Lotay, R (on the application of) v General Medical Council [2006] EWHC 2846 (Admin)

Case No CO/4078/2006[2006] EWHC 2846 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 4th August 2006
Strand
London WC2
B E F O R E:
MR JUSTICE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF KAUR LOTAYClaimant-v-
Between
GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Corporation190 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 MDU Services Limited, London SE1 8PJ) appeared for CLAIMANTMR A THOMAS (instructed by the GMC) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE NEWMAN: This is an appeal by Dr Lotay under sections 40(1)(a) and section 40(4) of the Medical Act 1983 (as amended) against the decision of a Fitness to Practise Panel of the General Medical Council on 18 April 2006. The Panel decided to suspend her registration for a further period of 12 months.[2]The case has a little background, which I should briefly recite. Dr Lotay worked as a general practitioner from October 1987 until July 2001 in a single-handed practice in Chelmsford. In June and July 2001, the Clinical Performance Committee of the North Essex Health Authority carried out a formal assessment of her practice. This assessment followed a complaint by community nurses about her management of a patient. Dr Lotay resigned following the assessment, but by a letter, dated 19 November 2001, the North Essex Health Authority referred her to the General Medical Council.[3]As a result, the GMC conducted an assessment of Dr Lotay in October and November 2002. The Assessment Panel found that her professional performance had been seriously deficient in the areas of(1) assessment of patients;(2) providing or arranging treatment;(3) record keeping;(4) relationships with colleagues; and(5) participation in audit. She accepted the comments in the assessor's report and she was subsequently asked to agree with a Statement of Requirements governing a period of remedial training, which was to be effective for 15 months, but Dr Lotay did not agree to the Statement of Requirements.[4]Consequently her case was referred to the Committee on Professional Performance. The case came before the Committee on 18 July 2003 and Dr Lotay's performance was found to have been seriously deficient in a number of areas. In addition to those which had already been identified in the assessment, could be added not only relationships with colleagues but relationships with colleagues and teamwork and treatment in emergencies.[5]As a result, the Committee made Dr Lotay's registration subject to conditions for a period of 18 months. It is to be noted that one condition was that she should pass the National Summative Assessment, or its equivalent. In November 2004, as a result of statutory changes, the Committee on Professional Performance was replaced by the Fitness to Practise Panel. The Panel heard Dr Lotay's case on 15 and 16 February 2005. The Panel found that she had failed to comply with the majority of the conditions, which had been imposed upon her registration in July 2003. There has been no appeal against that conclusion and the matter therefore stands as a conclusion that she had failed to comply with the majority of the conditions, one, of course, was that she passed the National Summative Assessment, or its equivalent. The Panel was of the opinion that she had demonstrated a lack of insight into the deficiencies that had previously been identified and, as a result, they suspended her registration for a period of 12 months.[6]Mr Holl-Allen, who has appeared for the appellant on this appeal, and if I may say so, has said everything that could properly be said on her behalf, has pointed out that it may have been the underlying conclusion, reached by the Panel, that after the period of suspension Dr Lotay would simply not seek a review or seek to continue in practice as a general practitioner. By way of substantive and significant submissions, made both to the Panel on the occasion in respect of which this appeal comes before the court, and before this court, his case has been that Dr Lotay had made very strenuous efforts to do everything that she possibly could in order to demonstrate her fitness to practise. In emphasising this for the purposes of this appeal, in connection with the sanction imposed in April 2006, he says that the limitations which operate when a doctor is suspended, to a significant degree, render a doctor incapable of demonstrating her skills in the practical area of medicine and treatment of patients. That indeed is one of the more significant submissions which Mr Holl-Allen has made to this court by way of general complaint about the decision reached in April.[7]The decision under challenge on appeal is contained in a letter dated 19 April 2006. That is at pages 61 to 63 of the bundle. At this stage I will merely endeavour to summarise the import of it. The Panel concluded that there was insufficient evidence to demonstrate that Dr Lotay had, during her suspension, remedied the deficiencies that had previously been identified. They also concluded thather clinical skills might have deteriorated during her suspension. Therefore they reached the conclusion that the public would not be adequately protected if her suspension were lifted, and particularly that it was not a case in which they were minded to permit her to practise under conditions. The decision, therefore, was as follows:
"The Panel considers that a period of 12 months would allow you sufficient time to undergo an assessment of your professional performance in a process approved by the General Medical Council. Although it cannot direct that you do so, you would need to demonstrate, to a future Panel, satisfactory completion of an objective assessment and provide other evidence of measures you have taken to remedy your previously identified deficiencies."
