Ashton v General Medical Council

[2013] EWHC 943

D, a doctor, was unsuccessful in his challenge to the decision of a Fitness to Practise Panel of the GMC (the panel) to impose an immediate six-month suspension following a single incident where he referred a patient on a 'routine' rather than an 'urgent' basis.

D was practising as a GP when, in December 2008, following an inconclusive scan, a radiologist had recommended that D refer a patient, P, for a gastroenterological consultation. D did not make the referral until July 2009. Further, he did not make the referral on an urgent (as opposed to routine) basis. The result was that P did not have further investigations until September 2009. Those investigations revealed extensive liver metastases (malignant tumours), which had not been present on the original scan, as well as advanced adenocarcinoma (a form of cancer). P died shortly afterwards in October 2009.

The panel heard and accepted the evidence of an expert doctor who said that an average, reasonably competent GP would have referred someone with P's symptoms urgently in July 2009.

The panel found that D's failure to make an urgent referral amounted to misconduct, having satisfied itself that it had not been ‘mere negligence’ but would be "regarded as deplorable by fellow practitioners" or would amount to "an elementary and grievous failure" (per Meadow (see above) and Preiss v GDC [2001] UKPC 36).

When considering whether D's fitness to practise was impaired, the panel took account of the fact that he had practised for over 30 years without previous complaint. However, it also noted that

  1. no cogent evidence had been introduced regarding D's efforts towards remediation  
  2. D had not given evidence to the panel
  3. D had not acknowledged that his actions were inadequate and not in the best interests of P; and
  4. no persuasive evidence of insight into his actions had been introduced.

The panel considered that it could not devise conditions on practice which would remedy what it regarded as an "elementary failing”. It noted D's lack of insight and concluded that a period of suspension was necessary. Furthermore, in view of D's failure to acknowledge his error, the Panel was not satisfied that his conduct would not be repeated and, accordingly, it decided to suspend him immediately.

On appeal, D submitted that

  1. a single incident of the nature described was insufficient to amount to misconduct or to justify a finding of impairment in respect of a 33-year career with no other incidents of misconduct
  2. it would have been workable and proportionate in all the circumstances to impose conditions on his practice and
  3. it was wrong to have imposed the suspension immediately.

Applying Meadow, the court noted that the panel was a specialist body whose understanding of what the medical profession expected from its members deserved respect. The court noted that the panel had had the benefit of hearing the witnesses on both sides, and that the questions of primary and secondary fact-finding - and overall value judgment - by the panel were akin to jury questions to which there may reasonably be different answers. The panel had applied the correct test for misconduct (per Meadow and Preiss) and the court considered that its finding of misconduct was clearly right.

Once it was accepted that D should have recognised P might be suffering from cancer in July 2009, an urgent referral was crucial due to the disastrous consequences which might result from a delay. A failure by a GP to make an urgent referral in such circumstances was to be regarded as "deplorable, elementary and worthy of opprobrium".

The court also found that the decision to suspend D was not so unreasonable as to justify the substitution of a different sanction. Although the indicative sanctions guidance indicated that conditions on practice might be the most appropriate sanction following a single incident of misconduct, it did not follow that conditions should always be imposed in such circumstances. The guidance also noted that panels had to be satisfied that practitioners had shown insight into their conduct but the present panel had not been so satisfied and had therefore been justified in deciding to suspend D.

However, the court found that, even making allowance for the panel's expertise, the reasons it had given did not, in all the circumstances, justify an immediate suspension and accordingly allowed this third ground of challenge.