Cohen v General Medical Council [2008] EWHC 581 (Admin)

[2008] EWHC 581 (Admin)Case No CO/10135/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2008
Before
MR JUSTICE SILBER
Between
Dr Ronald Jack CohenAppellantGeneral Medical CouncilRespondents
Angus Moon QC (instructed by Nabarros) for AppellantCatherine Callaghan (instructed by GMC Legal) for RespondentsHearing Hearing dates: 29 February 2008Further written submissions served on 8 and 12 March 2008
Judgment

I.Introduction

[1]Dr Ronald Jack Cohen (“the appellant”), who is a consultant anaesthetist, appeals against the decision of the General Medical Council’s (“the respondents”) Fitness to Practice Panel (“the Panel”) on 4 November 2006 to impose conditions on his registration under section 35D(2) (c) of the Medical Act 1983, as amended (“the Act”).[2]The precise findings of the Panel, which are the subject of this appeal, are that:(1) the Appellant’s actions and failings were of a standard significantly below that which was to be expected of a medical practitioner (“ the factual findings”);(2) the Appellant’s fitness to practise was impaired (“ the fitness to practice findings”);and that(3) it was appropriate to impose conditions on the Appellant’s registration (“ the sanctions findings”).[3]Each of these three findings was made at a different stage of the hearing as I will explain in paragraphs 15 to 18 and 47 to 48 below. Pending the imposition of a sanction, the Panel also imposed an interim suspension order on the appellant which has now expired with the consequence that the outstanding appeal against it has become academic. For that reason it is not being pursued.

II. The facts

[4]The complaint which led to the appellant’s appearance before the Panel was made by Mr B who underwent surgery for suspected cancer of the colon on 19 November 2004 at the London Clinic, which is a private hospital. The appellant was the anaesthetist, who was responsible for anaesthetising Mr B in the course of that surgery.[5]The appellant had been appointed a Consultant Anaesthetist in 1980, but from 1994, he has practised only in the private sector. Apart from Mr B’s case, the appellant was of good character with no other previous adverse findings made against him by the respondents. As I will explain, there were many references extolling the skills and expertise of the appellant. Mr. Angus Moon QC , counsel for the appellant, told me that a complaint has very recently been made to the respondents about the appellant but it is not known what action (if any) the respondents will take in relation to it. Both Mr. Moon and Miss Catherine Callaghan, counsel for the respondents, sensibly and correctly in my view agreed that I should not attach any importance to this complaint and I will not do so.[6]Mr B had suffered a cerebro-vascular incident (“CVI”) in about September 2004. He had also suffered a radical prostatectomy for prostate cancer and a transient cerebral ischemia (stroke) in 2000, an episode of atrial filbration (a disturbance of the heart rhythm) and longstanding hypertension (high blood pressure). Mr. B was also moderately obese, a moderate to heavy drinker and had been previously a heavy smoker.[7]Prior to the operation on 19 November 2004, the appellant had been provided with a number of Mr B’s medical records including a partially legible preliminary discharge summary from the Leicestershire Royal Infirmary dated 11 October 1984. The legible part of that summary referred to Mr B’s CVI stating the main diagnosis was “stroke”. In the light of this history, the appellant rated Mr B as high risk, categorising him 9 out of 10 on a scale of risk.[8]On the evening of 18 November 2004, the appellant met Mr B, together with members of Mr B’s family, to discuss the anaesthetic aspects of the operation, which was scheduled for the next day. During this consultation, the appellant did not discuss Mr B’s previous CVI with Mr B as the appellant did not want to raise further concerns in the patient prior to the planned major surgery. The appellant carried out a “passive” neurological examination of Mr B, which involved first observing Mr B as he spoke to the appellant, second noting that Mr B could stand and walk a few steps towards the appellant, and third shaking Mr B’s hand.[9]The Panel found that:a. the appellant did not carry out a neurological examination of Mr. B (including a discussion with him to assess the presence of any residuary neurological signs of the recent CVI);b. Mr B should instead have been advised of the potential risks of suffering a further CVI;c. the appellant should have made a note of the pre-operative consultation with Mr. B; and thatd. the appellant should be criticised for these omissions in the pre-operative stage.[10]The appellant admitted all the facts alleged against him in relation to the pre-operative consultation in the course of the hearing before the Panel, save for the allegation that he had failed to carry out a neurological examination of Mr B to assess the presence of residual neurological symptoms associated with the recent CVI.[11]The appellant also admitted that he did not keep an appropriate record of the procedures undertaken in the anaesthetic room prior to the operation the next day. As to the notes of what occurred within the operating theatre itself, equipment readings were printed out at the end of the operation but these had subsequently been lost. No criticism of the appellant was made of the fact that these records had been lost, but no print-outs could be made of the pre-operative procedures, which had taken place in the anaesthetic room. The appellant accepted in evidence that it was incumbent on him to keep a record of the anaesthetic procedures undertaken, the drugs administered and Mr. B’s physiological signs in the anaesthetic room but that he had failed to do so.[12]During the operation which lasted for 2 ½ hours, Mr. B’s condition was stable throughout and monitors recorded various physiological parameters. The appellant accepted in evidence that his manual anaesthetic records were wholly inadequate and that these deficiencies had the potential to put the patient at risk.[13]Mr B remained under the appellant’s care until 24 November 2004. During the time when Mr B was in the appellant’s care, the appellant was made aware from the nursing and clinical notes that there was a weakness in Mr B’s left leg, a complaint of a change post-operatively, of increased weakness in Mr B’s left arm and a recurrent requirement to reduce Mr B’s high blood pressure. Some of these symptoms would according to Dr Rollin, the expert anaesthetist called by the respondents, have indicated that Mr. B had suffered a further stroke. The appellant denied that he had been made aware of Mr B’s belief that he had suffered a further stroke. He did, however, admit during cross-examination that Mrs. B had expressed concerns to him that her husband had suffered a stroke either during or after the operation. The Panel, however, found that the appellant had failed to pay appropriate attention to Mrs B’s concerns as they must have emanated from Mr.B, who would have been likely to have been aware of the symptoms as he had suffered a stroke about two months previously. The Panel found that the appellant did not conduct an examination of Mr B to assess any changed neurological symptoms or to arrange for assessment by another medical practitioner with appropriate expertise. It was accepted by the respondents that Mr. B did not suffer a further stroke during or after the operation.[14]Save in respect of relatively minor respects, the appellant admitted the facts which I have set out. On the subject of the post-operative neurological examination, there were issues first about whether the appellant had been made aware of Mr. B’s belief that he (Mr. B) had suffered a further CVI and second about whether the appellant had paid appropriate attention to Mr B’s concerns. These issues were resolved against the appellant. It was however, no part of the respondents’ case that Mr. B had in fact suffered a further CVI during the operation or post-operatively. The Panel found, contrary to the appellant’s case, that the appellant’s actions were first inappropriate, second unprofessional, third of a standard significantly below that expected of a registered medical practitioner and fourth not in Mr B’s best interests.

