Cheatle v General Medical Council [2009] EWHC 645 (Admin)

[2009] EWHC 645 (Admin)Case No CO/5215/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/03/2009
Before
MR JUSTICE CRANSTON
Between
CheatleAppellantGeneral Medical CouncilRespondent
Robert Francis QC and Dennis Matthews (instructed by Radcliffes Le Brasseur) for AppellantMark Shaw QC (instructed by GMC Legal) for RespondentHearing Hearing dates: 21-23 January 2009
Judgment
[1]This is an appeal from a Fitness to Practise Panel of the General Medical Council (“the GMC”), which held that the fitness to practise of Mr. Timothy Cheatle was impaired and directed that his registration be suspended for a period of 10 months. The criticisms made of Mr. Cheatle related to the treatment of a patient, Mrs Mildred Swain, in April 2002. (Mrs Swain is called “Patient A” in the Notice of Inquiry). Anonymity was waived on the first day of the hearing. The appeal is in respect of(a) findings of fact made by the Panel;(b) the Panel's decision that Mr. Cheatle's fitness to practise is impaired; and(c) the decision to impose a sanction of suspension for a period of 10 months. A case against a staff grade surgeon also involved in the care of Mrs Swain, Mr. Choudhury, was heard by the Fitness to Practise Panel at the same time as the case against Mr. Cheatle. There is no appeal on Mr Choudhury’s part. Background[2]The appellant in this case, Mr Timothy Cheatle, is a consultant in general and vascular surgery. Mr Cheatle completed his training at Norfolk and Norwich Hospital in 1996 and was a consultant there. In October 1999 he moved as a consultant in general and vascular surgery to Old Church Hospital in Romford. Although based at Old Church Hospital, his NHS duties took him to two other hospitals, Brentwood Community Hospital and Harold Wood Hospital. Old Church Hospital has since closed and has been replaced by Queen's Hospital, Romford. There was another consultant general and vascular surgeon at these hospitals, Mr Choudhury. The in-patients of Mr Cheatle and Mr Choudhury at Old Church Hospital were spread around the hospital. In addition the two surgeons visited the wards to see patients in respect of whom their opinion had been sought. Mr Cheatle and Mr Choudhury were assisted by two specialist registrars, two senior house officers and two house officers.[3]The patient in the case was a Mrs Swain. She suffered from a number of health problems and was being treated by doctors at Old Church Hospital and its associated units. The problems included vascular disease. Following Mr. Cheatle's arrival at Old Church Hospital, Mrs Swain was first seen in his clinic in December 1999 and subsequently, as the disease progressed, by him and other members of his team. A non-surgical approach was adopted initially but Mrs Swain's condition deteriorated. By late 2001 and early 2002 she was experiencing considerable pain in her legs. In addition to receiving treatment from medical practitioners, she was also seen by a podiatrist. On one occasion at least her case was discussed at a multi-disciplinary team meeting.[4]In the light of Mrs Swain’s deteriorating condition, at an out-patient appointment in early February 2002 Mr. Cheatle offered surgery to bypass the blocked artery in her thigh. On the 26th February 2002 Mrs Swain attended a pre-operative assessment clinic where she was seen by a house officer, Dr. Abigail Waterfall. On 1st April 2002 she was admitted to Old Church Hospital for surgery, which Mr. Cheatle performed the following day. During the weeks leading up to the operation Mrs Swain continued to be seen by the podiatrist and district nurses.[5]The blocked artery was bypassed using an artificial graft made of polyetrafluoroethene. The operation is commonly known as a fem pop bypass graft. Post-operatively all went well initially. On the 9th April 2002 Dr. Waterfall noticed a wound infection. She prescribed an antibiotic (Flucloxacillin) and took a wound swab. On the 10th April 2002 Mrs Swain was seen by the specialist registrar. On the 11th April 2002 Mr. Cheatle saw her. He added Penicillin V to the antibiotic regime. The result of the wound swab was not then available. Mrs Swain was thereafter seen by junior and middle grade doctors and was discharged on the 16th April 2002. The result of the wound swab became available on the 12th April 2002. This indicated that the infection was unlikely to be sensitive to Flucloxacillin or Penicillin V but the antibiotic regime remained unchanged.[6]District nurses cared for Mrs Swain following her discharge. On the 22nd April one of them spoke to Mr. Cheatle's secretary to obtain an early outpatient appointment for her. On the 23rd April 2002 Mrs Swain was re-admitted to Old Church Hospital since that day she had suddenly developed a wound haematoma. Mrs Swain was seen by a succession of three doctors in the Accident and Emergency Department. It was initially thought that an operation should be performed that day. By the time the third and more senior doctor, Mr. Kullar, saw her, the bleeding had stopped. His plan was to admit Mrs Swain to hospital and he discussed her case with Mr. Cheatle over the telephone. Mr. Cheatle proposed that a Duplex scan be performed the following day and that Mrs Swain should be reviewed the following morning.[7]It is almost certainly the case that Mrs Swain’s graft was infected and that the joint between the graft and the artery had consequently leaked, a serious complication. Mrs Swain was admitted to the ward under the care of the on-call consultant surgeon and was seen by him and his team the following morning. The plan was to transfer her care to Mr. Cheatle's team. Mr. Cheatle did a ward round on the 24th April 2002. As he arrived on the ward Mrs Swain was being taken for her scan. He spoke to Mrs Swain and one of her daughters, Mrs Milton, as she was being wheeled from the ward. He did not see her on the ward that day, nor did any member of his team. At about 11.10pm on the 24th April 2002 Mrs Swain started to bleed profusely from the wound. She was seen and treated by a registrar, a senior house officer and at least one senior nurse. Mr. Cheatle was not informed.[8]On the 25th April 2002 Mr. Cheatle was operating. Mrs Swain was seen by one of his specialist registrars. Mr. Cheatle did not know of Mrs Swain’s condition or what had transpired the previous evening. On the 26th April 2002 Mrs Swain was seen again by the specialist registrar on a ward round. Mr. Cheatle still did not know of her condition. At about 10.00pm on the 26th April 2002 further bleeding occurred. Dr. Waterfall attended initially and subsequently other doctors did so, including a specialist registrar. The latter concluded that Mrs Swain needed to be taken to theatre to have the artery clamped and telephoned Mr. Cheatle, who was at home, to confirm this. By this time, however, it was too late to save her. Tragically Mrs Swain died at 12.54am on the 27th April 2002.[9]In 2003 there was a coronial enquiry into Mrs Swain’s death. Eventually, on the 26th March 2007 the General Medical Council sent Mr Cheatle a Notice of Hearing of an allegation that his fitness to practise was impaired as a result of the failures it identified in relation to the treatment and care of Mrs Swain. A Fitness to Practise Panel heard the allegation against Mr Cheatle (and Mr Choudhury) over 16 days from the 30th April 2007. The Fitness to Practise Panel comprised five members and had the assistance of a legal assessor. The majority of the five members were laypersons, two being magistrates. The two medically qualified members were a part-time consultant gastroenterologist and a fellow of the Royal College of Surgeons. I return to their findings later in the judgment.

