Mohit, R (on the application of) v The General Medical Council [2005] EWHC 1387 (Admin)

[2005] EWHC 1387 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 22nd March 2005
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF DR ABDUL MOHITClaimant-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 P GAISFORD (instructed by Radcliffes, SW1P 3SJ) appeared for CLAIMANTMR A THOMAS (instructed by General Medical Council, London NW1 3JN) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE COLLINS: Dr Abdul Mohit, the appellant in this case, qualified as a doctor in India. He came to this country in 1972 and practised, first of all, for some six years in hospitals and then set out as a General Practitioner in partnership in Sheffield. Unfortunately in 2000 the partnership ceased and he continued as a sole practitioner. That led to difficulties which resulted in a complaint from the local health authority to the General Medical Council and eventually brought him before the Fitness to Practise Committee of the GMC.[2]I do not think it is necessary to go into the precise detail of the various hearings until November 2002 when the Committee decided that he should be suspended. The reason for that was based upon a number of concerns in relation to his professional performance. It was considered that his performance had been seriously deficient and his professional performance was unacceptable under the following eight assessments:(i) Communication with patients;(ii) Providing or arranging treatment;(iii) Working within the limits of competence;(iv) Record keeping;(v) Relationships with colleagues/Team Work;(vi) Arranging cover, delegation and referral.(vii) Constructive participation in audit, assessment and appraisal;(viii) Working within laws and regulations.[3]The Committee further indicated that there was cause for concern in a further six areas which were:(i) Respect for patients' trust and confidentiality;(ii) Assessment of patient's condition;(iii) Providing or arranging investigations;(iv) Treatment in emergencies;(v) Educational activities;(vi) Paying due regard to efficacy and the use of resources.[4]It is clear, and indeed it was accepted by subsequent committees, that his clinical skills were acceptable and that essentially the problem, as it was put, was an attitudinal one.[5]Following that suspension, the matter was considered again in June 2003 and the Committee on that occasion decided that there had not been sufficient indication of improvement and that a suspension should be imposed for a period of 12 months. The matter thus again came before a committee in June 2004. The appellant had by then decided that he would no longer seek to go back into general practice, but rather would wish to work in a hospital. The areas of practice that he was particularly interested in were psychiatry, geriatric medicine and possibly accident and emergency, but he had not, at that stage, formed any specific view as to precisely which area would be the appropriate one for him.[6]One of his motives, and perhaps the more important motive, for not continuing in general practice was the cost that would be involved in going to the courses which he was informed would be necessary in order to carry out retraining which would possibly persuade a Committee that he should be permitted to practise yet again. I gather from what Mr Gaisford has said that the amount that he was told it would cost was in excess of £8,000 and for obvious reasons by then, having regard to the suspension, he was not in a particularly satisfactory financial situation.[7]So it was that the Committee in June were being asked to lift the suspension to enable the appellant to enter upon hospital employment. The suggestion was that in lieu of the suspension conditions should be imposed which would enable him to do that.[8]In the course of the hearing he was asked a few questions by the Committee. He stated:
"My intention, at the moment, is that it would be quite clear to me, if the GMC allows me to continue with conditional registration, then I will be able to get a job, initially, as a locum in a hospital capacity, under a consultant as a staff grade, and then I can develop further. I can work in the field of psychiatry, geriatrics, infectious diseases and some other medical field as well."
He expressed confidence that he would be able to get a locum post and would be able to develop from there. He did not indicate whether he had made any enquiries as to those possibilities, but he was expressing himself in confident terms. He was then asked this question at page 16 of the transcript:
"Q But, in terms of communication with patients and relationship with colleagues, for example, which are two of the areas mentioned, would you not see those as equally relevant in other fields of practice? A. May I just say that it has been said, but did anybody else say before the year 2000 - from 1972 to 2002- that I did have a communication problem with patients? Did any patient complain about that; did I fail to understand a patient and misdiagnose, mistreat, so where is the problem? Things are developing now. Perhaps my approach was a little bit doctor-centred, and now it will be patient-centred. I have read the books; I have gone through these areas over and over again to make sure that my practice would be based on a patient-centred approach and not by a doctor-centred approach. Q. Just to make sure of your position, what you are saying is that if you were successful in gaining employment outside general practice, then you would not feel it necessary to undertake any particular remedial action. A. What I am saying is that, at the same time as I get the job, I will keep on taking all the necessary postgraduate training - all the necessary courses alongside study, as well as by the job continues with me as well, so that would be the immediate process, actually. That is why my registration should be conditional, but I should be allowed to work in the hospital with the consultant, and I should develop further, taking all the necessary courses and training in all the areas for that particular subject."