III The Procedure to be followed by the Panel

[15]The procedure, which has to be adopted by the Panel, is set out in Rule 17 of The General Medical Council (Fitness to Practice) Rules Order of Council 2004 (SI 2004 No 2608) (“the rules”) and it provides, in so far as is material with my comments in ordinary print and in square brackets, that: [This is the start of Stage 1] (c) the person acting as secretary to the FTP Panel shall read out the allegation, and the alleged facts upon which it is based; (d) the Chairman of the FTP Panel shall inquire whether the practitioner wishes to make any admissions; (e) where facts have been admitted, the Chairman of the FTP Panel shall announce that such facts have been found proved; (f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it; (g)the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld; (h )the practitioner may open his case and may adduce evidence and call witnesses to support it; (i) the FTP Panel shall consider and announce its findings of fact; [This is the end of Stage 1 and the start of Stage 2] (j)the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner’s fitness to practise is impaired; (k )the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision; [This is the end of Stage 2 and the start of Stage 3] (l)the FTP Panel may receive further evidence and hear any further submissions from the parties as to the appropriate sanction, if any, to be imposed or, where the practitioner’s fitness to practise is not found to be impaired, the question of whether a warning should be imposed; [This is the end of stage 3][16]It is critically important to appreciate the different tasks for the Panel at each of the three stages. At stage 1, the task of the Panel is to consider the charges and decide on the evidence whether the charges are proved in a way in which a jury at a criminal trial has to decide whether the defendant is guilty of each count in the indictment. At this stage, the Panel is not considering any other aspect of the case, such as whether the doctor has a good record or whether the doctor performed any other aspect of the work for the patient with the required level of skill.[17]A. Stage 2 is concerned with the issue of whether in the light of any misconduct proved, the fitness of the doctor to practice has been impaired taking account of the critically important public policy issues. When the draft of this judgment was circulated to counsel in the usual way for the purpose of obtaining typographic corrections, the draft stated that at stage 2, the Panel could consider all the evidence relating to how the appellant had carried out his professional obligations both before and perhaps more importantly after the acts of misconduct complained of. Mr Moon then sent me a note dated 18 March 2008 which (apart from containing a list of typographical errors in the draft judgment) referred to the case of R (Campbell) -v- General Medical Council[2005]1WLR 3488, to which unfortunately neither counsel had referred in their written skeleton arguments or in their oral or written submissions. I have set out the relevant terms of Mr. Moon’s communication in the post-judgment note at the end of this judgment. 17B. In a written submission in response to Mr. Moon’s note received just before I handed down judgment, Miss Callaghan contended that although Campbell was decided under a different disciplinary regime from that which applied in the appellant’s case, the reasoning in that case is applicable to the present regime with the consequence that the appellant’s previous good character and testimonials which provided evidence of his reputation and his conduct both before and after the time when Mr. B was the appellant’s patient were not relevant until stage 3 and therefore this material should not be considered at stage 2. For the reasons which I have explained in the post-judgment note at the end of this judgment, it was neither necessary nor practicable for me then to determine if this contention was right because even if it was correct, the Panel’s decision was still wrong on the impairment to practice issue for the other four reasons which I had explained in the draft judgment and which individually or cumulatively had led me to that conclusion.. Those four reasons for finding that the Panel’s decision was wrong are set out in paragraphs 68 to 71 below. I have therefore assumed for the purposes of this judgment that the Campbell case precludes consideration of appellant’s previous good character and his conduct both before and after the time when Mr. B was the appellant’s patient. I will make further comments on the Campbell case in paragraphs 74 and 75 below[18]Stage 3 deals with sanctions (if any) to be imposed on the doctor if the Panel has found that the doctor’s fitness to practice has been impaired.