[8]So far as the law is concerned, there is no dispute between counsel as to the approach which the court should take on an appeal such as this. Although it is a rehearing it is limited by established principles which have been laid down: for example, by Richards J (as he then was) in the case of R (on the application of Arley Erlester Clark) v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2004] EWHC 1350; Collins J's decision in Moody v General Osteopathic Council [2004] EWHC 967, and in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642, [2003] 1 WLR 577.[9]The upshot is that, as it has been variously put, to the same effect, this court ought not to interfere unless dissatisfied that the conclusion lies outside the bounds within which a reasonable disagreement is possible. That the question, as it stands at the moment in relation, in particular, so far as general medical matters are concerned, is whether the test is one in which the previous decision is clearly wrong; or whether (as may yet have to be decided) some other test, rather more on the lines of that which I have summarised, propounded by Mance LJ in the Arab Insurance Group, is appropriate.[10]But for the purposes of the present case, it seems to me rather more material to emphasise that it is not in dispute that there must be a measure of deference to the professional expertise of the Committee considering a matter such as this. I say, with particular pertinence to this case, because the particular submission, to which I have already drawn attention, which Mr Holl-Allen has helpfully developed, has been that the thrust of her case before the Panel, which was rejected, and the thrust of her argument before this court is that they were wrong to reject the argument. If she had done substantially that which could be reasonably expected of her as a suspended doctor, the decision should be regarded as wrong in law.[11]Alternatively, I think Mr Holl-Allen would say it is unreasonable or unfair in the circumstances to stipulate a higher threshold of ability or skills as being required to be demonstrated if, in all the circumstances, which the Committee itself left open to a doctor, it is impossible to demonstrate such skills. That, in my judgment, is the sort of submission which falls pre-eminently within the area for assessment by those who have the responsibility for protecting the public and for making an assessment in connection with a doctor's ability and fitness to practise.[12]The principal thrust of the appeal, developed by reference to the specific grounds as well as the skeleton argument, really echoes this area of the case. Ground(1) of the appeal is that the Panel failed to take into account that the determination of its predecessor, the Panel on 16 February 2005, did not provide for a full assessment of Dr Latoy's performance before the 2006 hearing.(2) It failed to take into account the results achieved by Dr Latoy in the examination for the membership of the Royal College of General Practitioners in the winter of 2005, citing as objective evidence the public would be adequately protected if she were to return to conditional registration.(3) It concluded that Dr Lotay provided insufficient evidence that she remedied previously identified deficiencies, and/or that she was safe to return to restrictive practice, without taking into account that as the suspended doctor the nature of the evidence which Dr Lotay was cable of providing was limited.(4) Failed, despite assertions that it was done so, to take into account the advice of a specialist adviser in general practice, both as to the status of the MRTGP examination and generally as significant to the education and training undertaken by Dr Lotay between February 2005 and February 2006.