in Petition of







Petitioner: Beynon; Clark & Co., S.S.C.

Respondents: Maguire; Murray Beith & Murray, W.S.

24 March 1999

On 29 January 1999 the Professional Conduct Committee of the General Medical Council found Dr Muhammed Muqit guilty of serious professional misconduct and directed that his name should be erased from the register of medical practitioners. The Committee also ordered that his registration in the register should be suspended forthwith, since they were satisfied that that was necessary for the protection of members of the public. Within the 28 day period allowed for him to do so he appealed to the Privy Council against the decision directing erasure of his name from the register. Having done that he is entitled to apply to the Court of Session for an order terminating the suspension of his registration. His petition for termination came before me for an order for intimation and service, which I granted. He also sought suspension ad interim of the suspension of his registration pending a final

decision on his petition to terminate the suspension. On that matter I heard submissions from his counsel, Mr Beynon, and counsel for the General Medical Council, Miss Maguire.

The statutory provisions setting out the power of the respondents to find a member of the medical profession guilty of serious professional misconduct, and to direct that his name shall be erased from the register, are to be found in section 36(1)(b)(i) of the Medical Act 1983 (c.54). The principal statutory provision dealing with the right of appeal against a decision directing erasure of an entry is section 40 of the same Act. The power to order the immediate suspension of a doctor's registration is contained in section 38(1). Section 38(6) and (7) set out the right to seek termination of an order for immediate suspension and are in the following terms:

"(6)The court may terminate any suspension of a person's registration in the register imposed under subsection (1) above, and a decision of the court on any application under this subsection shall be final.

(7)In this section 'the court' -

(a)in the case of a person whose address in the register is in Scotland, means the Court of Session ..."

Counsel were agreed that, since the Court of Session was vested with the power to terminate the suspension, any application to the court to exercise that power must be subject to the usual procedures of the court, and that accordingly an application for suspension ad interim was competent. There was no guidance from authority since this, as far as counsel could tell, was the first such application to be made in Scotland.

It is trite to say that to succeed in such an application a petitioner must establish two things, viz that he has a prima facie case for securing the remedy he ultimately seeks and that the balance of convenience favours making an interim order. In the end only one basis was maintained by counsel for the petitioner for holding that there is a prima facie case.

While the distinction between the decisions finding the petitioner guilty of serious professional misconduct and ordering erasure of his name from the register, and the decision to order immediate suspension of his registration must not be lost sight of, in fact the principal ground advanced before me for holding that there is a prima facie case for the petitioner to succeed in securing termination of the suspension was that there was not a proper factual basis for the initial decision that the petitioner was guilty of serious professional misconduct. It was to that matter that counsels' submissions were principally directed, and to that I shall return shortly.

Before the Privy Council the petitioner intends to challenge the finding of serious professional misconduct on one other basis. He maintains that that decision cannot be supported, as the respondents have failed to make clear which facts have been found to be established and which have not. In fact it was made clear in the course of submissions by counsel for the respondents that, at the start of the second day of the hearing before the respondents, their Chairman explained that they had held established each of the four allegations of failure in relation to the visit to A. on 2 January 1994 and the first two, but not the third, of the failures libelled in relation to the visit to B. on 13 April 1994. While the petitioner's ground of appeal relates to the fact that the ultimate determination of the respondents did not specify the facts found established in these clear terms, it was clear from the authorities cited, such as McCandless v General Medical Council [1996] 1 W.L.R. 167, that it is recognised and accepted practice for the respondents to issue their determinations in a form similar to that in which the determination was issued in this case. The crucial question in relation to this ground of appeal is accordingly not whether the determination was in some way ambiguous, but whether the findings in fact made by the respondents were clearly intimated to the petitioner, and indeed intimated at a stage before the respondents proceeded to consider representations from counsel for the petitioner on the question whether the conduct held established amounted to serious professional misconduct. Counsel for the petitioner did not dispute the foregoing account of events at the start of the second day. In these circumstances there is in my opinion no prospect of the appeal to the Privy Council succeeding on this ground.

