Whitefield v. General Medical Council (GMC) [2002] UKPC 62 (14 November 2002)
ADVANCE COPY
Privy Council Appeal No. 90 of 2001
Dr. Timothy David Whitefield Appellant
v.
The General Medical Council Respondent
FROM
THE HEALTH COMMITTEE OF THE
GENERAL MEDICAL COUNCIL
---------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 14th November 2002
------------------
Present at the hearing:-
Lord Hope of Craighead
Sir Denis Henry
Sir Philip Otton
[Delivered by Sir Philip Otton]
------------------
- The appellant, Dr Timothy Whitefield, appeals from a decision of the Health Committee of the respondent, made on 1st November 2001. The Committee determined that his fitness to practise was seriously impaired by illness, and imposed fourteen conditions on his registration, for a period of twelve months from 2nd December 2001.
Background:
- The appellant is a registered general practitioner, and now aged 56 years. In October 1995 he was convicted at Leeds Crown Court of conspiracy to defraud the NHS, by supplying false prescriptions, and receiving payments from local pharmacists. He was sentenced to 3 years imprisonment. His case was brought to the attention of the Council and it was referred to the Professional Conduct Committee ("PCC") who referred the case to the Health Committee ("HC"). The first (of six) hearings before the HC was in June 1997, shortly after his release from prison. The appellant's fitness to practise was judged to be seriously impaired by reason of severe depressive illness. Conditions were imposed:
(1) To remain under the regular medical supervision of Professor Mindham or another consultant psychiatrist, to attend and comply with the supervisor's advice and recommendations.
(2) To limit alcohol consumption in accordance with the medical supervisor's advice.
(3) To comply with any arrangements made for the testing of breath, blood, etc. for a recent and long term ingestion of alcohol.
(5) To refrain from all forms of medical practice.
Other conditions were imposed which are of no relevance. These conditions were imposed for a period of 12 months.
- At the second hearing in June 1998 Dr Whitefield's fitness to practice was again judged to be seriously impaired by reason of a recurrent depressive disorder. The Committee also expressed concern regarding his level of alcohol consumption. Conditions were imposed on his registration for a further 12 months. After minor amendments they were substantially the same as those previously imposed.
- At the third hearing on 28th June 1999 the HC determined that the appellant's fitness to practice was seriously impaired because of recurrent depressive disorder, currently in remission, and harmful use of alcohol, placing him at further risk of relapse. The Committee was clearly concerned about the heavy consumption of alcohol and the potential effect on his ability to make sound professional judgments. By this time the appellant had taken up work in general practice on a limited basis. His fitness to practise was again judged to be seriously impaired by reason of a condition classified as recurring depressive disorder. The Committee also had evidence that he had been suffering from a condition classified as harmful use of alcohol. Again conditions were placed on his registration for 12 months but on this occasion the Appellant was required "to abstain absolutely from the consumption of alcohol". Other conditions were imposed concerning the nature of his return to practice.
- On 10th July 2000 the appellant appeared for the fourth time before the HC. There was a Determination that his fitness to practise was seriously impaired because of recurrent depressive disorder, apparently in remission, and the harmful use of alcohol. It was noted that the appellant continued to drink alcohol to excess which was a matter of particular concern to the HC because (i) of its effects on his physical health, (ii) it could increase the possibility of a relapse in his mental condition, and (iii) it represented a breach of the previous total abstinence condition. On this occasion fifteen conditions were imposed for a six-month period including the absolute abstinence condition.
- On 11th December 2000 the fifth hearing took place. The HC determined that his fitness to practise was seriously impaired because of recurrent depressive disorder, currently in remission, and harmful use of alcohol. They also found that the appellant was in breach of his conditions. He had undertaken medical practice without the prior approval of his medical supervisor, failed to disclose the conditions imposed on his registration as required, and undertaken both out of hours and overnight work at RAF Leeming. Having regard to the breach of conditions, and information which suggested that the appellant had deliberately misled his supervisor, the HC had decided that it was necessary for the protection of members of the public, and in the doctor's own interest, to suspend his registration for a period of 10 months. The conditions included the absolute abstinence from alcohol.
