Brookman and the General Medical Council (GMC)

[2017] EWHC 2400 (Admin)

Background/facts

Michael Brookman (‘the Appellant’) is a doctor. He initially appeared before the Interim Orders Tribunal (IOT) on 1 July 2014 following an allegation that he had carried out an inappropriate and sexually motivated examination of a female patient at the hospital where he had been working in October 2013. At the hearing the IOT imposed a number of conditions on the Appellant’s registration. One condition was that, save in life threatening emergencies, the Appellant should not carry out any consultations with female patients in the absence of a chaperone, who should be a fully registered medical practitioner nurse or midwife. He was also required to notify various parties of the conditions imposed.

The Appellant was due to begin locum work in the Urology Department of Dartford and Gravesham NHS Trust (‘the Trust’) and worked shifts on 3 and 4 July 2014. This work was obtained through a locum agency. On 7 July 2014 the Trust cancelled his placement given the decision by the IOT to impose interim conditions. In September 2015 the Appellant lectured at Bournemouth University. As a result of complaints from students he was dismissed. On 24 February 2016 the Appellant applied for a position as a lecturer at Swansea University. In his application form the Appellant made no reference to the interim conditions on his registration or his work at Bournemouth University.

A panel of the Medical Practitioners Tribunal Service (MPTS) found that the Appellant failed to disclose the interim conditions which it determined, demonstrated dishonest conduct on the Appellant’s behalf. The MPTS found almost all of the allegations relating to the female patient ‘not proved’ and for those that were proved, the MPTS found they did not amount to misconduct.

Having found the Appellant’s fitness to practise to be impaired, the MPTS concluded that erasure was the appropriate and proportionate sanction.

The Appeal

Whilst there were a number of grounds of appeal, the successful ground centred on the MPTS’s decision to proceed with the hearing without a ‘further health assessment’ of the Appellant.

The material facts relevant to this ground are as follows:

In 2013 the Appellant had been diagnosed as suffering from depression and had since then been taking anti-depressant drugs.

The Appellant gave evidence that when his medication was changed to citalopram in 2013 he found that he ‘ceased to worry about things’ and that he had ‘become blasé about correspondence from the GMC’. In relation to dishonesty, the Appellant stated ‘I do not think that I was deliberately being devious. My pills mean that I do not care about things that I need to care about.’

Towards the end of day 9 of the hearing, on 24 October 2016, the MPTS said it was contemplating directing a further health assessment of the Appellant pursuant to Rule 17(7) of the General Medical Council (Fitness to Practise) Rules 2004 before making a decision on the facts. The MPTS was concerned about the potential impact of medication on the Appellant’s decision-making as at the date of the hearing and in the previous three years. There was also concern as to whether he suffered from any autistic traits or tendencies. Although evidence about the Appellant’s health had been given by two consultant psychiatrists this related to examinations carried out in May 2016 and did not resolve the MPTS’s concerns.

Counsel for the GMC submitted that rather than adjourn for a further health assessment, the Tribunal could instead put further questions to one of the consultant psychiatrists, Dr Briscoe. It was further submitted that both doctors had concluded the Appellant remained fit to practise in respect of his health, neither had identified any autistic tendencies and both gave evidence that the Appellant was ‘normal’ by the summer of 2014.

The MPTS agreed to instead recall Dr Briscoe to answer further questions; however, there was no opportunity for him to consider any transcripts of the proceedings before doing so. Dr Briscoe confirmed his instructions had been to focus on the Appellant’s current state of health rather than at the time of the earlier allegations. He explained that the concerns described by the MPTS suggested the need for further psychiatric evaluation in order to consider the Appellant’s mental health over a period of time and whether there had been changes indicating illness or alternatively a personality disorder. He confirmed that either would ‘affect’ the Appellant’s ability to represent himself adequately. He accepted that a possible side effect of citalopram could be to ignore things that are important. In answering questions from the GMC, Dr Briscoe opined that he did not think the Appellant was suffering from any mental health condition that prevented him from knowing the difference between right and wrong at all material times.

Following Dr Briscoe’s evidence, the MPTS decided it would be appropriate to continue the hearing without a further health assessment. In making this decision, they noted Dr Briscoe’s evidence that he did not think the Appellant was suffering from any mental health condition that prevented him from knowing he was deceiving others. They also paid particular attention to the Appellant’s reaction when the possibility of an adjournment for a health assessment was mooted: he confirmed he would co-operate with a further health assessment but raised concerns he may not be able to participate in the remainder of the hearing.

Decision

Mr Justice Holgate concluded that the decision to proceed without obtaining a further health assessment before making findings of fact or before reaching decisions on misconduct, impairment and sanction was unjust. At paragraphs 93 to 94 he stated:

It was unacceptable for Dr Briscoe to be asked to give further evidence on the concerns raised without him having read the allegations and given that he had not attended the preceding hearings, the relevant transcripts. This was particularly important because his earlier instructions had been to consider the Appellant’s state of health at the time of his examination in May 2016, rather than at the time of the allegations.

Dr Briscoe stated twice that the concerns raised by the Tribunal suggested that it was necessary for the Appellant’s mental health to be reassessed. He did not retract that opinion.

Dr Briscoe accepted that a possible side effect of the medication taken by the Appellant was that he could ignore things that were important...[this was] plainly relevant to the way he reacted to the imposition of IOT’s conditions…

Dr Briscoe expressed clear concerns about the Appellant's ability to represent himself in the hearing. When pressed on this subject in relation to the effect of the medication, Dr Briscoe hesitated to give an opinion over the telephone. That was another clear indication that a further examination of the Appellant and health assessment was required…

Although Dr Briscoe ruled out a severe autistic syndrome, he did not rule out a milder form of autism. However, he pointed out that a diagnosis would depend upon substantial tests being carried out…

The Tribunal was obviously wrong to place any significant weight on, let alone pay ‘particular attention’ to the Appellant’s opposition to an adjournment. The reasons for that opposition did not address the Tribunal's main concerns about the adequacy of the evidence on his mental health and medication, or indeed the evidence that Dr Briscoe had just given…I have reached the conclusion that it was wrong, if not irrational, for the Tribunal to place so much weight (or indeed any significant weight) on the Appellant’s views…

The only other evidence that the Tribunal relied upon was Dr Briscoe’s evidence that he did not think that the Appellant had been suffering from any mental condition which prevented him from knowing the difference between ‘right and wrong’ at the relevant times. This was wholly unsatisfactory….the witness had merely said in re-examination that the Appellant’s mental illness had not caused him to lose the ability to know the difference between right and wrong. But the witness had not read through the allegations and his somewhat unfocused remark did not grapple with the issue whether the medication had caused or contributed to some relevant impairment at the material time, such as a failure to appreciate the significance of his obligations under the IOT’s conditions.

Having concluded as such, Mr Justice Holgate determined that the Appellant had not been afforded a fair hearing and that the appeal ought to be allowed.

Commentary

This decision provides helpful guidance to Panels who have concerns about a registrant’s mental health during a final hearing. The court determined that a further health assessment was of crucial importance in the present case to assess not only the evidence given by the Appellant regarding dishonesty but also its consequential implications for misconduct, impairment and sanction. Paragraph 47 of the GMC’s “Sanctions Guidance” states: ‘The tribunal should be aware that cultural differences and the doctor’s circumstances (eg their ill health) could affect how they express insight. For example how they frame and communicate an apology or regret’.

For those who represent registrants in regulatory proceedings, this case serves as a useful reminder to ensure that medical evidence not only addresses the registrant’s current state of health but, in appropriate cases, the registrant’s state of health at the time of the allegations.