Bose v General Medical Council (GMC) [2003] UKPC 52 (30 June 2003)
ADVANCE COPY

	Privy Council Appeal No. 6 of 2003

Dr. Arijit Bose	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 30th June 2003
	------------------

	Present at the hearing:-
			Lord Hutton
Sir Anthony Evans
Sir Philip Otton
		  	[Delivered by Lord Hutton]
	------------------

1.	This is an appeal by Dr Arijit Bose against the decision of the Professional Conduct Committee (“the PCC”) of the General Medical Council (“the GMC”) on 13 December 2002 that his name be erased from the Register following the finding that he had been guilty of serious professional misconduct.  In his written grounds of appeal to the Board Dr Bose also appealed against the finding that he has been guilty of serious professional misconduct, but at the commencement of the hearing his counsel, Mr Vardon, informed the Board that the appellant wished to discontinue his appeal against that finding and to appeal only against the decision that his name be erased from the Register.

The Background
2.	The background facts were not in dispute before the PCC. The appellant was employed as a Clinical Fellow in accident and emergency medicine at the Royal Oldham Hospital.  His duties were to examine and treat patients in the accident and emergency department, and it was no part of his work to examine patients outside the hospital premises.

3.	Miss M was a particularly vulnerable patient with a history of overdoses and psychiatric problems.  On 3 and 8 October 2000 the appellant attended Miss M in the accident and emergency department at the Royal Oldham Hospital when she attended the department after she had taken an overdose.  On each occasion in addition to complaining of feeling depressed Miss M complained of pain in her lower abdomen and the record of her attendance on 8 October states that an outpatient appointment was to be arranged with her general practitioner to investigate the latter complaint, the record of her attendance on 3 October indicating that she might be suffering from a urinary tract infection.  On 9 October 2000 the appellant telephoned Miss M on her mobile telephone to arrange a time to visit her at home.  On 11 October 2000 when the appellant was off duty he visited Miss M at her home when she was alone. He took with him a selection of fruit as a gift for Miss M.  On this visit he asked Miss M to provide a urine sample and he then conducted an intimate examination of Miss M during which he carried out a vaginal examination using a proctoscope which was an inappropriate medical instrument and he also took two vaginal swabs.  The appellant had taken the proctoscope and the two swabs from the hospital without permission and without recording that he had taken them.  After examining Miss M the appellant offered to give her financial assistance to help her to do a course which would enable her to obtain full-time employment.  The appellant did not make a record of his visit to Miss M in her home or of the examination which he carried out in the accident and emergency department records and he did not communicate with Miss M’s general practitioner.

4.	At an early stage in the hearing before the PCC the appellant admitted a considerable number, but not all, of the detailed facts alleged against him, which facts it was alleged constituted serious professional misconduct on his part.

5.	In relation to Miss M the facts and matters alleged against him and which he admitted were the following:
“1.		At the relevant times, you were a Clinical Fellow in Accident and Emergency Medicine at the Royal Oldham Hospital.
2.		a.		On 3 and 8 October 2000, you attended Miss M in the Accident and Emergency Department at the Royal Oldham Hospital.

b.	On each occasion, Miss M had attended the Accident and Emergency Department after she had taken an overdose.

c.	On 9 October 2000 you telephoned Miss M on her mobile telephone to arrange a time to visit her at her home.

d.	Domiciliary visits did not form part of your duties.

3.		a.	On 11 October 2000, you visited Miss M at her home address in Oldham.

c.	You asked Miss M to provide a urine sample.

e.	Using equipment that you had taken from the hospital, you conducted an intimate examination of Miss M during which you
ii.	carried out a vaginal examination using a proctoscope.
iii.	took two vaginal swabs.

4.		After examining Miss M, you
b.	Offered Miss M financial assistance.

5.		You did not make a record of this visit or of the examinations in the Accident and Emergency Department records or elsewhere.