- The sixth hearing, the subject of this appeal, took place on 1st November 2001. In essence, the HC determined that the appellant's fitness to practise was seriously impaired because of his depressive disorder, currently in remission, and the harmful use of alcohol. The Committee's determination was as follows:
"THE CHAIRMAN: Dr Whitefield, the Committee are pleased that you have attended the hearing today. They have carefully considered all the evidence presented to them and taken particular note of your own evidence and the submissions made on your behalf.
Having listened to your evidence the Committee considered that you are able to perform well on a superficial level. However, they have serious concerns about your ability to make sound professional judgments and your insight into your own medical condition, particularly in connection with your alcohol consumption. This is important in relation to patient safety issues.
The Committee note the views of the medical examiners that you are fit to practise in a limited way with medical and professional supervision. The Committee took particular note of the results of the medical examinations which indicate that your level of alcohol consumption is causing harm to your health. This includes evidence that your gamma GT results have risen from 385 IU/L in 1998 to 700 IU/L in September 2001. In addition, your psychological report in July 2001 suggests acquired intellectual and memory impairment.
The Committee have again judged your fitness to practise to be seriously impaired by reason of conditions classified in the ICD-10 Classification of Disorders as F10.1 harmful use of alcohol, and F33.4 recurrent depressive disorder currently in remission."
In reaching this decision the Committee have had regard to Rule 24(2) of their procedure rules. That rule indicates that the Committee are entitled to regard as current serious impairment either the practitioner's current physical condition or mental condition, or a continuing and episodic condition, or a condition which, although currently in remission, may be expected to cause recurrence of serious impairment.
- They turned to the conditions (fourteen in all) which were to be imposed:
"The Committee must now decide what action to take in regard to your registration. They wish me first to ask you whether, if you were permitted to retain your registration, you would be willing to abide by the following conditions relating to your medical care, treatment and supervision.
1. To remain under the regular medical supervision of Dr Rugg or another consultant psychiatrist chosen on behalf of the Committee, attend upon your medical supervisor at such intervals as he or she may require and comply with the supervisor's advice and recommendations; and, if so advised by your medical supervisor, to attend upon another consultant psychiatrist for the treatment of your condition.
2. To abstain absolutely from the consumption of alcohol.
3. To comply with any arrangements made by your medical supervisor for the testing, including random testing, of breath, blood and urine for the recent and long-term ingestion of alcohol.
4. To allow your medical supervisor to exchange information with your general practitioner and any other registered medical practitioner responsible for your care, about your condition and the treatment which you are receiving.
5. To remain under the care of a general practitioner and to allow your medical supervisor to exchange information with your general practitioner about your condition and the treatment which you are receiving.
6. To allow your medical supervisor to exchange information about your medical history and your performance of your professional duties with any registered medical practitioner responsible for supervising your practice.
7. To attend regularly meetings of the Doctors' Dentists' Group and/or Alcoholics Anonymous and/or any other support group if recommended to do so by your medical supervisor.
There would also be other conditions limiting the scope of your professional practice. Do you understand the conditions which I have just read and would you be willing to comply with them? You may have time to consider this, if you would like to withdraw and confer with your counsel.
DR WHITEFIELD: Yes, I will abide by your conditions.
THE CHAIRMAN: Dr Whitefield, in the light of your agreement to the conditions which I have just read to you, the Committee have directed that for a period of 12 months your registration shall be conditional on your compliance with those conditions, and with the following additional conditions:
8. You shall seek and follow the advice of your Regional Director of Postgraduate General Practice Education on your educational needs.
9. You shall limit your professional commitments to work in NHS general practice as an assistant in practice where you would not be the only doctor on duty, where your work would be supervised by a principal in the practice, where you would not undertake any out of hours work and where your work would be reviewed at regular intervals by a senior local general practitioner appointed by the Regional Director of General Practice Education.