[9]There is, I am bound to say, some concern arising from those answers inasmuch as he appeared then not to accept the extent of the deficiencies which had been found by the Committee back in November 2002. It may be that that should have put up, as it were, a warning signal to the Committee. Nonetheless the Committee decided that they would give him the chance that he was asking for and in their determination they said this, so far as material, and I take it up from page 29D of the transcript:
"At today's hearing the Committee have been told of a significant change in circumstances in that you no longer wish to practise as a general practitioner, and that you are currently investigating alternative areas of medical employment. While remaining concerned that you have not produced evidence of addressing your deficiencies, the Committee took careful note of the earlier assessment of your clinical skills as adequate. The Committee also noted your service as a medical practitioner in particularly demanding circumstances for over 20 years. Overall the Committee considers that it would be fair and proportionate, sufficient for the protection of the public interest and in your own interest to impose a period of conditional registration. In order to give you the opportunity to demonstrate that you are capable of achieving and sustaining the necessary improvements in your practice, the Committee has decided to direct that for a period of six months your registration shall be conditional on your compliance with the requirements which follow."
[10]They then set out five numbered conditions. It is, I think, only necessary to read the first two. The third relates to disclosure of the conditions to any prospective employer and (4) and (5) are relevant only to what he should do if he achieved an employment.(1) and(2) read:- (1) You shall restrict your practice to educationally approved senior house officer or educationally approved locum senior house officer posts within the NHS and within one deanery. (2) You shall work under the supervision of an appropriately experienced educational supervisor approved by the postgraduate dean, with whom you should discuss your training needs and who should approve an educational plan initiated by you. The educational supervisor must be prepared to accept responsibility for your supervision and for reporting back on your performance as agreed by the postgraduate dean."[11]It was common ground at the subsequent hearing, in December 2004, against whose decision this appeal is brought, that the first of those two conditions did not mean that he had to apply only within one deanery, which one supposes would have been Sheffield, but could apply within any deanery. If he got a post then he was not able to obtain other posts outside that deanery. The purpose behind that was fairly obvious, that it was necessary that his progress should be monitored and reported on by a single person.[12]The Committee indicated that at the end of the period of six months there would be a resumption of consideration of the appellant's case and the Committee would review the steps that he had taken since the hearing to improve the standard of his professional performance. They would expect evidence of that improvement including reports from his educational supervisor, reports from his Postgraduate Dean on his educational plan, details of his participation in educational activities and his compliance with the conditions set out in the determination.[13]Unfortunately the appellant was unable to obtain any post in the six months that was allowed him and so when the matter was reconsidered on 15 December by a differently constituted committee, his plea essentially was that he be given extra time to enable the opportunity that he had been given in June to be a reality. The Committee in due course, and I will go into the details in a moment, declined to give that opportunity. It took the view that he had not taken sufficient steps to show that he really had addressed the problems, and took the view that there was no real possibility that he would obtain a hospital job as he sought. Accordingly they decided to suspend him for a period of 12 months.[14]It is against that decision that this appeal is brought and, as Mr Gaisford put it, the only matter that he essentially seeks is that he be given the extra time. It is said that the decision of the Committee was wrong in not giving him that further time. It is, I think, unnecessary for me to go into the various authorities referred to in the skeleton arguments that indicate the approach which this court should take to appeals from bodies such as the Fitness to Practise Panel of the GMC. Suffice it to say that this court will not interfere unless persuaded that whatever was imposed by the Panel was clearly wrong. In particular, in relation to Fitness to Practise, it is important to bear in mind that the Committee has an expertise and indeed has a specialist adviser to advise them in this field.[15]The counsel appearing on behalf of the GMC opened the matter before the Panel and he drew attention to certain findings which had been made. Some of the more material were as follows, that in 2002 an assessment took place and this was what was found:
"Although Dr Mohit had co-operated with the process of the assessment to the extent of attending at the appropriate times we found his attitude extremely unhelpful. He was willing to discuss clinical areas in general terms but when asked about the specific issues concerning his own practice he became evasive and obfuscatory. Even when we asked questions which only required a yes/no or numerical answer it was difficult to get an understandable response."
