Privy Council Appeal No. 77 of 2000

Dr. Mahmood Hossain	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 2nd October 2001
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	Present at the hearing:-
			Lord Slynn of Hadley
			Lord Clyde
			Lord Scott of Foscote
		  	[Delivered by Lord Slynn of Hadley]
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1. 	This is an appeal by Dr Mahmood Hossain from a decision of the Professional Conduct Committee of the General Medical Council on 17th November 2000 that his name should be erased from the Medical Register under section 36(1) of the Medical Act 1983 as amended and that his registration should be suspended with immediate effect pursuant to section 38 of the Act on the basis that he had committed serious professional misconduct. Since he is now 62 years of age and he cannot apply for his name to be restored to the Medical Register for five years the practical effect of the decision is that he will not again be able to practise medicine.  The stigma of erasure is also serious.  This appeal is therefore important to him: it is also important, as all these cases are, to the Professional Conduct Committee which is concerned to protect patients, to maintain good standards in, and to maintain confidence in, the profession.  The Board has given the case very anxious consideration bearing in mind the interest of both appellant and respondent.  

2. 	Dr Hossain has practised as a general practice doctor since 1970 after spending some years working in various hospitals. The complaints against him relate to the care of four patients from his practice in Peckham, in 1995, one in 1996, one in 1997 and one in 2000.  A charge common to three of the cases is that he did not himself visit the patients at home when he should have done so. As a result he could not give the medical attention they required. There were other allegations that he failed to give the necessary medical treatment to the patients.  Moreover it was said that he failed to cause proper records to be kept.

3. 	The Committee found that he should have visited the three patients concerned and that as a result of not doing so he “did not place [himself] in a position to assess their condition and treatment needs adequately”.  In respect of the fourth patient they found that he “did not assess her condition and treatment needs despite her continuing symptoms.  [He] also failed to keep adequate medical records of consultations and prescriptions”. They accordingly found him guilty of serious professional misconduct.

4. 	Although many of the allegations against him were either not admitted or were challenged during the four day hearing Dr Hossain does not seek to challenge on this appeal the conclusion of the Committee that in respect of these four patients there were lapses on his part.  Mr Macdonald QC submits, however, on his behalf that erasure was in all the circumstances excessive and unreasonable.  It was not required for the protection of the public since other powers of punishment are available to the Committee – censure, the imposition of conditions, and suspension rather total erasure.

5. 	He has stressed that during many years Dr Hossain has carried on practice in a very deprived, difficult area in which many doctors are not readily willing to work.  For thirteen years he practised alone until he eventually became the senior doctor in a four doctor group practice with at the time of his erasure something in the region of 6,500 patients registered with the practice.  With his doctor colleagues (some part-time, some occasional) and nurses and administrators he has rendered a remarkable service to the community as recognised by the statements of patients and colleagues.  Indeed he had looked after two of the patients referred to and their families in one case for 28 years and another case for 15 years.  Over the years there have been a vast number of consultations and treatments and many home visits by Dr Hossain with his medical assistants. Indeed Dr Hossain puts the total number of consultations by himself at something in the region of 10,000 a year over the seven years investigated by the Committee.

6. 	Further Mr Macdonald points to factors which if not exculpatory do in his submission mitigate the seriousness of what happened and do have considerable relevance to the question of the penalty.

7. 	Thus in the case of Mr K who in 1997 came back from India with a fever and vomiting Mr K’s mother asked the doctor to come to see him several times.  He did not go since he considered that as the young man lived only a short walking distance from the surgery he could go there.  He did however send the patient to hospital for a blood test and a malaria blood screen and he prescribed amoxylin.  In the end it transpired that Mr K was suffering from Dengue fever which led to his death.  An expert witness said that a general practitioner could not have been expected to diagnose Dengue fever and it is submitted that his failure to visit did not cause or contribute to his death.  After the case the appellant changed the practice of his surgery so that every patient coming from abroad with high fever was seen face to face.

8. 	Mrs E a terminally-ill cancer patient was discharged from hospital in April 1996 when Dr Hossain was in the United States and another doctor stood in for him.  On 9th April when he returned to work he was telephoned by a member of Mrs E’s family and he telephoned a hospice nurse to obtain information. He asked, in addition, the district nurse to visit Mrs E and to assess her condition and he arranged to go himself on 10th April with the district nurse but by then Mrs E had been taken to hospital.

9. 	Mrs B was jolted on a bus in November 1995 and consulted him both then and on 6th February 1996.  On the latter occasion she persistently asked for osteopathic treatment which was not available on the National Health Service.  He obviously became exasperated that she would not understand this and he spoke brusquely and inappropriately to her.  That was plainly wrong. He referred her to a consultant rheumatologist but failed to give sufficient details of the appointment to Mrs B.  She was told that she would receive more details which she did not receive.  It is said by then she had changed her doctor.  The consultant found no explanation or organic reason for her complaint.  The failure to produce the notes may have been due to the fact that a statement had to be written for her solicitor in connection with her accident.  It is accepted that this was inefficient but it is said that there were no other suggestions of inadequate note-keeping or record.  