10. You shall not undertake any work as a locum or deputy.
11. You shall limit your total work commitments to no more than thirty hours in any one week.
12. Before commencing employment in any practice you shall inform the senior partner that you are subject to conditions imposed by the Health Committee and shall inform the practice of conditions 8-11 restricting your practice, and of the name of your medical supervisor.
13. You shall obtain your medical supervisor's prior approval of the suitability of any post for which you may consider applying.
14. You shall cease work immediately if so advised by your medical supervisor."
The Appeal
- There is no complaint regarding conditions 1, 3, 4, 5, 6 and 7, Dr Whitefield agreed to abide with these conditions (and the record shows that he did in fact agree to condition 2). There is also no complaint concerning conditions 8, 12 and 14. Thus the condition which their Lordships were invited to consider were conditions 2, 9, 10, 11 and 13. Mr Adrian Fulford QC who appeared on behalf of the appellant on the appeal advanced a number of grounds.
Ground One
Procedural Unfairness
- Leading counsel drew a distinction between the manner in which the HC dealt with conditions 17 when, after they had been announced, the Chairman asked Dr Whitefield specifically whether he was willing to comply with them. Having secured the appellant's consent the Chairman then announced additional conditions which were, it is submitted, imposed without prior notice of the Committee's intention and without giving the appellant an opportunity to consent or dissent. In particular in relation to condition 9 (practice limited to NHS) no indication had been given that this stringent condition was to be imposed. There was evidence before the Committee that the appellant had worked at institutions outside the NHS (notably, RAF Leeming) and, in fairness, the appellant should have been warned of the fundamental change in the restrictions in that they intended to limit his right to practice to the NHS alone, thereby depriving him of any opportunity to practise in the manner in which he had already been practising without complaint. In reality there was no essential difference between his practice at Leeming and that permitted under the NHS and he should have been permitted to do both.
- As to condition 10 leading counsel submitted that the absolute prohibition on any work as a locum or deputy was a new condition and might have "crept in by mistake". In the 1998 hearing condition 8 stated "you shall not work for a deputising service or locum agency" to which no exception was taken. On the last occasion the condition was much wider and imposed a total prohibition on any work as a locum or deputy.
- As to condition 11 it was submitted that the restriction of a total work commitment to no more than 30 hours in any one week was particularly onerous. In June 1999 and July 2000 he had been restricted to six sessions. Dr Vincenti in his report had stated that he was capable of working six sessions and this was supported by Dr Rugg. It was accepted that the appellant would not work at night but this condition was imposed against the weight of medical evidence and there was no prior notice or discussion with the appellant or his counsel.
- As to condition 13 it was considered that it was unreasonable to require the appellant to obtain his medical supervisor's prior approval of the suitability of any post for which the appellant might consider applying. The condition should have provided that such approval should only be required "before accepting" and not "applying for" such a post.
- Their Lordships have considered these submissions with considerable care and re-visited the record of the proceedings. It is true that counsel was not invited to address the specific and detailed additions which were eventually imposed nor to discuss the implications of them. The procedural Rules did not require the Committee to indicate to Dr Whitefield what conditions they were minded to impose, nor to give him an opportunity to make representations concerning the proposed conditions. In McMillan v General Medical Council (Privy Council 24th May 1993) the Board rejected a submission that the HC had to give advance warning of a condition which they were intending to impose.
- Moreover, they are satisfied from the record that there was a long and free-ranging discussion of all the relevant matters. It is obvious that the Committee was focusing upon and searching for a regime which would permit the appellant to continue in practice but subject to the most stringent and appropriate conditions pertaining to the appellant himself. The stark alternative was that unless a format could be found the HC might have felt itself obliged to exercise its powers to suspend the registration indefinitely. Thus the situation was "fact sensitive" for the appellant. The Committee was striving to treat the doctor as liberally as possible within the constraints of rigid conditions. The Committee must have been aware that on previous occasions he had breached some of the conditions imposed. He had been less than frank to Dr Rugg in stating that he had not worked. From the medical evidence before them there was an indication that his physical condition was a result of heightened alcohol use. It must have been glaringly apparent to the appellant and his counsel that if the appellant was to be permitted to practise the previous conditions would have to be tightened up in order to permit him to do so, that the conditions eventually imposed were "on the cards" and there was a strong probability that they would in fact be imposed. Accordingly their Lordships are not persuaded that there was any procedural unfairness or that any further discussion was called for or that the proceedings were flawed on this account.