6.		Your actions as outlined above were
a.	Inappropriate
b.	Unprofessional.”

Although the appellant admitted that these actions were inappropriate and unprofessional he did not admit that they were an abuse of his professional position as alleged in sub-head 6.c. of the charge.

6.	The appellant did not admit the following facts alleged against him:
“3.	b.	You did not arrange for a chaperone to be present.

			d.	You asked Miss M to remove all her clothing.

			e.	i.	carried out an examination of her breasts.
	iv.	made inappropriate remarks to Miss M.
	v.	carried out a rectal examination.

			f.	You did not explain to Miss M the purpose of these examinations.

 4.		a.	Offered to shower with her.”

7.	The appellant also faced a charge in respect of another young woman, Ms T, who had attended the accident and emergency department at the Royal Oldham Hospital on a day in June 2000. In relation to Ms T, the appellant admitted the following facts and matters:
“9.		a.	On a day in June 2000, you attended Ms T in the Accident and Emergency Department of the Royal Oldham Hospital.

b.	A few days later, you sent to Ms T a birthday card through the post to her home address.

c.	You sent a second card dated 18 August to Ms T suggesting that she make contact with you.

d.	You spoke to Ms T on the telephone and suggested that you visit her at her home. 

10.		Your actions as outlined in paragraphs 9(a) to 9(d) were:
a.	Inappropriate.
b.	Unprofessional.”

The Hearing
8.	The hearing before the PCC took the following course.  After the alleged facts and matters set out above had been admitted by the appellant, counsel for the GMC made an opening statement outlining the facts.  Miss M was then called to give evidence.  She was examined by counsel for the GMC and completed her evidence in chief.  However in the course of her cross examination by counsel for the appellant it appears that she became distressed and it further appears that it was agreed between counsel for the GMC and counsel for the appellant that Miss M should not be further cross-examined and should give no further evidence.

9.	After the cross-examination of Miss M was terminated the statements of a number of other witnesses, including Miss M’s grandfather, two managers from the Royal Oldham Hospital, a consultant in the accident and emergency department of that hospital at the relevant time and a general practitioner, were put in evidence before the PCC but it is unnecessary to set out their evidence in this decision.

10.	On about 19 October 2000 the appellant had been arrested by the police on suspicion of indecently assaulting Miss M on 11 October and he was interviewed by the police on two occasions. The record of these interviews was read into the evidence at the hearing before the PCC.  In brief summary what the appellant told the police was that when he saw Miss M for the second time in the accident and emergency department of the hospital he was concerned that she might be suffering from a vaginal infection.  He told her in the hospital that he might have to take a few swabs and she then said to him:
“Can’t you do that at my house.  It’s not proper to do it here”.

A few days later he went to her house and carried out a vaginal examination and took vaginal swabs.  He also told the police that he sent the swabs to the hospital laboratory for analysis.  It is not in dispute that the appellant did send the swabs for analysis to the hospital laboratory together with a printed form.  The form stated that the swabs had been taken on 11 October 2000, but did not state that the swabs had been taken at Miss M’s home and in the box in the form with the heading ‘Ward’, the appellant entered A/EW8.  It is also not in dispute that some days after the interviews the police decided not to proceed with a prosecution against the appellant for indecently assaulting Miss M.

11.	At the conclusion of the evidence adduced by the GMC the legal assessor gave the following advice to the PCC (D3/60) as to how they should treat the evidence of Miss M:
“I told both counsel at an earlier stage this morning, after the matter had been raised very early this morning, that my view was that the witness not having completed the evidence, the only fair way of dealing with the matter was to regard her as not having given any evidence at all.  The rules do not provide for this situation, but if one approaches it in that way, which must be the fair way, there cannot be any argument about that, if one approaches it in that way and regards her as not having given evidence at all of any matters beyond those which are admitted, this is, of course, the complication, but rule 27(1)D:
‘If, in respect of any charge, no evidence is adduced …’,

In respect of the non-admitted charges that is an appropriate way, it is appropriate, in my view, to regard what has happened as falling within that,
‘… no evidence is so adduced then the Committee shall record and the Chairman shall announce the finding that the Practitioner is not guilty of serious professional misconduct in relation to the matter to which the charge relates.’”