(a) Fitness to Practise Panels of the General Medical Council

[10]The current fitness to practise procedures – introduced as a result of amendments in 2002 to the Medical Act 1983 (“the 1983 Act”) – are divided into two main stages. The first is investigation, overseen by the Investigation Committee; the second, adjudication, entrusted to Fitness to Practise Panels. Part V of the 1983 Act provides for the Investigation Committee to investigate allegations that a medical practitioner’s fitness to practise is impaired (section 35C). A Fitness to Practise Panel is then able to make a direction for the erasure, suspension or conditional registration of a medical practitioner whose fitness to practise it finds is impaired (section 35D). On 31 May 2008 the civil standard of proof was introduced for fitness to practise Panels for fact finding. Previously, and in this case, the criminal standard applied. An Investigation Committee or a Fitness to Practise Panel is able to issue a warning to a practitioner regarding his future conduct or performance (sections 35C (6) and 35D (3) respectively). Section 44A provides for the effect on registration of a conviction or disqualification.[11]Paragraph 1 of schedule 4 to the Act empowers the GMC, with Privy Council approval, to make rules governing the procedure to be followed by Fitness to Practise Panels. The applicable rules are the General Medical Council (Fitness to Practise) Rules 2004 (“the Rules”). Rule 17 requires Panels to make three sequential decisions:(1) on findings of fact (rule 17(2)(i));(2) on whether fitness to practise is impaired (rule 17(2)(k)); and(3) on any sanction to be imposed (rule 17(2)(n)).

(b) Appeals from a Fitness to Practise Panel

[12]The appeal to this court from a Fitness to Practise Panel is under section 40 of the 1983 Act. Section 40 (7) permits the court to dismiss the appeal, to allow it and to quash a direction for suspension, to substitute a different direction or to remit the case. The appeal is by way of a re-hearing. The relevant practice direction offers no guidance as to what this means: see CPR 52 PD. 116 (2). Clearly it is not an appeal confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where the court hears the witnesses giving evidence again. The basis of intervention appears to be broader than that for judicial review. On at least one view there is a tension between two Court of Appeal decisions as to the approach to be adopted. At first instance in Meadow v General Medical Council [2006] EWCA Civ 1390, [2007] QB 462, Collins J said that an appeal was not limited to review, although the court would not interfere with a Fitness to Practise Panel’s decision unless it was clearly wrong. The Court of Appeal agreed, but doubted that the word “clearly” added anything (paragraph 125). Auld LJ said (Sir Anthony Clarke MR and Thorpe LJ agreed) (paras 69 and 282): “… 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:(i) The body from whom the appeal lies is a specialist Tribunal whose understanding of what the medical profession expects from its members in matters of medical practice deserve respect:(ii) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;(iii) The questions of primary and secondary fact and the over-all value judgment to be made by Tribunal, especially the last, are akin to jury questions to which there may be reasonably be different answers.” (para 197).[13]Raschid and Fatnani v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460 was an appeal on sanction. In the first case Collins J had substituted a suspension of one month for one of twelve months, and in the second a suspension of twelve months for erasure. The GMC’s appeals were allowed. Laws LJ reviewed Privy Council decisions on the appellate role in GMC matters. In a judgment with which Chadwick LJ and Sir Peter Gibson agreed Laws LJ held that those decisions established two strands of learning, first, that a principal purpose of a Fitness to Practise Panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and secondly, it was necessary to accord special respect to its judgment. The High Court would correct material errors of fact and of law and it would exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case (para 20). Laws LJ expressly disagreed with the approach adopted by Collins J in Meadow, unless it was read in the context of the two strands in the learning (para 21).[14]The hearing before the Court of Appeal in Raschid took place just after the Court of Appeal gave judgment in Meadow but it was not drawn to the attention of the court deciding Raschid. These two decisions were reviewed by Wyn Williams J in Rumbold v GMC [2007] EWHC 2569 (Admin), [2008] LS Law Med 169, but he did not need to decide which was correct (paras 17-30). See also Cohen v GMC [2008] EWHC 581 (Admin), [2008] LS Law Med 246 paras 19-26.[15]In my view the approaches in Meadow and Raschid are readily reconcilable. The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court’s role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels. Impairment of fitness to practise[16]Section 35C of the Medical Act 1983 introduced a single concept of “impaired fitness to practise”. It was inserted in the 1983 Act as a result of the Medical Act 1983 (Amendment) Order 2002, 2002 SI No 3135, article 13. Section 35C reads:
“(2) A person’s fitness to practise shall be regarded as “impaired” for the purposes of this Act by reason only of— (a) misconduct; (b) deficient professional performance; (c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence; (d) adverse physical or mental health; or (e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect.”
Impaired fitness to practice replaced the separate procedures for “serious professional misconduct”, “conviction”, “seriously deficient performance” and “serious impairment of fitness to practise by reason of a physical or mental condition”. The change was part of a revamp of the General Medical Council. The rationale was that a unified process for impairment of fitness to practice would be simpler, speedier and bring about a more meaningful involvement of those who bring cases to the GMC’s attention: Department of Health, Reform of the General Medical Council. A Paper for Consultation, May 2002, para 22.

(a) Meaning of the concept

[17]“Impairment of fitness to practise” is a somewhat elusive concept. In her fifth Shipman Report (Safeguarding Patients: Lessons from the Past – Proposals for the Future, Cm 6394, 2004), Dame Janet Smith opined that its advantage was that it was capable of embracing the range of problems which the GMC habitually encountered, misconduct (including criminal conduct), deficient professional performance and adverse health and determinations by other regulators. However, it was unclear what it meant and even greater difficulties would be encountered with the concept than with those of “serious professional misconduct” and “seriously deficient performance” (paras 25.42-25.43). Dame Janet helpfully set out the reasons why a decision-maker might conclude that a doctor was unfit to practise or that his fitness to practise was impaired. Four reasons recurred in the examples she had examined:
“… (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor’s integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor’s work as a doctor (para 25.50). ”
[18]In response to Dame Janet’s observation that the GMC should formulate the standards, criteria and thresholds by which impairment of fitness was to be judged, the GMC’s Indicative Sanctions Guidance for Fitness to Practise Panels, April 2005 (“the Indicative Sanctions Guidance”) provides that “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 (para 11).” As Mitting J accurately observed in Zygmunt v General Medical Council [2008] EWHC 2643 (Admin), this effectively begs the question.

(b) A two-step process

[19]Whatever the meaning of impairment of fitness to practise, it is clear from the design of section 35C that a panel must engage in a two-step process. First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired.[20]As to the meaning of misconduct and deficient professional performance, Jackson J addressed some aspects of these concepts in Calhaem v General Medical Council [2007] EWHC 2606 (Admin); [2008] LS Law Med 26:
“(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct". (2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct". (3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work. (4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance". (5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct".”
