During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the courts. Here we report a clutch of their decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; and making and handling findings of dishonesty.
In R (on the application of Young) v General Medical Council  EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view.
The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, was admitted to the Royal Belfast Hospital for Sick Children with vomiting, lethargy and slurred speech. An initial blood test showed her sodium levels were low, but monitoring was inadequate and over the next two days her condition declined. She suffered seizures, cerebral oedema and ultimately died. Her death was not referred to the Coroner and the certificate failed to record hyponatraemia, (a condition where sodium in the blood falls dangerously low, leading to cerebral oedema) despite it being the only confirmed diagnosis at the time.
In October 2004, Ulster TV aired a documentary about the deaths of three other children from hyponatraemia and the following month a public inquiry was set up, under the chairmanship of John O’Hara QC (as he was then). Claire’s parents saw the documentary and contacted the hospital. In order to respond to questions they raised (over fluid management in particular), the Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review the notes of Claire’s treating consultants. In December 2004 he met with Mr and Mrs Roberts and in January 2005 contributed to an “explanatory” letter to them. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death.
In January 2018 the Inquiry’s report into hyponatraemia-related deaths was published. Claire’s treating consultants, Dr Steen and Dr Webb, were heavily criticised and accused of covering-up failures in treatment. The Claimant also faced criticism. At the December 2004 meeting he was said to have failed to acknowledge “the very many failings in care” despite having formed the view that monitoring had not been sufficiently frequent given the severity of Claire’s condition. This “lack of openness” was reflected in the January 2005 letter (authored largely by Dr Steen) which was described in the Report as “inaccurate, evasive, and unreliable.” The letter contained the “misleading” assertion that the “normal procedure” in 1996 was to monitor sodium levels every 24 hours. The Claimant gave substantially the same evidence to the Coroner leading the report to conclude that the Claimant had “shifted from his initial independent role … to one of protecting the hospital and its doctors”.
These criticisms led to two charges of professional misconduct relating to the “highly questionable” content of the January 2005 letter and “misleading evidence” given to the May 2006 inquest.
In November 2018, an Assistant Registrar (AR1) considered the five-year limitation period in Rule 4(5) of the GMC (Fitness to Practise) Rules 2004 and decided that the public interest in investigating “these concerns” was insufficient to justify waiving the 5-year rule. Other countervailing considerations included the large lapse of time, and the low risk to the public given the absence of any “fitness to practice history” (i.e. prior misconduct) and the Claimant’s skills, knowledge and professional achievements.
On being informed of the GMC’s decision to take no further action, Mr Roberts sought its review.
On review, the second Assistant Registrar (AR2) found the decision of AR1 to be materially flawed within the meaning of Rule 12(2)(a). She took a fresh decision, “waiving” the 5-year limitation period and adding an additional charge relating to the Claimant’s communications with Mr and Mrs Roberts at the December 2004 meeting.
The Claimant challenged this decision by way of judicial review, but applying Wednesbury principles, the court upheld AR2’s assessment and decisions. AR1’s decision was materially flawed: the most fundamental error being his assessment of the gravity of the allegations and his approach to public interest factors. Simply put, AR1 had misread the O’Hara Report and misunderstood the nature and gravity of the criticisms levelled against the Claimant.
He wrongly thought the Inquiry’s main criticism was a failure to review the accuracy of sections of the January 2005 letter to which Dr Steen contributed but which fell outside the Claimant’s specialist expertise. He failed to address criticisms levelled directly against the Claimant of omissions in the letter and in the December 2004 meeting which preceded it.
As the court put it “the Inquiry’s findings were significantly more serious than AR1 had appreciated.” In particular, AR1’s decision gave no proper consideration or evaluation of the key point: the Claimant’s absence of candour in circumstances where the duty had special importance, namely when providing information to the family of a patient who has died while undergoing treatment in a hospital and to a Coroner investigating that death. The allegation the Claimant faced was “of deliberately misleading the family of a deceased child and a Coroner in relation to cause of death”.
