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925 Medicine and the Law Successful Appeal against Erasure from Register By reason of his shareholdings in the Langham Street Clinic Ltd., a doctor had a controlling and a substantial financial interest in the company. On the facts proved- namely, (1) that the clinic dispatched letters to doctors in West Germany offering E20 for each patient introduced for an abortion, (2) that in a B.B.C. television broadcast the matron advertised the clinic, (3) that the clinic provided material for an article in the Sun, and (4) that the clinic sent E20 to a Dr. Young, who returned the money, for introdu- cing a patient-the disciplinary committee of the General Medical Council found the doctor guilty in a professional respect and directed that his name be erased from the register. The doctor appealed. Viscount DILHORNE, delivering the reason for their Lordships’ advice to Her Majesty that the appeal be allowed, said that in the General Medical Council’s booklet, Func- tions, Procedure and Disciplinary Jurisdiction, it was stated that " advertising may ... occur ... if a doctor is associated with ... organisations which advertise clinical or diagnostic services connected with the practice of medicine. In determining any misconduct, it is relevant whether the arrangements had served to promote the doctor’s own professional advantage or financial benefit ... Advertising may also arise in regard to reports or notices issued by companies ... with which a doctor is associated ... " The words " associated with " were very imprecise, and association might take many forms. That the conduct of an organisation might enure to a doctor’s own professional advantage or financial benefit, though relevant, was not conclusive on the question whether his association was such as to render him guilty of infamous conduct. The association might be such that responsibility rested on the doctor for the conduct complained of, or that he must have known of what was done and had acquiesced in it, or again that he could reasonably have been expected to take all reasonable steps to prevent the occurrence of events which might lead to charges of infamous conduct being preferred against him. If in those circumstances he had failed to take those steps, then it might be right to infer and to hold that he had connived at the misconduct. On the other hand no-one would contend that associa- tion with a company by holding some shares in it would make a doctor responsible for the acts of the company’s servants and so be guilty of infamous conduct. Did it make any difference that his share-holding was sufficiently large to give him power to control the company ? There was evidence that prior to the company’s incorpora- tion the doctor was closely associated with the clinic, which began to take in patients in June or August, 1968, but no complaint was made on the clinic’s conduct until after its incorporation in November, 1968. The doctor’s case was that after that date he took no part in the running or in the management of the clinic. There was no evidence that he had done so nor was it alleged in the charge that he had. His failure to exercise the power he had when it was not shown that he had any prior knowledge of what was done or reason to suspect that it would be done was not, in their Lordships’ opinion, capable of being held to be infamous conduct on his part. As the inquiry into the circumstances of the case was fully warranted, no order as to costs was made. Faridian v. General Medical Council. Privy Council: Lord Donovan, Viscount Dilhorne, Lord Wilberforce. Oct. 21, 1970. Counsel and Solicitors: Sir Dingle Foot, Q.c., and Eugene Cotran (Max Bitel, Greene & Co.); Robert Gatehouse, Q.c., and Robert Alexander (Water- house & Co.). HOOSEN COOVADIA Barrister-at-Law. Round the World United States HOW SURE IS INSURANCE ? It is not only the doctors and the difficulties they are having in getting malpraxis insurance that is making news. The ordinary man and woman in the street are now being hit not only by the high cost of automobile insurance but also by policy cancellations, often without individual fault. The reasons given by the insurance companies are all too familiar. The cost of claims has been rising astronomically, court awards are getting higher and higher, and the liti- gation delays increase. The companies claim they are losing money, especially as the stock-market fall has sharply reduced their premium investment income. The motorist with his policy abruptly cancelled has to shop around for coverage, and will probably have to pay a much higher premium. The States’ Governments are reacting in different ways; some will not by law permit such arbitrary cancellations. Massachusetts has decided that the adversary system is outmoded and each motorist must carry his own risks, at least up to a certain sum. It’s all very confusing and very interesting, and many people are demanding that the State or Federal Governments do something about it. But these are only the indications of a wider malaise. Increasingly in recent years the whole insurance industry has been coming under criticism and challenge-life pen- sion and retirement, medical malpraxis, and now, not for the first time, automobile and driving insurance. The companies are not philanthropic bodies. They have to weigh the actuarial risks, to adjust their premiums, to cover their obligations, and to stay solvent. For too many companies, even for those with long and vast experience of the insurance they handle, these tasks are proving too difficult. But national health insurance is a new venture and, as we see from the Medicare and Medicaid pro- grammes, momentous difficulties and hazards lie ahead. In view of the mounting troubles of the insurance companies, and the way these are beginning to affect the ordinary individual as well as the physician meeting medical mal- praxis insurance, selling the public or the Government a national health insurance scheme based on private insurance companies is going to be a difficult task. In England Now NOVEMBER SONNET Season of mists and fellows’ fruitlessness, When youth returns to waken dreaming spires, To hazard peace with new highmindedness: What trendy thought the sophomore inspires And eggs the eager fresher this November ? Shall they, upon the fifth, for Fawkes give vent To feelings fervent-showing they remember All doughty demos ’gainst Establishment ? Or, on the second, demonstrate they care For seemliness and courses straight and narrow, Assuming sober suitings, trimming hair- Respecting, on All Souls’ Day, Warden Sparrow ? And then, on the eleventh, disown all thinkers And toast blest Martin, saint of inns-and drinkers I

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Page 1: In England Now

925

Medicine and the Law

Successful Appeal against Erasure from RegisterBy reason of his shareholdings in the Langham Street

