Balasubramanian, R (on the application of) v General Medical Council [2008] EWHC 639 (Admin)

Case No C0/5815/2007[2008] EWHC 639 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 13th March 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF BALASUBRAMANIANClaimantv
Between
GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
David Morris (instructed by RadcliffesLeBrasseur) appeared for ClaimantMartin Chamberlain (instructed by GMC Legal) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BLAKE: This is an appeal by Dr Mariyappan Balasubramanian, who for convenience has been referred to as Dr Bala in these proceedings, from a decision of the General Medical Council's Fitness to Practise Panel given on 14th June 2007. The decision under challenge was to impose upon him, following findings of impairment of performance, partly admitted and partly proven, the sanction of erasure. The appeal is advanced on the basis that although the Panel was entitled to reach the conclusions on the findings that were the condition precedent of a sanction, the sanction of erasure was inappropriate, disproportionate and insufficiently supported by the evidence so that this court could and should interfere with it.[2]The background of this case is that Dr Bala is an assistant anaesthetist with 29 years' experience at the East Lancashire Hospital NHS Healthcare Trust. He was born in May 1941, so he was aged 66 at the time of the Panel's decision and will be 67 in 2 months' time. He had been employed at the Trust from 1976 until 2005, when his services were dispensed with. Until an incident happened on 24th September 2004, there appeared to be no complaints about his performance as an assistant anaesthetist during that long period of service, and he had presented testimonials from a colleague, Dr Tuckwell, of the degree to which he had assisted in Dr Tuckwell's operations for much of that period and had been found to be competent.[3]With that brief background history, one can well understand how a case is advanced that poor clinical performance on one occasion after 29 years should not lead to the sanction of erasure unless that was absolutely necessary in all the circumstances of the case. However, it is now necessary to look at what happened and what conclusions the Panel drew from what had happened to see whether the Panel were properly entitled to reach the conclusion that erasure was the appropriate action, and by inference, the conclusion express or implied that nothing less than erasure would do.[4]It is common ground that this is an appeal on the merits under section 40 of the Medical Act 1983 and the court is not confined to a judicial review question: could a reasonable Panel, properly directing itself, reach such a conclusion? On the other hand, the jurisprudence, which I will not summarise or recite, makes it plain that before the court should interfere with a Panel decision on sanctions, the court must expressly direct itself of the need to afford weight or respect to the judgment of the Panel for three reasons and/or in three areas. First, as to questions of clinical judgment and expertise and the extent to which, on the particular facts of the case, a practitioner could be said to have fallen short of those standards, the Panel enjoys the immense advantage of being themselves experts, or having expertise in that field, not enjoyed by the court.[5]Secondly, in the field of what action is required to maintain public confidence in the profession, which is the underlying primary function of the Fitness to Practise Panel's procedure and business, the Panel enjoys an expertise and a respect for its conclusions which the court is bound to give weight to.[6]Thirdly, there is the advantage that the Panel enjoys in having heard the evidence of the parties, and particularly, in this case, the evidence of the appellant. The Panel were required to make an assessment in this case on things which would be very much dependent upon their assessment of the appellant.[7]With that background, I turn to the events which gave rise to these proceedings. On 24th September 2004, at short notice, the appellant Dr Bala was assigned to the function of anaesthetising patients on the orthopaedic trauma list. One of those patients was a child of 9, a young girl who had a badly displaced facture that was to be operated on under anaesthetic. The appellant makes the point that he had not had particular experience of the requirements of expert supervision of anaesthetic monitoring of young children. Usually an operation of this sort on a child of that age, with the potential consequences for blood loss and the like, would suggest that a consultant anaesthetist should be employed rather than an anaesthetist of this appellant's standing, which was the rank of assistant anaesthetist. However, it is plain from its findings that the Panel was judging the appellant upon the standards to be reasonably expected of his level of competence and experience rather than imposing the standards to be expected of a consultant upon him.[8]The charges brought in respect of the procedure were that there was a failure to monitor the patient's blood loss and to do anything about it until the consultant anaesthetist arrived at the scene and directed remedial measures. They amounted to 10 separate allegations: 1. Did not ask for assistance. 2. Did not calculate hourly fluid requirements (an allegation that was not eventually proved). 3. Did not calculate her fluid deficit (an allegation which was eventually not proved). 4. Did not make any written assessment of blood loss until prompted to do so. 5. Did not respond appropriately to tachycardia. 6. Did not respond appropriately to blood pressure. 7. Did not respond appropriately to oliguria. 