Gosai v. General Medical Council  (GMC) [2003] UKPC 31 (10 April 2003)
ADVANCE COPY

	Privy Council Appeal No. 20 of 2002

Dr. Pratap Mhadavgar Gosai	Appellant
	v.
The General Medical Council	Respondent

	FROM

	THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
	---------------

	REASONS FOR REPORT OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE
21st January 2003, Delivered the 10th April 2003
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	Present at the hearing:-
			Lord Hoffmann
			Lord Walker of Gestingthorpe
			Sir Philip Otton
[Delivered by Sir Philip Otton]
	------------------

1. 	At the conclusion of the hearing on 21st January 2003 their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed and that they would give their reasons later. This they now do.

2. 	The appellant, Pratap Mhadavgar Gosai, appeals from a direction of the Professional Conduct Committee (“PCC”) of the General Medical Council on 11 January 2002 that his right to make further applications for restoration of his name to the register be suspended indefinitely.

3. 	The appellant’s name was erased from the register on 31 October 1997, in consequence of a direction by the PCC in May 1997.  The charge which was found proved was as follows:
“1.	At the material time you were responsible for the general medical care of Maria Ayling of 570 Goresbrook Road, Dagenham, Essex.

2.	On 24 December 1994,
a.	You visited Maria Ayling;
b.	Maria had a swollen lower left leg, pain in the left knee and impaired mobility; 
c.	You did not take adequate steps to assess her condition and treatment needs; 
d.	You did not record any examination of Maria in her medical notes.

3.	a.	On 3 January 1995, Mr Eric Ayling consulted you and informed you that Maria Ayling’s symptoms were persisting;
b.	On 9 January 1995 you were informed that Mr Ayling had again visited the surgery expressing concerns about Maria’s condition.

4.	a.	Between 24 December 1994 and 9 January 1995 you received information which should have indicated to you that Maria Ayling required urgent investigation to establish the cause of her condition;
	b.	You took no, or no adequate, steps to arrange such investigation.	

5.	a.	In your evidence submitted to the inquest into Maria Ayling’s death you stated that,
		i)	Maria had walked into the room where you examined her on 24 December 1994
	ii)	Her knee had not been swollen on that occasion.
		b.	Neither statement was true.

And that in relation to the facts alleged you have been guilty of serious professional misconduct.”

4. 	The appellant first applied for restoration of his name to the register on 11 March 1999.  The application was refused.
5. 	The application in January 2002 was his second application. At the conclusion of the proceedings the Chairman announced the determination of the Committee that it would not be in the public interest to restore his name to the Register and rejected the application.

6. 	The Chairman then invited submissions from counsel as to the exercise of their powers to direct that the appellant’s right to make any further such applications should be suspended indefinitely.

7. 	The Chairman announced the decision of the Committee to impose a direction to suspend the appellant’s right to make further applications for restoration.

8. 	The circumstances in which the appellant’s name was erased from the Register arose out of his treatment of Maria Ayling who was then 20 years of age.  She had been diagnosed at King George’s Hospital in Ilford as suffering from an orthopaedic problem to her right knee and her name was on the waiting list for an arthroscopy.  The patient developed increasing pain in her left knee.  Her father took her to the appellant’s surgery in November 1994.  The doctor examined her and prescribed Ibuprofen.  The patient’s condition worsened such that she had stopped working and could not place any weight on her left leg.  On Christmas Eve the father asked the appellant to visit his daughter at home.  The appellant arrived, spent some short interval with the young woman and told her father he suspected a ligament problem for which he prescribed a gel.  At the time of that visit her knee was noticeably very swollen which would have been revealed had there been an examination.

9. 	The appellant’s evidence to the PCC was that Maria had walked into the room with a normal gait and that he had examined her knee and found no swelling.  The Committee must have disbelieved his evidence.

10. 	The patient’s condition deteriorated.  Her father went to see the appellant on 3 January 1995 with the intention of admission to hospital.  The appellant tried unsuccessfully to expedite the appointment for the arthroscopy and suggested that the father contact the hospital himself.  

11. 	On 6 January the father saw the appellant again and explained that the pain and swelling had spread.  The appellant did not suggest any further investigation of Maria’s condition.  

12. 	On 24 January Maria collapsed in the bathroom.  She died in hospital from a massive pulmonary embolism caused by a deep vein thrombosis in the left leg.

13. 	Of critical importance to the outcome of this appeal is the fact that the appellant submitted evidence in writing to the Coroner which he repeated subsequently at the Inquest to the effect that the patient had walked into the room when he examined her on Christmas Eve and that her knee had not been swollen on that occasion.  The Committee found these statements to be untrue.

