High Court quashes decision of FTPP of GMC to refuse an application for voluntary removal from the register.

This case was a judicial review claim brought to challenge the decision of a Fitness to Practise Panel (FTPP) assigned by the Medical Practitioners Tribunal Service (MPTS) on behalf of the General Medical Council (GMC).

Background

Dr I, who is 67 years of age, qualified as a doctor in 1977 and had worked for a number of years in paediatrics. In July 2008 he was working as a paediatric locum in Queen Elizabeth Hospital in Woolwich, where TW, a 10 year old boy with cerebral palsy, was undergoing treatment for on-going difficulties with his left hip. Following an operation on his hip, TW suffered on-going pain, which became so acute that he was admitted to the accident and emergency department at the hospital on 17 November 2008. Dr I, who was on duty that day, administered strong pain relief by means of a fentanyl patch (an opiate) at 50ug per hour. Despite the amount being reduced after concern was expressed by the pharmacist, within two days of administration, TW developed a cardiac arrest and died on 19 November 2008. TWs parents complained to the GMC, who obtained a report from a consultant paediatrician. The consultant was highly critical of TW’s treatment, in particular the high dose of opiate provided which was contraindicated and carried significant risk. A direct causal link was made between the prescription and the death of the child. It was alleged that such treatment was reckless and the standard of care fell significantly below that expected of a competent paediatrician. The matter was referred to a FTPP.

Dr I has for a number a number of years been suffering with mental health problems, including Asperger’s traits, recurrent depressive episodes, anxiety and obsessional tendencies.  He has suicidal ideation and has been receiving treatment from a Dr Kumar over several years.

The Fitness to Practise (FTP) hearing

The FTPP were due to deal with the question of whether Dr I’s fitness to practise was impaired by virtue of his misconduct in relation to his treatment of TW at a hearing in June 2012.  However, Dr I applied for voluntary erasure (VE) from the medical register. Alternatively, it was argued on his behalf, the FTP proceedings should be stayed as the health of Dr I was such that he was unable to participate in any hearing.

Three psychiatrists (including the treating psychiatrist) provided written and oral evidence before the FTPP that Dr I’s mental health was such that not only was he unfit to participate effectively in the GMC proceedings but also, that he was unfit to practise medicine now or at any time in the future. The medical experts were agreed on both the profound effect that participation in the process of adjudication on fitness to practice would have upon Dr LI’s psychiatric wellbeing, and the suicide risk that arose.

The position of the GMC was essential a neutral one; they did not dispute the medical evidence and conceded that they would not proceed in the doctor’s absence if the matter was stayed.

The FTP decision

The Panel considered VE first.  They stated that they needed to balance risk to patients, public confidence and the risks to Dr I’s health and ability to instruct counsel. They said that they were ‘alarmed’ by the evidence of Dr I that he wishes to practise in Australia. They made the observation that there was a ‘parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed’. They decided that VE would not be adequate to maintain public confidence in the regulatory process. With reference to the health aspect, they felt that with appropriate psychiatric support during the relevant period, the suicide risks could be adequately managed, although they recognised that there was bound to be a residual and fluctuating risk. Whilst recognising that this was a ‘finely balanced decision’, they refused to grant voluntary erasure. They further refused the application to stay proceedings.

The Submissions

It was argued on behalf of Dr I that the decision to refuse VE was irrational and one which no reasonable tribunal properly directed could have reached.  Reliance was placed on the following;

  1. The stance taken by the GMC as prosecutor (who did not oppose the application);
  2. An apparent ‘steer’ by the legal assessor towards the grant of VE;
  3. The agreed psychiatric evidence that not only was Dr I not fit to practise now or at any time in the future but also that he was unlikely to ever participate in the proceedings;
  4. The consideration of a potential risk to patients were Dr I to practise in Australia, which was outside the remit of the GMC as well as being unsupported as a material risk by the evidence;
  5. Ignoring the risk of Dr I’s suicide were the panel to proceed to a FTP hearing, and
  6. The consideration of the interest of the complainant parents as a concomitant part of the public interest, notwithstanding a change in the guidance which removed this as a relevant factor.