Absent from this consideration, because it was not relevant, was that culpable conduct under section 35C need not occur in relation to clinical treatment. An obvious example is sexual misconduct with patients; another could arise from giving expert evidence in court (e.g. Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462). (c) Context of misconduct etc.[21]There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past. As Sir Anthony Clarke MR put it in Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] 1 QB 462: “In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past” (para 32).[22]In my judgment this means that the context of the doctor’s behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor’s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor’s misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor’s misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practise Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct. Appeals because of inadequate evidence or mistake of fact[23]The general rule is that it is for the primary decision-maker, the Fitness to Practise Panel, to assess the evidence and find the facts. This is based partly on the weight given, perhaps undeservedly, to a direct assessment of the reliability and truthfulness of witnesses giving evidence. Partly also it has a utilitarian base in cost: a de novo hearing of a matter may be impossibly expensive. However, “the High Court will correct material errors of fact”: Raschid and Fatnani v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460, [20], per Laws LJ. Illustrative are a number of recent cases where this court has considered whether there was inadequate evidence or a mistake of material fact in relation to a finding of a Fitness to Practise Panel. In some a Panel’s decision has been set aside and the matter remitted or a different outcome substituted.[24]In Chyc v General Medical Council [2008] EWHC 1025 (Admin) Foskett J heard an appeal by a doctor erased from the medical register under the previous section 40 of the Medical Act 1983. The basis, inter alia, was that he failed to refer 22 patients to specialised practitioners when they should have been and failed properly to manage medical records of some 66 patients. Foskett J held that, the finding was not supported by the evidence in relation to one patient, who had not been referred to a specialist. It was not the doctor’s own writing “notes please”, on the notification addressed to him by the opticians, saying that she required prompt referral to the hospital eye service. In relation to the failure to file notes, Foskett J said that in some cases the evidence was that there was no such obligation, although because they were confidential the documents should have been shredded. Any charge that was found proved when the evidence was simply to that effect had to be set aside.[25]Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) was an appeal where the Fitness to Practise Panel had found a neurosurgeon guilty, to the criminal standard, of serious professional misconduct such that his fitness to practise was impaired. A patient, under the joint care of the neurosurgeon and a consultant physician, had been sent home while the former was on holiday. The patient died from an infected abscess. Mitting J said that he had to accept the panel’s findings of fact unless material errors were clearly demonstrated. One basis of the panel’s findings was that the neurosurgeon had not directed, while he was away, that the patient should remain an in-patient on intravenous antibiotics. Mitting J held that in making that finding the panel had failed to remind itself of its previous finding that the neurosurgeon had considered that the provision of antibiotics was the province of the consultant physician.[26]The doctor’s fitness to practise was found impaired in Mubarak v General Medical Council [2008] EWHC 2830 (Admin). A patient had made a complaint of sexual misconduct during consultation. The doctor denied the allegations and said he could not recall the consultation in question. The Fitness to Practise Panel held that the assault had occurred. Burnett J dismissed the appeal: the panel’s finding, to the criminal standard of proof, was one open to it on the evidence it heard and could not be said to be perverse. The case involved a stark conflict of evidence, a sort often encountered in the criminal courts. The panel recognised the inconsistencies in the patient’s evidence but were nonetheless satisfied the complainant was telling the truth.[27]Finally, Hutchinson v General Dental Council [2008] EWHC 2896 (Admin) involved a dentist whose name had been erased from the dentist’s register on the grounds that his fitness to practise had been impaired. Blair J held that the professional conduct committee had correctly rejected an abuse of process application on the basis of delay and lack of specificity in some of the charges. There had been no misapplication of the civil standard of proof. However, there was no supporting evidence for the charges concerning his misuse of dental instruments. The committee had said it accepted the evidence of P and M, the dental nurses, but it then stated that misuse of the instruments was occasional rather than frequent. By implication it must therefore have rejected P’s evidence as to the frequency with which the matters alleged took place. There was no documentary or other evidence supporting the allegations and given the delay and lack of specificity the case was weak and the committee could not have been satisfied on the balance of probabilities.[28]Thus the material error of fact, on the part of a Fitness to Practise Panel, which the court will correct, may be because there is no, or insufficient, evidence to support the finding. Another example is where the Fitness to Practise Panel concludes that there is a failure of a doctor to fulfil an obligation, but there is no such obligation. Yet another instance is where a finding of fact on one matter is irreconcilable with a finding on another. In all such cases, where the error of fact is material, the court is entitled to intervene, notwithstanding that a Panel is the primary decision-maker on factual matters. Reasons of a Fitness to Practise Panel[29]De Smith’s Judicial Review, 6th ed, 2007, reads:
“It remains difficult to state precisely the standard of reasoning the court will demand. Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. It is clear that the reasons given must be intelligible and must adequately meet the substance of the arguments advanced. … The reasons must generally state the decision-maker’s material findings of fact (and, if the facts were disputed at the hearing, their evidential support), and meet the substance of the principal arguments that the decision-maker was required to consider. … In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they lost or, the case may be, won (para 7-104; footnotes excluded).”
[30]In Gupta v General Medical Council [2001] UKPC 61; 1WLR 1691, Lord Rodger said that generally speaking reasons on factual matters were unnecessary but “there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact” (para 14). Echoing this passage Wall LJ said in Phipps v General Medical Council [2006] EWCA Civ 397; [2006] Lloyd’s Rep Med 345 “85 … [E]very Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost? 86. If in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck of the Register. They are entitled to know in clear terms why such findings have been made.” Sir Mark Potter P agreed. There was no general duty to give reasons or decisions on matters of fact, in particular when the essential issue was one of credibility on reliability of evidence in the case, but there were cases when fairness demanded it. Such cases were “those where, without such reasons, it will not be clear to the losing party why he has lost: at para [106]. Sir Mark Potter P added that it was not a necessary ingredient of the requisite clarity required that the reasons should be expressly stated when they were otherwise obvious.[31]Gupta and Phipps were both decided under the predecessor Rules. Rule 17 of the current rules imposes a statutory duty on Panels to give reasons for decisions on impairment and sanction, but not for findings of fact. However, there is no reason to conclude that the approach in Gupta and Phipps is modified by the Rules. The duty to give reasons, albeit in exceptional cases, is of such importance that if the common law is to be modified in this regard by a rule it must be done much more clearly.