10. 	Mrs W in August 2000 lived in an old people’s home which the appellant or one of his medical colleagues visited weekly so that the practice knew the residents well.  He was asked to visit her there. As he was alone in the surgery and as she was in a home with care support staff and not alone he thought it appropriate to send two nurses from his practice to see her.  They recommended that she should go to hospital and she went straight to hospital but she was discharged the same day with instructions to change her medicine.  On 14th August he planned to visit but owing to another home visit which he made he did not go immediately. One of his nurses who saw Mrs W told him of Mrs W’s condition and he prescribed drugs for her on the basis of what the nurse told him.  He says that after the hospital visit on 7th August he was not shown the request from the hospital that Mrs W should be seen by a general practitioner in seven days.  His initial decision to go to see her had been made in any event. 

11. 	The Board does not in any way consider that these were not failings on the part of Dr Hossain, acts falling below the standard which patients are entitled to expect of their doctors.  The question for the Board, however, is not that but whether in all the circumstances erasure was an inappropriate penalty.  The Board has said many times that it is very slow to interfere in the exercise by the Committee of its power to impose a penalty and that it will need a strong case to justify setting aside such decision. Nevertheless, and even before the recent decision of the Board in Ghosh v The General Medical Council (unreported) Privy Council Appeal No 69 of 2000, 18th June 2001 it was plain that in an appropriate case the Board would interfere.  The fact that it is given to power to consider the determination of the Committee and to substitute any other direction which the Committee itself could have exercised assumes that there will be cases in which the power may and indeed should be exercised.

12. 	The Board fully recognises the experience and knowledge of the eminent members of the Committee in this case and it would only interfere if satisfied that it was right to do so.  The Board is satisfied that in this case the penalty was not justified in the light of the actual allegations proved or admitted and the other remedies available nor by the need to protect patients and to maintain standards and confidence in the medical profession.

13. 	In the first place from its decision it does not appear that in considering the penalty the Committee took into account the long years and dedicated service in the particular area where he worked or the views of patients and colleagues.  The Board recognises that it is usual on appeals as to  sentence for patients to sign or write in support of their doctor but that does not mean that this support should automatically be ignored.  Here it seems to be relevant and in parts very impressive.  It was not challenged.  

14. 	In the second place the Committee appears to have assumed that there was a more general “failure over a number of years and despite several serious complaints against you to recognise that your practice in respect of visits was seriously deficient”.  The Committee are entitled to say that Mrs W’s case was an illustration of a failure.  It does not seem to the Board, however, that even allowing for a decision of the Medical Services Committee in December 1995 when he was warned about not visiting a patient in breach of his terms of service (Record D/5 page 22) there was evidence to justify a finding in respect of matters outside the four cases dealt with.  This, of course, did not inhibit the Committee from finding that there was serious misconduct in the four cases.  The lack of evidence as to a general pattern is, however, relevant to the penalty.  It is also relevant that in Mr K’s case Dr Hossain changed  the practice to ensure that patients like him were seen face to face.

15. 	In the third place the Committee simply says that they reject the suggestion made that the safety of the public could be achieved by the imposition of conditions.  They do not give any reasons for that or why the protection of the public requires erasure.  In the light of previous cases where the Committee have considered in depth how a doctor otherwise competent could be allowed to practise in areas where his or her particular failures could be avoided in the future, the Board are not satisfied that this is a case where the public interest and patients cannot be sufficiently protected by conditions as to his future employment whether in general practice in limited circumstances, under controlled supervision, or in a hospital or hospice or clinic where he would not be required to do home visits and when with a limited amount of work his record keeping could be monitored. The Committee give absolutely no explanation as to why no form of medical practice could be entrusted to him.  It has to be said that the Board thinks there is probably force in the submission made by Dr Hossain’s counsel that the doctor was overworking, overstretched and overtired.  A limited amount of work under supervision would appear likely to avoid that. 

16. 	In his written reply counsel for the appellant has informed the Board that his client now does not wish to return to general practice other if at all than on a sessional basis.  It may be that also provides a guide as to the conditions which could be imposed.  Counsel suggests that suspension might be an alternative.  The Board’s view is that if he is to continue to practise even in a limited way it is more satisfactory to impose conditions than to suspend for a limited period.

17. 	It is clearly not for this Board to define those conditions but they are satisfied that erasure is not a reasonable penalty in the present case.  Accordingly they will humbly advise Her Majesty that the appeal ought to be allowed with costs and the matter remitted to the Committee for them to consider what conditions are necessary for the protection of the public in the light of this decision.