Baba v General Medical Council (GMC) [2002] UKPC 22 (15 May 2002)

Privy Council Appeal No. 70 of 2001

Dr. Narumanchi Sai Baba Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th May 2002

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Sir Philip Otton

[Delivered by Sir Philip Otton]

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The appellant, Dr Narumanchi Sai Baba, appeals from a direction of the Professional Conduct Committee of the Respondent Council on the 27th July 2001 that his name be erased from the Medical Register, and that, for the protection of the members of the public, his registration should be suspended with immediate effect, in consequence of the proof of certain facts set out in the Notice of Inquiry and a determination that he was guilty of serious professional misconduct.

The charge set out in the Notice of Enquiry was as follows:

That being registered under the Medical Act,

1(a) On 4, 11 and 29 January 1996 you visited Mr C Walker, a patient registered on your NHS list of patients,

(b) Following the consultations on 11 and 29 January 1996 you did not take any or any adequate steps to further investigate Mr Walker s condition and treatment needs,

(c) (i) You subsequently claimed that your medical records of these consultations were made contemporaneously,

(ii) Your claims in this respect were:

(1) untrue,

(2) dishonest;

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

At the hearing, the appellant, who was represented by counsel, admitted the factual allegation at Head 1(a), which accordingly was formally found proved. Upon the conclusion of the proceedings the Committee determined that the facts alleged at 1(b) with the exception of the words any or any , 1(c)(i), 1(c)(ii) (a) and 1(c)(ii)(b) had been proved to their satisfaction.

The appellant was ultimately found guilty of serious professional misconduct in relation to the facts proved against him and the Chairman announced the determination and direction of the Committee in the following terms:

Dr Baba, patients place great trust in their doctors.

They are entitled to expect that doctors will be trustworthy and will discharge their professional duties with complete integrity.

The public is entitled to expect that the discharge of any professional duty by a doctor with less than complete integrity is likely to attract severe sanctions.

In this case the Committee accept that your failure to take adequate steps to investigate the late Mr Walker s condition did not affect the eventual outcome.

The Committee have found that in relation to two visits you have subsequently fabricated your notes and that you were untruthful in your evidence on this matter. Those are very serious findings and we are in no doubt that together they amount to serious professional misconduct. Accordingly, we have found you guilty of serious professional misconduct.

We have considered what course should be adopted in your case. We have taken into account the substantial body of support from patients of yours going back over many years as evidenced by the bundle of testimonials submitted. We have also, however, taken into account your previous history of five appearances before NHS service committees coupled with the finding which we made in this case. In the circumstances we have no doubt that the only proper course in this case is to direct the Registrar to erase your name from the Register .

After further submissions on behalf of the appellant, the Committee directed the registration of the appellant to be immediately suspended in the following terms:

Mr Jenkins, the Committee have determined that it is necessary for the protection of members of the public to order that Dr Baba s registration be suspended forthwith. The reasons are shortly as follows:

It is an essential tenet of good medical practice that a doctor is honest and trustworthy. The findings that we have made in this case, and we include the matters set out in our decision that Dr Baba is guilty of serious professional misconduct and should be erased from the Register, demonstrate that he has been in serious breach of those tenets. We are satisfied that he can no longer be trusted to practice safely and with complete integrity. We are, therefore, satisfied that this course is necessary to avoid the risk of any further act of dishonesty or deception which might adversely affect the interests of patients and the public s faith in the medical profession. The effect of the foregoing order and the Committee s direction for erasure mean that Dr Baba s registration will be suspended from today and that unless he exercises his rights of appeal his name will be erased from the Register twenty-eight days from today. That concludes the case .

The appellant, Dr Baba, appeared in person. He presented his arguments and addressed their Lordships in a courteous manner. He advanced a series of criticisms of the conduct of the disciplinary proceedings which, he submitted, individually or collectively amounted to a denial of justice and a breach of his human right to a fair trial. It is appropriate to address his complaints in the order he raised them:

Litigation

The first complaint concerns the manner in which the Chairman dealt with the matter of litigation which arose during questions by Ms Ruth Evans (a lay member of the Committee) to the appellant:

Q Can I just ask one very quick question? You referred twice to litigation. Is that related to our case or separate?

A Not related. Not related to it at all.