(a) General principles

[32]Where a Fitness to Practise Panel finds that fitness to practise is impaired its powers are set out in section 35D of the 1983 Act. “(2) where the Panel find that the person’s fitness to practise is impaired they may, if they think fit –(a) except in a health case, direct that the person’s name shall be erased from the register;(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.” If a Panel finds that a doctor’s fitness to practise is not impaired it may nonetheless issue a warning as to future conduct or performance. The Indicative Sanctions Guidance set out factors which may make each of these sanctions appropriate. With suspension, the Guidance lists as non-exhaustive factors for non-health cases the following: serious instance of misconduct, but where a lesser sanction is not sufficient; conduct not fundamentally incompatible with continuing to be a registered doctor; no evidence of harmful deep-seated personality or attitudinal problems; no evidence of repetition of the behaviour since the incident; and the Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.[33]The seminal decision on sanction is Bolton v Law Society [1994] 1 WLR 512, where Sir Thomas Bingham MR endorsed the principle that it would require a very strong case to interfere with a sentence imposed by a disciplinary committee, which is best placed for weighing the seriousness of professional misconduct. That a sanction might seem harsh, but nonetheless be appropriate, could be explained by the primary objects of sanctions imposed by disciplinary committees. One object was to ensure that the offender did not repeat the offence; the other, indeed the fundamental, objective was to maintain the standing of the profession (at pp 518-9).[34]Bolton has been endorsed on numerous occasions since it was decided, although in Ghosh v General Medical Council [2001] UKPC 29; [2001] 1 WLR 1915 Lord Bingham said that while the court would accord an appropriate measure of respect to the judgment of the committee as to the sanction necessary to maintain professional standards and provide adequate protection to the public, it would not defer to its judgment more than was warranted by the circumstances. The court could decide whether a sanction was appropriate and necessary in the public interest, or excessive and disproportionate (at [34]).[35]The most recent of these sanction cases is Law Society v Salsbury [2008] EWCA Civ 1285. There a solicitor had been struck off for dishonestly altering a cheque to receive additional moneys. On appeal the Divisional Court had held that the sanction was disproportionate. The Court of Appeal allowed the Law Society’s appeal. In doing this it affirmed Bolton, with the proviso that the rights of the solicitor under articles 6 and 8 of the European Convention on Human Rights had to be taken into account. It was an overstatement to say that a very strong case was required before the court would interfere with a tribunal sentence. The court would interfere if satisfied that the sentencing decision was “clearly inappropriate”: at [30].

(b) Section 47 of the Medical Act 1983

[36]Section 47 of the Medical Act 1983 reads, in part:
“47. – Appointments not to be held except by fully registered practitioners. (1) Subject to subsection (2) below, no person who is not fully registered shall hold any appointment as physician, surgeon or other medical officer – … (b) in any hospital or other place for the reception of persons suffering from mental disorder, or in any other hospital, infirmary or dispensary not supported wholly by voluntary contributions, … (d) in any other public establishment, body or institution, … (3) none of the suspension events mentioned in subsection (4) below shall terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension. (4) The suspension events are – (a) the suspension of registration of a person by a Fitness to Practise Panel – (i) following a finding of impairment of fitness to practise by reason of deficient professional performance or adverse physical or mental health under section 35D above … ”
Since section 47 (4)(a)(i) refers to “deficient professional performance”, and not misconduct, the ordinary rules of statutory interpretation would regard that as a deliberate legislative choice. In other words, a finding of impairment of fitness to practise by reason of misconduct is not excluded from the terminating effect of subsection (1). In Tarnesby v Kensington and Chelsea and Westminster Area Health Authority (Teaching) [1981] ICR 615, the predecessor to section 47 (1), in the Medical Act 1956, was considered by the House of Lords. There a part-time consultant psychiatrist had been struck off, but on appeal a suspension of twelve months was substituted. His hospital board informed him that, in view of the suspension, his contract of service with them was at an end. The House of Lords agreed with that result. Lord Russell said (at 618 D-F):
“Erasure would clearly in my opinion have brought about the statutory ban in this case and an automatic termination by law of the appellant’s appointment, and of the contract with the board which was the basis of that appointment. The contention put forward was that the appointment was one thing and the contract of employment was another, the section affecting only the appointment. I am wholly unable to accept that proposition: the contract of employment and the appointment were not two things but one. … Does that substitution [of suspension] have any effect on the operation of section 28 (1) of the Act of 1956? In my opinion the answer to that question is plainly in the negative.”
The other law lords agreed, Lord Bridge being “fully conscious of the untoward consequences to which such a conclusion may lead” (at 621 H). Lord Bridge said later that “this appeal uncovers a hitherto unsuspected and most unfortunate situation, which calls for urgent legislation to remedy it” (at p. 623B).[37]For Mr Cheatle, Mr Francis QC informed me that recently several NHS Trusts had treated suspension of a medical practitioner’s registration for misconduct as terminating that practitioner’s employment by the Trust. Prior to this trend NHS Trusts had tended to proceed on the basis that the appointment continued, unpaid, during a period of suspension for misconduct and the practitioner was allowed to return to his or her pre-suspension post at the end of the suspension. The present trend served to underline the seriousness of suspension for any period where a practitioner’s fitness to practise was found to be impaired by reason of misconduct since it carried with it a high risk of the practitioner not only having to serve the period of suspension but at the end of it being left to embark upon the process of trying to obtain employment. In such circumstances the practitioner was likely to be out of work for considerably longer than the period of suspension with no certainty of ultimately finding employment.