14. 	When the appellant first applied for restoration in 1999 the appellant gave evidence that at the time he did not consider he had been dishonest although he agreed his examination had been inadequate.  On the occasion of the second application in January 2002 the appellant again gave evidence at the conclusion of which he was asked a critical question by a member of the Committee:
“DR LODGE:  Could you help us understand how it came about that your account of what happened when you saw Maria on 24 December 1996 differed from that of her family, particularly in relation to the assertions you made that Maria walked into the room and that there was no swelling?

A.		Yes.  Still I remember now.  When I went to visit Miss Ayling at that time she walked into the room, and she told me that she had a bath.  I assumed that the bathroom was upstairs, so what I did, in the statement saying that she walked downstairs, but the bathroom was on the ground.  When I examined, there was no swelling of the left knee.”

At the conclusion of all the evidence and submissions the Chairman announced the determination of the Committee in the following terms:
“Dr Gosai, your name was erased from the Register in May 1997, following a finding that you were incompetent in your dealings with your patient Miss Maria Ayling and had been untruthful in your subsequent involvement in the inquest following her death.

The Committee today has considered your second application for restoration.  The previous application was considered in April 1999.  On that occasion the Committee stated that it was not satisfied you had demonstrated that you had the knowledge, skills and attitudes required for medical practice.  The Committee has noted the significant steps you have taken since 1999 to prepare yourself for a possible return to practice. 

It has taken account of the efforts you have made to improve your clinical skills.  The Committee have been impressed with substantive improvements identified in your clinical knowledge and the plan you have developed for reorientation in modern clinical practice.  However, the Committee is not satisfied that you have displayed sufficient insight into the conduct which gave rise to your appearance before the Professional Conduct Committee in 1997.  Even now you do not appear to have fully grasped the gravity of your behaviour and the extent to which your conduct fell short of your professional and ethical obligations.  We are concerned that you do not recognise the degree of trust and openness that the public is entitled to expect of doctors. These concerns today lead the Committee to doubt your suitability for medical practice.  Accordingly the Committee have determined that it would not be in the public interest to restore your name to Register and it has rejected your application.”

15. 	The Chairman then invited submissions from both counsel as to the exercise of their powers under Section 41(6) of the Medical Act 1983 and Rule 46(1)(db) of the 1988 Rules to direct that the Appellant’s right to make any further such application should be suspended indefinitely.  The Chairman announced the results of these deliberations in the following terms:
“In light of the terms of its previous direction, the Committee have decided to impose a direction to suspend indefinitely the right of Dr Gosai to make further applications for restoration.  The Committee have considered this necessary because of his continued lack of insight into the significance of his failures, despite the lapse of time since the events that gave rise to his erasure.  In reaching its conclusion the committee has had regard to the pubic interest and also to his own interests.”

The Appeal
16. 	Mr Nigel Pleming QC who appeared before the PCC and the Board does not advance an appeal against the refusal of the application for restoration to the Register.  The thrust of his argument is confined to the direction suspending indefinitely the appellant’s right to make any further applications for restoration.  

17. 	The PCC’s power to make a direction suspending indefinitely (“a Suspension Direction”) is found in Section 41(6) of the Medical Act 1983, added by the Medical Act 1983 (Amendment) Order 2000 (SI2000/1803).  This provides:
“Where during the same period of erasure, a second or subsequent application for the restoration of a name to the Register, made by or on behalf of the person whose name has been erased, is unsuccessful, the Professional Conduct Committee may direct that his right to make any further such application shall be suspended indefinitely.”

18. 	A Suspension Direction may be reviewed, on application of the person affected, after a period of three years, by virtue of Section 41(8):
“Any person in respect of whom a direction has been given under subsection (6) may, after the expiration of three years after the date on which the direction was given, apply to the [PCC] for that direction to be reviewed by the Committee and, thereafter, may make further applications for review; but no such application may be made before the expiration of three years from the date of the most recent review decision.”

19. 	By virtue of Section 40(1)(d), the decision to give a Section 41(6) direction may be appealed to Her Majesty in Council.