12.	Counsel for the GMC and counsel for the appellant then advanced submissions to the PCC.  Counsel for the GMC submitted that on the basis of the admissions made by the appellant it had been proved that, as charged against him, his actions in relation to Miss M were an abuse of his professional position and were capable of amounting to serious professional misconduct. Counsel for the appellant submitted that although the appellant had acted wrongly his conduct did not constitute serious professional misconduct.

13.	At the conclusion of the submissions by counsel the legal assessor gave further advice to the PCC and at the commencement of that advice he stated (D3/79):
“The one outstanding issue within the heads of charge is, of course, that which appears at paragraph 6C: whether the actions which have been admitted and proved were not only inappropriate and also unprofessional but also an abuse of the doctor’s professional position.

That matter has to be decided upon the whole of the evidence.  The evidence in this particular case includes, of course, the admissions, which have been made, and also the contents of the police interview, which have been read.  It does not include any of the oral evidence of Miss M, which went beyond the events which have been admitted and obviously the Committee will put out of their minds that which she spoke of in evidence-in-chief, but which was not able to be explored in cross-examination.  Similarly, of course, that applies to any references in the police interviews to other matters which no longer form the subject of any head of charge.  All those matters must be excluded.

What can be taken into account is the admitted vulnerable state of Miss M.  That is admitted on all sides.  Of course, you have had the opportunity to see her.  You also are entitled, in deciding the issue of whether what has been done amounted to an abuse of the doctor’s professional position, to form your own judgment and you are entitled to draw any inferences which will help you in that regard.  An ‘inference’, of course, is something which is founded upon evidence which you accept as reliable.  It is not a matter of speculation.  That perhaps is particularly worthy of concern when one is thinking perhaps, as one sometimes does, what about motive; there is no evidence of motive here and any speculation about motive would be inappropriate.”

14.	After the PCC had deliberated in camera the Chairman gave their ruling which was that the heads of charge which the appellant had admitted had been found proved and that head 6(c), which was that his actions in relation to Miss M were an abuse of his professional position and which the appellant had not admitted, had been found proved.  The Chairman then stated that the Committee had accepted that no sufficient evidence had been adduced from which they could find the facts in heads 3b, 3d, 3e, (i), 3e (iv), 3e (v), 3f and 4a of the charge proved.  The Chairman further stated (D3/81):
“Having reached findings on the facts the Committee then considered whether the facts found proved would be insufficient to support a finding of serious professional misconduct.  The Committee concluded that they would not be insufficient.

For the benefit of the public I would explain that tomorrow the Committee will invite Mr Tehrani to adduce evidence, if he wishes to do so, as to the circumstances leading up to the facts which have been found proved, the extent to which those facts indicate serious professional misconduct on the part of Dr Bose and as to his character and previous history.  After that, the Committee will invite Mr Vardon to address them on those matters and also to adduce evidence in mitigation if he wishes to do so.
The Committee will then proceed to consider whether Dr Bose has been guilty of serious professional misconduct in respect of those facts which have been found proved against him and, if so, they will go on to consider their determination as to whether or not they should make any direction regarding his registration.”

15.	When the hearing resumed on the next day the appellant gave evidence on his own behalf.  In the course of his examination in chief he gave the following evidence (inter alia) in relation to Miss M and the Board sets out separate passages in his evidence in the following paragraphs:

16.	“Q	Looking at her as she gave her evidence during this hearing and having looked and studied the notes, would you say she is a vulnerable patient?

A	I would.

Q	Given that, why was it that you decided against the protocol that you knew existed to visit that patient at her home?

