Krishnamurthy, R (On the Application Of) v General Medical Council [2003] EWHC 3200 (Admin)

Case No CO/3983/2003[2003] EWHC 3200 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 9th December 2003
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF DR KRISHNAMURTHYClaimant-v-
Between
THE GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J HOLL-ALLEN (instructed by RadcliffesLeBrasseur) appeared for CLAIMANTMISS S VAUGHAN JONES (instructed by the General Medical Council) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE ELIAS: This is a statutory appeal by the appellant, a general medical practitioner, pursuant to Section 40(1)(aa) of the Medical Act 1983 as amended against the determination of the respondent's committee on professional performance. On 21st July 2003, that committee extended an existing period of suspension by 12 months.[2]The background to this matter is as follows. The claimant came to the United Kingdom in 1973 and trained for general practice in 1976. He has been practising in Stockport from then until 2000. From 1986, he was single-handed. A series of complaints were made against him concerning his professional competence. It is unnecessary to spell out the details of those complaints. Suffice it to say that it led in September 2000 to the Stockport Health Authority referring his case to the defendant, which dealt with the complaints under its performance procedures. He was suspended on 19th December 2000 by the defendant's interim orders committee and he has not in fact worked since then.[3]In October 2001, the defendant wrote to the claimant under rule 6(2) of the General Medical Council (Professional Performance) Rules 1997, inviting him to undergo an assessment of his professional performance. He agreed to do that, but due to stress was unable to do it at that time. Subsequently, however, he did undergo an assessment, and it took place in late March and early April 2002. A written report was prepared by the assessors dated 19th May 2002. The panel concluded that the standard of professional performance had been seriously deficient in a number of areas, including trust and respect for patients; assessment of patients; treatment of patients; and record keeping. They recommended in all the circumstances that he should cease practice. They did not consider that performance would be likely to be improved by a remedial action, particularly since the appellant had indicated that he was proposing to retire anyway in the autumn of 2003. He now, however, would wish to practise for longer than that.[4]The report of the assessors was considered by the Committee of Professional Practice on 1st August 2002. It broadly reached the same conclusions as the assessors, save that it made no adverse findings in relation to respect for patients. It found that the claimant's performance had been seriously deficient in the other areas identified by the assessors, and also it spelt out a number of areas where the claimant's practice was described as being a cause for concern. It expressed the view that the claimant had only a limited insight into his deficiencies. In these circumstances, it did not think it appropriate to impose conditions for continuing in practice as it might have done, but chose instead to suspend the registration for 12 months.[5]It also gave an indication of the matters which it was likely to have dealt with prior to a fresh consideration of the suspension, which had to take place by the end of the 12 months. Amongst other things, it strongly suggested that the appellant should draw up a personal development plan with the assistance of an appropriate educational supervisor appointed by the Postgraduate Dean of Medical Education, and it gave an indication of the kind of evidence and reports that it would require at the resumed hearing.[6]Finally, it stressed that it was the responsibility of the practitioner to take action to improve performance, and that it was not something which could be organised by the GMC itself.[7]Following the hearing, the appellant made arrangements to see Dr Stuart Bailey, the deputy director of Postgraduate General Practice Education at the University of Manchester. That was on 12th September 2002. On the same date, Dr Bailey wrote a letter to the appellant setting out certain information that he had provided to the appellant, making certain suggestions as to what the appellant might do in the future such as looking at certain modules known as the "APOLLO Series" produced by the British Medical Journal, and also suggesting that the appellant should undertake what is called "reflective learning". Finally, he suggested that an appointment should be made three months later for the parties to meet again. In fact, they did not meet until 11th March 2003.[8]The outcome of that meeting is contained in a letter of 18th March 2003. Amongst other matters, Dr Bailey referred to the need for the appellant to write a formal Personal Learning Plan which he should discuss with John Adams, the GP tutor at Stockport.[9]It was suggested that the appellant should meet Dr Bailey again in about eight weeks. The next meeting was on 8th July 2003. There were certain encouraging noises made in this letter, as indeed in the previous one, about steps which the appellant had taken to bring himself up to the required standard, but it was also noted in this letter that it appeared that although the appellant had knowledge of various areas, he appeared to find more difficulty in putting that knowledge into management of patient problems.[10]Meanwhile, the appellant had also seen Dr Adams, as suggested by Dr Bailey. They met on 30th May 2003. Dr Adams expressed the view:
"I feel that you have now reached the point where it would be beneficial for you to be able to practice skills, particularly consultation skills and audit, in a clinical setting under appropriate supervision."