IV. The Approach on this Appeal to the Decision of the Panel

[19]The approach to be adopted by this court on the appeal has been considered recently in two Court of Appeal cases to which I must refer as they do not appear to be imposing identical tests. In General Medical Council v.Meadow [2007] QB 462, the Court of Appeal were considering an appeal from Collins J who had concluded that a court would not interfere with the decision of the Fitness to Practice Panel unless persuaded that the decision in question was “clearly wrong”. This test was reconsidered by the Court of Appeal and Auld LJ stated in a passage (with which Sir Anthony Clarke MR and Thorpe LJ agreed) that: “125.For the following reasons I can see no basis for faulting Collins J’s simple expression of the test, save that I doubt whether the adverbial emphasis of “clearly” adds anything logically or legally to an appellant court’s characterisation of the decision below as “wrong” ”.[20]Auld LJ later explained in paragraph 197 that:
“It is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors: [in his judgment the phrase “as is appropriate in the circumstances” is highlighted]. 1) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; 2) The tribunal had the benefit, which this court normally does not, of hearing and seeing the witnesses on both sides 3) The questions of primary and secondary facts and the over-all value judgment to be made by tribunal, especially the last, are akin to jury questions to which they may reasonably be different answers” 1) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect; 2) The tribunal had the benefit, which this court normally does not, of hearing and seeing the witnesses on both sides 3) The questions of primary and secondary facts and the over-all value judgment to be made by tribunal, especially the last, are akin to jury questions to which they may reasonably be different answers”
[21]In my view, this passage must be read together with the passage I quoted in paragraph 19 and indeed it qualifies it.[22]It was initially suggested during the course of submissions that the approach in Meadow differed from that adopted by Laws LJ when giving the only reasoned judgment (with which Chadwick LJ and Sir Peter Gibson agreed) in Raschid and FatnanivThe General Medical Council [2007] 1WLR1460. Surprisingly in that case, there was no reference to the earlier and much-publicised decision in Meadow. Having reviewed the authorities, Laws LJ explained at paragraph 20: “The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case”.[23]The difference in the approach in the two cases was considered more recently by Wyn Williams J in Rumbold v. General Medical Council [2007] EWHC 2569(Admin) when he explained that: “28…It seems to me that it is possible, at least, to discern a difference of emphasis in the way that Auld LJ formulates the test we applied under section 40 compared to the formulation of Laws LJ.. That said, it is probable that in most cases the result will be the same whatever formulation is adopted. I can envisage cases on the margins, however, where that may not be the case”.[24]I was troubled as to which of these approaches should be applied in this case. I therefore asked counsel to provide further written submissions on this issue and they duly provided characteristically comprehensive and thoughtful submissions. Mr. Moon agrees with Miss Callaghan that a court is entitled to choose which of the two approaches should be adopted.[25]Mr. Moon contends that the statutory obligation for appeals to be “by way of rehearing” (see CPR 52.11 and paragraph 22. 3 (2) of the Practice Direction to CPR Part 52) is inconsistent with the statement by Laws LJ that the court is exercising “a secondary judgment”. Miss Callaghan submits that the approaches advocated in the two cases are not inconsistent with each other.[26]I agree with Miss Callaghan that the result in this case will be the same whatever formulation of the two tests is to be applied under section 40 is adopted. In those circumstances, it would seem wise to defer any consideration of which of the two submissions are correct until a case comes before the court in which the result of it is dependent on determining whether there is a difference between these tests and if so which test is correct.

V. The hearing before the Panel

[27]The hearing lasted for six days. The witnesses of fact were Mr B, Mrs B and the appellant all of whom were cross-examined.[28]The respondents called an independent expert Dr Anna-Maria Rollin a Consultant Anaesthetist to give her expert opinion. It was her criticisms of the appellant that formed the basis of the charges against the appellant. In three broad areas she was critical of the way in which the appellant had treated Mr. B and they were first his pre-operative care and assessment, second his post-operative care and assessment and third his note taking. She gave evidence at the hearing and was cross-examined.[29]Dr Rollin’s report of 15 January 2006 stated in relation to the appellant’s pre-operative care and assessment that:
“However, there seems to have been a disregard for Mr [B’s] neurological symptoms. It seems extraordinary that in his preoperative visit, he did not discuss the recent stroke with Mr. B, even though he knew about it. He did not make a neurological examination and therefore had no first hand knowledge of Mr [B’s] preoperative neurological state.”
[30]The appellant accepted when giving evidence that he did not discuss Mr B’s recent stroke with him, or warn him about the risk of a further stroke because he did not want to raise concerns in Mr. B prior to major surgery. When Dr Rollin was asked in cross-examination on Day 3 for her views as to whether this was an appropriate approach, she responded:
“I think that that attitude, even for practitioners as senior as Dr Cohen and myself, is no longer an acceptable practice – to shield a patient who is adult and of sound mind and able to understand in that rather patriarchal way from the realities of the situation.”
[31]In relation to the appellant’s post-operative care and assessment of Mr. B, Dr Rollin stated in her report of 15 January 2006 that:
“Postoperatively, Dr Cohen again did not examine Mr [B’s] nervous system, despite complaints of weakness and fear of another stroke. He took the reports from the nurses at face value, and attributed any weakness to the effects of the epidural, which he thought was one-sided. It is possible that this may indeed have been the cause of the symptoms. Nevertheless, he should have satisfied himself about the actual extent of the symptoms by examining the patient, or referring him for a neurological opinion.”
[32]At the hearing, Dr Rollin was specifically asked to give her views as to the appellant’s pre-operative and post-operative care in the context of head of charge 17, which is in issue in this appeal. In Dr Rollin’s evidence-in-chief, the following exchanges occurred:
“Q. You will see at head 17 of the heads of charge that we deal with the various actions and failings, but I should like to ask you, since we have dealt with the pre-operative and post-operative care together, to give your views to assist the Panel in relation to head 17 covering the pre-operative and the post-operative phases. Is there any comment that you feel able to make as to whether this was appropriate or inappropriate in terms of treatment and care pre-operatively? A. It was inappropriate pre-operatively in so far as there was insufficient attention paid to the recent history of a stroke, and the same thing goes for the post-operative phase, except that, of course, in the post-operative phase there was then the allegation of a further stroke. Q.