A	This decision to visit her at her home was based on a previous experience which I had in Barnet General Hospital, and I have told this to my solicitor in my interview, after the police interview as well.  When I was working there we had a similar young lady coming into the Department, who used to take non-fatal overdoses and used to complain of lower abdominal pain, until one day she took a near-fatal overdose and we discovered that she was being sexually abused by her stepfather.  When I saw [M] on the 3rd and after the 8th, she refused to go home after I saw her.  There was no indication to admit her into the observation ward and I asked her that, ‘I have to send you home because there is no medical indication for observation’.  She said, ‘I do not want to go home’ and I made a record of this in my notes, and then suspicion occurred to me that she has been having a chronic lower abdominal pain and this can be happening to her and that is why I decided to visit her.  She was not getting any help from her General Practitioner, she had lost faith in her General Practitioner, and that prompted me to visit her and do the examination.”
17.	“Q		Did she say anything about any of her physical problems on 8 October?

A		When I got the levels for the medicines and the other treatment line, I then decided to send her home after the review given in by the psychiatric nurse, and then she said that ‘I need some help about my lower abdominal pain’ and I said, ‘There’s not much on examination so I don’t know what I can offer’.  Then she said that ‘I am having some vaginal discharge as well’.  I then said to her that ‘If that’s the case then a swab needs to be taken’ because that might be one of the causes of lower abdominal pain, and she said ‘Are you not able to take a swab?’ and I said ‘Yes, I can take the swab in the Department’ and she said that ‘I wasn’t very comfortable with that in the Department’.

Q		Who was not very comfortable with it?

A		Miss M.

Q		She was not very comfortable when that happened in the department, so what was agreed?

A		So I said that if you are not happy you can get it done at your doctor’s and then she said, ‘Is it not possible for you to do it?’ on which I said that it is not appropriate for me to do it, this examination, at all and she said, ‘If I consented, if I asked that you can come and do this at home would you not be doing it?’ and then this previous experience in my mind is that she has been having this for a long time, not getting help from doctors.  That is why I decided to accede to her request and examine her at home.

Q		Did she have any confidence, as far as you could tell, in the Accident and Emergency Department?

A		I do not think she had much confidence in the department because she kept coming repeatedly.

Q		Did you, as far as you could tell, discover if she had any confidence in her general practitioner?

A		No.  She has stated that she does not have any faith in her GP because she has attended a couple of times and he had arranged a hospital appointment which was not coming through and there was not any further which this doctor had.

Q		It is plain from what you have already said that at the time you knew you should not have gone to her house?

A		Yes.”

18.	“Q		Do you accept that visiting a female patient – or indeed, any patient – at their home when you are working as an Accident and Emergency doctor again is singularly unprofessional?

A		I accept, yes.

Q		Carrying out an intimate examination without anyone else being present could never be justified, could it?

A		No.

Q		Even though, as you said, you were doing it because you thought it might be in her overall best interests. Yes?

A		Yes.

Q		Do you accept that, even if that was your genuine view, it cannot justify what you did?

A		I accept with hindsight, yes, that is a terrible mistake I have made.”

19.	In relation to Ms T the appellant gave the following evidence:
“Q		We also know that, as far as Miss T is concerned, as you have admitted, she having attended the Royal Oldham Hospital in June 2000, you sent her a birthday card, you sent her a further card on 18 August suggesting she should contact you and then you spoke to her on the telephone and suggested that you might visit her?
A			Yes. What happened with Miss T was utterly inappropriate and unacceptable and I admit that.  It will never happen again. …

Q			Can you explain what it was that led you to behave in the manner that you described as quite inappropriate and unprofessional to Miss T?

A			I do not know what thoughts were going through my mind when I did that, but it was certainly not to have a friendship or a socialising thing with her.”

20.	In the course of his cross-examination the appellant accepted that he had made many mistakes in his conduct in relation to Miss M.  Some of the answers which he gave were as follows:

21.	“Q		A final question on this topic.  You accept that you did not go to anybody and express your concerns?
		A		Yes.
		Q		You said you went to visit her at home because you had her best interests at heart?
		A		That is right.
		Q		You say you took the swabs properly, although you used the wrong instrument?
		A		Yes.  It is an unconventional instrument for that procedure.
		Q		Do you accept that it is unheard of to use a proctoscope to take a high vaginal swab.
		A		Yes, it is a mistake on my part.  I admit that.
		Q		Why did you take the wrong instrument?
		A		Because I could not find the colposcope.”