- Their Lordships have concluded:
(1) Condition 9: The Committee was entitled to compare the monitoring and supervision at RAF Leeming with that available within the National Health Service and to conclude that the latter should be preferred.
(2) Condition 10: This was not a mistake, it was merely made more stringent.
(3) Condition 11: This was a "tightening up" of a previous condition.
(4) Condition 13: It was obviously more practical to impose the restriction on "applying for" a post in order to avoid the appellant the embarrassment if he were offered a post and then was obliged to refuse it if approval was withheld.
They can find no basis for interfering with these parts of the Determination and the conditions as imposed.
Ground Two
The absolute ban on alcohol
- Leading counsel was particularly critical of condition 2 which required the appellant "to abstain absolutely from the consumption of alcohol". He submitted that this was so absolute as to be unreasonable and oppressive. It denied him the pleasure of even social drinking when there was no possibility that he would be called upon to perform his professional services. Moreover it was not justified on the totality of the medical evidence. In particular he drew our attention to the report from Dr Rugg, his medical supervisor, dated 1st June 2000.
"Dr Whitefield still consumes alcohol but seems to have made efforts to restrict it in line with requirements made by the General Medical Council and his medical supervisor. He is now consuming alcohol somewhere between 40/60 units a week which still remains above that generally recommended as safe on health grounds. His pattern of consumption is not one which would directly influence or impair his medical practice given that it is largely restricted to late evening."
and later:
"I do not consider Dr Whitefield's current medical state impairs his practice
I believe that he is capable of continuing to work in the circumstances under which he has done under the present restrictions
".
Following the hearing on the 1st November 2000 Dr Rugg expressed the view:
"Dr Whitefield displays no abnormalities of his cognitive functioning at clinical testing, and it is of note that when these abnormalities were detected some years ago he was in the throes of what is described as severe depression at the time
..Dr Whitefield remains in good mental health and his not currently receiving treatment for a psychiatric disorder."
and Dr Vincenti on the 14th September 2001 (page 374):
"I would have thought that Dr Whitefield could safely be permitted to work occasional night duties to enhance his clinical experience and perhaps also to help integrate better into any practice team. This should, perhaps, be at no greater frequency than 3 nights a month."
- Their Lordships are unable to accede to leading counsel's submission. The HC was entitled, on the evidence, to conclude that Dr Whitefield's fitness to practise was seriously impaired, and to impose the conditions which it did. Throughout the discussion the Committee clearly addressed the question of the appellant's use of alcohol. Dr Whitefield had consumed excessive amounts of alcohol for many years. Those who have examined him for the HC have consistently diagnosed harmful misuse of alcohol. In May 1998 test results recorded a Gamma GT reading of 385 (normal range 10-15). In April 1999 Dr Mahapati recorded:
"I considered that his alcohol consumption was certainly considerably greater than it ought to be and I have made it clear to him that in my clinical opinion he ought to abstain from drinking totally in order to reduce markedly any risk of having further recurrence of depression in future. I did not find his explanation as to why he was drinking convincing."
In June 1999 Dr. Rix recorded:
"
When I last saw him he was drinking at least twice the recommended maximum for men. The blood tests taken in January 1999 suggest that he had not reduced his consumption to a level which was safe for his liver. Although he now reports a lower range of weekly consumption and even lower consumption in the week prior to my consultation with him, I have to view his self-reported consumption with some doubt. I will not be satisfied that he is probably drinking at a safe level on a regular basis unless I see blood test results which indicate normal liver functions."
In August 2000 his Gamma GT reading had risen to 484; by November 2000 it had reached 755.
