Judgment date: 19 April 2013

The High Court upholds panel decision to suspend a doctor but allows the appeal in respect of the imposition of an immediate order.

In this case, the Appellant Doctor (A) challenged the decisions of the Fitness to Practise Panel of the GMC that he was guilty of misconduct, that his fitness to practice was impaired, that he should be suspended for 6 months and that the suspension should have immediate effect.

Factual Background

In July 2009, A had been in practice as a GP for more than 30 years without previous complaint having been made about his conduct or competence. The present complaint related to A’s treatment of Patient B, who was a longstanding patient of his.

In December 2008 a radiologist’s report relating to Patient B had stated that a soft tissue node had been located at the proximal aspect of pancreatic tail, that the tissue should be tested as malignancy was a possibility. A referral to an appropriate surgeon was suggested. In his capacity as Patient B’s GP, A entered into Patient B’s notes that he had given B advice and that he would be referred to surgeons ‘as advised’. Patient B was seen by another doctor in June 2009 who recorded that he had symptoms of tiredness and black motions. A saw Patient B again on 3 July 2009 and recorded that he had low haemoglobin, no GIT symptoms and that the Faecal Occult Blood test results were awaited. The results of those tests were positive and on 16 July 2009 A made a routine referral of Patient B to the gastroenterologist. That letter of referral was good and included all relevant information. The letter was reviewed by a specialist on receipt but was not upgraded to urgent, as could have been done. As a result Patient B attended for colonoscopy and gastroscopy on 18 September 2009, the findings of which were that he had advanced disseminated adenocarcino of the proximal stomach, which was inoperable and was to cause of the death of Patient B shortly afterwards on 21 October 2009.

It was not suggested that the death of Patient B was causally linked to A’s referral of 16 July 2009 being marked routine, nor that the referral should have been made prior to 16 July 2009. The only criticism relevant to the present proceedings was that when A sent the referral on 16 July 2009, he should have marked it as being urgent and not as being routine.

The hearing of the FTP Panel

The GMC called expert evidence from Dr Archard on the standards to be expected of a GP and he concluded that the standard of care afforded Patient B by A was seriously below the standard to be expected of a reasonably competent General Medical Practitioner. A did not give evidence on his own behalf or call any evidence to contradict Dr Archard. The Panel found the relevant factual particulars proved, found that it amounted to misconduct and that his fitness to practise was currently impaired. They imposed a sanction of 6 months suspension and made the Order immediate.

The Appeal

A appealed the determinations of the Panel, stating that they had erred in law and were wrong in their findings. 

Misconduct

In relation to the finding of misconduct, it was submitted on A’s behalf that;

  1. the Panel failed to take Dr Archard’s evidence that the referral letter was ‘very good’ into account
  2. Patient A’s case did not satisfy all the criteria set down in the NICE Guidelines for cases requiring urgent referral as there was no dyspepsia, no evidence of chronic intestinal bleedings or iron deficiency. 
  3. The fact that the referral was not treated as urgent by the specialist is relevant as to the seriousness of the omission; it was a mistake also made by another professional
  4. A was no longer working in general practice and evidence had been submitted to show he was a competent and valued colleague in the work he was now carrying out.

Counsel for A relied on three case; Rao v GMC [2002] UKPC 65; Silver v GMC [2003} UKPC 33 and Nandi v GMC [2004] EWHC 2317 (Admin). It was argued that in those cases findings of misconduct had been held not to be established in cases of isolated instances of doctors falling below the required standards.

It was held that there was no substance to the submission based upon the terms of the NICE Guidelines. They are just that – guidelines: they are not rules and they do not provide an exhaustive catalogue of the circumstances in which an urgent referral should be made. The expert gave evidence that guidelines do not usurp the all-important part of medicine which is based on experience and general training.

The argument that the specialist was also to blame was also rejected. Any specialist is entirely dependent on the referral letter to determine the priority of seeing the patient and primary responsibility remains with the GP.

The Court disagreed that the three cases referred to lead to a conclusion that A was not guilty of misconduct. Each of those cases was a decision on its own facts and did not sit on all fours with the considerations in this case.

The Court was not persuaded that the finding of misconduct was wrong. The Panel’s determination clearly dealt with the relevant issues and submissions and they were entitled to find as they did.

Impairment

A number of arguments were put forward on A’s behalf to suggest that the finding of impairment was wrong were rejected by the Court as being without substance or merit. The real problem for the Panel was the absence of any evidence or indication that A has any insight into the seriousness of what he has done. Even if the matters were easily remediable, there was no evidence that it had in fact been remedied. A had plenty of opportunity to put in representations, or via his Counsel to make further admissions than those that he had made. 

Sanction

It was held that the decision to impose suspension was reasoned and had not been shown to be unreasonable so as to justify the Court in substituting a different sanction.

Immediate Order

This ground of appeal was upheld. At this stage A was not working at all and his employment, should he return to it, was in carrying out cosmetic surgery procedures (an area in which there was evidence that his work was satisfactory).  Further, it seemed to the Court inherently unlikely that a person carrying out such work would need to make a referral elsewhere. The risk to the public seemed negligible and given the relatively short period during which an appeal had to be lodged (28 days) and the relative speed with which such an appeal might be brought, the risk over the entire period remains slight. It was held that ‘it is therefore not possible to identify any rational basis for finding any material risk existed against which was necessary to protect the public’. For those reasons, immediate suspension was unjustifiable and wrong.

This case is a reminder of how Panels’ hands are often tied at the impairment stage when a Registrant has not provided clear evidence of insight and/or remediation. Further, that interim orders post a finding of impairment should be carefully considered and not imposed as an almost inevitable consequence of the finding.