There was reference to problems with prescribing, particularly of amphetamines, and the view taken that Dr Mohit saw no need to improve his level of practice. They said:
"We do not believe that Dr Mohit's poor performance results from deficiencies in knowledge or psychomotor skills but rather from attitudinal problems."
[16]That report was not accepted. There was a challenge to it, but as I have already indicated the Committee found against him and decided that there should be a suspension. I do not think it is necessary, as I say, to go into the history in any further detail, but the important point is that it was not his clinical skills which are in issue, but the problems in dealing with patients and in dealing with colleagues that were of particular importance.[17]When it came to the hearing in December, the Committee asked a considerable number of questions. Perhaps surprisingly counsel for the GMC declined to ask the appellant any questions, but rather left it to the Committee members to do that. Mr Gaisford has not sought to criticise the Committee for deciding that they needed to probe, although he has criticised some of the matters which were put. At the hearing the appellant had produced a list of the educational work that he had undertaken since June 2004.[18]Mr Thomas has shown a decided lack of enthusiasm in respect of that list, pointing out that any doctor in practice has nowadays to do at least an hour a week of educational work in order to keep abreast of developments in medicine and that, subject to some four or five exceptions, what the appellant had done really did not extend very much beyond that. He had only attended one course which was relevant to communication skills and that was a day course in October 2004 which is entitled "Communication Skills, Ethics, Medical Law and History taking". He had done a three day practical cardiology course at Cambridge University, although in the context of the areas of medicine in which he had indicated he was hoping to practise, it is a little difficult to see that that would have had any central importance. He had also attended four other full day seminars: one on dementia, one on depression, another one on dementia, and finally one on mental health of older people and dementia. Those were clearly relevant to his interest in psychiatric medicine.[19]A Committee member asked him whether he had learned anything from his attendances and he said:
"Only when I can get a job and demonstrate to the department, who are working with me .."
He was asked whether he ever thought of writing down his defects and he might learn something if he did. He said:
"That is very good advice from you. I might follow that in the future."
[20]He was asked whether he had done anything about listening to patients because that was a very important part of psychiatry. He said he had taken that into account. He did concentrate and listen to everybody and that his listening art had been improved. It was put to him that he might have thought of attending voluntary organisations such as Victim Support and The Samaritans. He said that he had not thought of that and that it was very difficult to get into any training with an organisation, but he said that he recognised that that was a good point. He was asked whether he directed his learning at particular areas. He said that he would be doing so. One can see from the transcript that he bridled somewhat at some of the questions: for example, he was asked about an educational programme that had been put forward when he was still hoping to continue in general practice. His response was that they were talking in terms of general practice, although it could apply to any part of medicine:
"Do not forget that the assessor's report has been, 'The practitioner should cease general practice' - he did not say that I cannot, you know, work in any other part of medicine."
[21]He thought that he had done all that he really could in order to try to get a post. He was asked about the conditions that had been imposed by the Panel and he said that he felt they were harsh, and then he was asked this question:
"Does that mean that you feel that you were wrongly judged, or you still think you were wrongly judged, do you? A. In that case, I have to say again, very truly, that when Mr Beggs, our barrister, presented the case to you, I think about 20 November, there has been disagreement with Mr Beggs with me, which I complained also to the Medical Defence Union. Mr Beggs did not listen to me that I do not want to accept the serious deficiencies, which they have declared actually. It is not been judged appropriately, actually, in my opinion. There has been a letter -- "
Then the Panel member said this:
"Doctor, could I just stop you there for a moment. This Committee does not have the power to overturn the decision of the previous Committee, and it is very important that you understand that. This Committee does have the power as to what happens in the future, and needs to know what you genuinely feel are your deficiencies in each section, so it is important you understand that."