8. Did not respond appropriately to blood loss. (All of those were admitted.) 9. Did not order blood products of his own volition. 10. Did not give opiates. That was not proved.[9]Of the 10 allegations, as they turned out to be, 7 were either admitted or proved, and it was quite apparent that the risks to the child arising from those failures were significant. It was pointed out in the charges that at the end of the procedure she had lost a minimum of 800 millilitres of blood, which it was explained in the evidence, amounted to 40 per cent of the blood that a young child of 9 would have in her body. She was clinically shocked, she was hypovolaemic and required an immediate infusion of a litre of gelatin solution and 3 units of blood, and she took a long time to recover. It is said, and either admitted or proved, save to the extent already noted, that those actions were inappropriate, unprofessional and not in the best interests of the patient, and not of the standard expected of anaesthetists of Dr Bala's grade. So that was the beginning of the conduct causing concern, a very serious failure of the function to be expected of anaesthetists of the appellant's grade in respect of blood loss of a child during an operation.[10]On 5th February 2004, that is something short of 2 months later, the incident was discussed with the appellant's professional colleagues at the hospital that he had worked at for so long and they found that the appellant was defective in his understanding of some of the basic techniques of anaesthetics, namely: 1. Unable to demonstrate an adequate understanding of the physiology of fluid management. 2. Lacked adequate understanding and lacked insight into the importance of fluid management. 3. Lacked adequate understanding and lacked insight into the importance of pharmacology. Whilst reciting this narrative of events, it is important to emphasise that colleagues had found that the appellant lacked insight into that occasion since the question of whether the appellant had insight into his failings as a professional is very much a pertinent issue as to whether the sanction of erasure is appropriate.[11]What then follows is that he is moved to a sister hospital for a period of a three-week assessment by other colleagues unconnected with the incident in September, who were unaware of it, and who monitored him and asked him to perform functions so they could test his general levels of competence. As a result of that assessment, concerns were expressed by his colleagues on the following topics: 1. His machine checking. 2. Ability to relate the basic integration of altered physiology and pharmacology with the patient. 3. Knowledge of basic pharmacology of widely used drugs (and two examples are given). 4. Understanding of spirometry, specifically his inability to interpret a trace on a monitor and relate that to a patient. 5. His lack of understanding of regional anesthesia. 6. His lack of concentration in respect of sequence induction. 7. His lack of concentration when he was instructed to give 2 millilitres of morphine from a syringe. He in fact gave 4 millilitres.[8]The quality of his documentation. 9. The tendency to become confused. Three examples are given of that.[12]The appellant in due course accepted that his colleagues were entitled to have concerns about those matters, but disputed either the whole or a significant part of the justification of those concerns. In due course the Panel found that all those concerns were justified, save two: lack of understanding of regional anesthesia and understanding of spirometry. It is possible that that last finding was made because that was not a technique that had to be employed frequently, although it is now part of basic training.[13]As a result of the incident, the immediate discussion with colleagues, and more significantly, the three-week assessment, the appellant was suspended from performing medical functions. In due course his services at the hospital came to an end and it was assessed that he had failed the assessment with his colleagues. One of the assessors, Dr Price, was an expert in medical education. In his report at the time he said that the level of failure was so extensive and so basic that if retraining was to be considered, it would be retraining as for a new entrant to the profession of anaesthetist.[14]The appellant was then suspended for 2 years and his case came before the Panel for determination and adjudication in June 2007. The Panel, having made the findings that have been briefly summarised in respect to failures of professional standards, both in respect of the operation in September and in respect to the assessment in January 2005, then had to consider the appropriate sanction. In doing so, they are assisted by the publication of the GMC Indicative Sanctions Guidance for Fitness to Practise Panels dated April 2005. Once impaired performance by reason of misconduct and deficient professional performance, which is found, the Panel can decide whether any sanction is necessary at all. Once they have decided it is, they are invited to consider conditional registration for a maximum of 3 years, or suspension of up to 12 months but renewable, and then finally, the sanction of erasure from the Register. That would in most cases, but particularly in this, effectively bring an end to the medical career of the practitioner concerned.[15]In dealing with impairment on the grounds of failure to provide an acceptable level of treatment, paragraph 46 of the Guidance says this:
"A particularly important consideration in such cases is whether or not a doctor has, or has the potential to develop, insight into these failures. Where this is not evident, it is likely that conditions on registration or suspension may not be appropriate or sufficient."