[38]Following the hearing I received further submissions on the ramifications of section 47 (1). Mr Francis QC submitted that Fitness to Practise Panels are required as a matter of law to have regard to the consequences of a sanction. It is true that the purpose of a sanction is not punitive, but that did not mean that the adverse consequences were to be ignored. Indeed the law required a Panel to impose a sanction only to the extent that it was proportionate to do so. The Indicative Sanctions Guidance reminds Panels that they “should apply the principle of proportionality, weighing the interests of the public … with those of the practitioner, which could include returning immediately, or after a period of retraining to unrestricted practice.” It must be relevant to whether a sanction is proportionate to consider its effect on the practitioner, including the effect on his employment. Particularly where the public interest to be satisfied is the public’s confidence in the profession, the gravity of the sanction is likely to be measured at least in part by the severity of the consequences for the practitioner. In some cases a period of suspension might be thought proportionate if it was believed that the practitioner could resume his employment at the end of it, but disproportionate if it would inevitably lead to the loss of employment. In any event the inevitable, or even possible, loss of employment was bound to be a matter legitimately raised as a matter of mitigation.[39]For the GMC, Mr Shaw QC contended that Fitness to Practise Panels are required, as a matter of law, not to have regard to the possibly punitive consequences of a sanction in contractual and employment terms. Instead, they are concerned with preventing harm to patients and with the wider public interest. The decision on any contractual or employment consequences flowing from a sanction rests with a doctor’s employer, as does the implementation of any such consequences. The GMC has, however, always regarded section 47 of the Medical Act 1983 as intending to give NHS Trusts a discretion, not a duty, to terminate the appointment of a doctor whose registration has been suspended otherwise than on one of the bases set out in section 47(4). It was not possible to trace any documents dating from the enactment of s.47 so as to cast light on its meaning, purpose or drafting history.[40]The matter was not fully argued before me and all I can offer is a tentative opinion on the issue. However, it seems to me that section 47 has the effect that a suspension brings an appointment to an end by operation of law. There seem to be no relevant changes in the legislation since Tarnesby. Lord Bridge called for statutory change in his judgment, but nothing appears to have been done. Moreover, while it is clear that the impact on the practitioner of suspension is not a primary consideration for Fitness to Practise Panels, it cannot be ignored when proportionality is a necessary element in their decision. THE PANEL’S FINDINGS ON HEADS OF ALLEGATION[41]There were 38 heads of allegation which the General Medical Council set out in the Notice of Hearing it sent to Mr Cheatle. By reason of these it was said his fitness to practise was impaired because of misconduct and/or deficient professional performance. All related to the treatment of Mrs Swain (called “A” in the allegation). Many of these heads were the largely agreed narrative of what had occurred. The heads were in effect bracketed, although in my view it would have assisted clarity if this had been done explicitly by use, for example, of sub-headings. At the end of each head, or each of the bracketed heads, the allegation set out the way GMC framed its criticism. In the main this was that Mr Cheatle’s actions in the immediately preceding head or heads were(a) unacceptable;(b) inappropriate; and(c) not in the best interests of his patient.[42]In admitting most of the factual allegations Mr Cheatle also accepted some of the consequential criticisms. For example, he admitted that his failure to attend, or arrange attendance, after Mrs Swain’s readmission on 23 April 2002, was not in her best interests, and he conceded that his failures from 23 to 26 April 2002 did not improve her chances of survival and were not in her best interests. Indeed, as early as the Inquest in January 2003, and later before the Panel in May 2007, Mr Cheatle accepted that his conduct had not been up to the mark. This was reflected in his submissions before me: he accepted that, for whatever reason, that he did not appreciate the seriousness of the position when Mrs Swain was readmitted on 23 April 2002 and that he fell into error, with tragic consequences. While accepting that there were clearly errors and omissions, Mr Cheatle’s case is that these do not justify a disciplinary offence.[43]In the Notice of Hearing Mr Cheatle faced heads of allegation that he had performed the Fem Pop bypass graft when he should not have done so, and had used an artificial graft when he should have used one of Mrs Swain’s veins instead. He also faced a head of allegation that he should have attended in person on the night of the 26th April 2002, and that it was a failure by him to do so which resulted in the delay in treatment. These were serious matters, which went to the heart of Mr Cheatle’s clinical competence. Well into the hearing, at the close of the GMC’s case, these heads were deleted from the allegation. Mr Francis QC, for Mr Cheatle, speculates that this was a result of advice from the GMC’s expert, Mr Silverman.[44]The GMC’s remaining case against Mr Cheatle thus centred on three phases:(1) the failure to obtain and record informed consent to surgery and to explain or discuss alternative treatment options as well as the risks and dangers of surgery on 2 April 2002;(2) the failure to take any or any sufficient notice of the signs of post-operative infection from 9 April 2002 and to allow Mrs Swain to be discharged on 16 April 2002 without proper treatment of that infection; and(3) the failure to provide proper care on readmission on 23 April 2002 and until her death on 27 April 2002. For each phase the Fitness to Practise Panel found that these heads of allegation were generally proved and as a result Mr Cheatle’s actions were in the main unacceptable, inappropriate and not in the best interests of Mrs Swain. Basis of factual findings[45]For its findings of fact the Fitness Practise Panel gave no reasons. The one exception was in respect of the incident on 24th April 2002, when it said that it preferred Mrs Milton's evidence, that Mr Cheatle had said there was only a 50/50 chance of the operation working. “Whilst the Panel accepts that the words “oh well” may not have been used, it accepts the evidence of Mrs Milton that you shrugged your shoulders when making this comment.” It is obvious, however, that for its factual findings the Panel accepted the evidence of Mrs Swain's daughter, Mrs McDermott, who gave much of the evidence. In relation to findings of fact for Mr Choudhury, whose case was heard at the same time as Mr Cheatle’s, the Panel said explicitly that it “accepted the evidence of Mrs McDermott. This is a detailed account of these events.” There is no equivalent in Mr Cheatle’s case but the same is implicit in the factual findings.[46]In my view some of Mrs McDermott’s evidence should have given the Panel pause. It began with Mrs Swain’s first contact under Mr Cheatle’s care in 1999. Mrs McDermott’s evidence was that her mother saw Mr Cheatle and his first words were “that she was not yet ready for amputation”. The documents suggest it was not Mr Cheatle personally who saw Mrs Swain and that at that point amputation would simply not have been on the cards and no one would have mentioned it. Moreover, there was a cloud over Mrs McDermott’s evidence that over a period doctors other than Mr Cheatle never explained the risks to her about a variety of matters. Alarm bells should have rung for the Panel when, in answer to questions about whether her mother was made aware of the risks associated with an angiogram, Mrs McDermott said:
“I am sorry, but I have been in hospital myself and they get you to sign these consent forms without explaining anything.”