The answer is:
"I still do not accept all of the deficiencies they have set out the serious deficiencies - I do not accept that. Although it should have been revealed during my practice period since 1970 to 2000, nothing happened there."
[23]Again that, as it seems to me, is a worrying answer because it makes it plain that Dr Mohit, despite the findings made against him, still did not accept that he had been guilty of the deficiencies which had been established against him. A failure to recognise the existence of deficiencies means quite obviously that it is likely that there is a lack of insight into the problem or problems that those deficiencies demonstrate. If there is a lack of insight then there is a likelihood that the necessary remedial measures may not be taken. It is a fact that apart from the one day course none of the educational programmes that the appellant embarked upon dealt with what I can broadly call the attitudinal problems.[24]The Panel was very properly advised by the legal assessor that they must take into account the interests of patients, the protection of patients, and the purpose of the GMC being set out for the protection of patients and the regulatory regime in respect of that. They must balance that against the interests of the particular doctor. They must bear in mind the interests of the profession generally.[25]Mr Gaisford has submitted that in all the circumstances, particularly having regard to the fact that the appellant's clinical skills were not in issue, there would be no danger to the public in him being able to practise. Accordingly the committee did not need to concern themselves about danger to the public in imposing or extending the conditions which have been imposed back in June. Mr Thomas submits that that is not correct and that the Committee were entitled, indeed bound, to concern themselves with possible danger. A doctor who does not get on properly with his colleagues, whose attitude to patients is deficient in the respects which have been indicated, is, or can be, a risk to patients, particularly if, for example, he were to go into accident and emergency work where the pressures are perhaps greater than in almost any other department. It would be, or could be, exceedingly dangerous to patients if there were problems such as were indicated in Dr Mohit's case. Accordingly I do not accept that there was no element here of concern about the protection of patients. It seems to me that the Committee was indeed bound to consider that aspect.[26]The determination of the Committee I should refer to in so far as necessary. Having pointed out that the appellant had not managed to secure an educationally approved senior house officer appointment, and there was then a suggestion that the first condition should be relaxed to enable him to apply to positions other than Senior House Officer posts (but that is not a matter that is being pursued before me by Mr Gaisford) the Panel continued thus, page 30E:
"The details of your participation in educational activities reflect your attempts to keep up-to-date with medical knowledge but the Panel are concerned that your most recent personal development plan insufficiently addresses the detailed deficiencies identified in the report of the assessment panel. Furthermore, your choice of educational meetings is not clearly related to your educational needs. The Panel are very concerned that you have failed to take the opportunity to take voluntary positions that would assist you in the development of clinical skills."
[27]Mr Gaisford criticises the last sentence of that paragraph. He says that at no time was it made clear to the appellant that trying to take up work in the voluntary post would be something which was considered to be important. Certainly nothing specific was said along those lines. It seems to me, however, that as a matter of common sense, particularly as was one of the main areas of concern was his communication with, and dealing with, his patients, that that sort of activity should have been appreciated to have obvious value. In addition a suggestion was made subsequently (again something perhaps that the appellant should have thought of) of an attempt to work in, for example, an Accident and Emergency Department of the hospital voluntarily for a limited period of time. He could then have been supervised and effectively could have been tested to see whether it would, or could, work out, but apparently it did not occur to him to try that out.[28]Going back to the determination, the Committee continued:
"In considering whether it is sufficient to impose further conditions, the Panel had regard to the GMC Guidance on Indicative Sanctions and the GMC guidance on making referrals for educational intervention to the postgraduate dean and GP director. The Panel, having weighed all the evidence before them, concluded that there is little reasonable prospect of your deficiencies being amenable to improvement through education. Furthermore, the conditions that protect patients and the public interest offer insufficient scope for the postgraduate dean to be able to help you."