- In its decision of July 2000 the HC recorded:
"They consider that there is agreement that you are suffering from a depressive illness, which is at present in remission, and that you have continued to drink alcohol to excess. Your continued drinking is a matter of particular concern to the Committee, because of its effects on your physical health, because it could increase the possibility of a relapse in your mental condition, because it represents a breach of the condition on your registration that you should refrain absolutely from the consumption of alcohol."
- In October 2000 in answer to questions by Dr Zigmond it is recorded:
"He tells me he has not consumed alcohol [since July 2000]. He continues to visit the pub in the village at approximately 10 p.m. for an hour or so each evening. He drinks alcohol free lager and lemonade and lime."
In November his Gamma GT reading had risen to 774.
- The World Health Organisation publication "The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines" is a compilation of clinical descriptions and diagnostic guidelines. Section F10 is concerned with "mental and behavioural disorders due to use of alcohol". Paragraph 10.1 provides:
"Harmful use
A pattern of psycho-active substance use that is causing damage to health. The damage may be physical or mental (e.g. episodes of depressive disorder secondary to heavy consumption of alcohol)."
In July 2000 the HC recorded:
"(We) have again judged your fitness to practice to be seriously impaired, by reason of conditions classified in ICD-10 Classification of Disorders as F.33.4-recurrent depressive disorder currently in remission and F.10.1-harmful use of alcohol."
In October 2000 Dr Zigmond recorded:
"He suffers from recurrent depressive disorder, currently in remission ICD-10 Classification F.33.4 and has suffered from harmful use of alcohol ICD-10 Classification F.10.1."
Dr Vincenti recorded in September 2001:
"19. I would agree with the additional co- morbid psychiatric diagnosis which has already been made in Dr Whitefield's case, that of harmful misuse of alcohol which attracts the ICD 10 diagnostic code F10.1
21. Therefore, based on the GMC criteria as issued in my instructions for this report, Dr Whitefield remains seriously impaired in terms of his health by virtue of the potential for a relapse of his recurrent depression in the future. This viewpoint is enhanced by the co-morbid psychiatric diagnosis of alcohol misuse."
- Thus there was clear evidence to establish a linkage between the appellant's depressive disorder and secondary to heavy consumption of alcohol. Accordingly, their Lordships have no hesitation in accepting the HC's conclusion that the appellant could not be trusted to observe a mere exhortation to reduce his alcohol intake and that the time had come (when the Gamma GT reading had reached the 700s) when, if he was to be allowed any form of practice it could only be accompanied by a total and absolute ban on the use of alcohol. Moreover, in reaching its decision the Committee expressed regard to Rule 24(2) of their procedural rules which provide:
"The Committee shall be entitled to regard as current serious impairment either the practitioner's current physical or mental condition, or a continuing and episodic condition, or a condition which although currently in remission, may be expected to cause recurrence of serious impairment." (emphasis added)
- The Committee had the necessary expertise to reach an informed conclusion on the need for all the conditions imposed and the likely effect of these conditions on Dr Whitefield. Thus it cannot be said that the absolute and total ban on alcohol was either unreasonable or oppressive.
Ground Three
The ECHR Argument
- Leading counsel also advanced an argument under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms that the ban constituted an interference with the right to respect for private life. Article 8 provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
He contended that the conditions to abstain from alcohol, to submit to random blood and urine tests and to attend Alcoholics Anonymous if so advised together or individually breached this right.
- The effect of the ban was to deprive him of the enjoyment of social drinking such as on family occasions. A person's private life extends to social pastimes outside the home and includes the consumption of alcohol in the local village public house. Even if the Committee had the legal power to impose such a condition it was disproportionate to the object to be achieved. If the Committee had well-founded concerns about the effect on the appellant's patience, a restriction on the consumption of alcohol for a period before a session of work and during working hours would have been sufficient.
- The appellant's Article 8 rights were further infringed by the imposition of a condition that he must submit to random testing of his blood and urine. Leading counsel relied upon the decision of the ECtHR in Peters v The Netherlands (App. No. 21132/93; 77A (E/B DR 75) where it was stated:
"A compulsory medical intervention, even if it is of minor importance [a urine test] must be considered an interference with the right to respect for private life."
and X v Austria (App. No. 8278/78; 18 DR 154 which related to blood tests.