That answer, as Mr Matthews, counsel for Mr Cheatle, suggested to the Panel, could be indicative of a witness who was not giving evidence to the best of their ability about what had occurred.[47]But the matter is compounded, because Mrs McDermott’s evidence as it relates to Mr Cheatle is belied by the documentary evidence. Mrs McDermott insisted that she and her mother were never told of a heart problem although it is clear from the notes that she was being seen by physicians who were dealing with her heart problem. Mrs McDermott’s evidence to the Panel was that at the 6 February 2002 consultation with Mr Cheatle there was no discussion of an operation. Yet notes by a district nurse and a podiatrist shortly after indicate that Mrs Swain or her family knew that she was to have a Fem Pop bypass operation. That information could only have come from Mrs Swain or her family, so it had been discussed. Mrs McDermott’s evidence was that at the pre-assessment clinic for the bypass Dr Waterfall conducted a rather superficial examination but the notes demonstrate the opposite: Dr Waterfall conducted a full pre-operative assessment. These and other difficulties with Mrs McDermott’s evidence were placed before the Tribunal by Mr Matthews, representing Mr Cheatle, in his closing address to the Panel.[48]Mr Matthews also raised the issue before the Panel of the credibility of Mrs Milton, Mrs McDermott’s sister. Mrs Milton gave the important evidence about the conversation with Mr Cheatle on the 24th April 2002. As one aspect of her evidence about what happened on that day, in the chance encounter with Mr Cheatle, she said that he had said there were tablets that her mother, Mrs Swain, “could have gone on”. There were no such tablets appropriate to the patient’s condition, which does suggest a faulty recollection.[49]So should the Panel in this case have explained why, despite these drawbacks, it preferred the evidence of Mrs McDermott and Mrs Milton? For the General Medical Council, Mr Shaw QC said that there was nothing exceptional in the present case which demanded an explanation by the Panel of the reasons for its findings of fact. The factual findings were not crucial in the real dispute, which centred on whether Mr Cheatle’s acts or omissions were unacceptable, inappropriate and not in the best interests of Mrs Swain. The issue was one of the credibility and reliability of Mrs McDermott and Mrs Milton, and that turned on the Panel’s assessment of their live evidence and demeanour. Mrs McDermott had been closely involved in her mother’s treatment and virtually always accompanied her to her medical appointments and visited the hospital every day. She gave detailed evidence based on her clear, personal recollection. The problems in Mrs McDermott’s evidence, and to a lesser extent Mrs Milton’s, were on matters peripheral to the key disputed issues before the Panel. In any event, Mr Cheatle and his witnesses had no clear recollection of the relevant events and could only give evidence based on documentary records and what they normally did. Mrs McDermott had dictated onto an audio tape, soon after her mother’s death, “everything … that happened and that had been said” in order to record her recollections.[50]In my judgment, this was one of those exceptional cases where the Panel was obliged to give reasons backing its factual findings. That is because of the difficulties in the evidence of both Mrs McDermott and Mrs Milton. Moreover, Mr Matthews, for Mr Cheatle, had majored on these evidential issues in his closing submissions to the Panel. The Panel needed, consistently with the authorities, to provide an explanation to Mr Cheatle as to why he had lost, given that the defects in the evidence against him were a central plank of his defence. The problems in the evidence, mentioned so far, were not central to the matters bearing on impairment of fitness to practise but, as will be seen, the same difficulties surfaced in parts of the evidence relating to the three main factual findings, the basis of the judgment that Mr Cheatle’s fitness to practise was impaired. The credibility and reliability of witnesses is quintessentially a matter for the fact finding tribunal, and the Panel may well have been justified in adopting the evidence of Mrs McDermott and Mrs Milton. But for the reasons mentioned they needed to explain, albeit briefly, why they adopted their approach, given that Mr Matthews had so vigorously challenged it before them. Mrs McDermott’s recording her recollections on audio tape takes the matter nowhere; a transcript of the tape was not before the Panel and I was not told how it was used. Consent: what was said to Mrs Swain and what should have been recorded[51]Let me turn to the three major areas of fact which were at the base of the Panel’s finding on impairment. The first is consent. Mrs Swain gave her consent to the fem pop by-pass graft on the 2nd April 2002. The only direct evidence of that came from Mrs McDermott. But she had not been with her mother on that day when the consent form was signed. Nonetheless she gave evidence, which the Panel obviously accepted, that her mother had told her that she, Mrs Swain, had not been informed of what the operation involved. Mrs McDermott also gave evidence that leading up to the surgery neither she nor her mother was aware of what the operation entailed or of the associated risks. There was no contemporaneous documentary evidence of what was said on the day except for the consent form itself. Mr Cheatle had no recollection and all he could describe was his normal practice. Given that Mrs Swain was elderly, with a variety of ailments, and that the decision to perform this type of operation was complex and finely balanced, it was important that the proper consent process should have been meticulously followed. The relevant guidance, issued by the Royal College of Surgeons in November 2000, required a full explanation and discussion with the patient.[52]In ordinary circumstances it would be difficult for a court to question the finding by the Panel that Mrs McDermott’s evidence, albeit hearsay evidence, as to what happened on the 2nd April, should be preferred to what the doctor said. The problems in the present case, however, are two-fold. First there are the difficulties associated with Mrs McDermott’s evidence. The Panel had to be sure, to the criminal standard, that Mr Cheatle had not explained alternative treatment options and the risks and dangers of the operation, notwithstanding what he said was his normal practice and what he would have done on the day. Secondly, and perhaps more importantly, the Panel ignored both the opinion of the experts, including the GMC expert, and the view clearly expressed by counsel for the GMC, Mr Brassington, that consent is an ongoing process running through from outpatient appointments to the day of the operation. The Panel had this point directly before it but nonetheless in its finding on the consenting process ignored it, without explanation. It chose to look solely at what it found had been said on the day the form was signed. That deprived Mr Cheatle of reliance upon the full consenting process. In my judgment, given that this was an issue placed directly before the Panel, it needed to give reasons as to why it was ignoring the universally accepted view as to what was involved in the consenting process. Thus the Panel’s factual finding on consent is flawed.[53]There is no doubt that Mr Cheatle did not record the pre-operative counselling as required by the Royal College of Surgeons Guideline. They had been introduced 18 months previously and it was said in his defence, and accepted by the GMC expert, that in mid 2002 many surgeons were still not recording their counselling. Mr Shaw QC, for the GMC, submitted that it was no defence, although it may be relevant to mitigation, that other surgeons did not comply with the Royal College of Surgeons Guidance. Mr Shaw QC’s submission must be treated with some caution. In Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) Mitting J said that there was no basis for the Panel’s finding in that case that sending the patient home was misconduct, when an independent surgeon had described that as a quite common practice. In my view, the Panel was obliged to grapple with the issue. Post-operative infection[54]It will be recalled that post-operatively Dr Waterfall had noticed a wound infection, prescribed an antibiotic and took a wound swab, and that subsequently Mr Cheatle had added penicillin V to the antibiotic regime. The evidence of the expert for the GMC was that Mr Cheatle should have made inquiries about what had happened to the wound swab. The Panel accepted that. Mr Cheatle’s defence was that a consultant cannot be expected to do everything himself or to check that others have done what they should at every point in the process. Delegation is inherent in the nature of a consultant leading a team, and it was setting too high a standard in this case to expect Mr Cheatle to check that the swab was appropriately followed up and action taken. That should not have lead to serious criticism by the Panel.