[11]Then, on 1st July 2003, Dr Adams wrote a letter to the appellant's solicitors in which he commented that he had not made a formal assessment of the appellant's clinical knowledge, but noted that performance in self-administered computer tests would appear to be satisfactory. I simply interpose at this stage that it should be noted that it is not clear that those were tests which were conducted by Dr Adams. It may be that he was recounting what he had been told. But in any event, he went on to say this:
"I feel that Dr Krishnamurthy has now taken his personal education as far as he could be reasonably expected to do without having the opportunity to develop his practical clinical skills. I am not aware of any former [formal it should be] education research which has been done with doctors in Dr Krishnamurthy's position and I have no direct personal experience of it, so based on my experience as a GP tutor and a trainer of GP registrars. "
My view is that Dr Krishnamurthy should be allowed a period of 6-12 months of supervised practice in which to develop his clinical skills. He should have ready access to a general practitioner with educational skills such as a GP trainer at all times whilst he is consulting. He should also have access to developmental tools such as video consultation and he should have the opportunity to demonstrate his skills at the end of this period to the level required for summative assessment at the end of GP educational training."[12]He then went on to note that there may be practical difficulties in obtaining such a post.[13]The hearing before the Committee took place on 21st July. The GMC were represented by Miss Vaughan Jones and the appellant by Mr Holl-Allen. Both of those counsel have appeared before me today.[14]Mr Holl-Allen, on behalf of the appellant, set out in some detail to the Committee the steps which the appellant had taken to comply with the suggestions that the Committee itself had made on the previous occasion, and also to ensure that he was bringing himself up to the appropriate standard. He also placed not inconsiderable emphasis on the views of Dr Adams, quoting from Dr Adams' letter to his instructing solicitors on a number of occasions.[15]There was cross-examination of the appellant, both by Miss Vaughan Jones and by members of the Committee. The conclusion was that the suspension should be extended for a further 12 months.[16]It is necessary to quote the key passage of the Committee's determination. It is as follows:
"The committee today noted the efforts which you have made so far to improve your performance. Within six weeks of the previous hearing you contacted the Department of Postgraduate Medicine and Dentistry and arranged a meeting with Dr Bailey, Deputy Director of Postgraduate General Practice Education. However, you did not fully implement his advice and in fact did not meet with him again until 11 March 2003. "
Although you have provided some of the evidence that the committee asked you to submit, it does not specifically address the major deficiencies identified in the assessment carried out prior to the previous hearing. Your evidence to the committee indicated that you are still lacking in insight into the serious deficiencies identified in that report. The reality is that you still refuse to accept all the assessment findings. Furthermore, although you devised an educational plan, this does not address your shortcomings and was only prepared relatively recently. The Committee have noted that you have attended a number of courses but in their opinion this was not a serious attempt to address the specific deficiencies found at your assessment, nor did you undertake reflective learning in relation to the courses that you attended, despite being asked to do so by the Postgraduate Dean. The Committee are also concerned that in relation to the other learning experiences which you have documented, there is little evidence that you have regularly kept up-to-date with relevant journals and other reading matter. "Taking all these matters into account, the Committee consider that you continue to present a risk to patient safety and that it is not sufficient for the protection of the public to impose conditions on your registration. They have therefore decided to direct that your registration be suspended for a further period of 12 months. In reaching this decision the Committee are satisfied that they have weighed your own interests against the safety of the public and the public interest, and that this direction is proportionate to the deficiencies revealed."[17]Initially, in the appellant's notice, there were seven grounds of appeal. In fact, however, Mr Holl-Allen for the appellant has reserved almost all his firepower for one of them. He has not abandoned the others, but I think I can fairly describe them as having been pursued with a lack of any real enthusiasm.