The petitioner also intends to challenge the direction to erase his name from the register as an unduly severe disposal, even accepting the factual findings made by the respondents. Before me Mr Beynon conceded that there was little I could make of such a contention in the context of the present petition. He made no submission to me on the strength of which I could possibly determine there that is any prospect of the appeal to the Privy Council succeeding on that ground.

So I return to the principal submission that there was not a proper factual basis for the finding that the petitioner was guilty of serious professional misconduct. While there is also an averment that it is not necessary for the protection of the public that the petitioner is suspended from registration, only brief submissions were made in support of that averment as a separate ground on which the petition for termination of the suspension might succeed. These submissions were based largely on supportive testimonials, all written after the respondents made their decisions. I considered these were not germane to the question whether the petitioner has a prima facie case that the respondents erred in ordering immediate suspension of his registration, since they were not before the respondents at the time, and since it was not submitted to me that, on the findings they had made and on the material before them at the time, immediate suspension of registration was an order the respondents had no justification for making. The few submissions made in support of the averment that immediate suspension was not necessary for the protection of the public related to matters which I considered fell within the ambit of balance of convenience and are reflected later in my Opinion where I deal with that issue. So the determination of the question whether there is a prima facie case depends principally on whether the appeal to the Privy Council may succeed.

The result of that is that one potential problem which may yet arise in this case does not require to be determined by me. In a series of unreported cases in England (e.g. Prasad v General Medical Council, Divisional Court, 9 September 1974 and Salvi v General Medical Council, Macpherson J., 18 November 1993) the test for terminating a suspension of registration in terms of section 38(6) has been defined as whether it can be said that the respondents were "manifestly wrong" to act under the subsection as they did. It is the view of the English courts that that test is less stringent than that for success in an appeal to the Privy Council against the initial determination, which I deal with in the next paragraph. One might debate whether, giving the words "manifestly wrong" their ordinary meaning, that is necessarily so. Since the interpretation of a United Kingdom statute is involved, it is plainly desirable that the test should be the same in Scotland. That is especially so where the respondents apply English law in their proceedings. However in this case, since the petitioner relies on his contention that the initial determination which is the subject of appeal to the Privy Council should be quashed as the basis for contending that the order for immediate suspension should be terminated, and has no relevant separate argument in relation to the decision to order immediate suspension itself, it is to the prospects of success in the appeal to the Privy Council that I must look to determine whether there is a prima facie case that this petition for termination for the suspension will be successful. What I must do is determine whether there is a prima facie case that that appeal will be successful applying the accepted test for success in such an appeal.

Under reference to Libman v The General Medical Council [1972] A.C. 217 at 220-221 and Fox v The General Medical Council [1960] 1 W.L.R. 1017 at 1020-1023 counsel for the petitioner submitted that the test for success in such an appeal was indistinguishable from the test for success in appeals against decisions of the Employment Appeal Tribunal and other bodies exercising discretion under statutory provisions, which are best summarised in the well known extract from the Opinion of the Lord President (Emslie) in Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 S.L.T. 345 at 347-8. In particular, counsel identified among the Lord President's catalogue of grounds for quashing such a decision the statement: " will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it.". It is plain from my reading of the authorities cited that the petitioner's appeal will be successful if he can establish the application of that proposition to his case. Counsel for the respondents did not contend otherwise. So the question is whether there is a prospect of the petitioner's appeal succeeding on that basis. It there is, and if the balance of convenience favours him, then it would be appropriate in my opinion to grant him interim relief from suspension of his registration.