Granted, said the court, the purpose of the 2004 Rules is to protect doctors. But regard must also be had to the overarching objectives of the GMC: to protect the public, ensure proper professional standards, and promote and maintain public confidence in the medical profession (emphasis added). These were, the court found, very serious matters going to heart of public’s confidence in the profession. AR1 had “failed to appreciate the significance of the alleged lack of candour in dealings with Mr and Mrs Roberts and the Coroner, and if substantiated, its effect on maintaining public confidence in the profession”.
AR1’s reasoning on the issue of delay was also materially flawed. It was agreed that the complaint could not sensibly be raised until the Inquiry had reported which created significant delay. Irrationally however, AR1 considered this weighed against waiver of the 5- year rule, whereas logically it was a factor pointing in favour of waiver. Further, the absence of a transcript of the inquest proceedings should not have weighed heavily against waiver. AR2 recognised some prejudice but noted that AR1 had found that the absence could prevent a fair and just inquiry but not that it would. If at the next stage Case Examiners did not think a fair trial possible, they would not refer an allegation to a Tribunal.
The court also dismissed the irrationality claims directed against AR2’s decision. She was correct to note that while criticisms of the Claimant’s conduct had been aired (“prior ventilation”), the Inquiry’s investigation did not address how any lack of candour might affect fitness to practice, which was a matter for the GMC alone. Similarly, there was no error in her approach to the Claimant’s regulatory history and she reminded herself that such matters, going to personal mitigation, have less significance than the maintenance of public confidence in the profession.
The court’s final conclusion was strongly expressed: notwithstanding the forensic skill deployed by Rob Kellar QC (of these Chambers), “there was no legal basis upon which the court could possibly interfere with the decisions of AR2”.
In Haris v General Medical Council  EWCA Civ 763, the Court of Appeal upheld a decision that a sexual motivation was the only rational conclusion to draw from a Medical Practitioners Tribunal (MPT)’s finding that a GP had performed non-clinically indicated, intimate examinations without consent.
Before the MPT, Dr Haris denied that incidents described by two female patients had occurred, but the MPT found they did. They took place a couple of weeks apart, one in Lancashire and one in the minor injuries unit of a Yorkshire Hospital and collusion between complainants was ruled out. The “examinations”, performed without gloves, bore a striking similarity. Although the MPT found that they could “reasonably be perceived as overtly sexual” it went on to conclude that the GMC had not proved that the conduct was sexually motivated. In doing so, it appeared to rely on evidence that Dr Haris suffered from Asperger’s syndrome and had no interest in sexual matters, despite an acceptance in cross-examination that the diagnosis was not inconsistent with having sexual urges or feelings and did not mean he was incapable of having a sexual motivation for behaving as he did.
Having found the Claimant’s fitness to practice impaired, the MPT imposed conditions on his registration for 12 months.
The GMC appealed successfully to the High Court under s.40A of the Medical Act 1983. The GP in turn appealed, unsuccessfully. Before dismissing the appeal, the Court confirmed Foster J had correctly identified the following principles:
- The appellate court may interfere with an evaluative decision (as here) if there is an error of principle or if the decision fell outside the bounds of what an adjudicative body could properly and reasonably decide: Bawa-Garba v GMC ; and
- The court will be especially cautious about upsetting conclusions of primary fact which depend on an assessment of the credibility of witnesses, but it is under less of a disadvantage when the question is what inferences are to be drawn from specific facts (as here): GMC v Jagjivan .
The Court of Appeal upheld Foster J’s finding that the reasoning of the MPT was flawed. It had become muddled about the burden of proof. “This was not a case”, the court observed, “which turned on who bore the burden of proof. The only question was whether it was more likely than not that that the doctor’s actions were sexually motivated”. It explained, “[T]he best evidence as to motivation was the behaviour itself: it was not just capable of being perceived as overtly sexual it was overtly sexual, and there is no other way in which it could have been perceived”.
Dr Haris’ claimed asexuality “did not begin to explain why he groped a patient’s buttocks and breasts and performed physical examinations of her vagina and (on another occasion) that of another patient, in each case without any clinical justification, without warning or obtaining prior consent, without giving or recording any reason for it at the time and without using gloves. In the absence of a plausible explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not.” In fact, the court concluded “that that inference was overwhelming.”