(5) Imposed a further suspension on the grounds that there was no objective evidence placed before it to conclude the public would be protected if Dr Lotay's suspension was to be lifted. The appropriate test was whether the public would be adequately protected by an order for conditional registration.(6) Failed to take into account that as a suspended doctor Dr Lotay would not have the opportunity to develop her clinical skills and practice and that a further period of practice might serve to impair those skills.(7) Suspended Dr Lotay for 12 months, the maximum period permissible under section 35, D5 of the Medical Act 1983 when the stated reasons for doing so, namely to allow Dr Lotay to undergo an assessment of her performance in a process approved by the GMC, did not require a suspension of this length.[13]Mere recitation of the grounds, as there formulated, indicates the extent to which the argument, on behalf of the appellant, echoes and re-echoes the difficulties which face a doctor who is suspended being in a position to demonstrate fitness to practise.[14]In this regard it is noteworthy that there is in the bundle a letter, dated 13 February 2006, from Dr Alex Jamieson (the Associate Director of Postgraduate General Practitioner Education of the London Deanery GP Department) addressed to the solicitor of the medical defence in a letter which was in evidence before the Panel. It gives some insight into what it was that was done by Dr Lotay in the relevant period of her suspension, and also sheds some light on what it was that she could have done, which the Panel were putting under scrutiny in April 2006.[15]He recites the meetings he had with Dr Lotay and at various times. He refers, in particular, to the arranging of a clinical attachment in a local practice with a GP educationalist who could work with her on her personal development plan, and he confirms that that was subsequently established with Dr Naimish Amin. Then there was a meeting in September 2005 at Dr Amin's surgery and in his letter Dr Jamieson refers to part of a letter he had written to Dr Lotay summarising what was envisaged would take place. In particular, it can be noted that the clinical attachment was one in which it was envisaged:
"would be a useful adjunct to the courses and meetings you have been attending and recording in your learning portfolio, as you will have an opportunity to observe and discuss with Dr Amin up-to-date patient management in General Practice..."
Next it was agreed that:
"the clinical attachment arrangement would include case observation, case discussion, possible video review, and multi-professional team meetings if possible, and that you would keep a reflective diary of all your activities while in the practice, and of any further reading undertaken especially as a consequence of clinical cases seen and discussed..."
Next that:
"When I am asked by the GMC to provide them with a report on your activities prior to the next Fitness to Practise Panel, I will ask Dr Amin to confirm the facts of the clinical attachment arrangement ... but I will not ask Dr Amin to make a judgment or express an opinion about your knowledge, skills or attitude. This arrangement is a learning opportunity for you, and your own learning diary will be the most important document for the purposes of the next GMC Fitness to Practise Panel."
The letter concluded:
"Since the last hearing she has been educationally very active, and does have a learning portfolio, however it might be organised, which is a record of learning activities undertaken, and in the case of the diary based on the clinical attachment with Dr Amin, it should be mapped against case experience and clinical areas discussed at the time. My letter to Dr Lotay after the meeting with Dr Amin does constitute a record of the learning which she had agreed and planned to undertake during the clinical attachment with Dr Amin, and is thus an important element in her personal development plan."