Q I just wanted to clarify it was non-related.

The Chairman: Even if it was, we would not be entitled to enquire about it. We are here strictly to judge the complaints that were made today on the basis of the evidence that is provided to us.

Ms Evans: He introduced the notion of litigation. I wanted to make sure it was nothing to do with this case.

The Chairman: Even if it was, I think we would not be entitled to know the outcome. (D1-140)

The appellant did not criticise the lay member s question but the manner in which the Chairman dealt with it. Their Lordships can find no substance in this complaint. The subject of litigation was first introduced by the appellant himself in cross-examination when he was asked to explain why the records he produced bore the wrong year. His explanation was:

Well, I was also going through some litigation at that time too. So, really it was accidental but not intentional on my part whatsoever, and due to overwork and stress . [117C]

and later:

Stress was there and also litigation was there at that time. [125D]

It is not surprising that Ms Evans enquired as she did in order to assure herself (and the Committee) that there was no adverse connection between the litigation and the disciplinary proceedings. The Chairman cannot be faulted for the tactful and firm manner in which he dealt with the matter.

Previous appearances

The appellant alleged that the Chairman improperly indicated to the Committee that the appellant had previously appeared before the Committee thereby cultivating the impression that there were other matters of a disciplinary nature against him. This complaint is based on a single passage at the end of his cross-examination:

Dr Baba, you will be sufficiently familiar with the system to know the members of the Committee might wish to ask you questions. Again I will introduce them to you if anyone is going to ask you a question. Yes, Professor Bean? (emphasis added)

Their Lordships have examined the transcript and it is abundantly clear that the Chairman used the same or a similar formula on three earlier occasions after the witnesses had been cross-examined. This is in accordance with the practice of this tribunal. This explains the use of the phrase you will be familiar with the system . It did not imply a more sinister connotation. Their Lordships cannot ignore the point that if the Chairman had not said what he did some members of the Committee might have drawn the adverse inference that it was not necessary to give the warning because the appellant was already familiar with the system from his previous experience. Moreover their Lordships have read the statement of Professor McDevitt, the Chairman, who states that he was not aware that Dr Baba s case had been before the PCC on a previous occasion . We can see no reason to doubt his word. We reject the criticism.

Coupled with this ground the appellant sought to rely upon the contents of the Committee s Agenda paper. The first page recorded the constitution of the Committee and the identity of the Legal Assessor. Page 2 set out the terms of the charges against the appellant under the heading:

1. New Case of Conduct

BABA, Narumanchi Sai

Their Lordships do not accept the defendant s contention that this indicated fresh proceedings against him and thus a previous appearance. Their Lordships accept that this is a common form of agenda and distinguishes between an adjourned hearing and the commencement of a fresh case.

The Interim Order and Previous Proceedings

The appellant took exception to the fact that in the course of a discussion regarding an Interim Order the Chairman improperly indicated to the Committee that the appellant had appeared before the Committee previously thereby giving the impression that he had faced or was due to face further proceedings.

The matter was first raised by Mr Jenkin, counsel for the appellant:

For legal reasons Dr Baba has not been able to practise since the end of January of last year. He has been out of practise, not of his own choice, for the last eighteen months. [D2/29F]

Subsequently:

The Legal Assessor: There are two matters. One is this, the Committee must be aware (because they will have to deal with it later and both counsel are happy I should mention it now) that on 26 June of this year, that is a month ago, the Interim Orders Committee made an order in which Dr Baba s registration was suspended for a period of six months with effect from that date, 26 June 2001. So that order will have to be addressed when you consider how to deal with this matter. (D2/31D)

and later:

The Chairman: I presume the Committee should understand from what you have said about the interim order suspension that that does not relate to the case that currently is under consideration today?

Mr Jenkins (for Dr Baba): It does.

The Chairman: It does.

The Legal Assessor: That makes it straightforward, yes.

The Chairman: Yes. My inference was that there might, therefore, have been another matter.

Mr Jenkins: No.

The Chairman: That is very helpful.

The Legal Assessor: I should have made that clear.

Professor Bean: Mr Chairman, may I ask the Legal Assessor, are we, as members of the Committee, entitled to know the matter under which Dr Baba is not currently allowed to practice?

The Chairman: We have just been told.

