Mr Justice Morris dismisses an appeal and states that the Panel was not required within its decision to expressly refer to one issue which was advanced as part of general difficulties faced by the Appellant.
Crosswaite –v- the General Medical Council  EWHC 2947 (Admin)
On 24 March 2016 a Panel (“the Panel”) of the Medical Practitioners Tribunal Service (“MPTS”) held that the fitness to practise of Dr Alastair Crosswaite (“the Appellant”) was impaired by reason of misconduct. The Panel ordered that he be suspended from the Medical Register for a period of three months. The misconduct arose from the Appellant’s actions in dishonestly writing and presenting a false prescription for his own use. The appeal was in respect of the Panel’s determination on impairment and sanction.
As at the date of the hearing, the Appellant had been a qualified doctor for 28 years, and a General Practitioner (GP) for 23 years. He commenced work at a GP practice in Edinburgh in 1999, becoming a full time partner in 2010.
In 2013, the partners of the practice suspended the Appellant after a series of issues, and attempted to expel him. The Appellant obtained a court interdict, and throughout the remainder of 2013, the dispute continued, ending in December when a negotiated settlement was reached and the Appellant resigned from the partnership.
One of the key background issues to the partnership dispute was trouble in the Appellant’s marriage. The Appellant’s health suffered, and in 2013 he was treated with, amongst other things, antidepressants.
The Appellant left Edinburgh after he and his wife separated and went to live in Harrogate with his mother. On 10 October 2013, the Appellant wrote and presented a prescription at a pharmacy in Harrogate during the time when he was living there.
The Panel also heard evidence in relation to a number of alleged clinical failings, which the Appellant stated had been instigated or encouraged by his previous partners once they had been unable to expel him from the practice.
It is of note that the Appellant accepted a number of the factual allegations at the commencement of the hearing; both in relation to the dishonesty and the clinical issues. Out of the original list of allegations relating to 20 patients, the Appellant admitted the facts in relation to 9 of the cases. Of the 9 cases, the Panel found that in only 4 did the conduct amount to misconduct. The Panel did not find current impairment in relation to the 4 cases, thus the only finding of impairment related to the misconduct arising from the dishonest prescription.
The Appellant’s evidence to the Panel was that he was suffering from depression. Further, he did not in fact collect the prescription because he realised the stupidity of his actions. The Panel considered that the finding of dishonesty had real potential to undermine public confidence in the profession, and therefore the appropriate sanction was a three month suspension order.
The crux of this issue was that the Panel failed properly to consider, or alternatively failed to explain that it had considered, the evidence relating to the Appellant's mental health at the time that he wrote the prescription both at the impairment and sanction stage.
As to the mental health issues, Mr Justice Morris stated at paragraph 62 of the judgement:
“Let me say at the outset that it is clear from all of the material before this court that over a substantial period of time during 2011 and for the whole of 2013 and indeed subsequently the Appellant was labouring under circumstances of considerable personal difficulty. The break up of his marriage, the consequential effect upon his children and his contact with them, his dispute with his former partners at the Edinburgh practice and, from time to time, both physical and mental health problems all contributed to what was, undoubtedly, a very difficult time for him”.
Mr Justice Morris described the question he had to grapple with as narrow, specifically:
“…In reaching its conclusions on impairments and sanction did the Tribunal properly take account of the Appellant's mental health issues as a distinct factor, specifically in the context of the dishonest prescription?”
Counsel behalf of the Appellant stated that there was no reference at all in the Panel’s decision specifically to clinical depression or mental health issues. Furthermore, in its conclusions on impairment, the Panel did not consider at all the Appellant’s his mental health issues.
In analysing the matters at hand, Mr Justice Morris disagreed with the GMC that this ground of appeal was limited to a challenge based on a procedural failure to give reasons, as it was clear from a number of documents that the Appellant's case was one of substantive failure to take account of a relevant important issue, namely mental health issues. Secondly, in considering whether or not the Panel did indeed fail to take account of those mental health issues as being a relevant important factor, it is necessary to consider the context in which the Panel reached its decision and, in particular, both the nature of the evidence placed before it.
Having reviewed the decision, Mr Justice Norris concluded:
“in my judgment the Tribunal did take account of the Appellant's mental health issues both generally and insofar as there was some evidence to suggest that those issues were operative at the particular time, specifically in relation to events in October 2013”. Further at paragraphs 73 and 44 he stated as follows:
“There was no good reason why it was necessary for the Tribunal specifically to identify, from amongst those personal difficulties to which it expressly referred, the particular aspect of depression or the fact that he had previously been prescribed antidepressants. In fact, the reference to "a great deal of stress" must in my judgment encompass issues of mental health.
In this regard, I accept the Respondent's submission that there was no need for the Tribunal to descend upon every detail, unless it could have been said that the mental health difficulties were for some reason to be treated as distinct from all the other personal difficulties in which the Appellant found himself. However, there was no basis before the Tribunal for it to have treated those difficulties as distinct.
As to the adequacy of the Panel’s reasons, Mr Justice Morris stated that whilst the Panel did not specifically refer to the Appellant’s depression in its determination on impairment, the Panel was under no obligation to deal distinctly with an issue which had been advanced in a general manner, and “only as part of a general submission that the Appellant had been experiencing personal difficulties”.
As to sanction, reading the decision as a whole, Mr Justice Morris stated that it was clear that the Panel took in account the factors in the case which it considered to be mitigating and aggravating, and therefore the appeal must be dismissed.
In dismissing this appeal, Mr Justice Morris rejected the assertion that the doctor's mental health issues were a key factor in leading him to write the false prescription. Mr Justice Morris took this line as (1) there was no medical evidence before the Panel or the court to establish a causative link between the depression and the prescription (2) the evidence suggested that by the time of writing the prescription the Appellant had stopped taking the antidepressants and (3) even after writing the prescription, the Appellant recognised the fallacy of his actions and did not collect the prescription. This case also demonstrates to those who defend regulated professionals that should you wish for the Panel to take account of one particular aspect of an submission as material i.e. in this case the mental health issues as a part of the general difficulties the Appellant was facing, more will have to be done than simply referring to the issue in the grand scheme of the evidence and submissions. Mr Justice Morris rejected any assertion that it was a failure of the Panel to “pick out from within "significant financial, domestic and legal pressure" the key issue.