- This argument can be disposed of briefly. There is no authority to support the proposition that a ban on the consumption of alcohol is, per se, an interference with the right to respect for private life under Article 8(1). The appellant is not prevented from going to his local public house or engaging in his social life while drinking non-alcoholic drinks. Thus their Lordships are not persuaded that there is a breach of Article 8(1).
- In Brüggeman & Scheuten v Federal Republic of Germany (3 EHRR 244, at 252, paragraphs 55 and 56) the ECtHR stated:
"The right to respect for private life is of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality
In principle, therefore, whenever the State sets up rules for the behaviour of the individual within this sphere, it interferes with the respect for private life and such interference must be justified in the light of Article 8(2).
However, there are limits to the personal sphere. While a large proportion of the law existing in a given State has some immediate or remove effect on the individual's possibility of developing his personality by doing what he wants to do, not all of these can be considered to constitute an interference with private life in the sense of Article 8 of the Convention. In fact, as the earlier jurisprudence of the Commission has already shown, the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life, or into close connection, with other protected interests."
- In the instant case the appellant's claim to respect for private life is reduced to the extent that as a doctor he has brought (and is likely to bring) his private life into contact with public life, or into close connection with other potential interests. His "right" to an unrestricted social life must give way to the wider public interest in ensuring that he does not present a risk to his patients.
- Moreover, their Lordships are satisfied that even if the conditions complained of were to constitute an interference under Article 8(1), it was nonetheless permissible under Article 8(2). The conditions were lawfully made by a public authority, pursuant to the powers conferred by section 37 of the Medical Act 1983. The condition pursued a legitimate aim, namely the protection "of health", "for the rights and freedoms of others". The condition was "necessary" in that it corresponded to a "pressing social need" and it was proportionate to that need.
- Similar reasoning applies to the conditions concerning conditions 3 (blood and urine testing) and condition 7 (attending Alcoholic Anonymous meetings). Their Lordships accept that any medical treatment (including the taking of samples) without consent is an interference with an Article 8(1) right. They are satisfied that by virtue of Article 8(2) the condition was lawfully imposed pursuant to a legitimate aim and was necessary and proportionate. The Committee was entitled to provide for testing (including random testing) to establish whether or not he had been drinking, and to ensure that the appellant knew that he was to be subject to such tests and that he might need help in overcoming his addiction as recommended by his medical supervisor he was obliged to attend a support group.
- A further argument was advanced based upon Article 1 of Protocol 1 which provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way, impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
- Leading counsel submitted that the term "property" bears a wide meaning and can include the right (or licence) to practise a profession as this is akin to a private right. The appellant, whilst not having an existing practice, did have the offer of work from several sources which amounted to a practice. The overall effect of the conditions imposed is to deprive him completely of his ability to practise.
- Ms Beverley Lang QC on behalf of the respondent submitted that Dr Whitefield has no economic interest to protect, alternatively that he has not been erased or suspended from practice, that the conditions are not sufficient to constitute deprivation of property and that in any event they are pursuant to a legitimate aim in the public interest which is proportionate.
- It is not necessary for their Lordships to determine whether or not Dr Whitefield has an economic interest. We are however satisfied that the conditions imposed are not sufficient to deprive him of any "property" he may have. The Committee legitimately deemed them necessary to control the use of property in accordance with the general interest.
- Accordingly we reject all the arguments advanced based on the European Convention of Human Rights.
Ground Four
Bias:
- In the appellant's Case it was alleged that the "case-handler" who briefed the GMC's solicitor retired with the Committee during its in camera deliberations, and therefore failed to ensure that "justice was seen to be done". Subsequent to the hearing, Mr Daniel Walsh, who acted as Committee Secretary at the hearing, made a witness statement in which he stated that Mr Wood, the GMC case worker, was not present at any time during the in-camera discussions. He explained that, in addition to the Committee members and the assessors, the only persons present were himself, and the Committee Co-Ordinator. In the appellant's amended Case, it was then alleged that the presence of the Committee Secretary and Co-Ordinator rendered the decision unsafe on the grounds of bias, because they were employees of the GMC which is the "prosecuting authority".