(b) is “unprofessional”

. Is there anything you wish to say about pre-operative and post-operative [care] in relation to that allegation? A. There is a professional requirement upon an anaesthetist to take an appropriate pre-operative history covering all the relevant aspects and a professional obligation upon any doctor, when confronted with a patient complaining of a set of symptoms, to pay appropriate attention and take appropriate steps. Q. Head 17(c) alleges “of a standard significantly below that expected of a practitioner in your position and with your knowledge and experience”. What do you wish to say about the pre-operative and post-operative phases in relation to that allegation? A. Dr Cohen is a very experienced practitioner and clearly has a level of knowledge, from the way he conducted this, entirely in keeping with his consultant status and I would have expected him to have done these things. Q. The allegation there is of a standard significantly below that expected. What can you say about that particular phrase, “significantly below”? A. In these two aspects of care, separated from the others, the standard was significantly below. Q. Finally, head 17(d), “Not in Mr B’s best interests”. Is there any comment that you have to make in a similar way? A. Not in Mr B’s best interests in that, by not taking a complete history, if indeed he did not, the risk assessment would have been incomplete and that would not have been in Mr B’s best interests; and, in not paying sufficient attention to the possibility of neurological symptoms post-operatively, there may have been a delay in diagnosis, and that would not have been in Mr B’s best interests.”[33]In her report of 15 January 2006, Dr Rollins stated, in relation to the appellant’s note taking and keeping that:
“Dr Cohen’s notes leave a great deal to be desired. They are scanty in the extreme. ... The standard for an anaesthetic record is that an anaesthetist taking over the case should be able to establish from the record what has been given and how the patient has responded, and should be able to continue with the anaesthetic using the information on the chart alone. This record falls far below that standard.”
[34]Dr Rollin’s specific criticism of the appellant’s note-taking and note-keeping related to :a. his failure to record the date of the stroke, or assess its effects, in the pre-operative assessment note;b. his lack of an anaesthetic plan and lack of a record that epidural anaesthesia had been discussed;c. In respect of the anaesthetic chart, his failure to record a timescale, pre-induction values (baseline recordings of blood pressure, heart rate and oxygen saturation), or values obtained in the anaesthetic room;d. his failure to record whether the drug vecuronium (a muscle relaxant) or any reversal drugs were administered;e. his lack of a record of ventilator settings, or of the gas mixture administered;f. his lack of a record of the drugs used in the epidural during the operation;g. his failure to record physiological variables.[35]Dr Rollin in her supplementary report of 8 August 2006, added in respect of the appellant’s note-taking that: “Dr Cohen’s anaesthetic record is inadequate in every respect. The preoperative assessment is incomplete, the details of induction and maintenance of anaesthesia are scanty and there is no recording of times or of physiological variables. It is stated that the printout from the monitors has been lost. Even if this is so, the records which are usually written by hand are largely absent or incomplete, and this cannot be blamed on the loss of the printed record”.[36]During her examination-in-chief, Dr Rollin explained why the appropriate standard for the anaesthetic record is that someone taking over the anaesthetic should be able to understand what has happened by reference to the chart alone. She stated that:
“Because that indicates a level of recording which makes it completely apparent to other professionals – and this would be an anaesthetist – what has been given, when it was given, what effect was achieved, what went on through the course of the anaesthetic, if something did go slightly awry what measures were taken to compensate or to remedy it. It would also give an account of the course of the operation: blood loss, urine output, time duration, and so on, so that this is a contemporaneous record of events as they occur, and that is, if you like, the professional standard required of anaesthetists.”
[37]Dr Rollin also explained that:
“On balance, and bearing in mind the criticisms that she had made of the appellant’s pre-operative assessment, post-operative assessment and lamentable note-keeping, I nevertheless feel that the appellant’s treatment and care of [Mr B] fell within the range that would be expected from a reasonable competent anaesthetist of the same level of skills, knowledge and experience. The reason for this opinion is that his actual treatment in what was a very complex and risky case, was competent. The failures such as they were, were in the field of record keeping and assessment and possibly in communication”
[38]In her report in response to a question whether the appellant’s conduct amounted to misconduct Dr Rollin stated that:
“[The appellant’s] management of this case can be criticised on a number of grounds. However I do not consider that these were so serious as to amount to misconduct, such that his registration might be called into question”
[39]When giving evidence, Dr Rollin explained that :
“I think that the core anaesthetic was carried out to a standard entirely in keeping with what might be expected of a consultant anaesthetist, the heart of the matter”

V1 The Grounds of Appeal

[40]The appellant’s grounds for appeal are that:(i) The Panel erred in concluding that the appellant’s actions were of a standard significantly below that to be expected of a registered medical practitioner;(ii) The decision of the Panel that the appellant’s fitness to practice was impaired was wrong; and that(iii) The decision of the Panel to impose conditions upon the appellant’s registration was wrong in that it was disproportionate and the effect of the conditions was and is unworkable and/or disproportionate.