It was further contended that the refusal of the stay was perverse, given that the GMC had indicated that it would not seek to proceed in the absence of Dr I were a stay to be granted and given the agreed medical evidence that participation was impossible.

On behalf of the GMC it was argued that the remit of the GMC is the protection, promotion and maintenance of the health and safety of the public generally, and whilst powers of regulation relate to UK registered doctors only, the ‘public’ cannot be construed so narrowly so as not to affect a doctor who might work overseas. It was submitted that the Court should be slow to interfere with the decision of a professional body and that the panel had a broad discretion in the absence of any identifiable criteria in the regulations when arriving at a decision. The bereaved parents, it was submitted, are still members of the public whose interest should be taken into account where there are serious allegations of misconduct with serious consequences. It was suggested that the present case amounted to ‘very exceptional circumstances’ such that public interest required a hearing.

The decision

Whilst, it was said, the determination was ‘extremely thorough’ and ‘demonstrates that the panel was full informed on the way in which it should carry out the balancing exercise’, it was ‘difficult to follow the logical process through to the final part of the determination after the panel has started to deal with the question of stay of proceedings’. For example, it appeared that the same considerations were applied to both the stay and VE applications. 

It was held that:

  1. The stance taken by counsel for the GMC at the hearing was immaterial and should not have been seen as an influencing factor; there is nothing perverse about ignoring a concession made by Counsel; [66]
  2. The legal assessor could not be held to have been given a steer to the panel; a careful and detailed summary of principles were applied; [67]
  3. The declared intention to work in Australia did amount to a valid consideration for public protection purposes. However, if a panel is to attach weight to such a consideration, it should only do so where there is compelling evidence that the doctor has not only expressed a wish or an intention, but also that it is a realistic one. In this case, it was clearly just a distant hope; [68-69]
  4. By bringing the bereaved parents into consideration, there was a ‘real concern that the panel has seen this as an influential or tipping factor in what has been described as a ‘finely balanced case’’. Their interests should not have had any relevance; ‘the regulatory authority will always in suitable cases pursue prosecutions of misconduct and impairment of fitness to practice with vigour, uninfluenced by the wishes of patients or their families’; [70-71]
  5. The panel’s conclusion that the identified suicide risks could be adequately managed did not have a sound evidential basis. It was held that ‘it is a matter of some gravity that a quasi-judicial process would carry with it for an individual a residual suicide risk, and therefore, once a prosecutor had indicated that it would not proceed with any fitness to practise allegation in the future if Dr I was absent following a stay, in my judgment a very compelling reason was required if such a factor was not to tip the balance substantially in favour of the granting of voluntary erasure’. [72]

In holding that the decision to refuse VE was an irrational one, and a conclusion which no tribunal properly directing itself on the unchallenged evidence could have arrived at, HHJ Wood QC stated that

‘I am quite sure that this panel was doing its very best in a difficult situation to ensure that serious allegations I which the potentially avoidable death of two young children were implicated would be properly ventilated in a fitness to practise hearing, and that the public interest was a strong and compelling one.  However, it was not overwhelming….the doctor’s health considerations were even more compelling, especially where there was an identifiable risk of suicide or serious self-harm. [73]

Further, it was held that the decision not to stay the proceedings was irrational.  There was a ‘considerable layer of unfairness’ established on the part of the doctor if the matter were to proceed in his absence.   He would not be able to provide meaningful input to his legal team.  The Court distinguished Varma, which it was said was ‘a wholly different situation’, where the doctors inability to participate was at best ‘equivocal’. The concession made by counsel for the GMC that it would not proceed to an FTP hearing in the absence of the practitioner at some stage in the future, was significant.

The FTPP had failed to identify ways in which fairness could still be achieved and compliance with Article 6 ensured.

The panel’s decision in relation to both VE and the stay application was quashed.

A helpful case, which assists practitioners and FTP panels with the frequently finely balanced decision that is required when a health professional seeks to voluntarily remove their name from the register for health reasons. Although such decisions will always turn on their own facts, the Court will intervene where the panel take account of irrelevant considerations.