- Mr Walsh made a second witness statement in June 2002 in which he stated:
"The Committee Co-Ordinators and myself are part of the Health Committee Section. This is entirely separate from the Casework Section. The Committee Section deals only with the practical organisation of the Health Committee hearings. It plays no role in the actual preparation or prosecution of cases. There is scrupulous separation of functions between the two sections."
- The common law test for determining bias was set out in Porter v Magill [2001] UKHL, 67, [2002] 2 WLR 37, 84, para 103 by Lord Hope of Craighead, where he said:
"The question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
- Tucker J said in R (on the application of Nicolides) v General Medical Council [2001] EWHC Admin 625) when dismissing a similar allegation at paragraph 18:
"Some criticism is levelled at the administrative staff, namely assistant registrars and the committee manager who are of course employees of the GMC. However there is nothing to suggest that they actively participated in the decision-making process or that they gave wrong advice or that there could be any reasonable perception that they had done so, or any involvement on their part could have given rise to the appearance of bias."
- Their Lordships find no substance in this complaint. They have no reason to doubt the explanation put forward by the Committee Secretary. The circumstances as explained could not conceivably lead a fair minded and informed observer to conclude that there was a real possibility that the Tribunal was biased. Mr Walsh explained that the Committee Secretary is responsible for recording the votes cast, and for preparing the drafts of the Committee's determination. The Committee Co-Ordinator is an administrator in the Health Committee Secretariat and provides administrative support, such as typing, photocopying and exhibit liasing between the Committee and the parties about administrative matters such as length of adjournments, and the time at which the hearing is to resume. Their Lordships are satisfied that the presence of each of these members of staff was legitimate and justified and that there was a scrupulous separation of functions which did not give rise to the possibility of bias or any other irregularity.
Ground Five
Reasons
- Mr Fulford submitted that the decision was so lacking in reasons as to make it unreasonable, and that this was a case where clear reasons needed to be given, in particular,
(1) why each of the conditions was considered to be necessary, and how they served to protect the public,
(2) or were considered to be in the interests of the appellant;
(3) what evidence was taken into account in determining that the appellant's fitness to practise was impaired by reason of use of alcohol; and
(4) why this was considered a serious impairment. The Committee should have explained how they have come to these decisions.
- Their Lordships have reconsidered the text of the Determination. They are satisfied that the reasons for the Determination are sufficiently clear from the terms of the decision. The appellant must have been well aware by the end of the hearing of the Committee's concern about his excessive consumption of alcohol, the need for supervision and restriction on his work in the light of his alcohol consumption, and the history of depressive illness and the risk of recurrence. These concerns were succinctly and adequately explained in the determination. There was no obligation upon the Committee to provide any further or detailed reasons on the evidence, nor to set out detailed findings of fact.
- In Stefan v General Medical Council [1999] 1 WLR 1293 Lord Clyde described the duty on the Health Committee to give reasons (at 1304B):
"The extent and substance of the reasons must depend upon the circumstances. They need not be elaborate nor lengthy. But they should be such as to tell the parties in broad terms why the decision was reached. In many cases, as has already been indicated in the context of article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a very few sentences should suffice to give such explanation as is appropriate to the particular situation.
While the decision involves the application of some medical expertise in the assessment of fitness, the articulation of the reasons for a value judgment should not give rise to difficulty.
Their Lordships have observed that in certain other appeals from the Health Committee which have come before them succinct but adequate reasons have been stated in the decision. Unfortunately such a course was not adopted in the present case."
- Their Lordships are satisfied that the Health Committee on this occasion fulfilled the requirements set out by Lord Clyde.
Conclusion:
- Their Lordships will humbly advise Her Majesty that this appeal should be dismissed with costs.