Accordingly they indicated that they had determined to suspend him for a period of 12 months. They took the view that that was proportionate and that it would be disproportionate to impose an immediate suspension on his registration. They would consider the matter again at the end of the 12-month period when he would have the opportunity to attend and present evidence of any action that he had taken to remedy the deficiencies in his professional performance. They made it clear to him that it was his responsibility to take the necessary steps to improve his performance. It was not for the GMC to organise that on his behalf.[29]At the time of the decision there was a letter before the Committee from the Associate Dean of the South Yorkshire and South Humber Postgraduate Dean's Office. That was dated 2 December 2004. It indicated that it was in support of the appellant and that the Associate Dean had had the opportunity to discuss matters with him. He had outlined all the continuing professional development activities he attended and asked that those were taken into consideration at the review. He concluded:
"Dr Mohit needs to work under supervision but evidence of Continuing Professional Development which he has collated may influence the type of post which he may seek."
That of course was not particularly helpful in indicating that there was any real chance of obtaining employment. At the time the appellant, and those advising him, not unreasonably, believed that that was all that could be said on his behalf.[30]But later a further letter was sent to his advisers, on 27 January, indicating that the Associate Dean had had an opportunity to discuss matters further with Dr Mohit, and he noted the GMC's findings of 15 December. He pointed out that he had been unable to get an SHO post, given the restrictions on his registration, and indicating that the timescale between July and January was, as he put it:
"... fairly short to allow Dr Mohit to find suitable employment. Competition for Senior House Officer posts is extremely intense and, of course, Dr Mohit will have to apply for such posts in open competition. I would have some doubts as to how realistic are his prospects of finding a suitable post under the conditions that exist, albeit one accepts that such conditions are non-negotiable."
Of course that does not give any substantial comfort to Dr Mohit in indicating that there was any real chance of finding employment. The letter went on in these terms:
"Dr Mohit has considered undertaking locum appointments but for these to satisfy the conditions of his registration, such locum appointments must, of necessity, be supervised and possibly within the same hospital, preferably within the same department, as such that an educational supervisor be appointed to oversee his work. I would also be of the view that such locum posts need to be of sufficient duration in order for such supervision to be beneficial. Perhaps one speciality where this may be possible would be in Accident & Emergency where there can be shortages in terms of shift work and perhaps Dr Mohit, once he has obtained the first position, could negotiate with his employers to undertake further locums subject to him being supervised and making the necessary progress."
[31]Mr Gaisford submits that that takes the matter somewhat further than did the short letter that was before the Panel and does indicate that there are at least possibilities, which can be described as reasonable, that, given a bit more time, the appellant might be able to find a post. It is not, in my view, a particularly encouraging letter and it is reasonable to suppose that the Associate Dean was doing all that he felt he could to assist the appellant in the problem that he faced.[32]In my judgment there is nothing in that letter which would lead to a conclusion that the decision of the Panel in December was clearly wrong. It is suggested that in reaching its conclusion in December the Committee, as Mr Gaisford put it, effectively ignored the decision that the Committee in June gave the appellant a chance. It was up to him how he acted in order to show that that chance was one which was justified. From the material to which I have referred, it is clear, in my view, that the Committee was entitled to take the view that he had not done sufficient to show that the opportunity had been properly grasped. In particular that there were still real concerns about his insight into the defects which had been found against him, and his failure to take any significant steps in the educational programme which he had undertaken to meet those deficiencies.[33]Harsh though it may be, in all the circumstances I am satisfied that the decision of the Committee in December was one which they were entitled to reach. It was, as I say, not clearly wrong and, for the reasons that I have indicated, this appeal must be dismissed.[34]MR THOMAS: In the light of your judgment I would ask for costs to be summarily assessed in the amount on the GMC's schedule?

MR JUSTICE COLLINS: Mr Gaisford, as a matter of principle can you resist costs?

[36]MR GAISFORD: I do not resist it. I have seen the schedule and I do not resist that either.

MR JUSTICE COLLINS: Is £2,611.70 the total?

[38]MR GAISFORD: I think it is. I saw it and I took instructions and it is agreed.

MR JUSTICE COLLINS: This is an MDU case, is it?

[40]MR GAISFORD: MPS.

MR JUSTICE COLLINS: Yes, in that case the appeal is dismissed with costs assessed at £2,611.70.