The consequence of that would be then only erasure would be the relevant sanction if the criteria for erasure was made out. The Guidance suggests that the sanction of erasure is likely to be appropriate when the behaviour is fundamentally incompatible with being a doctor and involves any of the following non-exhaustive list. First, serious departure from the relevant professional standards as set out in Good Medical Practice. I here interpolate that this must mean particularly serious departure, since a serious departure is what is required before a sanction of any sort can be imposed in the first place. Secondly, one of the indicators for erasure is "persistent lack of insight into seriousness of actions or consequences." By contrast, conditional registration may be appropriate where the Panel finds the "potential and willingness to respond positively to retraining." Suspension may be appropriate where the "Panel is satisfied doctor has insight and does not pose a significant risk of repeating behaviour." It can be seen, therefore, that insight is a factor to be assessed in varying degrees of clarity in all three potential sanctions.[16]In the present case, in a very lengthy and closely reasoned decision letter abstracted from the record of the proceedings, the Panel explained its reasoning on sanctions. It noted by way of conclusions as to the nature of the clinical failings during the operation "your errors... were fundamental failings of basic principles of anesthesia." The Panel, having also found that most of the concerns of the colleagues who conducted the assessment in January were justified, said:
"The Panel is satisfied such that it is sure that your machine checking, your ability to relate the basic integration of altered physiology and pharmacology with the patient, your knowledge of the basic pharmacology of widely used drugs, namely ephedrine and metaraminol, your lack of concentration and the quality of your documentation were deficient. The Panel is very surprised about your complete lack of knowledge in respect of anticoagulants as demonstrated by your oral evidence."
[17]The Panel then considered the question of whether retraining was a viable and realistic option. Retraining is essentially the core of the submission that this court has been invited to deal with in this appeal. It is put that if retraining was indeed a viable option, even for a practitioner of 66 years of age, then it would be appropriate and proportionate to give him the chance to demonstrate his ability to learn the things in which he was defective and so the public would still have the benefit of his professional services.[18]The Panel was conscious that it had to apply the principle of proportionality, placing public safety and the confidence of the public in the medical profession on the one hand, with the interests of the practitioner being able to continue to perform his profession on the other. It made a number of findings on retraining, some in more emphatic terms than others. It noted that it might be possible to formulate a retraining programme, but then said:
"However, the Panel foresee many problems in arranging such a training programme at this stage in your career. The Panel also has grave misgivings arising from your evidence and others about your ability to learn. It also has serious reservations about your capacity to respond to any form of retraining."
If that had stood alone, the appellant submits they have not eliminated the possibility that a retraining programme might be formulated, even though it would appear that this would be retraining as a new entrant to the profession and there may well be real difficulty in the appellant obtaining such a training place. Moreover, the Panel has not ruled out the possibility that the appellant might benefit from such retraining, even though it expressed grave misgivings and serious reservations about his capacity to respond. That, of course, is based upon a detailed consideration of the evidence of the responses that he had made to date.[19]The Panel also noted the evidence of the clinical director of the hospital trust that had employed the appellant for so long, Dr Watson, who had said in a report of 2nd February 2004 that to target the standards would require a significant and difficult period of retraining that could not be guaranteed to ensure that he would be able to reach them. The Trust had not in fact decided to pay for the retraining itself, perhaps having regard to the prospects of success, and the risk and benefits to them of the number of further years' service they would be likely to get from the doctor. The normal retirement age on the NHS is 65, although doctors can and, I think frequently do, work to the age of 70. So at the most, depending upon which date one takes, we are talking about 3-5 years. By the time the case came before the Panel, there was at the most 4 years' potential service in the field of medicine with the National Health Service left.[20]However, those matters did not stand alone because the Panel then looked at the Indicative Sanctions Guidance for erasure and found quite clearly that two of those criteria were met: A serious (I interpolate in the sense of particularly serious) departure from relevant professional standards and a persistent lack of insight into the seriousness of actions and consequences. In the final analysis, the submission of Mr Morris, who has appeared for the appellant in his appeal today, and for whose submissions I am grateful, was that the Panel were not entitled to reach the conclusion of persistent lack of insight for the reasons which they gave. They did give reasons for that conclusion. They start with the scale of the failures on 24th September 2004 in the operation. They had previously noted the concerns of colleagues in November 2005, but their reasons move then to January 2005, and the failure of the assessment.[21]They then deal with the evidence which they had heard from the appellant himself, and they were clearly concerned about aspects of that evidence. The reasons are as follows:
"It notes that in relation to the operation on 24th September, you initially stated that you were only 'a little behind' with the blood loss, when it is clear that you were in fact very behind as the child had lost a considerable amount of blood. You also displayed a worrying lack of knowledge in your answers to questions. Furthermore, the Panel has not heard any evidence that you have sought to address the deficiencies in your practice following your exclusion from Blackburn 2 years ago and you have not actively thought of the retraining that you might require."