[18]The principal ground which he now advances is this: he says that the evidence of Dr Adams was so central to the claimant's case that it was an error of law for the Committee to fail to mention that evidence in its decision and to indicate, if only in summary form, why it was rejecting that evidence.[19]He accepts that the decision was one which the Committee could properly reach. It was not, in other words, a decision on the merits which was not open to a rational panel properly considering all the evidence before it. His challenge is solely to the reasons.[20]He also accepts that in general, a brief statement of the findings, which is habitually given in cases of this kind, is not intended to be a fully reasoned judgment, and there is no obligation to provide such a judgment. I was referred to the observations of Lord Walker of Gestingthorpe in the case of Sadler v The General Medical Council [2003] UK PC 59, where his Lordship made comments to that effect. But, says Mr Holl-Allen, the reasoning in this case falls short even of the minimal standards that are required for decisions of this nature.[21]This is particularly so, he submitted, given the following features relating to the evidence from Dr Adams. Firstly, there could be no doubt that Dr Adams' views were at the heart of the case as far as the appellant was concerned. Secondly, the original determination had made specific reference to the need to have certain reports, including those from an appropriate supervisor. Dr Adams fulfilled that role and therefore particular attention should have been paid to his recommendation. Thirdly, it was the opinion of a person who was specifically responsible for training general practitioners in the relevant area. Finally, the opinion was based on discussions with the appellant about the educational packages which he had used and also the courses that he had attended. In the circumstances, the Committee ought to have said more about Dr Adams' evidence.[22]Miss Vaughan Jones contends that this is misconceived. The panel's role is to make an independent determination on all the evidence before it. This involved, of course, considering the views of Dr Adams, but also it involved a consideration of other evidence, and not least the responses from the claimant himself when he had been questioned by counsel and by the Committee members at the hearing. The Committee were not bound to give any particular weight to the evidence of Dr Adams, and plainly it would have been wrong in law for them simply to have slavishly adopted his views. Moreover, she submits that it is inconceivable that they could have somehow failed to give proper consideration to his views; they must have been fully in the Committee's minds because they had been the focus of Mr Holl-Allen's submissions. As he himself said, the evidence of Dr Adams went, as far as the appellant was concerned, to the heart of his case.[23]She also contended that in any event, the evidence of Dr Adams had to be seen in context. It was not clear how fully he personally had been involved in the assessment of the appellant. He said, for example, that he had not himself made a formal assessment of the appellant's clinical knowledge, and plainly, to some degree, he must have been relying on what he had been told.[24]It is perhaps not necessary, however, to focus on that issue in any detail since, as I have indicated, Mr Holl-Allen accepts that the decision was one which, in the substance, the Committee was entitled to reach, and therefore the only issue is whether the failure to advert to the views of Dr Adams rendered the reasoning process defective in law.[25]In my judgment, they did not. It seems to me that the Committee gave clear reasons for its conclusions. It is plain from their decision that they had regard to the steps that the appellant had taken to improve his performance. They commented upon the fact that he had had a meeting with Dr Bailey, but they considered that Dr Bailey's advice had not been fully implemented. Overall, they plainly took the view that the appellant still lacked the necessary insight to remedy his deficiencies. That is something which they inferred in part from the evidence that he himself gave to the Committee, as they made clear.[26]It was ultimately a matter for them to assess the evidence. Dr Adams would have been more charitable, perhaps other committees would have been, I know not. But they gave clear reasons for their conclusions, and it cannot be said that the appellant is left in any doubt or uncertainty as to why they have chosen to extend the suspension in this case rather than taking a more lenient course. Their duty is to explain briefly but clearly why they are making the determination which they make, and that, in my view, they have done in this case.