22.	“Q		You say you had Miss M’s best interests at heart?
	A		That is right.
	Q		You go and take the swabs.  On your account you submit the swabs and you get back the result which suggests there is some sort of infection?
	A		That is right.
	Q		Did you give her the medication?

	A		That’s why there were numerous ‘phone calls, to give her her medicines.
	Q		Please listen to me carefully.  My question was:  did you give her the medication?
	A		I tried to.
	Q		I think the answer is no, you did not?
	A		No, I did not.
	Q		You said in your interview that you attempted to contact her on thirteen occasions?
	A		That is right.
	Q		But you did not manage to make contact with her?
	A		Yes.
	Q		Did you consider writing to her at home to tell her that she required this medication?
	A		No.
	Q		Why not?
	A		It was not proper for me to write to her.
	Q		But it was not proper for you to go to her home?
	A		Yes.  It was not appropriate.
	Q		You tell us you had her welfare at heart?
	A		Yes.
	Q		And you were trying to avoid a catastrophe befalling her?
	A		This is right.
	Q		You had already broken one hospital protocol by going to see her at home.  Why not break another one and write to her?
	A		I did not want to make mistakes again.”

23.	“Q		In your final interview you admitted you had made 13 phone calls to Miss M and/or her grandfather to try and contact Miss M to give her these tablets?

		A		Yes.

		Q		When you realised you could not make contact with Miss M, why not write to her GP and tell her ‘She is unwell and therefore needs medication’.

		A		I should have done that.  That is a mistake on my part.”

24.	“Q		You made no notes about your home visit to Miss M, did you?
		A		No, I did not.
		Q		Why not?
		A		I made a mistake.”

25.	“Q		Let me put this proposition to you.  Did you make no notes because you did not want the consultant in charge of the Accident & Emergency unit discovering that you had broken one of the main protocols of the department?

		A		I was not afraid of anyone discovering.

		Q		Did you tell anyone after you got back to the hospital that you had done what you had done at Miss M’s house?

		A		No, I did not tell anybody.”

26.	“Q		But someone looking at this document [the form which accompanied the swabs sent to the hospital laboratory] retrospectively and not knowing what your account is would think that you had completed the form to try and imply that the swabs had been taken in the Accident & Emergency Department, is that correct? 

	A		They may get that opinion, that is correct.

	Q		Did you not think it important to put some entry, however minor or brief, in Miss M’s records to indicate that you had undertaken some tests and you were awaiting the results?

	A		I should have done that, yes.”

27.	After the appellant had given his evidence favourable references in respect of him from three doctors, Dr Hindle, a general practitioner, Dr Gallagher, a consultant physician, and Mr Raza FRCS, a consultant in emergency medicine, were placed before the PCC by his counsel.  

28.	In the course of his closing submissions counsel for the appellant submitted (D4/43):
“Whether Dr Bose is guilty of serious professional misconduct and if so what direction to make, depends in my submission and must depend upon his motivation behind his actions in relation to, I suppose, both Miss T but far, far more importantly his motivation relating to Miss M and the reasons surrounding and behind his visit to her home address plainly outside the ambit of his responsibilities.

I here, perhaps as you anticipate, repeat the submission that I made yesterday.  In the absence of any evidence to the contrary – which could only in reality have come from Miss M – this Committee, maybe with some reluctance, maybe even with some considerable reluctance, must assume Dr Bose’s motivation was not improper in terms of any sexual impropriety.

Any finding, I would further submit, of impropriety would be, I say respectfully, quite perverse on the evidence that you have heard.  It could not, for instance, be based upon an inference from the facts because the facts emanate from the evidence of Dr Bose and are based, of course, on his admissions to the police during the course of the police interviews back in October, 2000.  Therefore, any finding of impropriety would be based on, as it were, some sort of gut speculation rather than any proper judicial inference from the facts as you have found them to be.

