Radeke v General Dental Council [2015] EWHC 778 (Admin)

Dr R, a Consultant in Oral Surgery, was employed by King’s College Hospital. In 2012 a patient treated by Dr R died subsequent to surgery. Thereafter Dr R was investigated in relation to three cases.

Dr R was erased by the Professional Conduct Committee (the Committee) of the GDC on 31 July 2014. Dr R appealed this decision pursuant to section 29 of the Dentists Act, as amended by paragraph 19 of the Dentists Act 1984 (amendment) Order 2005. Dr R’s appeal was in relation to:

  1. the Committee’s factual findings;
  2. the Committee’s finding of current impairment; and
  3. the sanction of erasure.

Background

Dr R faced allegations in relation to deficiencies in his clinical assessment of three patients, the most serious being that in relation to Patient X. In addition, he faced an allegation of dishonesty in that he lied about his assessment of Patient X either to a colleague who investigated the matter or to the Coroner in the course of his evidence on oath during the inquest into Patient X’s death on 21 June 2013.

Facts 

Patient A was a 50 year old patient with chronic liver disease. She consulted with Dr R on 20 August 2012. The referral from her GP was in relation to her complaints of pain and mouth ulcers. Dr R asked Patient X to ascertain from her GP whether it was safe for her to have extraction surgery.

On 23 August 2012 Dr R extracted 5 of her teeth under sedation and local anaesthetic and lasered the mouth ulcers. Patient X bled to death the same night, her blood’s ability to clot having been compromised by her alcoholism.

It was established that Dr R should not have performed surgery on Patient X on account of how unwell she was. Furthermore, he would have known this had he performed a more thorough assessment of her condition prior to surgery. Dr R wrongly assumed that Patient X’s discharge from Croydon University Hospital earlier that month was an indication that her condition was sufficiently controlled. He also relied on blood tests he took which suggested that Patient X’s blood clotting function was not so compromised to prevent surgery.

Fitness to practise hearing

Dr R did not give evidence before the Committee, as they accepted medical evidence in the form of a letter from his General Practitioner (GP) that further proceedings would potentially have an adverse effect on his health. Dr R did not submit a witness statement for consideration by the Committee.

The GDC contended that during the internal investigation by his employer, during a meeting on 17 October 2012, Dr R told his colleague that Patient X’s ASA status fell into category 2 as at the date of the procedure, and only in retrospect did he appreciate that she ought to have been placed in a more serious category. Whereas in his evidence to the Coroner, Dr R appeared to suggest that he recognised as at the date of the procedure that Patient X’s ASA status fell into a more serious category. ASA status referring to the classification system for assessing the fitness of patients before surgery.

It was this contrasting evidence that led to the allegation of dishonesty.

The Committee found that Dr R had assessed Patient X as being ASA status 2 at the time of the operation. The Committee did not accept, as given in evidence by Dr R to the Coroner, that Dr R had assessed Patient X as being ASA 3 or 4, and that ASA 2 had been incorrectly written by the assisting nurse. The Committee found that Dr R gave a deliberately misleading account to the Coroner.

On appeal

Mr Justice Turner, unlike the GDC and Committee did not find Patient X’s ASA status to be of considerable clinical significance for the following reasons:

  1. The primary purpose of the ASA status is to determine a patient’s suitability for intravenous sedation, and not the risk of postoperative bleeding, which is what led to Patient X’s death;
  2. The recording of the ASA status on the Procedure Sheet is but one of many pre-operative enquiries;
  3. The labels used to determine a patient’s ASA status are very vague;
  4. ASA categorisation is restricted to systemic disease; and
  5. Many factors which are relevant to whether surgery should proceed do not feature as part of the ASA assessment i.e. the patient’s age and the selection of anaesthetic technique.

Mr Justice Turner concluded that both the Coroner and the Committee ‘fell into the trap’ of attaching undue importance to the ASA status categorisation on the Procedure Sheet. He opined that the pertinent question Dr R needed to ask himself in the circumstances was whether it was safe to operate on Patient X taking into account all the factors. Dr R had in fact asked himself that question, “and genuinely, but wrongly, considered on the information available to him that it was, indeed, safe”. (para 37)

On the key issue which led to Patient X’s death, bleeding, Mr Justice Turner found that Dr R’s evidence was entirely consistent in what he said about his assessment of the risk. In this regard Dr R had admitted the charges, and therefore Mr Justice Turner concluded that his evidence in relation to the central factor which caused Patient X’s death was “transparently honest” (para 46). In this vein, one should question why Dr R would be motivated to give dishonest evidence in relation to his assessment of the ASA status.

In this regard Mr Justice Turner considered the following:

  1. The original summary of allegations levelled against Dr R by the GDC did not include anything about ASA Status assessment, thereby confirming it was not an issue of central importance;
  2. Dr R gave evidence at the inquest in the presence of Dr P who performed the employer’s internal investigation. Dr R was therefore fully aware that anything contradictory in his evidence may be seized upon;
  3. The evidence which was said to be dishonest was given in full view of the persons best placed to challenge it;
  4. The Coroner spent a considerable amount of time asking Dr R about the ASA Status assessment, at which stage the employer and Dr P had the opportunity to put the notes of the meeting on 17 October 2012 to Dr R had they considered his evidence to be clearly dishonest. This did not happen; and
  5. At the inquest, Dr R was never asked to deal with the apparent discrepancy in his two accounts in relation to the ASA Status assessment.

Having considered the underlying facts and the evidence given by Dr R, Mr Justice Turner concluded that any motivation for dishonesty was elusive. The alternatives were that Dr R mistakenly thought Patient X’s ASA Status was 2 or he knew it was 3 or higher but continued with surgery in any event, the second alternative being the most serious.

The absence of a clear motive to lie is consistent with the fact that the case against Dr R was presented in the alternative. Either he lied to Mr P and told the truth to the Coroner or vice versa. Had the perceived advantages of lying to the Coroner been so clear cut then there would have been no need to invite the Panel to consider the alternative” (para 59).

Mr Justice Turner concluded that the Committee was wrong to find that Dr R was dishonest in his evidence to the Coroner. Further, that his evidence was neither inaccurate nor misleading in relation to:

  1. His view on Patient X’s ASA status prior to surgery; and
  2. That the recording of Patient X’s ASA Status on the Procedure Sheet was an uncorrected error.

Mr Justice Turner quashed the sanction of erasure and remitted the case to a differently constituted Committee to consider sanction afresh in light of the findings which remained. 

It is a long established principle that an honest witness can be mistaken; and that over time their account may vary. This case demonstrates that a panel should not only critically consider the evidence upon which an allegation of dishonesty is based, but must also consider any motivation for the dishonesty. In this case the appellant’s evidence on the central issues was not in question, and therefore the panel should have carefully considered why he would give dishonest evidence about a matter of less importance.