But even beyond the GP’s behaviour, the court noted, there were additional relevant factors from which inferences could properly have been drawn, which the MPT failed to consider. The GP’s defence, it said, was of “obvious significance”. He had not claimed to have touched the women believing it to have been clinically justified, or that any touching was accidental. He denied any intimate touching and said they had made up the allegations. The MPT’s determination failed to consider how accusing these women of lying might affect the question of motive and the GP’s professed lack of interest in sex. The “obvious inference” from false denial was that he knew there was no innocent explanation for what he had done.
In Bux v General Medical Council  EWHC 762 (Admin) Mostyn J upheld the decision of a MPT to direct the Appellant’s erasure from the medical register after finding he had written sub-standard, non-CPR-complaint medico-legal reports for a solicitors’ firm where his wife was a salaried partner and, when challenged, gave answers which were deliberately false.
The scheme in issue had “all the hallmarks of a corrupt practice”, said the judge. A claimant would instruct AMS Solicitors to bring a claim against a travel company on a conditional fee basis alleging they had suffered food poisoning on holiday. In support the Claimant wrote medico-legal reports described by the court as “superficial, unanalytical, devoid of differential diagnoses” and “invariably supportive of the claim”. They were also produced “on an industrial scale”: between 2016 and 2017 he wrote 684 reports, for which he was paid £123,120 plus VAT. The defendant would pass the claim to its insurers who generally paid out the small level of damages claimed.
Eventually complaints reached the GMC about the Claimant’s failure to disclose a connection with AMC Solicitors and the lack of evidential base or reasoning in his reports, which led in turn to his erasure.
The central ground of appeal alleged there was no conflict of interest, the issue having been decided by a preliminary-issue judgment of HHJ Gregory in the County Court in a claim where the Appellant acted as an expert witness. Consequently, it was argued, there was no duty to disclose and the findings on dishonesty and financial motive could not stand.
In dismissing the claim, the court noted the duties of an expert witness in civil proceedings to give an objective, unbiased opinion which carries with it an obligation to disclose any actual or potential conflicts of interest. A conflict, said the court, will arise when an expert witness’s opinions are either (1) actually influenced, or (2) capable of being influenced, by his personal interests. The existence of a conflict doesn’t necessarily disqualify an expert or render his evidence inadmissible or of no weight. But the court must be made aware of the conflict as soon as possible, to enable it and the other parties to assess its implications. In this regard, there is a high duty of candid disclosure on an expert witness, as justice must not only be done but be seen to be done.
A “linchpin” of the appeal was the preliminary issue judgment. The MPT, after considering all the evidence before it, including judgment of HHJ Gregory had found there was an actual conflict of interest. The Appellant argued it was a serious procedural irregularity not to adopt HHJ Gregory’s ruling which, it was said, did not find an actual conflict of interest.
The court upheld the MPT’s decision. The preliminary issue judgment was admissible in inquisitorial regulatory proceedings pursuant to r.34(1) of the 2004 Rules, said the court, but plainly it was not binding. Furthermore, whilst perhaps the finding on conflict was not a model of clarity, the judge had clearly found a real risk of a conflict of interest and ruled the report inadmissible as not being CPR-compliant. Critically however, the MPT had additional evidence before it which the judge hadn’t seen.
In one of the complaints before the MPT, the Defendant insurers had challenged the Appellant’s report and raised questions about the Appellant’s connection to AMS Solicitors. In response the Appellant asserted that the MDU had assured him he was following regulatory guidelines. This was a “seriously inaccurate answer”: the MDU had in fact advised him to declare his connection as a failure to do so might be considered a conflict of interest and a breach of his professional obligations. This dishonesty, said the court, irrespective of the decisions on other charges, would have justified the sanction of erasure. As it was, in light of all the evidence, the court considered that it would have been “perverse and wrong for the MPT to have decided anything other than that the appellant had an actual, serious, conflict of interest” .
As to the other charges, the MPT was correct to find the reports were improperly written and failed to comply with CPR requirements: the diagnoses lacked sufficient evidence, they failed to acknowledge contemporaneous consultations, and gave no reasoning other than reciting information provided by the claimant. Similarly, its conclusion that the conduct complained of was dishonest and financially motivated, was sound. In “a throwback to the old law”, i.e. before the Supreme Court’s decision in Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) , the MPT ruled that the Appellant knew what he was doing was dishonest. This was not required. The findings that he knew what he was doing and that ordinary decent people would consider his conduct dishonest (the objective standard) was sufficient. In the light of these findings, impairment and erasure were inevitable.
