplinary Committee would be where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them. Mr. Foskett’s argument on this point fails to satisfy this test. The issues which the Committee had to decide when they were considering whether to reject or to sustain the allegations referred to were essentially issues of credibility. Their Lordships are quite unable to say that the Committee, who heard the evidence and saw the witnesses, were not entitled to reject head 1 of the charge while sustaining the very similar allegation in head 2 and that they were not entitled to reject the allegation in head 8 even although it was spoken to by two independent witnesses.

 

Conclusion

52. In the result their Lordships were of the opinion that, while the Committee’s decision to uphold the allegation in head 4 should be set aside, there were no grounds for interfering with the Committee’s decision in regard to the remaining heads of charge which they held were established by the evidence or their finding that in regard to those heads of charge the appellant was guilty of serious professional misconduct. But the allegation in head 4 clearly had a significant bearing on the question whether, looking at his conduct as whole, a direction should be given for the appellant’s name to be erased from the Register. The question whether the setting aside of their decision in regard to that head of charge makes a sufficiently significant difference to the assessment of his conduct for it to be regarded as not measuring up to the standard required for the imposition of that penalty is a matter which is essentially one for the Professional Conduct Committee. It was accordingly not one on which, in a difficult case, their Lordships were willing to pass judgment.

 

53. For these reasons they decided that the appropriate course for them to take was humbly to advise Her Majesty that the Committee’s direction that the appellant’s name be erased from the Register ought to be quashed and a direction made that this matter be reconsidered by the Professional Conduct Committee. In view of the events following Dr. Colman’s expression of his concerns about the way in which the case had been dealt with by the Committee of which he was a member, the Committee appointed to reconsider this matter should be differently constituted. There will be no order as to costs.