[55]In my judgment the Panel was entitled to take the view that, given Mrs Swain’s particular vulnerability, of which Mr Cheatle was well aware, there was a heightened need for him to be attentive and to supervise closely. He was aware of the wound infection when he prescribed the penicillin V but did not see Mrs Swain again before her discharge. As became subsequently known, the wound swab revealed that the infection was unlikely to be sensitive to the antibiotic regime which had been prescribed, so effectively she was leaving hospital without effective protection against it. The readmission and what followed[56]Mr Cheatle has accepted that he fell into error in not appreciating the seriousness of Mrs Swain’s condition when she was readmitted on the 23rd April 2002. It was, of course, a serious error, with tragic consequences. The Panel criticised Mr Cheatle for not attending her on the 23rd April, for his conduct during the conversation with Mrs Milton on the 24th April, and for not attending her on that and on the two following days before her death. Mr Kullar, the registrar, had made an impressive note on the 23rd April, which Mr Cheatle accepted was of high quality, correctly diagnosing a leaking graft with potential further bleeding. He spoke by telephone to Mr Cheatle. The Panel found that it was inconceivable that Mr Kullar did not pass on his diagnosis to Mr Cheatle. Mr Cheatle could not explain why the news from Mr Kullar did not ring “alarm bells”, given Mrs Swain’s precarious position. Mr Cheatle should have attended and examined her or delegated one of his team to do so and to report to him. He headed the team which had operated on Mrs Swain earlier in the month and the readmission was obviously consequent upon the surgery and the resultant infection, of which he was aware before her discharge.[57]Mr Cheatle had a fleeting encounter with Mrs Swain in the corridor on the 24th April, during his ward round, as she was being taken for a Duplex scan. The Panel accepted Mrs Milton’s evidence that he made the comment about Mrs Swain’s prospects and shrugged his shoulders, and said there was only a 50/50 chance of it working. The Panel found he did not preface that with the words “oh well”. The Panel found that several days passed after the admission without his taking any interest in Mrs Swain, and at no stage after the 23rd April and prior to the emergency on the night of her death did he give any guidance to his team. Mr Cheatle admitted that this was not in her best interests. The words and the manner in which he spoke to Mrs Swain and Mrs Milton about the prospects were uncaring and insensitive. The Panel were concerned overall by Mr Cheatle’s passivity. As the consultant, and given Mrs Swain’s known vulnerability and complications, he should have ensured that he saw her and examined her thoroughly, or arranged for others to do that and to report back.[58]In my judgment the Panel should not have criticised Mr Cheatle for not attending Mrs Swain himself on the day of her readmission, given that the GMC’s own expert did not think he could have been criticised for not personally visiting her. Moreover, there are difficulties with Mrs Milton’s evidence about the conversation on the 24th April, for reasons already given. The Panel’s finding that Mr Cheatle did say the words as alleged by Mrs Milton, but not the “Oh well” is difficult to explain, as is the finding, for which there was no allegation, that he shrugged his shoulders. Of course in substance the allegation was that his manner and tone were uncaring and insensitive, whereas he said that they were factual and sympathetic.[59]The gist of the Panel’s finding in the period after readmission, however, was Mr Cheatle’s failure to take appropriate action, either personally, or through members of his team. It is said now that there was a system failure in that no one informed him either on the night of the 24th April, or after that, of the serious bleeding which occurred that night. No one reported Mrs Swain’s condition and its deterioration on either the 25th or 26th of April, although on all those days she was seen by doctors. It is said that the Panel took no real account of the consequences of the omissions of others, which meant that Mr Cheatle gained the wrong impression of Mrs Swain’s condition. It is also said that the Panel ignored the difficult circumstances in which Mr Cheatle was working, the shortages in his team and the fact that he was performing surgery himself all day on the 25th April.[60]In my view it is not possible to invoke system failure. The Panel was entitled to find that Mr Cheatle needed to provide personal care, either by himself or through a member of his team. After the fleeting encounter in the corridor he should have ensured that someone returned to examine Mrs Swain if he himself could not do that. The Panel said it took account of the difficult circumstances and possible pressures under which Mr Cheatle was working at the time. The key failure was Mr Cheatle not appreciating the gravity of Mrs Swain’s condition on her readmission. After the fleeting encounter on the 24th April the Panel could well conclude that he should have ensured that she was examined, he should have instituted some sort of management plan so that she was closely monitored, and he should have ensured that he received regular reports on Mrs Swain’s condition. IMPAIRMENT OF FITNESS TO PRACTISE[61]The Panel explained its finding, that Mr Cheatle’s fitness to practise was impaired, as follows:
“The Panel has found that … you did not take sufficient notice of the signs of infection being displayed, especially in the period immediately prior to … discharge from Hospital on 16 April 2002. … The Panel has taken account of the fact that Dr Kullar had examined Mrs Swain on 23 April 2002, and had diagnosed a leaking graft. The Panel is satisfied that you were made aware of this. The Panel is concerned that your decision then to manage Mrs Swain conservatively was incorrect. This was further compounded by your failure to institute a management plan. The Panel is concerned by your continued failure to consider and if necessary institute surgical intervention between 23 and 26 April 2002. Mrs Swain was an elderly woman who suffered from diabetes. Use of a prosthetic graft carried a consequent increased risk of infection. She was therefore at risk and required particular vigilance and attention. You failed to conform to this requirement … … The Panel is concerned that during the period 2 to 26 April 2002 there was a series of failures on your behalf in relation to your treatment of Mrs Swain. You failed adequately to explain and discuss alternative treatment options and the risks and dangers of the surgery you proposed to carry out; you failed to record discussions with the patient at the time she signed the consent form; you failed to take sufficient notice of infection; you failed to attend the patient over a period of 4 consecutive days (save for one fleeting chance encounter) when there were numerous opportunities for you to do so and when in the light of her age and manifestly serious condition, there was an essential and urgent need for you to do so. … Your actions and omissions amount to serious failures to meet the standards set out in ‘Good Medical Practice’. … You failed to comply with this guidance [on seeking consent] … which was particularly significant in view of the high risk element of this procedure performed on this vulnerable patient. In all the circumstances the Panel finds that your actions and omissions amounted to misconduct and that this misconduct was serious. Whilst accepting that the events in question relate to one patient during one month five years ago, the Panel is concerned that, far from being a single simple human error, your conduct was a catalogue of serious failures and omissions over a period of almost 4 weeks. Accordingly the Panel finds your fitness to practise to be impaired by reason of misconduct.”