20. 	The introduction by the 2000 Order of the power to make a suspension direction was accompanied by a number of other amendments to the power to restore to the Register.  In particular:
“(1)	the time which must have elapsed before a first application for restoration to the Register may be made was increased from 10 months to five years (s.41(2)(a) of the 1983 Act);
(2)	the time which must have elapsed between applications for restoration was increased from 10 months to 12 months (b) sic (s.41(2)(b) of the 1983 Act).” 
21. 	The appellant’s principal complaint is that the PCC have exercised their Draconian power under Section 41(6) when it was unnecessary for them to do so.  Such a power should be reserved for only very clear cases where it is in the public interest that the person erased from the Register should be prevented from re-applying.  This was not such a case.  The appellant was in the process of making very real efforts to demonstrate to the satisfaction of the PCC that he was a fit person to practise medicine.  The reasons and reasoning of the Committee reveal that the members of the PCC may have penalised the appellant inappropriately.  The reasons given expressly identify two issues:
(1)	Whether the appellant had demonstrated the necessary knowledge, skills and attitudes required for medical practice; and
(2)	Whether the appellant displayed sufficient insight into his conduct.

The PCC made only positive remarks on the first issue, there were no criticisms, and no expressions of qualification.  By contrast, the approach taken by the Committee in relation to the appellant’s lack of insight, was unlawful, irrational and unfair.  The only evidence given at the hearing which bore on this issue was in the answer given to the question from Dr Lodge (already cited).  It may be that the appellant did not do himself justice in that short exchange.  He was nervous, and anxious, and understandably so.  Leading counsel produced a statement in support of this appeal setting out his case and his recollection.

22. 	At this stage leading counsel acknowledged that a difficulty arose in the presentation of this appeal.  The appellant still insists that he saw the patient walk into the room (whether from upstairs or not is immaterial) and that he examined her knee.  He accepts that this account has been rejected and adjudged to be untruthful. Mr Pleming submitted that the PCC treated the appellant’s failure to accept that he was untruthful as important, if not decisive, which placed the appellant in an impossible and unfair position and was irrational.  Moreover the PCC acted unfairly in that it failed to alert the appellant to its concerns.

23. 	Mr Pleming’s submission was undoubtedly powerful but their Lordships are unable to accede to the argument.  There is no basis for the assertion that suspension of the right to apply for restoration should be restricted to very clear cases, or should be regarded as exceptional.  The PCC’s discretion to impose a suspension order is, on the face of the legislation, unconfined and unfettered.  The Committee was not obliged to start with a presumption that the power to make a suspension order was in any way an exceptional or unusual remedy.  It was entitled to have regard, in exercising the discretion, to the public interest.  It was also entitled to have regard to the interest of those who would be otherwise affected by repeated applications for restoration, such as (as in the present case) the family of the victim of a doctor’s misconduct which has taken an active part in the proceedings, which may suffer anguish and be caused expense by repeated restoration applications by the doctor.

24. 	Their Lordships are also satisfied that the suspension direction was not inappropriate or excessive.  The PCC accepted that the appellant was making real efforts to demonstrate his fitness to practise.  However, the PCC was entitled to conclude, in relation to both the refusal of restoration and the suspension of the right to reapply, that the efforts he had made were outweighed by other factors.  These included the seriousness of the original offence when the PCC stated that the appellant had “fallen lamentably below the professional standards to which patients were entitled”, “demonstrated clinical incompetence of the most basic kind”, and 4“not been truthful”.  The PCC reiterated these findings on the occasion of the 1997 application. Secondly, the appellant’s lack of insight into the gravity of his misconduct.  The Committee was thereby clearly referring to his failure to accept that he had not in fact conducted any investigation of the patient on 24 December 1994, that she had not walked into the room on that occasion, and further that he had lied to the Inquest and to the PCC in stating to the contrary.  It is not surprising that the PCC concluded that this conduct displayed a lack of insight which had continued over a considerable period of time.  It related to a matter which was central to the earlier proceedings for which he was struck off.

25. 	In Bolton v Law Society [1994] 1 WLR 512 (cited with approval by Lord Rodger of Earlsferry in Gupta v General Medical Council [2001] UKPC 61 (para 21), Sir Thomas Bingham MR (as he then was) said at page 519A-E:
“A profession’s most valuable asset is its collective reputation and the confidence which that inspires.  Because orders made by the [Solicitors Disciplinary] 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 former 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 of 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.  […] 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.”

26. 	Their Lordships are satisfied that these observations are appropriate to the instant case.  Having considered the matters in support of the Application the PCC was, in their Lordships’ judgment, fully entitled to hold that they were outweighed by the other adverse factors.

27. 	Finally, the Board is satisfied that there was sufficient evidence to justify the finding of lack of insight.  This finding did not turn merely on the question by Dr Lodge and the answer but this lack of insight was abundantly clear before the PCC on the original adjudication, before the Committee on the first application and on the occasion of the second application.  In summary, the Board is satisfied that there was no error in principle or in law or in the exercise of the PCC’s direction.

28. 	Accordingly their Lordships have humbly advised Her Majesty that the appeal should be dismissed with costs.