[16]I am bound to say that it seems to me to be abundantly clear that, notwithstanding the difficulties that any General Practitioner faces when suspended, the guidance and council and support that can be gained from consulting with and receiving the help of someone like Dr Alex Jamieson is obviously a very significant matter. I have not got out of my mind, that also which was urged before the Committee, that her contact with Dr Jamieson on this occasion came from her and that she was the one who pressed for this form of assistance. It is totally consistent with the case which Mr Holl-Allen urged upon the Panel, that this was a doctor who had demonstrated, by personal efforts, a real determination and endeavour to acquire the skills and learning which would demonstrate her fitness to practise.[17]But that said, it has to be also emphasised that it is also abundantly clear from this letter that she must have been aware of how important it was to follow the advice she had received, which was to keep a reflective diary of all her activities whilst attached to Dr Amin. It has been suggested that in so far as the Panel referred to a need for objective evidence, that they could not sensibly have had in mind her own reflective diary as a piece of objective evidence; I disagree.[18]Having seen the context in which the reflective diary was to be prepared, as outlined by Dr Jamieson, namely a reflective diary which would include case observation, case discussion, possible video review and multi-professional team meetings, the diary itself would have been an objective piece of material containing the assessments, containing the understanding, containing the learning, which all those activities were designed to convey to Dr Lotay. Her own assessments in relation to them, so far as the reflective diary is concerned, would have given insight to the Panel in connection with her learning curve from that attachment.[19]I would not have necessarily chosen, if I were forced, to label it as objective evidence. However, it is certainly capable, despite its subjective source, of shedding light from objective material on the fitness to practise of Dr Lotay. Regrettably she did not keep the reflective diary. I have no doubt that that was a matter which the Fitness to Practise Panel regarded as significant and, in my judgment, they were entitled to do so.[20]The next matter, which is specifically raised by the grounds, relates to the effort made by Dr Lotay to pass the MRCGP examination. This she was only, in effect, 50 per cent successful in doing. She passed two papers and failed two. Obviously had she passed all parts, as it was observed at the hearing, she would have demonstrated the golden standard of her fitness to practise, but she did not. The position is, as I now understand it, that it was envisaged that in the 12 months of further suspension, which has been ordered, she would have the opportunity of attempting to pass the two papers that she failed.[21]In connection with simulated surgery there may be difficulties for her in doing so, which would require to be specifically addressed. But as for the written examination, her absence from conditional practice would not, on the face of it, appear to be a major impediment to her taking that paper. More importantly what strikes me is that in this case the General Medical Council have stated, and it is part of their decision, that she should undergo an assessment of her professional performance in a process approved by the General Medical Council.[22]In my judgment that is a direction or order which is of immense advantage to Dr Lotay. It having been said in the decision letter, it is undoubtedly the case that she is entitled, in my judgment, to request from the General Medical Council particulars of the profession which they, the General Medical Council, will approve for her to follow. There can be thus, in my judgment, no unfairness arising from this. I am not prepared to assume that the General Medical Council will set a programme for assessment whilst suspended, which it is impossible for her to maintain whilst suspended. Thus she has the opportunity by the order which has been made (I might say a third opportunity) of meeting that which the General Medical Council has consistently, over the years, required of her, namely to meet the identified deficiencies in her abilities. It seems to me that the solution lies there with the order that was made.[23]Further, my attention has been drawn to paragraph 28 of the Indicative Sanctions Guidance For Fitness to Practise Panels, and no doubt it was with this particular paragraph 28 in mind that the order was made. In that particular paragraph the following appears:
"In such cases to protect patients and the public interest the panel might wish to impose a period of suspension, direct a review hearing and recommend the type of educational programme the doctor might undergo during the suspension, or action he or she might wish to take."
Thus it seems to me that the form of order which has been made directly reflects that which is in paragraph 28. The fact that it has not yet been specified, in my judgment, is neither here nor there. The General Medical Council can be asked, and it is certainly open to Dr Lotay to ask, what it is that they require here her to do by way of an approved programme. She can be told and then she can endeavour, in the 12 months she has available, to fulfil it to a degree that might demonstrate the next review that she is fit to practise.[24]The present solution is in a sense rather better than the earlier. Indeed the earlier perhaps can at least sow the seeds of that which Mr Holl-Allan has urged upon the court. Obviously I take into account, namely in the course of its reasoning, the Panel suggested, in particular:
"The Panel considers that your clinical skills may have deteriorated since your last hearing. Further, it does not have sufficient objective evidence to support the assertion that you are fit to return to practise with conditions on your registration at this stage. The Panel noted the details of your clinical attachment in General Practice, the comprehensive description of an audit and an event analysis and self-analysis. However, it considers that there was no objective evidence placed before it to conclude that the public would be adequately protected if your suspension were to be lifted. Accordingly the Panel directs that the suspension of your registration should be extended for a further period of 12 months."
