GMC v Szisz [2013] EWHC 4452 (Admin)

Case No CO/17153/2013[2013] EWHC 4452 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Manchester Civil Justice Centre
1 Bridge Street West
Venue Manchester, Greater ManchesterDate Monday, 23rd December 2013
M60 9DJ
B e f o r e:
HIS HONOUR JUDGE PELLING QC
(Sitting as a High Court Judge)
Between
GMCClaimantv
Between
DR JANOS SZISZDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Phillips QC (instructed by GMC) appeared for Claimant for The Defendant did not appear and was not represented
J U D G M E N T
[1]HIS HONOUR JUDGE PELLING: This is an application made by Part 8 claim form for an extension of an interim order of conditions imposed on the defendant by the Interim Orders Panel of the General Medical Council originally on the 4th January 2013. The defendant is a Hungarian national who currently practises in Hungary. Permission to serve these proceedings out of the jurisdiction and by an alternative means was granted by His Honour Judge Raynor QC, sitting as a judge of this court, by an order made on 6th December 2013. A clip of e-mail correspondence was produced to me at the start of the hearing by Mr Phillips QC who appears on behalf of the claimant (General Medical Council), which satisfies me that the defendant has had notice of the application that is before me.[2]The defendant is or claims to be an orthopaedic specialist. Because of difficulties which arose in relation to a patient, referred to in these proceedings as "patient A", the defendant was dismissed from a locum senior officer post in orthopaedics that he held in employment by Bradford Teaching Hospital NHS Foundation Trust on the 20th December 2012. The Interim Orders Panel met, as I have described, imposed interim orders of conditions and those conditions have been continued ever since.[3]The General Medical Council relies upon an expert report prepared by Mr J Chell BMBS FRCS which appears in the bundle starting at page 248. The report is dated 5th September 2013. The report purportedly expresses opinions in relation to the defendant's treatment of four patients labelled patients A, B, C and D. The report in many ways is unsatisfactory. It is riddled with grammatical and typographical errors, which makes reading it a little difficult. More to the point however, in relation to at least two patients, there is an underlying factual issue in respect of which there is no evidence and which on the opinion expressed clearly has an impact on whether in relation to those particular patients it can be said that the defendant is in one case even responsible at all but in the other guilty of a serious lapse of standard sufficient to justify regulatory action.[4]So far as first of the allegations made, it concerns an attempt, successful as I read the report, to obtain a blood test sample from the carotid artery of patient A. Mr Chell describes that procedure as having been performed to an appropriate standard and as being successful but that it exposed the patient to attendant risks which in the event did not materialise. He also says that appropriate post procedural steps were undertaken albeit not by this doctor.[5]The opinion expressed in relation to this particular procedure is described by Mr Chell in these terms:
"One would have to state with regard to the management of patient A, the intervention undertaken by Dr Sziz was below an acceptable standard of care and was inappropriate... This was an inappropriate method of obtaining a blood gas sample in this patient and a high risk potential. The clinical argument as why it was performed was clearly faulty since subsequently these method could be undertaken. There was the potential for serious and irreversible harm to come to the patient and this therefore has to be seriously below the acceptable standard expected."
[6]In relation to patient B the issue was that the patient attended at the Bradford Teaching Hospital having fallen over on ice and had suffered a fracture of the proximal phalanx of a finger. Splinting was carried out and the note suggests that the patient had been informed, according to the report, that the patient had:
"... been informed by removal of the ring on the middle finger, but she did not want to remove it and was happy to take the risks of possible complications caused by the ring."
[7]The issue therefore was whether or not the defendant's treatment fell seriously below the requisite standard by not giving advice concerning the removal of the ring. I proceed on the basis that the doctor did not give such advice because that is the allegation which is made and it is not for me at this stage to make any findings as to contested allegations that are made. Mr Chell expresses the view:
"It is standard practice to remove jewellery from a hand that has been injured and strong recommendations would be given with regard to this. If it is the case then no warnings were given in this then this was seriously below an acceptable standard of care. If it is the case that risk were advised of and the patient opted to decline then clearly that is the patient's choice."
[8]Mr Chell remarks that there is no documentation as to what risks were actually discussed and a letter on the file does not document any advice given to the patient concerning whether or not advice concerning the ring was given.[9]There are two points made however by Mr Chell in relation to this allegation. First, he says:
"...this is actually several days after the injury and the initial swelling would have occurred and would be settling by the time he saw this patient and therefore actually the risks of problems with maintaining wedding ring had been reduced."