The Legal Assessor: No, you are not. I do not know what that relates to. I think it is best put out of your mind. I cannot help you on that. It is best just left where it is. All you know is that for whatever reason he has not been practising since January to the present day. (D2/32C-G)

The last sentence was no more than a re-iteration of what the appellant s counsel had already told the Committee. Their Lordships consider that no legitimate criticism can be levelled against either the Legal Assessor or the Chairman over this particular matter. The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 as amended provide that the Preliminary Proceedings Committee may make an Interim Order of suspension pending the final determination by the Professional Conduct Committee. The Interim Order must be dealt with by the Professional Conduct Committee and, for example, by Rule 33 they may, if they think fit, revoke such an order. It was therefore incumbent upon the Legal Assessor to bring the existence of the Interim Order of Suspension for six months to the attention of the Committee. He did so with the apparent consent of both counsel. He was also in order to point out that the order was in relation to these proceedings and that he did not know what the earlier period related to. Professor Bean sought clarification as to why the appellant had not been allowed to practise since January and was correctly informed that he was not entitled to know. There was no reference to earlier proceedings by his counsel, the Chairman or the Legal Assessor. The Chairman did not know of any previous proceedings. Ms Graziella Oragano (Head of the relevant Committee Section) made it clear that her section took particular care to ensure that those members empanelled to adjudicate on 26 and 27 July had no knowledge of Dr Baba s previous appearances before the PCC in January 2000 .

There is thus no substance or merit in this complaint.

Dr Zeegan s questions

It is alleged that Dr Zeegan, a Committee member, displayed bias against the appellant when Miss Walker, the deceased s daughter, was giving evidence immediately after her mother. It is said that the Chairman and the Legal Assessor had already indicated their concerns about the type of questions Dr Zeegan had been asking the witnesses and that Dr Zeegan, although fully aware of these concerns, proceeded to ask the following question:

Dr Zeegan: Yes. (to the witness): Is your mother a truthful woman?

The Chairman: I am sorry, but that is a matter of opinion.

The witness: My mother cannot ---- my mother is not capable of lying.

The Chairman: I think that is not a relevant question. I am sorry.

Dr Zeegan: I withdraw it.

The Chairman: Nor should it have been asked or answered.

The witness: I think you have only got to look at my mum to know that she is an honest person.

Thus despite the Chairman s interjection and Dr Zeegan s withdrawal Miss Walker was allowed to expand upon her answer even though the Chairman had expressly stated that the question should not have been asked or answered. Miss Walker s additional response was not admonished in any way despite the sympathy and undue influence such a response would generate.

It is unfortunate that the question was asked. Their Lordships do not accept that the fact that the question was asked indicated that the questioner was biased. However the Chairman immediately registered his disapproval. He could not have anticipated the spontaneous way in which the witness sought to endorse her mother s credibility.

Coupled with this allegation is a further complaint that Dr Zeegan used language with which the appellant was unfamiliar and in a way so as to confuse the appellant. The passage relied on arose out of questions concerning the appellant s assertion that the patient had previously refused to turn up for treatment. This occurred in 1988. Dr Zeegan said to the appellant:

Q. I think it is a little unfair to label the late Mr Walker as a sort of refusnik because you are basing or somebody is basing most of these sorts of refusals on the endoscopy that he did not turn up [for] twice [in 1988].

The appellant may not have understood the word refusnik but he did not ask for clarification, his counsel did not interject nor consider the matter of sufficient importance to clarify it by re-examination. We find no merit in this point and even taken together these criticisms of Dr Zeegan do not justify the contention that the appellant was deprived of a fair hearing.

Miscellaneous complaints

The appellant raised a miscellany of complaints ranging from alleged inaccuracies and omissions in the transcript, the apparent bias of the Committee as shown by their body language towards witnesses who had given evidence and by whispering to each other during evidence. It is also asserted that the conduct of a number of members of the Committee was so rude, abusive and overbearing towards me that not only was I intimidated and confused by their questions, at times I could not follow what was being put to me . The appellant drew attention to passages in the transcript where he suggested that he was subjected to long and confusing questions which the Chairman and the Legal Assessor failed to control or clarify.