[25]Mr Holl-Allen submitted, and this was one of his central submissions, that this court should interfere because in that part of the reasons the Panel was referring to objective evidence without, in any way, indicating what it had in mind by way of objective evidence. This could, or should, have been provided which might have satisfied the Panel. As I say, the position for the future may be regarded as better, bearing in mind she is now going to have, if she asks for it, a programme.[26]However, going back to the position as it was before the Panel in April, Mr Holl-Allen helpfully, when asked by the court, listed what objective evidence there was before the Panel. He submitted there was the partial success in the MRCGP examination; secondly, that there was the earlier liaison with Dr Jamieson; thirdly, there was the repeated consultations, which had taken place with him; fourthly, her on-line connections, by way of learning, attendance seminars; fifthly, the clinical attachment; and sixthly, the audit.[27]Mr Holl-Allen criticises the decision for not containing any reference to the examination, but he does, of course, as he has to, acknowledge it contains reference to the clinical attachment and the audit. Nothing turns, in my judgment, on the absence of the reference to the failure, or only partial success, of the examination. The reasons do not have to set out everything. It must be perfectly obvious that the reference to objective evidence embraced the examination which was a paradigm piece of objective evidence.[28]The Committee obviously took into account the failure. They obviously took into account the clinical attachment and the audit and, in my judgment, the reasons cannot be impugned by reference to the use of the phrase "objective evidence". Nor, in my judgment, is this court in a position to reach a different conclusion from that which the Panel reached: that she is somebody who has failed the two parts of the MRCGP exam, who has not kept a reflective diary in connection with the clinical attachment in a way in which Dr Jamieson has suggested, and where they have only had the audit and the event analysis and self-analysis, that she was indeed somebody who had not demonstrated that she was fit to practise subject to conditions.[29]In my judgment, it is plain that this is a decision which has to be seen in the context of the detail of the earlier decision; the detail of the earlier efforts on the part of Dr Lotay to demonstrate her fitness to practise; her unfortunate failure to follow the conditions at the earlier stage; and her unfortunate failure to follow the very firm and clear advice of Dr Jamieson on this occasion in connection with her clinical attachment. Those matters, in my judgment, were sufficient to entitle the Panel to come to the conclusion, to which they came, and so far as the challenge on that ground is concerned, in my judgment, it must fail.[30]The alternative ground is that the length of the suspension being the maximum period of the suspension is disproportionate, unfair and wrong. The purpose of the suspension is to give Dr Lotay a sufficient opportunity within the period of the programme, which she will receive from the Medical Council, to demonstrate her fitness to practise. The suggestion that it is too long simply because it is the maximum length of the period, is, with respect, not a compelling aspect of it.[31]The compelling aspect of the matter, or indeed the most important consideration which the court regards is the significant connection with the period of this suspension, is that it was the professional judgment of the Panel (the experts in the matter) that she would benefit from having 12 months' suspension. Also the benefit from the programme, which will be laid down for her if she asks for it, within that period of 12 months to demonstrate her skills.[32]To shorten the period, in my judgment, would be not only contrary to the professional assessment of the Panel, but it would probably be contrary to the interests of the appellant. In those circumstances I do not allow the appeal on that ground. For all those reasons this appeal is dismissed.[33]MR JUSTICE NEWMAN: Thank you very much. Any applications?[34]MR THOMAS: I ask for the GMC's costs to be summarily assessed. I hope the court has the assessment of costs.[35]MR JUSTICE NEWMAN: I did see it. Is there any resistance to that, Mr Holl-Allen? Do you want to say anything about the figure?[36]MR THOMAS: I would not have thought so given the other side's amount.

MR JUSTICE NEWMAN: I have not seen the other side's amount.

[38]MR THOMAS: It is slightly more than double the GMC's.[39]MR HOLL-ALLEN: Can I pre-empt this by saying there is none?[40]MR JUSTICE NEWMAN: I will assess costs in the sum of £4,355. Do I have to say anything about VAT? It includes the sum of £393.75 VAT. Thank you very much, indeed.