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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Misra v. General Medical Council (GMC) [2003] UKPC 7 (22 January 2003) URL: http://www.bailii.org/uk/cases/UKPC/2003/7.html Cite as: [2003] UKPC 7, (2003) 72 BMLR 108 |
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Misra v. General Medical Council (GMC) [2003] UKPC 7 (22 January 2003)
ADVANCE COPY
Privy Council Appeal No. 43 of 2002
Dr. Surendra Charan Misra 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 January 2003
------------------
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
[Delivered by Lord Scott of Foscote]
------------------
Background
"24.7.97. Lomotil 2 stat
1QDS 20
AM. Patient requesting visit for diarrhoea and sickness Prescription given
No visit."
and
"25.7.97 PM
Telephone call received from Mrs Berryman's husband. Says his wife is very ill. Very sleepy. Dr Misra still refuses visit for sickness and diarrhoea. Told to let wife sleep. Come to surgery Saturday morning."
The papers before the Board include a letter dated 18 August 1997 to Mr J L Berryman (presumably Mr John Berryman) from British Telecom. The letter was accompanied by a print-out of telephone calls made from the Berryman residence between 20 July and 30 July 1997. The print-out shows calls made to Dr Misra's surgery on the four occasions to which reference is made in paragraph 5 above. This print-out is, no doubt, the reason why Mr Ian Berryman was able to refer to "at least 4" telephone calls, His letter to Dr Misra did not refer to the BT print-out."2. The records show 2 telephone calls both requesting a visit within the same week. Why do the records only show 2 calls when at least 4 were made?"
"Only two calls for a visit are documented in our records, I am sorry I cannot give any more information other than the receptionist who took the call has since left the practice."
The "girl" to whom Dr Misra was referring was Mrs Farr."If the call comes to me, I mean if I don't get the call then I can't see anybody, but ultimately that girl in question on one Friday night did not answer the telephone calls at all and I had to ask her to leave and she took me to ACAS and I said 'you take me to Timbuktu but if I lose my livelihood just by not answering the telephone calls which was totally your duty then I'm not keeping you here'. So we went to ACAS and then there was all this sort of thing and then they said 'why don't you give her 2 weeks money and forget the hassle and all that'. I said 'OK I'll give her two weeks' and that is how we got rid of that person'."
"Only two of the four telephone calls made to Dr Misra's practice between 22 and 25 July 1997 were brought to Dr Misra's attention …
He was not made aware of the first telephone call on 22 July and when his receptionist told him on 24 July that Mrs Berryman was suffering from diarrhoea, he prescribed Lomotil ..."
and
"Dr Misra was advised the following morning on 25 July that the diarrhoea was no better … Dr Misra was not advised of a further telephone call concerning Mrs Berryman that afternoon."
"1. At the material times you were responsible for the general medical care of Mrs Anne Berryman, a patient registered on your NHS list;
2. a. On or about 21 or 22 July 1997 Mrs Berryman's husband telephoned your practice to request a home visit for his wife,
b. Mr Berryman indicated that his wife was,
i. suffering from nausea, diarrhoea and a high temperature,
ii. unable to attend the surgery.
c. You were informed of the request,
d. You did not visit Mrs Berryman at her home,
e. You did not telephone Mrs Berryman or her husband to discuss her symptoms;
3. a. On or about 24 July 1997 Mr Berryman again telephoned your practice to request a home visit for his wife,
b. You were informed of the request,
c. You did not visit Mrs Berryman at her home,
d. You did not telephone Mrs Berryman or her husband to discuss her symptoms,
e. You prescribed Lomotil on the basis of the information given to a member of your practice staff,
f. You did not personally record in Mrs Berryman's notes your prescription for Lomotil and your justifications for the actions you took in response to the request for a home visit,
4. a. On or about 25 July 1997 Mr Berryman again telephoned your practice on two occasions to request a home visit for his wife,
b. You were informed of the requests,
c. You did not visit Mrs Berryman at her home,
d. You did not telephone Mrs Berryman or her husband that day or at any later date to discuss her symptoms,
5. a. Prior to prescribing Lomotil on 24 July 1997 you failed to place yourself in a position to make an adequate and secure clinical assessment of Mrs Berryman's health,
b. After prescribing Lomotil on 24 July 1997 you failed to
i. adequately monitor Mrs Berryman's clinical progress.