These complaints can be dealt with summarily. Their Lordships have studied the official record of the proceedings and the transcribed tape recording. It is true that there are some inconsistencies and lacunae but they are such that their Lordships are satisfied that they are only minor and insignificant. The transcript does not reveal any evidence of bias or rudeness on the part of the Committee. There is nothing inherently wrong in members discreetly whispering to each other during the proceedings. Their Lordships are satisfied that the manner in which the appellant was questioned was never oppressive but remained fair throughout. His counsel did not object at any stage or ask for clarification or for a question to be rephrased. Suffice it to say that we found no substance in any of the miscellaneous complaints.

Dr Scott s evidence

The appellant asserted that the determination of the Committee that he did not take adequate steps to further investigate Mr Walker s condition and treatment needs cannot be supported or justified in the light of the evidence of Dr Walter Scott. Accordingly this part of the determination should be set aside. Dr Scott s statement was dated the 29th November 2001 (four months after the determination) and was tendered before the Judicial Committee on the appellant s behalf. Having examined the documents which were made available to him Dr Scott concluded:

We can now conclude by saying that no criticism can be made of Dr Baba on any of the three occasions on which he attended the patient during January (4th, 11th, 29th) 1996.

We have seen how Dr Baba treated his patient with antibiotics on all three occasions on the basis of a chest infection. We then saw how two doctors in different departments of the hospital made the same diagnosis at the time of admission and instituted similar treatment.

It has also been of interest that Dr Fowler, the treating consultant, wrote a letter two weeks after the patient had died saying that he thought Dr Baba s treatment in those earlier times had been exemplary . Indeed, I must endorse Dr Fowler s view on the basis of all the material I have seen.

On its face this conclusion is impressive. However some of the documents disclosed to Dr Scott included the very records for the 4th, 11th and 29th January which the Professional Conduct Committee determined were not made contemporaneously. The Committee held that the appellant s claims in this respect were untrue and dishonest. Accordingly their Lordships were unable to place any reliance on Dr Scott s report. It did not cause them to conclude that the Committee had reached an unjustifiable or unreliable conclusion on this issue.

The Committee s decision to find serious professional misconduct and to order erasure

Finally, the appellant asserted that the Committee were not justified and were unduly harsh in concluding that he had been guilty of serious professional misconduct and that his name should be erased from the Register. It was common ground that Dr Baba was not responsible directly or indirectly for the death of his patient. Mr Walker had suffered a stroke and died of bacterial endocarditis, which could not have been diagnosed by the appellant before the patient s admission to specialist care in hospital. Moreover the appellant had a long professional career and during 25 years he had treated some 300,000 patients. He was able to produce impressive testimonials from doctors, ward sisters, nurses and others.

As to the finding of serious professional misconduct their Lordships have no doubt whatever that this conclusion was not only open to the Committee but, following the specific findings of dishonestly altering and manufacturing the patients records, inevitable. His counsel did not contend otherwise:

Sir, those are the remarks that I seek to address to you in mitigation. It is likely, I concede, that having found a practitioner guilty of dishonesty, altering or manufacturing patients records, it is likely that your Committee will find that that amounts to serious professional misconduct.

As to the erasure from the Register this course was open to the Committee taking into account the appellant s history (which was not unblemished), his failure to take adequate steps to investigate Mr Walker, the fabrication of the records and the giving of untruthful evidence to the Services Committee. The Committee clearly did take into account the testimonials of support and the mitigation advanced on the appellant s behalf but had no doubt that the only proper course was to order erasure. This finding cannot be impugned.

Conclusions

In summary their Lordships have come to the following conclusions:

(1) There is no substance or merit in any of the complaints advanced by the appellant. Neither the individual complaints nor their aggregate cast doubt upon the integrity of the disciplinary process or the results.

(2) Their Lordships are satisfied that the appellant had a fair hearing in accordance with the Rules and Procedures of the General Medical Council.

(3) There was no breach of Article 6 of the European Convention of Human Rights or the statute embodying it.

(4) The findings of fact of the dishonest falsification of the records were fully justified on the evidence before the Committee.

(5) On the facts as found, the determination of serious professional misconduct was not merely open to the Committee but inevitable.

(6) The decision to erase the appellant s name from the Register was open to the Committee on all the evidence before them. Their conclusion cannot be faulted.

Their Lordships will therefore humbly advise Her Majesty that this appeal should be dismissed with costs.