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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Swanney v Full Decision of the General Medical Council's Fitness to Practise Panel [2008] ScotCS CSIH_35 (11 June 2008) URL: https://www.bailii.org/scot/cases/ScotCS/2008/CSIH_35.html Cite as: [2008] CSIH 35, [2008] ScotCS CSIH_35 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord OsborneLord JohnstonLord McEwan |
[2006] CSIH 35XA66/07 OPINION OF THE COURT delivered by LORD OSBORNE in Appeal to the Court of
Session under the General Medical Council's Preliminary Proceedings Committee
and Professional Conduct Committee (Procedure) Rules 1988 by DR JAMES SWANNEY Appellant; against The full decision of the
General Medical Council's Fitness to Practise Panel Hearing of _______ |
Act: Party
Alt: Dunlop, Advocate; Messrs
Anderson Strathern
The background
circumstances
[2] The
circumstances were that the appellant had dual registration as a medical
practitioner in the
[3] Following
upon the conclusion of the Canadian disciplinary proceedings, the
"The panel has come to the view that
your actions as described (attachment 1) bring the profession into
disrepute and demonstrate a serious departure (from) the standard of conduct
that the public is entitled to expect from a medical practitioner. The panel therefore determined that you have
been guilty of serious professional misconduct."
In consequence of that decision, it was not felt necessary by
the panel to erase the name of the appellant from the register of medical
practitioners, or to suspend his registration; however, conditions were imposed
upon his right to practice for a period of twelve months, the details of
which are set forth in the Minutes of the proceedings of the panel, dated
13 April 2007, 8/2 of process.
Counsel drew attention particularly to the terms of charge 7 in
relation to patient A, charge 12, in
relation to patient B and charge 21, also in relation to
patient B, also set forth in 8/2 of process.
[4] Counsel went
on to explain to us the statutory background to the matter. His exposition related to the law as it stood
at the time of the relevant offences.
Subsequently to those offences it was amended. The relevant legislation was the Medical Act
1983. Section 1 of the 1983 Act provided
for the continuation of the existence of the respondents, having functions
there described. Section 2 provided for
the continuation of the keeping of registers of medical practitioners
registered under the Act. The appellant
was a fully registered person, within the meaning of Section 55(1) of the
Act, the significance of which could be seen from the terms of Section 3. Section 36 of the 1983 Act provided for
the consequences of a finding of serious professional misconduct, whether while
so registered or not. Sub-section (1)(iii) entitled the relevant committee to direct, if they
thought fit, that the registration of the registered person should be conditional
on his compliance, during such period not exceeding three years as might
be specified in the direction, with such requirements so specified as the
committee thought fit to impose for the protection of members of the public or
in his interests. Section 40 of the
1983 Act provided that a decision, such as arrived at in this case, was an
appealable decision, the appeal lying to the relevant Court. That Court was the Court of Session, having
regard to the fact that the appellant's address in the register was in
Submissions for the Respondents
[5] The
appellant, in his written submissions had stated four arguments. Counsel for the respondents intended to deal
with these in turn. The first argument
was to the effect that, during the period from 1998 to 2000, the appellant was practising
in full service family general practice in
"The majority of the evidence
accepted by the GMC was continued (sic.)
in a consent agreement between Dr Swanney and the
College of Physicians and Surgeons of B.C..
Dr Swanney accepted with legal advice this consent agreement and
the remedies placed by the College of Physicians and Surgeons of B.C.. The argument is
that this had been dealt with, the appropriate remedies concluded and to reopen
the same case with a different and more serious charge is a significant
deviation from natural justice."
In effect, the argument was that the case should not have
been reopened with more serious charges involved. The complaint in effect was one of double
jeopardy. However, it was submitted that
this argument was unsound. When one bore
in mind the purpose of the disciplinary proceedings, the statutory function to
protect the public, it became apparent that the situation was a world away from
double jeopardy, as properly understood.
The purpose of the proceedings was the protection of the public in the
[7] Counsel moved
on to consider the third argument advanced by the appellant in his written
submissions. This ground was concerned
with the evidence of a Dr Clare Gerarda, who had been adduced as a
witness by the respondents. It was said
by the appellant of her evidence that she acknowledged that she had never
worked in
[8] Having regard
particularly to the admissions made by the appellant, the decision reached by
the panel could not be said to be plainly wrong. In this connection it was helpful to look at
the nature of "serious professional misconduct". In this connection counsel drew attention to Mallon v The General Medical Council 2007 S.C. 426. In paragraph [18] of the Opinion of the
Court "misconduct" was considered. It
denoted a wrongful or inadequate mode of performance of professional duty. If that wrongful or inadequate performance occurred
in a professional context, plainly it was professional misconduct. As regards the word "serious", while the
statute did not lay down any criterion of seriousness, a definitional chimera
ought not to be pursued. The decision in
every case as to whether misconduct was serious had to be made by the panel in
the exercise of its own skilled judgment on the facts and circumstances in the
light of the evidence. Reference was
also made to paragraphs [21] and [28] of that opinion. In all the circumstances, the panel were
quite entitled to reach the conclusion which they did.