So that is, in reality, the primary submission that I make.

This case, what happens to Dr Bose, must depend upon his motivation.  Therefore, I submit, Dr Bose’s visit on the 11th October to her home and his subsequent examination, coupled with the offer of financial assistance, plainly was inappropriate and unprofessional.  It may very well be regarded – and properly regarded – by this Committee as an abuse of his professional position but, if as I contend, the Committee is bound – if I may again be so bold and not disrespectful but to repeat that word ‘bound’ and underline that word – if the Committee is bound to accept his explanation for the visit, then Dr Bose has been guilty of a monumental error of bad judgment but his actions must be accepted as having sprung from well-intentioned naivety rather than anything more sinister.”

29.	Before the PCC deliberated in camera they received the advice of the legal assessor which included the following (D4/46):
“[Counsel for the appellant] asked you to find, and asserts that you have no alternative but to find, that there was no improper motive for the doctor’s visit to the home of Miss M.  My advice to the Committee is this:  that, bearing in mind the burden and standard of proof, it would not be open in law to the Committee to find that there was an improper motive.”

The Decision of the PCC
30.	On the next day, the Chairman stated the decision of the PCC. In respect of the appellant’s conduct in relation to Miss T he stated that his actions were inappropriate and unprofessional.  In relation to the appellant’s conduct in relation to Miss M he stated that his actions were inappropriate, unprofessional and an abuse of his professional position.  The Chairman then stated (D5/3 and 4):
“The Committee have been gravely concerned by your behaviour in these circumstances, particularly towards Miss M, who was and is clearly a particularly vulnerable patient with a history of overdoses  and of psychiatric problems.  You have admitted that you visited Miss M at her home on 11 October 2000 when you were off duty and at a time when she was alone.  You took with you a selection of fruits as a gift for Miss M and when home visits did not form part of your duties.  The Committee have heard that the correct procedure would have been for you to refer Miss M to her General Practitioner or to a specialist hospital department.  Whilst at Miss M’s home you carried out an intimate examination using a completely inappropriate medical instrument and with no chaperone present;  furthermore, you signally failed to record any details of her condition, your examination or any results of your visit.  You also offered Miss M financial assistance which, as you have admitted in evidence, was wholly inappropriate and unprofessional.  After the visit on 11 October 2000 you then attempted to contact Miss M by telephone on numerous occasions.  By your actions you attempted to establish an improper relationship with Miss M and this constituted a gross abuse of your professional position.

In the case of Miss T, the Committee heard that you not only obtained her address from the hospital records but also suggested that the two of you should meet.  When Miss T asked you whether you were married and was told that you are, she broke off any further contact with you.  In sum, as you have admitted, your conduct with Miss T was also wholly inappropriate and unprofessional.

The GMC publication ‘Good Medical Practice’ (July 1998) which was applicable at the time, states that doctors must not abuse their professional position, that patients must be able to trust doctors and that doctors must not abuse their patients’ trust.  By your behaviour you grievously breached these fundamental principles.  ‘Good Medical Practice’ further states that in providing care doctors must keep clear, accurate and contemporaneous records which report the relevant clinical findings.  By failing to make a record of your visit to Miss M’s home you breached this responsibility and duty.  Doctors must act in their patients’ best interests. The Committee feel strongly that by your actions towards Miss M you failed to apply this basic principle.

The Committee accepted the Learned Legal Assessor’s advice that it was not open to them in law to find that your actions towards Miss M were motivated by any sexual impropriety.  However, the Committee were in no doubt that your actions were not motivated by the best interests of Miss M. Furthermore, the Committee are sure that you did not visit Miss M for bona fide clinical reasons or to carry out an appropriate clinical examination.  Your actions towards Miss M were improper.  ‘Good Medical Practice’ clearly states that doctors must not use their position to establish improper personal relationships with patients.  In the cases of both Miss M and Miss T you deliberately failed in that duty.