It is not necessary to prolong this judgment with further quotations from the transcript, but with the assistance of Mr Morris and Mr Chamberlain, who appears for the Panel, the court was taken to relevant parts of the transcript. It is quite clear that that was not a case of taking a single answer out of context; it was the position that the appellant took in response to cross-examination. It started with the question of his willingness to recognise and undergo retraining and his degree of insight into it. It was only towards the end of the cross-examination, when the scale of the blood loss to the child was made plain, that the appellant recognised that his previous position (he was only slightly behind in acknowledging and dealing with the blood loss) was not the case. This was a case of something which had gone badly wrong.[22]In my judgment, taking the matter as a whole, giving appropriate weight to the expertise of the Panel in the three respects I have sought to outline at the beginning of this judgment, recognising that the panel applied their mind to the guidance in the Indicative Sanctions Guidance, and recognising that they had a quantity of expert evidence as well as the advantage of the ability to assess the answers of the appellant himself, this panel was entitled to reach the conclusion that, even 2 years and more after the incident, the severity of the shortcomings had not been recognised. Therefore, the positive degree of insight that might be the secure foundation for a programme of conditional registration requiring retraining was not made out, but rather the failures of insight were of sufficient gravity to justify the conclusion: Persistent lack of insight.[23]Mr Morris has pointed out that elsewhere in the reasoning the Panel say, "Well, your insight was not full insight", and therefore the inference is that there was some insight. No doubt there was some insight -- it is to the credit of the appellant that he accepted much by way of the evidence of professional failure -- but if the Panel are to ask themselves the central question, "Is retraining of this appellant at his stage in his career, at his particular age, and having regard to the scale and extent of the defects in his knowledge and expertise found by his colleagues, a realistic answer and a sufficient answer to the interests of the public?", they were entitled, applying the guidance of the Indicative Sanctions, to conclude, "No". The court will closely analyse the reasoning process, the evidential sufficiency of that process, and where appropriate, can and should intervene to correct errors or failures or insufficient consideration being given to the correct approach. This was a case in which there was a quantity of evidence about what had happened and how this appellant has responded, which sadly, having regard to his lengthy and no doubt valuable service to the public over many years, had not led the Panel to conclude that retraining was a viable option in this case. On the basis of their assessment of his persistent lack of insight into the seriousness of the defects in performance, that was the conclusion to which this panel was entitled to come. It is not necessary to evaluate, therefore, whether other aspects of that reasoning, if they had stood alone, might have been sufficient to come to that conclusion. In all the circumstances, there is no basis for this court to intervene with the conclusions of the Panel and this appeal is dismissed.[24]MR CHAMBERLAIN: My Lord, there is an application for costs. I do not have a schedule, but I do ask your Lordship to make an order that the appellant should pay the respondent's costs, to be subject to detailed assessment if not agreed.[25]MR JUSTICE BLAKE: Yes. Mr Morris?[26]MR MORRIS: I cannot resist that.[27]MR JUSTICE BLAKE: No. Well, thank you very much. So you are not asking for summary assessment or detailed assessment. I will make an order that the appellant pay the respondent's costs, detailed assessment if not agreed.[28]Thank you very much to both of you for your assistance in this case.