(i) Introduction

[41]The submissions on this issue relate to the finding in head of charge 17 which was that:
“your actions and failings identified at 9., 11., 12., and 16. above were a Inappropriate, b Unprofessional, c of a standard significantly below that expected of a registered medical practitioner, d not act in Mr B’s best interest” d not act in Mr B’s best interest”
[42]Head of charge 9 referred to the pre-operative consultation on 18 November 2004, heads of charge 11 and 12 related to note-keeping during the anaesthetic procedures carried on 19th November 2004 and head of charge 16 related to the post-operative care of Mr B. (ii). Submissions[43]The case for the appellant both in front of the Panel and on this appeal was that whilst it was proper to consider each of the allegations in charges 9, 11, 12 and 16 separately, it was also necessary to take a global view and therefore to take into account all aspects of the treatment accorded by the appellant to Mr B. It is not in dispute that save for the matters of which complaint was made, his treatment of Mr. B which included the core obligation of the supply of the anaesthetic cannot be criticised.[44]The respondents submitted to the Panel as they do on this appeal that that this is an incorrect approach because the Panel should merely look at the factual allegations set out in the heads of charge to determine if they were found proved. The Panel were advised by the legal assessor to adopt this approach and they duly adopted it in their decision.[45]In support of his contention that a “global approach” should be taken to any consideration of count 17, Mr Moon for the appellant submits that the wording of the heads of charge 17 on its face required a global approach to be taken.. He points out that there has been a double use of the plural in the words “actions” “failings” and that fact together with a lack of disjunctive words between the listed numbers suggests that an overview or a global approach to the appellant’s treatment of Mr. B was required as a matter of construction. Mr Moon notes that the words “in each case” were not included in the charge but he contends that they would, and should, have been included if a global approach to head of charge 17 was not required by the Panel.[46]His second submission is that the Panel’s approach to head of charge 17 was unfair because it did not consider the appellant’s position in the round and no reason was given by the Panel for its decision not to adopt this approach. Mr Moon’s third submission is that Dr Rollin’s view to the effect that the appellant’s actions were not of a standard significantly below that expected of a registered medical practitioner in the appellant’s position was a matter of particular importance to the Panel as there were no anaesthetists on the Panel. Therefore Mr. Moon says that Dr Rollin’s views should have carried particular weight on this issue but they apparently did not. (iii). Discussion[47]In my view, the submissions of the appellant on this issue failed to appreciate the task confronting the Panel at the three different stages of the enquiry. As I have explained, the first stage was to determine whether the factual allegations set out in the heads of charge were found proved and that led to what I described in paragraph 2 above as “the factual findings” in this case. The second stage of the enquiry was to determine whether on the basis of any facts found proved against the appellant, his fitness to practice was impaired by reason of misconduct. In this case, that led to what I have described in paragraph 2 as “the fitness to practice findings”. It is of critical importance that the Panel appreciated this difference between the functions at the first and second stages and acted on them.[48]I conclude that the findings in relation to any particular charge at stage 1 must be focused solely on the heads of charge themselves Once the Panel has dealt with the matters at that stage and if misconduct is proved, it then moves on to consider at stage 2, the fitness to practice of the medical practitioner and then ( if appropriate) at the third stage sanctions. Thus if the Panel had acceded to the contentions of the appellant and looked at aspects of the appellant’s behaviour and treatment other than those set out in the heads of charges at stage 1, it would be conflating its duties at the different stages. Thus I reject the complaints of the appellant.[49]Furthermore, there is nothing in the wording of head of charge 17 which required the Panel to look beyond the allegations in the pre-operative phase (head of charge 9), the note-keeping phase (heads of charge 11 and 12) and the post-operative phase (head of charge 16). I agree with Miss Callaghan that the fact that head of charge 17 was framed as a “wrap up” charge that referred to more than one head of charge was simply a convenient way of avoiding having to repeat the same allegation of inappropriate or negligent conduct after each individual factual allegation in heads of charge 9, 11, 12 and 16. Thus there is nothing in the wording of head of charge 17 which required the Panel to take what Mr. Moon calls “a global approach”. For the avoidance of doubt I should say that the use of the plural in the words “actions” and “failings” is a reference to and recognition of the fact that each of the heads of charge 9, 11, 12 and 16 contains more than one action and failing.[50]I am also unable to accept Mr Moon’s contention that as there was not an anaesthetist on the Panel, some form of enhanced weight should have been given to the evidence of Dr Rollin. This submission fails to appreciate that the Panel was performing the function of being the designated fact-finders and as such their role is similar to that of a jury in a criminal or civil trial. In such trials, the role of the expert is to provide assistance to the fact-finders, namely the jury, on areas which the fact-finders would not normally have experience. That is precisely the role which Dr Rollin’s evidence had in the hearing before the Panel. Indeed, if the Panel wished to reject her evidence, they were entitled to do so but it was necessary to explain their reasons for not accepting the views of Dr Rollin.[51]In fact that is precisely what the Panel did in relation to the factual findings when it concluded in respect of stage 1 that:
“Dr Rollin gave as her opinion that pre-operative assessment, post-operative care and record keeping are subsidiary to the core anaesthetic process. She stated in the areas that she considered to be subsidiary, that you had fallen significantly below the standard to be expected but that your delivery of what she described as “core anaesthesia, the safe delivery of anaesthetic to a patient”, was of a competent and acceptable standard. In light of this, her opinion was that your fitness to practise was not impaired. However, the Panel does not accept this view. It regards pre-operative assessment, note-keeping and post operative care to be integral parts of the anaesthetic process and as important as core delivery. Your failings were serious and had the potential to put Mr. B at risk …. The Panel concluded that your actions and failings, during the consultation of 18 November 2004, in the anaesthetic room pre-operatively, and post-operatively were inappropriate, unprofessional and of a standard below that expected of registered medical practitioner”
[52]A The Panel was not wrong in concluding that the errors of the appellant “were serious and had the potential to put Mr. B at risk” with the consequence that head of charge 17 was proved. Indeed, even if I am wrong and Mr. Moon was correct in his submission that the Panel was obliged to have taken a global view of the appellant’s conduct, it was not wrong for it to regard the failings of the appellant first in the pre-operative stage, second in his note-taking, and third in his postoperative care as inappropriate, unprofessional and below the standard expected of a doctor. After all, these failings of the appellant were serious especially as first they had the potential to put Mr. B at risk and second they were repeated failings at three different stages when Mr. B was the appellant’s patient; so it cannot be correct to categorise such an approach as “wrong“ especially bearing in mind the well-known obligations of the Panel to B If Mr. Moon was correct and if it would be wrong for the Panel to conclude that the failings of the appellant in the pre-operative stage, in his note-taking, and in his postoperative care were not inappropriate, unprofessional and below the standard expected of a doctor because he delivered the anaesthetic correctly, this approach would have the disturbing and unacceptable consequence that if an anaesthetist delivers the anaesthetic correctly , his conduct could and would not be deemed inappropriate, unprofessional and below the standard expected of a doctor however badly he behaves while performing ancillary services for the patient before, at the time of or after administering the anaesthetic. So in conclusionI am quite satisfied that none of the criticisms put forward by Mr Moon reached the threshold for reversing the factual findings of the Panel irrespective of whether I adopt the approach advocated in Meadow or that in Raschid . VIII.