The Committee have concluded that your conduct has fallen very far below the standard expected of a medical practitioner in these circumstances.  The Committee have therefore determined that you are guilty of serious professional misconduct.”
The Chairman then stated (D5/4 and 5):
“In considering what action to take against your registration, the Committee have considered the issue of proportionality and the need to balance your own interests and the interests of patients.  They have noted the testimonials submitted on your behalf and the fact that you admitted the majority of the heads of charge against you.  Since you qualified in 1985 and you arrived in the UK in 1995 there have been no previous findings against you.  They have also noted that you now regret your actions.  Notwithstanding, it remains the duty of the Committee to protect patients and maintain public confidence in the medical profession.  It is also the Committee’s duty, where appropriate, to register disapproval of unprofessional conduct, to ensure that the public continues to have confidence in the medical profession and maintain high standards of conduct so that the good reputation of the profession is upheld.

The Committee have carefully considered each of the alternative sanctions as provided for in the Medical Act 1983 (as amended).  Due to the serious nature of the findings which you have admitted and have been found proved, the Committee have concluded that it would clearly not be sufficient to conclude your case with a reprimand.  The Committee then considered whether a period of conditional registration would be appropriate in your case.  They concluded that there are not adequate conditions which would be proportionate, workable and measurable which could suitably be imposed on your registration in the light of your extremely serious misconduct.

The Committee then went on to consider whether it would be sufficient to make an order for suspension of your registration, but concluded that, in order to protect the public, a period of suspension would be inappropriate and wholly inadequate.

Given the serious findings against you, the Committee has found your behaviour to be a gross departure from the relevant professional standards as set out in “Good Medical Practice” and therefore fundamentally incompatible with being a doctor.  Your actions towards Miss M were a gross abuse of your position, especially when she was a particularly vulnerable patient.  In view of their findings the Committee have directed that your name be erased from the Register.  The effect of this direction is that, unless you exercise your right of appeal, your name will be erased from the Register in 28 days time.

Having concluded that your name should be erased from the Register, the Committee will now go on to determine whether they consider it necessary for the protection of members of the public, or in your own interests, to impose an order for the immediate suspension of your registration.”

31.	After hearing further submissions from counsel and a further period of deliberation by the PCC in camera the Chairman stated that the Committee had decided that in order to ensure the protection of members of the public it was necessary to suspend the appellant’s registration with immediate effect.  

The Finding as to Motive
32.	It is clear that on the evidence which they had heard the PCC were fully entitled to reach the conclusion that the appellant had been guilty of serious professional misconduct and, as the Board have stated, this was accepted by the appellant’s counsel at the commencement of the hearing before the Board.  Their Lordships further consider that having heard the evidence of the appellant and particularly his answers in cross-examination the PCC were fully entitled to reach the conclusion (D5/4) that they:
“were in no doubt that your actions were not motivated by the best interests of Miss M.  Furthermore, the Committee are sure that you did not visit Miss M for bona fide clinical reasons or to carry out an appropriate clinical examination. Your actions towards Miss M were improper.”

And that 
“your behaviour [was] a gross departure from the relevant professional standards as set out in ‘Good Medical Practice’ and therefore fundamentally incompatible with being a doctor.  Your actions towards Miss M were a gross abuse of your position, especially when she was a particularly vulnerable patient.  In view of their findings the Committee have directed that your name be erased from the Register.”

33.	Their Lordships consider that the legal assessor erred in advising the PCC (D4/46) after they had heard the evidence of the appellant, that “bearing in mind the burden and standard of proof, it would not be open in law to the Committee to find that there was an improper motive”.  This advice appears to echo the advice which the legal assessor had given to the PCC (D3/79) before they had heard the evidence of the appellant that:
“You also are entitled, in deciding the issue of whether what has been done amounted to an abuse of the doctor’s professional position, to form your own judgment and you are entitled to draw any inferences which will help you in that regard.  An “inference”, of course, is something which is founded upon evidence which you accept as reliable.  It is not a matter of speculation.  That perhaps is particularly worthy of concern when one is thinking perhaps, as one sometimes does, what about motive;  there is no evidence of motive here and any speculation about motive would be inappropriate.”