[9] Finally
counsel considered the matters raised in the
appellant's fourth argument in his written submissions. In this part of the appellant's argument
there was a complaint that there had been no proof of harm consequent on the
use of the drug in question. However,
that was beside the point. What was in
issue was misconduct. In paragraph 23 of
the decision of the panel reference was made to the agreement entered into with
the
Submissions of the
appellant
[10] The appellant
began by explaining the composition of the panel. Of the two medical members, one was an
anaesthetist, the other a urologist. He went on to elaborate the chronology of the
case. Some aspects of that required
clarification. On 11 May 2000
patient A had died. It had been accepted
that that had been related to a dose of methadone 20/20mg; the second dose had
been given three or four hours after the first. In August 2000 the patient B had died. The death was a result of bronchial
pneumonia. Morphine had been prescribed
in a sub-lethal dose. In June 2001 an
inquiry into the death of patient A had commenced. That inquiry had been aborted. In November 2001 it had been restarted and
had become a cause célèbre. The findings
had been made in 2002. It had made 17
recommendations, including the improvement of educational levels. In June 2002 the appellant had arranged to
join a training programme. The appellant
had not run away from pending charges.
The position had been that the father of the young lady who had died had
become politically active. In November
2003 the consent agreement had been reached with the college. In consequence restrictions had been imposed
on the appellant's licence to practice in
[11] Moving on to
the appeal itself, the appellant moved the Court to allow it and to quash the
decision of the panel. His submission
was that nothing that had been proved demonstrated serious professional
misconduct. In May 1999 there had been
no guidelines relating to methadone maintenance. Evidence which had emerged at the criminal
trial demonstrated that it was not methadone that killed patient A. In the proceedings before the panel, it was
not suggested that the appellant had been responsible for patient A's
death; rather it was suggested that inappropriate quantities of drugs had been
prescribed.
[12] The appellant
drew attention to the four arguments advanced in his written
submissions. The first argument was
related to the issue of jurisdiction.
The events concerned had taken place in
[13] Turning to the
second argument advanced, the majority of the evidence before the panel had
come from the consent agreement. The
appellant had argued that the
[14] Turning to the
third argument, this was focused on the evidence of Dr Clare Gerarda. Reference was made to the transcript of
proceedings on Day 3 at page 5.
She had been the only witness who had given relevant evidence, but her
evidence could not be the basis for a finding of serious professional misconduct. The appellant went on to refer to the
transcript of proceedings on Day 5, page 31, the evidence of
Dr James Zacharias. Recycling
of medication had been quite common in
[15] The appellant
went on to support the fourth argument stated in his written
submissions. He said that it was
important to have regard to the timescale of matters in this case. There had been changes in knowledge and in
services available since the events in question. There had been no guidelines in
Reply by counsel for
the Respondents
[16] Counsel made
certain points in reply. First, it was
the case that the consequences of the conditions imposed by the panel were not
the proper concern of this Court, as appeared from Raschid v The General Medical
Council (CA), paragraph 17.
Secondly, as regards the deaths of patients A and B the panel had
made clear at page 10 of the decision document that it was not argued that
the appellant had been responsible for the deaths of either patient A or
patient B. That had been made clear
by counsel for the respondents. Thirdly,
the panel had had the consent agreement before it, in which it had been agreed
by the appellant that certain conduct had been inappropriate. That consent agreement had been approved by
the
The decision
[17] It is
appropriate to deal with the appellant's appeal as it was dealt with in
argument before us, by focusing upon the four separate arguments set out in
his written submissions. In relation to
the first of these arguments two issues arose. The first was whether,
having regard to the fact that during the period from 1998 to 2000 the
appellant was practising in full service family general practice in
[18] While we
recognise that there is no decision expressly affirming the view which we have
taken, we regard the case of Marinovich
v The General Medical Council as of
significance and tending to support the view which we have taken. There the conduct in question had occurred in
[19] Turning to the
appellant's second argument, it was to the effect that because the appellant
had been subjected to disciplinary proceedings before the College of Physicians
and Surgeons of British Columbia in respect of the conduct concerned, he could
not properly be exposed to such disciplinary proceedings in the United Kingdom,
particularly on what were described as more serious charges. As we understood it, the contention was that
this amounted to what might be called double jeopardy. We reject that argument. It is quite plain that the purpose of the
disciplinary proceedings in
[20] Turning to the
appellant's third argument, this focused upon criticism which he made of
the evidence of Dr Clare Gerarda.
Whatever may or may not be said concerning the qualifications of
Dr Gerarda to give evidence, it is clear to us that the decision of the panel
was not based exclusively upon what she had to say. It is evident that the substantial basis for
the decision of the panel was the consent agreement into which, on legal
advice, the appellant entered in connection with the proceedings before the
[21] Turning
finally to the appellant's fourth argument, it involved the contention
that the essence of the case presented regarding patient B was centred on
the treatment and use of the drug there referred to. The appellant made the point that there was
no documentary evidence that the use of this agent was harmful. However, we accept the argument presented on
behalf of the respondents that the proof of actual harm is not a necessary
ingredient in the making of a finding of serious professional misconduct. Once again, the admissions made in the
consent agreement may be used as a foundation for the finding. Furthermore, as we have already observed, the
fact that the consent agreement classified treatment as inappropriate did not
prevent the panel from reaching the conclusion that serious professional
misconduct had occurred upon the basis of the administration of such
treatment. Furthermore, the fact that
the respondents brought charges against the appellant different from those
which had been brought in