ii. Make an adequate and secure clinical assessment of Mrs Berryman's heath;
6. a. In January 1998 you met with Mrs Berryman's son, Ian Berryman, to discuss your treatment of his mother,
b. You told him that you had not been made aware of all the requests for a home visit which had been made between 21 or 22 July and 25 July 1997,
c. You attributed this to omissions on the part of your then receptionist, [Mrs Farr],
d. You knew this information to be untrue;
7. a. On 14 March 2000, Le Brasseur J Tickle solicitors wrote to the General Medical Council on your instructions, setting out your comments on Mr Ian Berryman's complaint against you,
b. You indicated that you had not been made aware of all of the requests for a home visit which had been made between 21 to 22 July and 25 July 1997,
c. You attributed this to omissions on the part of the practice ancillary staff,
d. You knew this information to be untrue.
And that in relation to the facts alleged you have been guilty of serious professional misconduct."
(i) The fact that a telephone call about Mrs Berryman had been made to the surgery on 22 July 1997 was not in dispute. The BT records showed that the call had been made. But the alleged content of the call was not accepted by Dr Misra. And he denied that he had been informed of it.
(ii) Dr Misra accepted that two calls had been made to his surgery on 25 July. Here again, the BT records were conclusive. But he denied having been informed of more than one call. He accepted that in the one call of which he had been informed a request for him to visit Mrs Berryman had been made.
(iii) Dr Misra denied that he had given Mr Ian Berryman information which he (Dr Misra) knew was untrue.
(iv) Dr Misra denied that the information given by his solicitors in their letter to the GMC of 14 March 2000 was information that he knew to be untrue.
"Q. So far as you were aware, were there any other occasions when he might have been taking alcohol?
A. Yes. He would take alcohol on the premises." (Day 1, p 14).
Further questions from Dr Jay on the subject then followed.
"Q. How did you meet Dr Misra?
A. I was a barmaid in a local pub that Dr Misra drank in. I got to know him quite well, so when I left the pub he offered me a job.
Q. How often would you see him in the pub?
A. Every day.
Q. At what time of day?
A. It was lunchtime I saw him, between surgery and closing hours. Then he would sometimes pop back in the evenings." (Day 1, p 18)
This was irrelevant evidence. It ought to have been objected to, but was not.
"Q. Was there any particular reason that you could see as to why Dr Misra would not go on home visits?
A. His attitude was 'If you are that ill that you cannot come to the surgery, go to hospital'. He always went out at lunchtime. He always went to the pub at lunchtime.
Q. He always went to the pub at lunchtime?
A. Yes.
Q. In what condition did he return from the pub?
A. It would depend on different days. I have seen him return very drunk." (Day 1 p 20).
In their Lordships' opinion, the last question in this series was an improper one for counsel to have asked. It was plainly expecting the answer it received. But the answer it received was irrelevant to the charges Dr Misra was facing and highly prejudicial. There followed further general questions about Dr Misra's drinking habits with no attempt to link them to the events of 22 to 25 July 1997 regarding Mrs Berryman. No objection to this line of questioning was made.
"We submit that he told this Committee a pack of lies about that part of his evidence and his credibility is seriously in question."
(i) The issue regarding the 25 July telephone calls was not in any sense a technical issue. It was simply an issue of credit;
(ii) the Committee might have been influenced by the groundless cover-up suggestions made by Mr Greene; and
(iii) the Committee might have been influenced by the irrelevant evidence relating to Dr Misra's drinking habits.
"For whatever reason, whether it be because he was under the influence of drink, whether because of overwork or laziness he did not go on a home visit …" (Day 2 p 28)