Clinic Ltd., a doctor had a controlling and a substantialfinancial interest in the company. On the facts proved-namely, (1) that the clinic dispatched letters to doctors inWest Germany offering E20 for each patient introduced foran abortion, (2) that in a B.B.C. television broadcast thematron advertised the clinic, (3) that the clinic providedmaterial for an article in the Sun, and (4) that the clinic sentE20 to a Dr. Young, who returned the money, for introdu-cing a patient-the disciplinary committee of the GeneralMedical Council found the doctor guilty in a professionalrespect and directed that his name be erased from theregister. The doctor appealed.Viscount DILHORNE, delivering the reason for their

Lordships’ advice to Her Majesty that the appeal be allowed,said that in the General Medical Council’s booklet, Func-tions, Procedure and Disciplinary Jurisdiction, it was

stated that " advertising may ... occur ... if a doctor isassociated with ... organisations which advertise clinical ordiagnostic services connected with the practice of medicine.In determining any misconduct, it is relevant whether thearrangements had served to promote the doctor’s own

professional advantage or financial benefit ... Advertisingmay also arise in regard to reports or notices issued bycompanies ... with which a doctor is associated ... "The words " associated with " were very imprecise, and

association might take many forms. That the conduct ofan organisation might enure to a doctor’s own professionaladvantage or financial benefit, though relevant, was notconclusive on the question whether his association wassuch as to render him guilty of infamous conduct. Theassociation might be such that responsibility rested on thedoctor for the conduct complained of, or that he must haveknown of what was done and had acquiesced in it, or againthat he could reasonably have been expected to take allreasonable steps to prevent the occurrence of events whichmight lead to charges of infamous conduct being preferredagainst him. If in those circumstances he had failed totake those steps, then it might be right to infer and to holdthat he had connived at the misconduct.On the other hand no-one would contend that associa-

tion with a company by holding some shares in it wouldmake a doctor responsible for the acts of the company’sservants and so be guilty of infamous conduct. Did it makeany difference that his share-holding was sufficiently largeto give him power to control the company ?There was evidence that prior to the company’s incorpora-

tion the doctor was closely associated with the clinic, whichbegan to take in patients in June or August, 1968, but nocomplaint was made on the clinic’s conduct until after itsincorporation in November, 1968. The doctor’s case wasthat after that date he took no part in the running or in themanagement of the clinic. There was no evidence that hehad done so nor was it alleged in the charge that he had.

His failure to exercise the power he had when it was notshown that he had any prior knowledge of what was doneor reason to suspect that it would be done was not, in theirLordships’ opinion, capable of being held to be infamousconduct on his part. As the inquiry into the circumstancesof the case was fully warranted, no order as to costs wasmade.Faridian v. General Medical Council. Privy Council: Lord Donovan,Viscount Dilhorne, Lord Wilberforce. Oct. 21, 1970. Counsel andSolicitors: Sir Dingle Foot, Q.c., and Eugene Cotran (Max Bitel,Greene & Co.); Robert Gatehouse, Q.c., and Robert Alexander (Water-house & Co.).

HOOSEN COOVADIABarrister-at-Law.

Round the World

United States

HOW SURE IS INSURANCE ?

It is not only the doctors and the difficulties they arehaving in getting malpraxis insurance that is making news.The ordinary man and woman in the street are now being hitnot only by the high cost of automobile insurance but alsoby policy cancellations, often without individual fault. Thereasons given by the insurance companies are all too

familiar. The cost of claims has been rising astronomically,court awards are getting higher and higher, and the liti-gation delays increase. The companies claim they arelosing money, especially as the stock-market fall has sharplyreduced their premium investment income. The motoristwith his policy abruptly cancelled has to shop around forcoverage, and will probably have to pay a much higherpremium. The States’ Governments are reacting indifferent ways; some will not by law permit such arbitrarycancellations. Massachusetts has decided that the adversarysystem is outmoded and each motorist must carry his ownrisks, at least up to a certain sum. It’s all very confusingand very interesting, and many people are demandingthat the State or Federal Governments do somethingabout it.

But these are only the indications of a wider malaise.Increasingly in recent years the whole insurance industryhas been coming under criticism and challenge-life pen-sion and retirement, medical malpraxis, and now, not forthe first time, automobile and driving insurance. The

companies are not philanthropic bodies. They have toweigh the actuarial risks, to adjust their premiums, tocover their obligations, and to stay solvent. For too manycompanies, even for those with long and vast experience ofthe insurance they handle, these tasks are proving toodifficult. But national health insurance is a new ventureand, as we see from the Medicare and Medicaid pro-grammes, momentous difficulties and hazards lie ahead. Inview of the mounting troubles of the insurance companies,and the way these are beginning to affect the ordinaryindividual as well as the physician meeting medical mal-praxis insurance, selling the public or the Government anational health insurance scheme based on private insurancecompanies is going to be a difficult task.

In England Now

NOVEMBER SONNET

Season of mists and fellows’ fruitlessness,When youth returns to waken dreaming spires,To hazard peace with new highmindedness:What trendy thought the sophomore inspiresAnd eggs the eager fresher this November ?Shall they, upon the fifth, for Fawkes give ventTo feelings fervent-showing they rememberAll doughty demos ’gainst Establishment ?Or, on the second, demonstrate they careFor seemliness and courses straight and narrow,Assuming sober suitings, trimming hair-Respecting, on All Souls’ Day, Warden Sparrow ?And then, on the eleventh, disown all thinkersAnd toast blest Martin, saint of inns-and drinkers I