[27]It would have been superfluous for them to say that they were rejecting the opinion of Dr Adams, because that was plain for all to see, and their reasons for doing so were essentially the reasons why they reached the decision which they did. They simply assessed the evidence on, it must be said, fuller evidence than would have been available to Dr Adams, in a different way than he had done.[28]I turn very briefly to consider the other matters which were raised in the grounds. It is said that the Committee drew an inference adverse to the claimant arising from the fact that he did not see Dr Bailey for some six months rather than the three months suggested by Dr Bailey, when there was no evidential basis for such an inference. Miss Vaughan Jones contended that no adverse inference had been put forward.[29]I think, reading the decision fairly and in context, that there was an adverse inference, but it seems to me it was one that the Committee were entitled to make.[30]Mr Holl-Allen says that it was never put to the appellant why it was that there was that delay, although he had made some suggestion as to why it might have occurred, apparently, in submissions to the Committee. However, I think the Committee was entitled to say, in the absence of some explanation, that it was a factor, albeit a relatively minor one, which would weigh against the appellant in so far as it might show a lack of a strong commitment to change his approach.[31]Then it is said that they drew adverse inferences from the fact that it had taken him a long time to prepare his personal educational plan. Again, it seems to me that they did consider that as a factor which weighed adversely against the claimant, but again, I consider that they were entitle to reach that view. It was an important part of the remedial programme, and there were significant delays before it was produced.[32]Of course I recognise, and Mr Holl-Allen submits, that there may have been reasons for that; but it was still open to the Committee to conclude that these were, in the circumstances, lengthy delays. Even if in fact they were not culpable delays, they would still be relevant in determining whether the appellant had addressed his shortcomings adequately such that it would be in the public interest to enable him to continue in practice.[33]It was said that the Committee had failed to take into account the interactive educational packages which the claimant had undertaken. That, it seems to me, is an unsustainable proposition, because they say in terms that they had noted the efforts which he had made to improve his performance, and there is no reason to suppose that they ignored that factor.[34]Finally, Mr Holl-Allen submits that it was unreasonable to impose a requirement that before the end of the further 12-month period, he should undergo a further assessment of his professional performance. Mr Holl-Allen points out that the appellant would have been suspended by then for a period in excess of four years, and that it would be very difficult for him to be able to demonstrate performance to the appropriate standard.[35]I think the short answer to that is that I have no reason to assume that in that assessment, whoever is carrying out the assessment would not take into consideration the difficulties faced by a practitioner who is under suspension. I am told by Miss Vaughan Jones that in practice they do so, and I would have thought that they must do so in an appropriate case, but as Miss Vaughan Jones points out, much of the skill ought to remain even although somebody has been suspended for a certain number of years. Their skills may be blunted, but nonetheless it is possible to make a sensible assessment of their performance in those circumstances.[36]For these various reasons, and notwithstanding the concise and careful way in which Mr Holl-Allen put the case on behalf of the appellant, I am satisfied that there was no error by the Committee in this case, and accordingly the appeal fails.[37]MISS VAUGHAN JONES: My Lord, I would ask for the costs of the appeal. I think that is not contentious.[38]MR HOLL-ALLEN: I cannot contest those, my Lord.

MR JUSTICE ELIAS: Costs will be awarded.

[40]MISS VAUGHAN JONES: My Lord, we do have some schedules for the costs but I am reasonably confident, having looked at those, that there is likely to be a agreement as to costs, pending which they could be sent for taxation if that became necessary, which would be unlikely. I am mindful of your Lordship's list, I do not invite your Lordship to embark on summary assessment.[41]MR JUSTICE ELIAS: I am very pleased. Thank you both very much indeed.