34.	An inference is a reasonable deduction drawn from the evidence as opposed to a mere conjecture or speculation, and their Lordships are satisfied that after they had heard the evidence of the appellant the conclusion to which the PCC came was not based on conjecture or speculation but was based on an entirely reasonable inference from the evidence.

35.	Counsel for the appellant submitted that although the PCC paid “lip service” to the legal assessor’s advice that it was not open to them to find that the appellant’s actions towards Miss M were motivated by any sexual impropriety, the Committee clearly departed from their purported acceptance of this advice in reaching the conclusions which they did.

36.	Their Lordships consider that the PCC did depart from the legal assessor’s advice, because it appears artificial to read the sentences of the Committee’s decision commencing with the words “However, the Committee were in no doubt that your actions were not motivated by the best interests of Miss M …” other than as a finding that the appellant’s actions towards Miss M were motivated by sexual impropriety. The conduct of the appellant was clearly improper.  The only suggestion advanced on the appellant’s behalf as a reason for his behaviour was that it sprang from “well-intentioned naivety”, and in his evidence the appellant sought to explain various aspects of his conduct as “mistakes”.  In finding that the appellant’s actions were not motivated by the best interests of Miss M and that he did not visit her for bona fide clinical reasons or to carry out an appropriate clinical examination, the PCC clearly rejected his explanations for his conduct.  Thus in the absence of any other plausible explanation they, in reality, drew the inevitable conclusion that his actions towards Miss M were motivated by sexual impropriety.  This finding by the PCC was one which they were fully entitled to come to having heard the evidence of the appellant, and there is no reason why the Board should set aside that decision because the legal assessor gave erroneous advice to the PCC which was much too favourable to the appellant.  Rules 2 and 3 of the General Medical Council (Legal Assessors) Rules 1980 (SI 1980/941) provide:
“2.		It shall be the duty of the legal assessor to be present at all proceedings before the Committee and to advise on any questions of law arising which may be referred to him by the Committee.

3.			It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that, but for such advice, there is a possibility of a mistake of law being made.”

In delivering the judgment of the Board in Sivarajah v General Medical Council [1964] 1 WLR 112, 116  Lord Guest stated:
“The legal assessor is, however, in no sense in the position of a judge summing up to a jury, nor is the committee’s function analogous to that of a jury.  The legal Assessor’s duties are confined to “advising on questions of law referred to him, and to interventions for the purpose either of informing the committee of any irregularity in the conduct of their proceedings which comes to his knowledge, or of advising them when it appears to him that, but for such advice, there is a possibility of a mistake of law being made’ (Fox v General Medical Council).  The committee are masters both of the law and of the facts.”

37.	Rule 5 of the General Medical Council (Legal Assessors) Rules 1980 (SI 1980/941) provides:
“5.		If on any occasion the Professional Conduct Committee or Health Committee do not accept the advice of a legal assessor, a record shall be made of the question referred to him, of the advice given and of the refusal to accept it (together with the reasons for such refusal) and a copy of the record shall be given to every party, or person representing a party, to the proceedings before that Committee.”

In this case, where the advice given by the legal assessor was erroneous, the appellant suffered no prejudice because the PCC did not comply with the advice.

38.	The appellant’s counsel also submitted that the legal assessor gave contradictory advice to the PCC at D3/60 when he stated that the Committee should regard Miss M “as not having given any evidence at all” and then stated that the Committee should regard her “as not have giving evidence at all of any matters beyond those which are admitted” (advice which was repeated at D3/79). Reading the words literally there is a slight degree of difference between the two statements, but the PCC were fully entitled to take into account the facts admitted by the appellant and their Lordships are satisfied that the PCC were not confused by the advice, the thrust of which was that the PCC should leave out of account Miss M’s evidence in so far as it went beyond the facts admitted by the appellant.

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