The petitioner is in general practice in Shotts and has been there for twenty years. However on the two occasions which gave rise to the complaints in this case he was providing an out of hours deputising service for other general practitioners. The two complaints related to his attendance upon cancer patients, the first of whom A., was unaware that he had a tumour and the second of whom, B., was known to have a terminal illness. In relation to A. the failures the respondents held established were:

"(i)carry out an adequate examination of A.,

(ii)arrange for A.'s admission to hospital when his condition so required,

(iii)make a written record of your examination of A.,

(iv)discuss, or take steps to discuss, the matter with A.'s GP promptly, although you knew, or should have known that such a discussion was indicated in A.'s medical interests."

In relation to B. the findings in relation to the petitioner's failures were:

(i)carry out an adequate examination of B.,

(ii)place yourself in a position to make a reasonable diagnosis of B.'s condition".

On the strength of these findings the respondents found the petitioner guilty of serious professional misconduct and directed the registrar to erase his name from the register and further determined that it was necessary for the protection of members of the public that his registration in the register should be suspended with immediate effect.

In their determination the respondents explained that patients are entitled to expect good standards of practice and care from their doctor and that the evidence which the Committee had heard demonstrated serious failures by the petitioner in his duty of care to two elderly and vulnerable patients. In setting out their determination in that way the respondents plainly had in mind the test for serious professional misconduct set out in Doughty v General Dental Council [1988] 1 A.C. 164 at 173 as subsequently adopted for the medical profession in McCandless referred to above, that test being set out in Doughty as follows:

"...what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious. On an appeal to this Board, the Board has the responsibility of deciding whether the Committee were entitled to take the view that the evidence established that there had been a falling short of these standards and also entitled to take the view that such falling short as was established was serious."

The petitioner's case to the Privy Council will be that the respondents were not entitled to find that his conduct amounted to serious professional misconduct in respect that in relation to neither complaint was evidence led from any doctor on the strength of which these findings could be made by the committee and, in addition, in the case of B., the consultant surgeon who treated him after admission to hospital gave evidence that the petitioner had done all that could reasonably have been expected from him. The question for me, therefore, is whether there is on the face of it a case for the petitioner that there was not before the respondents a proper factual basis entitling them to conclude that the petitioner was guilty of serious professional misconduct.

Counsel for the respondents presented draft answers and adopted these as setting out the evidential basis for the findings made. The respondents heard from a number of witnesses. The only medical witness was Mr Pickard, the consultant surgeon who subsequently treated both patients. In addition the respondents had before them the hospital and general practitioner notes in relation to both patients. In relation to A. neighbours described the apparently seriously ill condition he was in immediately before the petitioner attended and, when he did not arrange for his admission to hospital, the neighbours took him there and he was admitted. A previously unidentified cancerous growth in his stomach was found. Mr Pickard said that if he had seen A. at home he would have tended to admit him to hospital. The petitioner had made no note of any examination of A. The respondents also had before them a statement made by A. before he died.

In relation to B. the evidence before the respondents was that he had severe abdominal pain which was different from his usual pain and for which he asked for relief. The petitioner acknowledged that he made only a limited examination of B. He described diazepam and recommended that the patient lie down in a darkened room. B. was unable to lie down and unable to swallow without difficulty. He spent the night in severe pain and in the morning called his general practitioner, who arranged for his immediate admission to hospital, where he was diagnosed as having acute pancreatitis. Mr Pickard made that diagnosis, but subsequently reviewed it and thought that the pain might have been break-through pain from the terminal condition.

The Committee of the respondents which heard and determined the case comprised experienced medical professionals, including one experienced general practitioner. As is the case with disciplinary tribunals in other professions, the members are expected to use their own professional experience when evaluating the evidence before them. While there may be cases where a decision that conduct or omissions amounted to serious professional misconduct could not be made without evidence from an expert witness in the particular field of medical practice involved, it does not seem to me that this is such a case. In respect of both patients there was material before the respondents indicating that the patients were suffering serious abnormal symptoms. They had evidence of no record or inadequate records being kept. They had an admission that the examination of B. was limited. They had evidence of action taken by neighbours in one case and the patient's general practitioner in the other to obtain hospital admission, and evidence of a very significant finding being made in one case and important treatment being given in the other. In my opinion the material before the respondents provided a proper factual basis for holding that the test in Doughty and McCandless had been met.