(i) Introduction

[53]Section 35C (2) of the Medical Act 1983 states so far as material:- “A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of - (a) misconduct...” (a) misconduct...”[54]The Act contains no definition of what is meant by impaired fitness to practise. However the respondent’s Indicative Sanctions Guidance for Fitness to Practise Panels dated April 2005 states at pages S1-2 and 3 (with footnotes removed) that:
“11. Neither the Act nor the Rules define what is meant by impaired fitness to practise but for the reasons explained below, it is clear that the GMC’s role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all. 12. The Merrison Report stated that ‘the GMC should be able to take action in relation to the registration of a doctor ... in the interests of the public’, and that the public interest had ‘two closely woven strands’, namely the particular need to protect the individual patient, and the collective need to maintain confidence of the public in their doctors. 13. ...in addition to protection of the public, the public interest includes, amongst other things:- a. Protection of patients b. Maintenance of public confidence in the profession c. Declaring and upholding proper standards of conduct and behaviour.” a. Protection of patients b. Maintenance of public confidence in the profession c. Declaring and upholding proper standards of conduct and behaviour.”
[55]The decision of the Panel was that the Appellant’s fitness to practise was impaired and its reasons were those I have set out in paragraph 51 above and which then concludedby stating that:- “ The Panel concluded that your actions and failings, during the consultation of 18 November 2004, in the anaesthetic room pre-operatively, and post-operatively were inappropriate, unprofessional and of a standard below that expected of registered medical practitioner. Accordingly the Panel found that your fitness to practice is impaired” Accordingly the Panel found that your fitness to practice is impaired”[56]It seems that having found that head of charge 17 was proved, the Panel did not then consider any other factors before finding that appellant’s fitness to practice was impaired. The Panel apparently considered that it followed automatically in this case that the appellant’s fitness to practice was impaired from the factual findings of misconduct. (ii). The submissions of counsel[57]Not surprisingly, Mr Moon attaches great importance to the opinion of Dr Rollin which I have set out in paragraphs 37 to 39 above and which support the appellant’s case that his fitness to practice was not impaired. I agree with Mr Moon that if this finding was not to be accepted, then the Panel had to set out its reasons for not accepting her views.[58]Mr Moon criticises another aspect of the findings and approach of the Panel because it failed to take account of or comment on Dr Rollin’s reasoning and in particular her conclusion that the errors and misconduct of the appellant were “easily remediable”. In addition, he stresses that the issues about which complaints were made such as note-keeping were subsidiary to the core anaesthetic process, which was the safe delivery of the anaesthetic itself and that was a duty which the appellant performed in a way which has not attracted any criticism whatsoever.[59]Miss Callaghan contends that the Panel considered the matters properly and it reached a decision which cannot be categorised as being wrong. In particular it found that the appellant’s failings “were serious and had the potential to put the patient at risk”.It also disagreed with the submission that record-keeping was a subsidiary matter because: “if, for instance, Mr B had needed to be transferred to the care of another clinician that clinician could be seriously disadvantaged in assessing what had happened”.[60]Miss Callaghan also points out that the Panel accepted that the appellant was safe and competent in the administration of anaesthetics and had made improvements in his practice. It then stated that: “in the light of these matters, the Panel is satisfied that the imposition of conditions on your registration would be the most effective way of remedying the deficiencies in your practice, whilst in the meantime protecting patients from harm” .[61]She submits that the Panel were not entitled to address the remediable nature of the appellant’s failings at this stage and that this matter did not have any bearing on his fitness to practice. Her case is that the requirements of the public interest – the protection of patients, maintenance of public confidence in the profession, and declaring and upholding standards of conduct and behaviour of doctors - are properly to be considered at the sanctions stage and she relies on paragraphs 13 to 15 of Indicative Sanctions Guidance. So she says that the impact of the public interest of the appellant taking steps to remedy his errors were properly addressed at the sanctions stage and not, as the appellant considers to be the position, at the fitness to practice stage, namely at the second stage. (iii). Discussion[62]Any approach to the issue of whether a doctor’s fitness to practice should be regarded as “impaired” must take account of “the need to protect the individual patient, and the collective need to maintain confidence profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the”. In my view, at stage 2 when fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor’s misconduct, his or her fitness to practice has been impaired. It must not be forgotten that a finding in respect of fitness to practice determines whether sanctions can be imposed: section 35D of the Act.[63]I must stress that the fact that the stage 2 is separate from stage1 shows that it was not intended that every case of misconduct found at stage1 must automatically mean that the practitioner’s fitness to practice is impaired.[64]There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner’s fitness to practice has been impaired. Indeed section 35D (3) of the Act states that where the Panel finds that the practitioner’s fitness to practice is not impaired, “they may nevertheless give him a warning regarding his future conduct or performance”.[65]Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the appellant were “easily remediable”. I concluded that they did not consider it relevant at stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor’s fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so[66]The Panel must, for example, contrary to Miss Callaghan’s submissions be entitled, if not obliged, to consider if the misconduct is easily remediable in the case of the doctor concerned. If this is not so, the Panel would be precluded from considering that it was not because the doctor has psychiatric or psychological problems which mean that he will be unable to remedy the misconduct and is likely to repeat it. (iv). Conclusions[67]I have concluded that the decision of the Panel that the fitness to practice of the appellant was impaired was wrong even after taking account of the need to give substantial weight to the public interest including the protection of patients, the maintenance of public confidence in the profession and upholding proper standards of conduct and behaviour. There are four significant factors which individually and cumulatively have led me to this conclusion and I will set them out in no particular order of importance.[68]First, the Panel was obliged to explain why it did not accept Dr Rollin’s opinion in respect of the appellant’s errors that “However I do not consider that these were so serious as to amount to misconduct, such that his registration might be called into question” The Panel unfortunately failed to give any reasons or any cogent reasons why it disagreed with this opinion.[69]Second, the reasoning of the Panel which I set out at paragraph 55 above suggests that having found misconduct proved against the appellant, they considered that it automatically followed that his fitness to practice was impaired without looking at the other relevant factors, such as that the misconduct was “easily remediable”.[70]Third, Dr. Rollin found the misconduct of the appellant which led to the decision that his conduct was inappropriate, was unprofessional, was of a standard significantly below that expected of a registered medical practitioner, and were not in Mr. B’s best interest was “easily remediable” but this was apparently disregarded by the Panel at stage 2 as I explained in paragraph 65 above. In my opinion, this was a serious error on the part of the Panel because the ease with which misconduct can be remedied is relevant to the issue of whether a doctor’s fitness to practice has been impaired. Thus if misconduct is incapable of being easily remedied – say because, for example, of the doctor’s psychiatric problems- this is of great importance at stage 2; similarly if the misconduct is easily remediable, this must be very relevant and merit very serious consideration by the Panel. This point is fortified by the evidence in this case, which was that these matters had been remedied by the appellant by the time of the hearing..[71]Fourth, it is clear that the appellant can be in no doubt that the way he treated Mr. B was unacceptable and the very grave consequences to him of this behaviour must be a salutary lesson. After all, apart from having to appear before the Panel, the appellant was suspended and has been subject to stringent conditions after the period of suspension finished. I have no doubt that since the time of Mr. B’s complaint and his appearance before the Panel, the appellant would have done all in his power to ensure that no patient could ever make the complaints against him which Mr. B has done; the evidence is that he had done so. It is noteworthy that the appellant accepted that he was at fault. It is relevant in this regard to bear in mind again at this point Dr Rollin’s conclusion that the appellant’s misconduct was easily remediable and this shows why not merely that the decision of the Panel was wrong but also that that the Panel should have found that the appellant’s fitness to practice was not impaired.[72]Drawing these threads together, I have concluded that the appellant committed, as he fully accepts, serious errors in the pre-operative and post-operative periods as well as in note-taking while Mr B was his patient. These errors were easily remediable and have been remedied. Indeed it appears that they were exceptional lapses of a much admired doctor in what was otherwise a very long and distinguished career. I stress that in reaching this conclusion, I have borne in mind the very high standards which the Panel is entrusted with upholding but I consider that the appellant’s fitness to practice should not have been regarded as impaired. Thus notwithstanding Miss Callaghan’s able submissions on this point, the appeal succeeds.[73]Mr Moon explained that the appellant accepted in front of the Panel that this was a proper case for a warning to be given to him. Indeed in my view that is an appropriate sanction in this case and section 35D (3) of the Act provides that where it is decided by the Panel that the doctor’s fitness to practice is not impaired, “they may nevertheless give him a warning regarding his future conduct or performance”. That is the order which I now impose on him in substitution for the finding of the Panel that the appellant’s fitness to practice has been impaired.

