High Court allows appeal of consultant orthopaedic surgeon, and in doing so provides helpful guidance on what amounts to a ‘referral’.

On 8 November 2012, a Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) found that Mr Hussein’s fitness to practise as a doctor was impaired by reason of misconduct and directed that he be suspended for 3 months

Between 2005 and 2009, Mr Hussein, a consultant orthopaedic surgeon employed at the Princess Alexandra Hospital NHS Trust, was in a close personal relationship with a woman (RJ). On four occasions during that period RJ complained of various symptoms, all associated with potential pregnancy. On each of those occasions Mr Hussein had contacted one of his colleagues (a consultant obstetrician and gynaecologist (AS)) and asked AS to see her by way of private consultation. These consultations took place in September 2005, September 2006, December 2006 and September 2009. Prior to the first consultation AS had suggested to Mr Hussein that a pre-appointment ultrasound scan would speed the process up and Mr Hussein arranged one himself. At the second consultation AS advised that RJ needed an urgent surgical procedure which was carried out on 13 February 2006, RJ being admitted to the Princess Alexandra Hospital. Later the same day Mr Hussein, despite being recorded as RJ’s next of kin and ‘close relation’ authorised her discharge from the hospital and wrote in her notes that she was fit to go.

The GMC Hearing

Mr Hussein ultimately faced fitness to practise proceedings in relation to the above matrix of facts. Paragraphs 3 and 4 of the allegation related primarily to the discharge of RJ from hospital on 13 February 2006, alleging that Mr Hussein had taken over the management of RJ’s gynaecological conditions and had provided medical care to a patient with whom he had close personal relationship. This aspect of the allegation was found proven and those findings are not appealed by Mr Hussein.

Paragraphs 1,2,5 and 6 of the allegation each related to one of the four consultations with AS, each alleging that Mr Hussein referred RJ to AS but, in doing so did not provide AS with an adequate history or adequate clinical information and did not inform RJ’s GP of the referral. It was further said that when making those referrals, he was providing medical care to a patient with whom he was in a close personal relationship. It was accepted by Dr Hussein that he did not provide a medical history or clinical information to AS on the four occasions; his case was that he was not RJ’s doctor and was not making a formal referral as a doctor so as to trigger a professional obligation to provide adequate information and to notify RJ’s GP.

This aspect of the case was also found proven by the Panel who found that there was such a professional obligation. Mr Hussein was suspended for three months.

The GMC Guidelines

The November 2006 edition of ‘Good Medical Practice’ (GMP) stated that‘wherever possible you should avoid providing medical care to anyone with whom you have a close personal relationship’. The edition in force at the earlier consultations in 2001 did not make an express reference to this but the GMC’s expert witness stated that there was nevertheless a general and widely understood consensus, prior to November 2006, that providing medical care to friends or family was not appropriate. As to the meaning of ‘referral’, both the 2001 and 2006 editions of GMP states that;

‘referral involves transferring some or all of the responsibility for the patient’s care, usually temporarily and for a particular purpose, such as an additional investigation, care or treatment, which falls outside your competence’.

Mr Hussein did not dispute that he ought not to have provided medical care to RJ on 13 February 2006 in discharging her. The sole issue on appeal was whether Mr Hussein’s actions in arranging the four consultations were ‘referrals' so that he is to be regarded as having provided medical care to RJ and to therefore carry the obligations of a referring doctor.

At the hearing the GMC’s expert, a consultant gynaecologist, stated in cross examination that he did not consider that Mr Hussein was making an official referral from one consultant to another therefore this was not a ‘referral’ as described in GMP. Perhaps unsurprising counsel for Mr Hussein made an application under Rule 17(2)(g) of the GMC (Fitness to Practise) Rules Order in Council 2004 for a determination that there was insufficient evidence for the hearing to proceed in respect of paragraphs 1,2,5 and 6.

The Panel rejected that application, saying that it based its decision on what was or was not a referral ‘its own understanding of the term’.

At the end of the hearing, the Panel found that ‘by arranging consultations [Mr Hussein] had assumed responsibility for medical care of RJ and [was] transferring this to another professional. As such these were formal ‘referrals’ and not casual introductions’. It went on to find that there was a failure to comply with GMP to share information on such a referral.

It was said by the Panel that even if the conduct had not fallen within the GMC definition of a; 'referral’ (which they had found it did) then it was still found proved because ‘whenever a medically qualified person asks another medically qualified person to see a friend/relative they are applying their medical expertise and judgement in selecting the correct care pathway. They cannot be seen as acting in any other way than as a doctor where medical matters are concerned’.

The Appeal

Mr Hussein argued that the Panel was wrong, both in its rule 17(2)(g) determination and its final determination in finding that his informal introduction of RJ to AS were capable of being and were referrals which engaged the guidelines set out in GMP.

Dealing with whether the behaviour amounted to a ‘referral’ the Court noted that the Panel had given the term its ‘ordinary meaning’, rather than using the meaning ascribed to it in GMP. It was held that this was wrong.; [33]

‘in my judgement the logical starting point (at the very least) for determining the meaning of ‘referral’ must be the definition of that very term to be found in GMP, adjacent to the guidance as to what should be done when making a referral….At the core of the GMP’s definition of ‘referral’ is the concept of transferring responsibility for a patient's care, from which it is clear that the guidance relates to a situation where a doctor with existing professional responsibility for a patient arranges for the patient to see another doctor.’

It was held that the Panel was wrong in its primary finding that it is not necessary for a doctor to be transferring existing professional responsibility for a patient in order for there to be a referral ro which the guidelines in GMP applies. In addition it was said to be unjust that the Panel did not give Mr Hussein proper notice of the approach they were taking in relation to the definition of ‘referral’ and therefore he was precluded from calling expert evidence on the issue.

It was further held that in finding that Mr Hussein had assumed responsibility for RJ;s medical care so as to be a referring doctor was flawed; the GMP definition of ‘referral’ is firmly based on the idea of ensuring continuity of care by sharing information. If such responsibility arises automatically on introduction to a specialist, the GMP definition would be ‘rendered redundant’and replaced by the much broader everyday meaning preferred by the Panel in this case, namely any introduction to a specialist. The effect of this would be‘dramatic’; a doctor would automatically be guilty of misconduct by making any casual introduction to a specialist. It was said that if the GMC had intended this, it could plainly have done so. 

In my judgment in order for there to be a referral by a doctor within the definition in GMP it is necessary to establish that the doctor has already assumed professional responsibility for the patient’s medical care at the time he makes the relevant introduction to a specialist. The mere fact of the introduction cannot of itself, without more, give rise to such responsibility’. I should make it clear that I do not mean to suggest that the fact that a doctor has made introductions of a patient to a specialist cannot, in appropriate cases, indicate, perhaps strongly, that a doctor has accepted responsibility for a patient's care. But the fact that an introduction to a specialist may be evidence that a doctor is acting in a professional capacity does not entail that all such introductions necessarily give rise to that result.

The appeal was accordingly allowed in relation to the Panel's findings in relation to paragraphs 1,2,5 and 6 of the allegation, and the case remitted to a different Panel for consideration of the question of fitness to practise and sanction.

This case provides a helpful definition of what constitutes a ‘referral’; it is also an indication that Panel’s should be slow to move away from the accepted guidance of the relevant published professional standards when measuring conduct.