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Baba v. General Medical Council (Professional Conduct Committee of the Medical Council) [2001] UKPC 13 (22nd March, 2001)
Privy Council Appeal No: 16 of 2000
Dr Narumanchi Sai Baba
Appellant
v.
The General Medical Council Respondent
FROM
THE PROFESSIONAL CONDUCT COMMITTEE OF
THE GENERAL MEDICAL COUNCIL
-----------------
JUDGMENT OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
Delivered the 22nd March 2001
-----------------
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Sir Philip Otton
[Delivered by Lord Bingham of Cornhill]
1. On 27 January 2000 the Professional Conduct Committee of the General Medical
Council found Dr Baba guilty of serious professional misconduct and ordered
that his name be erased from the Register. He appeals against that decision.
He bases his appeal on two grounds: first, that the Committee wrongly refused
an application for an adjournment of the proceedings made on his behalf on the
morning of the hearing; and secondly, that counsel instructed on his behalf, in
breach of his instructions, accepted the facts alleged against him as true when
he wished to contest the truth of those facts.
2. The charge against Dr Baba (as amended at his request) was to this effect:
"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 these 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
a. untrue
b. dishonest;
And that in relation to the facts alleged you have been guilty of serious
professional misconduct".
Mr Walker was a patient of Dr Baba. On the three dates specified in the charge
Dr Baba visited Mr Walker at his home, where he was ill in bed. The thrust of
the case against Dr Baba under paragraph 1. b of the charge was that, on 11 and
29 January, Dr Baba did less than he should have done to investigate Mr
Walker's condition and the treatment he needed. The thrust of the case against
Dr Baba under paragraph 1.c of the charge related to Dr Baba's notes of these
three attendances on Mr Walker. He produced his hand-written attendance notes
on 11 March 1997, just before a hearing by a Medical Services Committee, and at
that hearing he put forward the notes as a contemporaneous record of his
attendances, including the prescriptions made and advice given. In truth, so
it was alleged, the notes were not a contemporaneous record, or not wholly so.
Reliance was placed on the evidence of Mrs Walker and on the internal evidence
of mis-dating in the notes themselves to allege that the notes or material
parts of them were not contemporaneous but were written up at some date after
the visits in question. The complaint of untruth and dishonesty was directed
not to the contents of the notes but to the presentation as contemporaneous of
notes which were not.
3. Dr Baba was a member of the Medical Protection Society, which instructed Le
Brasseur J Tickle (Mr Shipway) to represent him. Dr Stephanie Bown,
medico-legal adviser to the Society, became involved. Counsel (Mr Martin
Forde) was instructed. Conferences were held with counsel at his chambers on
22 December 1999 and 21 January 2000, when the handling of the case was
discussed. Counsel gained the impression that Dr Baba accepted the truth of
paragraph 1.b of the charge. He understood Dr Baba to accept that the notes
were not all made contemporaneously but he appreciated that Dr Baba was
reluctant to accept an accusation of dishonesty.
4. It seems clear that on 25 January 2000 Dr Baba faxed a statement to Mr
Shipway and asked him to pass on a copy to counsel. Mr Shipway did so.
Counsel's recollection, which the Board has no reason to doubt, is that he
first saw the statement on the morning of the hearing. There are two passages
relevant to this appeal. The first relates to paragraph 1.b of the charge:
"On reflection, and with the benefit of hindsight,
I wish it had been possible for me to do something
more than I had been able to do. However,
even with this feeling, I cannot imagine what I
could have actually done. I encouraged the
patient to attend for tests, I counselled the
patient. I had facilities available which would
have assisted. But without the patient's
consent, I could do no more....".
The second passage relates to paragraph 1.c of the charge:
" With regard to the matter of how
contemporary the notes were, they were
essentially made out contemporaneously,
but it is quite likely that certain peripheral
matters such as the time received, and the
patient's name, address, and date of birth and
time attended were made out other than in the
patient's presence."
5. Dr Baba met Mr Forde, Mr Shipway and Dr Bown before the hearing. He
instructed counsel to apply for an adjournment of the hearing, primarily on the
grounds of his ill health (there had also been an unsettling scene in the
street outside the General Medical Council). The plea of ill health was
supported by a certificate signed by Dr Baba's general practitioner, Dr Raju,
which was dated 26 January 2000 and read:
"This is to certify that Dr Baba known [sic]
Diabetic, Hypertensive and Asthma for the
last four days suffering from flu like symptoms.
I understand he has to give evidence for an
enquiry at the GMC. He has been advised 10
days rest. I am worried about hypoglycaemia
with viral infection."
Counsel duly applied for an adjournment. He referred to the diabetes and
hypertension from which Dr Baba suffered, suggesting that his condition had
been exacerbated by occupational stress and the impending hearing. He listed
the medication Dr Baba was currently taking. He said:
" He does not feel up to giving evidence, and it
may be, although I give this indication that certain
matters are likely to be agreed, that he will not
be able to give evidence, or if he does, he will not
be able to do justice to himself."