In Gupta v Northampton Hospital Trust  EWHC 965 (QB) the High Court dismissed a consultant oncologist’s challenge to his suspension pending the outcome of investigations into misconduct allegations, applying the three-limb American Cyanamid test for granting interim injunctions.
The Claimant’s speciality was urological cancer. He treated patients at Northampton General Hospital where he was employed, and in the private sector. In early 2020, concerns were raised that he was promoting private services to patients attending his NHS clinic and later that he had received large sums for additional duty hours that were not authorised. When alerted, the Local Counter Fraud Services requested his suspension but instead, and without bringing the investigation to the Claimant’s attention, measures were put in place to prevent him signing off his own hours.
At the end of 2020, the wife of a seriously unwell patient (GG) disclosed to a nurse that the Claimant had been billing her husband privately for short, weekly telephone calls. In response, the Defendant’s Medical Director, Mr Metcalfe, initiated an investigation under the Trust’s Medical Staff Concerns Policy.
In January 2021 the Claimant was informed that he was under investigation but was not, at that time, suspended. Mr Metcalfe gave evidence that, by the end of March, he was aware of evidence from GG’s family that the billed calls were when the patient was on an end of life pathway and had no clinical value. There were concerns about other patients. Mr Metcalfe also became aware that the Claimant may have been seeking to interfere with the investigation by contacting GG’s wife and asking if they had put in a complaint against him.
In accordance with the Trust’s disciplinary and capability procedures, Mr Metcalfe took advice from the Practitioner Performance Advice service (PPA), then exercised his discretionary power to “exclude” the Claimant. This prompted the Claimant’s application for an interim injunction with an order directing his reinstatement. A further order was sought to prevent the Defendant from contacting or sharing information with the Claimant’s private work providers, alleging this would breach his rights under Article 1 of the First Protocol to the European Convention on Human Rights (AP1).
The legal framework was mostly agreed:
- To succeed C had to show the decision to suspend was unreasonable or irrational: Jahangiri v St George’s University Hospitals NHS Foundation Trust ;
- Suspension without reasonable grounds may amount to a breach of contract or breach of the implied term of trust and confidence: Braganza v BP Shipping Ltd .
It was also common ground that damages would not provide an adequate remedy in the event the Claimant succeeded given the impact of exclusion on his professional reputation.
As to the AP1 claim, the court accepted the Defendant’s submission that it added nothing to the contractual position following Braganza: an unjustified interference with the Claimant’s private practice would be a breach of the implied term of trust and confidence.
In the event, the claim fell at the first hurdle. The court was not satisfied that there was serious issue to be tried that the exclusion was unlawful. The allegations against the Claimant were very serious and the available evidence was cogent. It was not just a dispute about charges and potentially defrauding the Defendant. There were safeguarding concerns which, put bluntly, amounted to an allegation of financially abusing a terminally ill patient.
The decision to exclude was taken cautiously and in a considered way. Although the Defendant should have given fuller reasons at the time, on the evidence the court considered the Defendant entitled to exclude the Claimant in order to safeguard patients and guard against the risk of the Claimant impeding the investigation. The Defendant was required to keep the exclusion under review and given the approach of Mr Metcalfe to date, in the court’s view there was no reason to think this wouldn’t be done.
Finally, as to the claimed prohibition on informing other organisations, the court rejected this too. It noted Mr Metcalfe’s evidence that although the Trust’s policy did not address this specifically, requirements to notify others had strengthened after the Paterson Inquiry and he felt under an obligation to do so. In the event, a private hospital where the Claimant practiced contacted the Defendant to say concerns had been raised there. Further, the terms of the Claimant’s practising privileges required him to notify his exclusion by his NHS Trust. Finally, the court accepted the proposition that “transparency is important in the medical context and the sharing of information, provided it is done in good faith, is to be encouraged.” The Defendant acted rationally and in good faith so again there was no serious issue to be tried. Accordingly the claim was refused.
Robert Kellar QC acted for the Claimant in Young. He did not contribute to this article.