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Anand v General Medical Council (GMC) [2003] UKPC 66 (03 October 2003)

ADVANCE COPY

Privy Council Appeal No. 11 of 2003

Dr. Chaman Lal Anand 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

24th July 2003, Delivered the 3rd October 2003

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Present at the hearing:-

Lord Hope of Craighead

Sir Andrew Leggatt

Sir Philip Otton

[Delivered by Sir Andrew Leggatt]

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1. Dr Anand has exercised his right to appeal to Her Majesty in Council against the decision of the Professional Conduct Committee ("the Committee") of the respondent Council given on 7th January 2003, by which it determined that Dr Anand, having been found guilty of serious professional misconduct on 7th December 2001, had since breached the conditions imposed on him at that time, and directed that his name be erased from the medical register. At the end of the hearing of the appeal on 24th July 2003 their Lordships indicated that for reasons to be given later they would humbly advise Her Majesty that the appeal should be dismissed with costs. These are their reasons.
2. After a five-day hearing in December 2001 the Committee found that the manner in which Dr Anand participated in a study of the safety and efficacy of an anti-hypersensitive treatment was inaccurate and misleading in that he had intentionally submitted misleading data and that before prescribing large amounts of Diazepam for two temporary patients, both of whom were dependent on controlled drugs, he failed to take sufficient steps to verify the information he had been given about them. The Committee found that these actions were wholly inappropriate, determined that Dr Anand was guilty of serious professional misconduct and directed that for a period of 12 months his registration should be conditional on his compliance with a condition (amongst others) that he should comply with the guidance of the Medical Director of his Primary Care Trust in relation to his prescribing of controlled drugs.
3. To ensure compliance with that condition a protocol was drafted which came into effect from 24th June 2002. The protocol included the following term as to controlled drugs:

"The recommendations contained in a letter from the Trust Secretariat Manager should be adhered to i.e. no new prescriptions should be initiated for controlled drugs except for terminal care patients. A list of such patients ... for whom controlled drugs are being prescribed, should be sent to Dr Power, Head of Medicine Management Team, Glasgow PCT by the 14th of each month."

As a consequence of reaching his 70th birthday Dr Anand was obliged to resign as a General Practitioner on the Primary Care Trust List on 17th October 2002, and did so. The protocol thereupon ceased to have effect.

4. At the resumed consideration of his case on 6th and 7th January 2003 by his advocate, Mr Keith Henderson, Dr Anand admitted three breaches of protocol, which the Committee found amounted to failures to comply with the condition as to his prescribing of controlled drugs. The admitted breaches asserted that –

"1. On 10 July 2002 you initiated a new prescription of Sevredol and MST to a patient, T.D., who was not a terminal care patient and repeated this on 17 July 2002;

2. Only two lists of patients for whom controlled drugs were being prescribed were sent by you to Dr Power when you should have sent a total of four such lists;

3. One of the lists of 14 August 2002, which you did send to Dr Power, was inaccurate in that it listed one patient, when it should have listed three."

5. Margaret Mackie, Senior Medicines Management Advisor in the Medicines Management Team of Greater Glasgow Primary Care Trust gave evidence, which the Committee accepted, that because of Dr Anand's retirement no Trust would have any means of monitoring his prescribing. In a determination of high quality the Committee concluded that the earlier finding of serious professional misconduct and his breaches of protocol indicated that there was a serious potential risk to the public and that there was no workable or reliable way in which his future prescribing could be monitored and supervised. They held that due to the serious nature of the breaches of condition, a period of suspension would not adequately address Dr Anand's fundamental failings and his apparent lack of insight into those matters. The Committee accordingly determined that erasure was the only means by which it could be satisfied that patients would be protected and not placed at unnecessary risk.
6. Before their Lordships Mr Henderson referred to the fact that at the initial hearing before the Committee a large bundle of documents was put in which contained material irrelevant to the admitted breaches and potentially prejudicial. He argued that the Committee may have placed inappropriate reliance on that material. But when he objected to its production the case was adjourned, the offending material was withdrawn, and the hearing resumed without it on 6th January 2003. The Committee made no reference to it and their Lordships are satisfied that they took no account of it.
7. Mr Henderson also argued that the sanction of erasure was disproportionate to the serious professional misconduct of which Dr Anand was originally found guilty coupled with the three breaches of protocol. The first breach related to a patient who was being treated for severe pain and had built up a resistance to analgesics, including the two controlled drugs that he prescribed for her, though she was not a terminal care patient. Mr Henderson described this breach as "very technical". According to him the Committee did not attach great importance to the other two breaches of protocol.
8. Against the background of the finding by the Committee that the original charges relating to the prescribing of controlled drugs amounted to serious professional misconduct, Dr Anand must have known the reason for the term of the protocol in respect of controlled drugs. Yet within a short time, despite the fact that he was in effect on probation, he was again prescribing controlled drugs outwith the terms of the protocol and failing to send lists (or complete lists) of the patients for whom he was prescribing them.
9. More cogently, Mr Henderson submitted that administrative difficulty should not preclude the attachment of conditions to registration, contending that it is unfair to doctors in private practice who retire, if they are erased from the register merely because they cannot be monitored. Although Dr Anand lives in Perthshire, he was thinking of acting as a locum on one or two days a week for a husband-and-wife partnership in Glasgow, where he could stay with friends. Although in his Amended Case Mr Henderson had asserted that Dr Anand was prepared to accept a condition prohibiting the prescription of controlled drugs, he appeared to depart from this in argument on the ground that it is difficult to practise as a locum without being entitled to prescribe controlled drugs. He also sought to be released from the conditon relating to methadone, while being prepared to observe the conditions relating to analgesics with potential for misuse, repeat prescribing, benzodiazepines, and codeine-based anti-tussive preparations.
10. It was Mr Henderson's argument that Dr Anand should be permitted to continue in practice subject to these conditions for 12 months, after which his case would once again be subject to review. When the Medical Act 1978 was passed, Parliament contemplated that practice might continue subject to conditions, even though monitoring was then much less sophisticated than it has since become.
11. Not without regret that Dr Anand's 40-year career in medicine should have ended in this way, their Lordships have unhesitatingly concluded that, because he breached a condition relating to the prescribing of controlled drugs within a very short time of its imposition, the Committee were left with no alternative but to order the erasure of Dr Anand's name from the medical register. He had shown that he could not be relied on to prescribe controlled drugs without supervision, and since monitoring was no longer available, there was no other way of fulfilling their duty to protect the public. He had been given his chance, and he had failed to take it. Before the Board his position was not materially different.
12. For these reasons their Lordships have humbly advised Her Majesty that the appeal should be dismissed with costs.