Later in his address he added:
" I was confronted this morning with a client who
tells me that he is quite seriously unwell, and is
concerned about doing justice to his case".
No mention was made of hypoglycaemia beyond the tenuous reference in the
medical certificate.
6. The application for an adjournment was opposed by Miss Sullivan on behalf of
the General Medical Council. She pointed out that these were old allegations,
dating back to 1996, and that the Council's main witness (Mrs Walker) had come
from a distance to attend the hearing, although elderly and unwell herself.
The Committee refused the application, finding nothing to lead them to conclude
that Dr Baba was unfit to give instructions or give evidence.
7. The Committee then granted a short adjournment, during which Mr Forde
conferred with Dr Baba and discussed the nature of the charge with Miss
Sullivan. The course of these discussions is the subject of dispute between Dr
Baba and his friend (a Mr Young) on one side and Mr Forde, Mr Shipway and Dr
Bown on the other. When the hearing resumed, Mr Forde agreed the facts
alleged against Dr Baba, believing that he had his authority to do so. He then
mitigated, making plain that the dishonesty admitted in paragraph 1.c related
to the presentation of the notes as contemporaneous and not to the contents.
He called Mr Young as a witness. He urged the Committee not to erase Dr Baba's
name from the Register, emphasising the consequences of such an order to him
and the support he received from many of his patients. Having retired, and
been correctly advised by their legal assessor on the effect of paragraph 1.c
of the charge, the Committee made the order already recorded.
8. In support of both grounds of appeal Dr Baba has invited the Board to
consider a body of evidence which was not before the Committee on 27 January
2000 nor available to Dr Baba's advisers on that date. Dr Raju's notes of his
examination of Dr Baba on
26 January, the day before the hearing (and the date on which the medical
certificate was given), describe him as "incoherent". Notes of a further
examination the following day, presumably after the hearing, describe him as
"unable to hold proper conversations". Reports obtained from various sources
suggest that Dr Baba may have been hypoglycaemic on 27 January, with consequent
detriment to his powers of comprehension and concentration. This opinion
accords with the statements of Dr Baba himself and Mr Young. It is not
supported by Mr Forde, Mr Shipway and Dr Bown, who appreciated that Dr Baba was
unwell and subject to stress on the day of the hearing but did not judge him to
be unable to give instructions or give evidence if he chose.
9. The Board cannot criticise the Committee's decision to refuse an
adjournment. The medical certificate of Dr Raju (which the Committee were well
placed to evaluate) fell far short of what was needed to support such an
application at such a stage. The Committee were bound to have regard to the
undesirability of requiring Mrs Walker to attend on another occasion. The
decision was one for the Committee, and on the material before them they were
fully entitled to reach the decision they did. This ground of appeal must be
rejected.
10. Having read the written statements of Dr Baba, Mr Young, Mr Forde, Mr
Shipway and Dr Bown (but heard no oral evidence) the Board cannot accept that
Mr Forde agreed the facts alleged against Dr Baba in breach of what he (and
those instructing him) understood to be his instructions. These matters had
been fully discussed in conference. All those representing Dr Baba believed
his instructions to be clear. He made no protest at the time. This ground of
appeal also must be rejected.
11. The medical evidence now before the Board does, however, raise a real
question whether Dr Baba was, at the time of the hearing, in a fit state to
give coherent instructions. It is to be noted that in his statement of 25
January 2000 he challenged any understanding previously reached on his
liability under paragraph 1.b of the charge. He further challenged that the
notes were other than contemporaneous so far as the substance of their contents
was concerned: the complaint against him clearly did not rest on the adding of
such formal details as the patient's name, address and date of birth. It would
appear that these challenges were not maintained in conference immediately
before the hearing on
27 January, and in ordinary circumstances that would be fatal to Dr Baba's
application to reopen the matter. But the evidence now available, not
available to anyone at the time, does cause the Board to doubt whether, despite
appearances, Dr Baba was able on that date to apply his mind to the issues,
appreciate the effect of the advice he was receiving and give instructions
accordingly. Particularly in relation to the more serious charge in paragraph
1.c, it seems not unlikely that difficulties of communication and mental
confusion on the part of Dr Baba led to an admission being made on his behalf
which, if fully alert to the advice he was being given, he would not have
authorised. The consequences of this finding by the Committee being as serious
as they are, and there being in the opinion of the Board some risk of injustice
(in no way attributable either to the Committee or to those advising Dr Baba),
the Board thinks it appropriate that the matter should be remitted to a
differently constituted Committee, which should consider the matter afresh.
Their Lordships will accordingly humbly advise Her Majesty that the order of
the Professional Conduct Committee should be set aside and the matter remitted
to that Committee for rehearing. The Board considers it most undesirable that
Dr Baba should practise before the Committee has made its decision and hopes
that it may be possible to arrange an early hearing. The Board makes no order
as to the costs of this hearing.
© 2001 Crown Copyright
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