(v) The Campbell case

[74]As I explained in paragraph 17 above, I have assumed (but not decided) that although Campbell was decided under a different regime from that which applied in the appellant’s case, the reasoning in that case is applicable to the present system with the consequence that the appellant’s previous good character and testimonials which provided evidence of his reputation and conduct both before and after the time when Mr. B was his patient were not relevant until stage 3 and that these matters should not be considered at stage 2. Campbell decided that matters of mitigation relating to the doctor’s good record were not relevant when deciding if the doctor was guilty of “serious professional misconduct”.[75]There are powerful arguments that Campbell does not preclude the Panel from considering these matters at stage 2 as Campbell was decided at a time when there were only two stages of the disciplinary hearing, namely first whether there was gross professional misconduct and, if so, second what sanctions should be imposed. The argument proceeds on the basis that Campbell when applied to the present regime only decides that evidence of the appellant’s reputation and his conduct both before and after the time when Mr. B was the appellant’s patient cannot be considered at stage 1 but that the reasoning in Campbell does not apply to stage 2. As I explain in paragraph 17 above and in the post-judgment note below, it was neither necessary nor practicable for me to determine this issue and in particular whether Campbell goes so far as to prevent the Panel from considering at stage 2 the evidence that the appellant’s note-taking and treatment of his patients has been of an excellent standard before and since the time when Mr. B was his patient. I should add that my preliminary view, which is put forward without having heard any submissions on this issue, is that Campbell does not preclude the Panel from considering at stage 2 at least how the doctor has behaved after the time of the complaint, especially in respect of the maters which led to the finding of misconduct; otherwise the respondents could not adduce evidence at stage 2 other matters causing concern about the doctor’s conduct.[76]For the purpose of completeness, I should explain that if Campbell did not preclude me from taking account of evidence of the appellant’s reputation and his conduct both before and after the time when Mr. B was the appellant’s patient, I would have taken account of two further conclusions which I put forward in the draft as alternative or cumulative reasons for finding that the Panel was wrong in concluding the appellant’s fitness to practice was impaired.. First, it is highly unlikely that the appellant had committed previously the misconduct which led to his appearance before the Panel. In my view, if the appellant had previously committed these or similar acts of misconduct during his long career as a consultant anaesthetist going back to 1980, he would have been the subject of previous complaints and he would not have received the adulatory and very reassuring comments from many distinguished surgeons with whom he had worked and to which I will refer in paragraphs 77 to 80 below.[77]Second, there is much cogent evidence that since Mr. B was his patient, the appellant’s note-taking and his treatment of patients has been of an excellent standard. For example, Dr Peter Amoroso who is the Medical Advisory Committee member for anaesthesia and critical care at the Prostate Centre at the London Clinic explained that it had been his responsibility to monitor over the 18 month period up to January 2008 the record-keeping anaesthetic details of the appellant as well as the general outcome and satisfaction levels of his patients. He has categorized his work as being “first class” and also points out that the appellant’s record keeping is “very detailed and very clear” and that “your patients are most satisfied and highly complimentary about your professional care”.[78]There were also over twenty laudatory and detailed written references from a wide variety of distinguished consultant surgeons and fellow anaesthetists for the hearing before the Panel in September 2006, which was 22 months after the time when the Mr. B was the appellant’s patient. They unequivocally showed the appellant’s expertise and high reputation over the period before and after the time when Mr. B was the appellant’s anaesthetist. Most of the writers of the references had worked with the appellant for many years and were well able to judge his abilities, expertise and patient care. They all explain in detail why the appellant attains the highest professional standards in all aspects of his work as an anaesthetist. These references should have provided reassurance for the Panel that the appellant would be exceedingly unlikely to commit again the same errors which led to his appearance before the Panel.[79]For example Professor Irving Taylor, the David Patty Professor of Surgery at the Royal Free University College Medical School, explained that the appellant has anaesthetised for him on several occasions and he concluded that: “I am able to say without hesitation that his anaesthetic expertise is of the highest standard… I …indeed actively seek his assistance when I require an anesthetist … and he provides an exemplary level of care and attention to patients”.[80]Mr Tim Mould, who is the Lead Consultant Gynaecological Oncologist at University College Hospital, wrote also in September 2006 that he had worked with the appellant since 2001 and that he regarded the appellant as “the most skilful and the most experienced anaesthetist that I have worked with”. These comments are typical of those other references from those who have worked with the appellant and they would disabuse any reader of them from believing that there was any prospect of the appellant committing the same errors as those which led to his appearance before the Panel. I have resisted the temptation to quote from the many other references from the consultant surgeons and the consultant anaesthetists who have spoken very highly of the appellant’s professional expertise, skill and devotion to the interests of his patients.