Thus the misconduct which was the basis for the Panel’s finding related to the treatment of Mrs Swain in April 2002. The Panel made clear that it had taken account of the circumstances at Old Church hospital at that time. It also accepted in Mr Cheatle’s favour that the allegations concerned an isolated error relating to one patient and that his practice was marked by no other adverse disciplinary findings.[62]In defending the Panel’s finding before me, Mr Shaw QC contended that the error was not a single failing, but a catalogue of serious failings spanning almost a month. Mr Cheatle was aware of two critical problems, the pre-discharge infection and the leaking graft on readmission. The Panel considered whether the appellant’s fitness to practise was impaired at the date of the hearing on the basis that he recognised his errors, that they were out of character and that there had been no other adverse instance before or since. In terms of the guidance given by the Indicative Sanctions Guidance, it was clear from the passages in the Panel’s decision and from a similar part in the Panel’s conclusion on sanction that it regarded Mr Cheatle’s behaviour as not merely misconduct, but serious misconduct. Counsel representing the GMC before the Panel had accepted that the GMC needed to demonstrate something more than mere negligence.[63]The authorities quoted above make clear that a finding that fitness to practise is impaired is a two step process. First, there must be a finding of serious misconduct. Secondly, the Panel must conclude that, as a result, the doctor’s fitness to practise is impaired. In coming to a conclusion on impairment, the authorities make clear that the Panel must look forward. It must consider whether, in the light of what happened, and of evidence as to the doctor’s conduct and ability demonstrated both before and after the misconduct, fitness to practise is impaired by the particular events.[64]As to a finding that the events of April 2002 constituted serious misconduct, there was the fact that Mr Cheatle knew that Mrs Swain had an infection prior to her discharge. Mr Cheatle prescribed penicillin V but the results of the swab were not available and consequently he did not know whether that drug would be effective. As it turned out it was not, yet Mrs Swain was discharged without any further prescribing. There was the readmission of Mrs Swain on the 23rd April and Mr Cheatle’s failure to appreciate the life threatening gravity of the situation, something he described as “a very serious complication which all vascular surgeons fear”. Mr Cheatle was told by Mr Kullar that the graft was infected and leaking but Mr Cheatle did not examine her even once, after her readmission, or arrange for any member of his team to do so. Given what Mr Cheatle knew about Mrs Swain’s special vulnerability and serious post-operative complications the Panel was entitled to conclude that he was too passive.[65]However, I have concluded that some of the events founding the serious misconduct conclusion must be discounted. The consenting process is one; the fleeting encounter in the corridor on the 24th April another. Moreover, the common practice at the time with regard to the taking and recording of consent should have been taken into account, notwithstanding the Royal College of Surgeons Guideline. The Panel in deciding to characterise what happened as misconduct should also have looked at the whole picture of care in the hospital at the time and the considerable pressure under which Mr Cheatle was working. It does seem to be a sorry story. There was significant understaffing at consultant surgeon level. Mr Cheatle and his co-consultant had a heavy workload with some 50–60 patients, sometimes increasing to 80, spread across the hospital over several sites. The co-consultant was away and a locum consultant had not yet been appointed in April 2002 to replace him with the result that all the vascular workload fell on Mr Cheatle’s shoulders alone. That point did not emerge clearly until evidence was given by another consultant at the sanction stage. Thus when the Panel said that it had taken account of the difficult circumstances under which Mr Cheatle was working it appears that the full reality was not at that point known.[66]In any event the Panel did not determine whether Mr Cheatle’s fitness to practise was impaired as a result of the misconduct, looking forward, and addressing it in the context of his practice both before April 2002 and subsequently. It refused to hear evidence from the Clinical Director of Surgery at Old Church hospital on Mr Cheatle’s general abilities. That evidence emerged at the sanction stage when it became evident, apart from this one incident, that nothing critical had emerged prior to or subsequent to April 2002. Thus Dr Waterfall said that she saw Mr Cheatle explain operations to other patients and that he generally explained procedures well. A senior house officer at the hospital said that he always seemed keen to do the very best thing that he could and would often speak to his co-consultant vascular surgeon to obtain feedback about how he was doing. One of the sisters said that Mr Cheatle came across as a gentle and shy man, good at communicating, approachable, professional, polite and very humble. There was much other evidence to similar effect in statements taken by the GMC. The Panel disabled itself from considering any of this material at the fitness to practise part of the proceedings. That being the case, even if the Panel found serious misconduct because of the pre-discharge infection and the post-admission treatment, it might well have decided that Mr Cheatle’s fitness to practise was not impaired. SANCTION[67]The Panel proceeded to apply the step by step analysis set out in the Indicative Sanctions Guidance. It rejected the imposition of conditions because they would be insufficient to reflect the seriousness of the matter and impossible to formulate in any proportionate, enforceable and measurable way. In Mr Cheatle’s case there was no evidence of any repetition and so retraining, supervision and education were inappropriate. The Panel then turned to suspension. It set out in detail the three areas of serious concern: the consenting process, the post-operation period and the readmission. Among the factors in the readmission phase was what it characterised as the unacceptable behaviour to Mrs Milton during the chance encounter with her and Mrs Swain. The Panel concluded that suspension for 10 months was the appropriate sanction, given the series of culpable mistakes, which had to be marked.[68]Given what is said above, the consenting process should not have constituted an area of serious concern for the Panel. In my view this is another defect. An important part of Mr Matthews’ case before the Panel regarding sanction was the difficult circumstances in which Mr Cheatle was working, the understaffing, the absence of his co-consultant vascular surgeon, and the difficulties of working across the hospital and on a split site. A consultant, Mr Shukri Shami, gave evidence on these matters at the sanction stage. In its reasons for sanction all the Panel says in relation to that part of Mr Matthews’ case for Mr Cheatle is: “Notwithstanding possible pressures on you at that time, your standard of care fell far below what was acceptable” (my emphasis). In my judgment this was inadequate. Not only does this sentence belie the very clear evidence from a number of independent sources before the Panel that the pressures were a reality, not simply a “possibility”, it fails to get to grips with the case made about the matter on Mr Cheatle’s behalf.[69]There is the additional point on sanction, the ramifications of section 47 of the Act. Although I did not have the benefit of full argument, it seems to me that the effect of suspension under the section is that it brings Mr Cheatle’s appointment with the NHS Trust to an end by operation of law. Through no fault on its part, the Fitness to Practise Panel in Mr Cheatle’s case did not address this outcome. If it had, pursuant to its duty to impose a sanction proportionate to the misconduct, it may have reached a different conclusion on sanction.[70]Raschid makes clear that courts ought to be very reluctant to interfere with sanction, but that does not detract from the need to comply with basic principles of explaining to those being sanctioned why a particular approach is being adopted. Thus if I were wrong in my conclusion that the Panel’s conclusion was flawed in relation to Mr Cheatle’s fitness to practise being impaired, I would have considered taking the wholly exceptional course of allowing the appeal on sanction: the Panel proceeded on several false premises, did not properly explain its reasoning and omitted to take the consequences of section 47 into account. CONCLUSION[71]From the time of the inquest in January 2003 Mr Cheatle accepted that there were failures in the care afforded Mrs Swain. Before the Panel he accepted, frankly, that he had been at fault after her readmission. He said that Mr Kullar’s telephone call should have rung alarm bells. There was also Mr Cheatle’s failure to monitor the swab result before Mrs Swain’s discharge and the failure to visit or to have Mrs Swain’s situation monitored after readmission. The GMC expert before the Panel said that it was “a mystery” to him why, uncharacteristically, Mr Cheatle had acted as he did. Mrs Swain was a very vulnerable patient in need of particularly vigilant care, the elevated risk attributable to matters such as age, diabetes, extensive vascular disease, a weak heart and, after the surgery, a prosthetic graft for the fem pop by-pass, rather than part of her own artery. The consequences were, of course, tragic. It should be no surprise that Mrs Swain’s daughters, Mrs McDermott and Mrs Milton, have pursued the matter so devotedly.[72]For the reasons I have given, however, the Panel could not have been satisfied to the criminal standard as to all of the factual building blocks of their finding that Mr Cheatle’s fitness to practise was impaired. The Panel was entitled to find misconduct in relation to the pre-discharge and post-admission treatment of Mrs Swain. Those findings stand unvarnished; Dr Cheatle will have to live with them. However, the Panel’s overall finding of impairment of fitness to practise was on the back of other matters as well, which it should have discounted, and it also failed to take relevant matters into account. Its conclusion on impairment of fitness to practise is thus flawed. Given the length of time which has elapsed before this matter came before the Panel, and that we are now almost seven years on from Mrs Swain’s tragic death, I do not consider it appropriate to remit the case to the Panel. In my judgment the appropriate course is to allow the appeal and to quash the findings of fact I have indicated, the conclusion on impairment and the sanction.

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