In all these circumstances I do not consider there is any prospect of the petitioner's appeal to the Privy Council succeeding on the ground that there was no evidential basis entitling the respondents to made the findings they made.

Having made these findings they were intimated to the petitioner. Thereafter his counsel addressed the respondents on the question whether his omissions amounted to serious professional misconduct. I have indicated earlier in this Opinion the submission made by the petitioner's counsel on the question of that finding and whether it was plainly wrong and unjustified. No submission was made to me on the strength of which I could possibly determine that there is a prima facie case that, the findings in fact referred to above having been made, the decision that the omissions amounted to serious professional misconduct is plainly wrong and unjustified. I therefore hold that the petitioner has not made out a prima facie case for succeeding in his appeal to the Privy Council.

Had I decided that there was a prima facie case, I would have found it difficult to decide where the balance of convenience lay. Counsel for the respondents submitted that the protection of the public was the primary consideration. That was secured by immediate suspension of the petitioner's registration. It should take very weighty countervailing factors to override that primary consideration. In 1989 a complaint was made against the petitioner. It was considered by the respondents' Preliminary Proceedings Committee which considers all complaints to decide whether they should be referred to the Professional Conduct Committee. The petitioner was given an opportunity to answer the complaint. The complaint was not referred to the Professional Conduct Committee. The petitioner was warned regarding his conduct and told that any other complaints made against him would be referred to the Professional Conduct Committee. In the testimonials submitted to me on his behalf in no. 6/4 of process there was one, no. 32, from a Director of Emergency Medical Services Lanarkshire which engaged the petitioner to provide deputising services on their behalf and who is himself a general practitioner who has worked with the petitioner. That testimonial, while favourable in its general terms, mentioned other complaints about the petitioner made by other general practitioners. These various complaints should tip the scale further in favour of the respondents. Counsel for the petitioner founded on a number of points. Instant suspension of the petitioner's registration meant that he was unable to maintain any practice. He had built up his practice by hard work and patient care during the last twenty years. There was a serious risk patient goodwill and support would be lost before the appeal was heard, which would be at least three months from now. He referred to the supportive testimonials from patients. In addition to the testimonial from the doctor referred to above there was a testimonial from a consultant psychiatrist at Hartwoodhill Hospital, with whom the petitioner had been working since August 1998 as a sessional clinical assistant and who knew of the petitioner's work as a general practitioner over the past twenty years, and that was in extremely favourable terms. The petitioner's family

would suffer serious financial hardship. His wife is also a doctor. However they have four children, two of whom are junior hospital doctors, one a recent business graduate and the fourth a final year law student, all of whom continued to received financial support from him and his wife and would require that for some time yet. There was also produced evidence of the petitioner's voluntary work over a number of years in providing training in first aid and in the health and safety at work line, which work he could not undertake if not a registered medical practitioner. Finally, the complaints arose out of events in the early part of 1994 and there was no evidence before me of any subsequent complaint.

Had it been necessary to determine where the balance of convenience lay I think I would have come down in favour of the petitioner. There was no satisfactory explanation for the passage of five years since these events, during which period the petitioner has continued to practise, apparently without complaint. Albeit it may be some months before the appeal is heard, it was not suggested to me that it would be longer than a matter of months. The petitioner's practice might well be seriously disrupted and damaged in the intervening period. That could have significant financial consequences for him and his family and he might find it difficult to re-establish his practice.

In the event, however, for the reasons I have given earlier in this Opinion, I refuse the petitioner's motion for interim suspension of the respondents' determination to suspend his registration in the register of medical practitioners with immediate effect.