IX The Sanctions issue

[81]In the light of my finding that a warning is the appropriate way to dispose of this matter, it is unnecessary to consider this issue. I ought to state that the stringent conditions imposed on the appellant at first blush appear to be wrong in the light of the appellant’s outstanding record and references, the nature of the misconduct, the high degree of unlikelihood of them being repeated and the fact that the appellant has remedied his misconduct; I need not however reach a definite conclusion on this issue.

X. Conclusions

[82]It follows that the appeal against the findings that:(1) the appellant’s actions and failings were of a standard significantly below that which was to be expected of a medical practitioner is dismissed;(2) the appellant’s fitness to practise was impaired is allowed; and that(3) it was appropriate to impose conditions on the appellant’s registration is allowed and that instead the appellant should receive a warning.

Post-Judgment Note

[1]After I circulated a draft of this judgment Mr Moon sent me a note dated 18 March 2008 which, apart from containing a list of corrections to the judgment, referred to the case of R (Campbell) -v- General Medical Council[2005]1WLR 3488, to which neither counsel had referred in their written skeleton arguments or in their oral or written submissions. The note stated: “whilst in no way seeking to persuade the Court to alter its decision or the result of this appeal, on reflection the concession made by counsel for the Respondent and recorded at paragraph 66 of the draft judgment [which was that the previous good character of the appellant might well be relevant at stage 2] may have gone too far and led the Court into error. The Appellant attaches the decision of the Court of Appeal in R (Campbell) -v- General Medical Council [2005] EWCA Civ 250 to this Note. As is clear from paragraphs 43-46 of that decision matters of “pure mitigation” are not relevant to the second stage of the Panel’s inquiry. “Mitigation” may however be relevant both to the question of impairment and the question of sanction (paragraph 46 of the judgment). In the Court’s draft judgment, of the six reasons given for the Court’s decision on the impairment issue, the second and third reasons (recorded at paragraphs 69-73) may be affected by the Campbell decision. The other four reasons are unaffected by Campbell”.[2]In response to this Miss Callaghan asked for a period of time in which to respond and I agreed to this. She subsequently submitted that:a. She did not recollect making the concession set out in paragraph 66 of the draft judgment (which was also set out in paragraph 17 of the draft judgment) and I will therefore accept that no concession was intended. So it should be regarded as not having been made and I therefore have withdrawn any reference to these concessions from the judgment;b. Campbell was decided under a different regime from that which applied in the appellant’s case but the reasoning in that case is applicable to the present regime with the consequence that the appellant’s previous good character and testimonials which provided evidence of his reputation were not relevant until stage 3 and should not be considered at stage 2. I add that I had relied on the appellant’s previous good character and testimonials as two of the six reasons which “individually and cumulatively” led me to the conclusion that the Panel’s decision that the appellant’s fitness to practice was impaired was wrong; andc. A judge has the power to vary a draft judgment prior to handing down judgment ( Robinson v Fernsby [2003] EWCA Civ 1820, [76] – [78]) Moreover when a judge considers that his or her draft judgment is wrong, he is obliged to correct it (ibid [98]). Miss Callaghan asked me to exercise that power[3]It is unnecessary for me to decide if Miss Callaghan is correct on her submission (b) because even if she is, there are still four reasons which had had “individually and cumulatively” led me to the conclusion that the Panel was wrong when it concluded that the appellant’s fitness to practice was impaired. In addition, it is not practicable to decide this issue (b) on the last afternoon of term with another judge waiting to use this court in which I was handing down judgment. I will assume that submission (b) in paragraph 2 of this note is correct. I have made the appropriate amendments to the judgment. The outcome remains the same.

Cited in 49 later judgments

and 40 more of the most senior