If that is right, what I am not clear about on the basis of the opinion expressed by Mr Chell is whether a failure to give advice or concerning the continued wearing of the ring would have been less necessary than otherwise would have been the case. If someone is to be criticised for failing to give the appropriate advice then the context in which the advice ought to be given is clearly highly material.[10]Mr Chell does not come to a conclusion one way or the other as to whether it was still appropriate to give that advice notwithstanding that the injury occurred several days before and the swelling had been reduced. The other point he makes is that if the strapping which gives rise to the problem had been undertaken by nursing staff, then the responsibility for dealing with the ring lay with the nursing staff not with the defendant. That factual issue was not resolved on the evidence before me. It is submitted that I must proceed on the basis that it was the doctor who had undertaken the strapping rather than the nursing staff even though the report of Mr Chell suggests that typically in the clinic such activity would be undertaken by nursing staff.[11]In the result Mr Chell express the view in relation to patient B this:
"It is the case that was the potential for serious harm to occur due to the failure to undertake a very basic principle in the management of a hand injury which would be expected of someone holding a First Aid certificate. It is also the case that there are clear mitigating factors and the injury was not at the time acute and therefore the risk was much less. Therefore I would state that for this patient the care was below an acceptable standard but the overall principle is seriously below an acceptable standards."
[12]Quite what opinion is being expressed by Mr Chell in this paragraph is unclear to me. If however, the position is that this patient attended several days after the initial injury and therefore after the initial swelling had reduced, then it appears to be Mr Chell's opinion that the care the patient received was below an acceptable standard but by implication not seriously below that standard for his comments concerning seriously below an acceptable standard seem to be advanced by reference to a principle rather than the facts.[13]So far as patient C is concerned, the allegation there concerns a potassium level of 6.9 which is recorded in the patient's records after admission but it is alleged received no action, even though Dr Szisz documented the potassium level concerned. Mr Chell records there is no record of the doctor having prescribed any fluid and that the record of the high potassium level was made at 20.33 and that subsequently this was handed over the SHO "on nights" who correctly managed the patient.[14]In relation to this patient, Mr Chell expresses the view:
"This is seriously below an acceptable standard of care. Intravenous fluids have to be appropriately prescribed both in terms of amount of fluid and time scale over which they are administered ..."
But then Mr Chell adds this:
"In mitigation, it would appear that this was handed over to the next attending Doctor on the night shift. It is unclear from these records as to what the time-scale was between this being recorded and it being handed over and typically hand over times can be very busy. For example, it would not be unreasonable if this has just been recorded a few minutes before the handover so that the next attending Doctor can take over this role, but clearly if this is a significant time later, ie the hand over is at 9 o'clock or 10 o'clock, there was more than adequate time for Dr Szisz to prescribe the appropriate intravenous fluids."
The view expressed therefore is that if the handover was much later than the time in the notes at which the raised potassium level was noted then the defendant performed seriously below the expected standard but if it occurred at or about the time of hand over then that would be so. There is thus a factual issue which is on the papers available currently wholly unresolved.[15]Finally there is patient D, where the allegation is that the doctor calculated a dose of a particularly affective antibiotic for an elderly female patient on an estimated body weight of 75 kilograms when "the patient actually weighed 44 kilograms." There is a distinction to be drawn between a case where the actual weight of the patient appeared in the records and was overlooked but that does not appear to be the case here. Thus, the doctor was required to estimate the weight of the patient concerned.[16]What is not clear either from the opinion of Mr Chell is whether had the dose that Dr Szisz calculated been administered actual harm would have been suffered because he refers in his report to monitoring the levels of the antibiotic concerned, so that the dose can be adjusted if this is either too low or too high. He says however, in relation to the estimate that the defendant arrived at:
"75 kgs is taken as the typical body weight of an average size male adult, to assume this would be the weight of an elderly female reveals a lack of experience and secondly a lack of basic common sense that one would expect from the medical student. There was clearly a potential for harm to come to the patient, if the dosages had been continued."
[17]This further emphasises the point I made earlier that it is unclear whether harm would have resulted from an initial treatment at that level or whether the problem would arisen as a result of continuing such dosage notwithstanding that the correct medical practice would be to monitor the level of the drug concerned in the body of the patient, so as to maintain it at the correct level.[18]The final opinion in relation to this issue expressed by Mr Chell is this:
"It is unclear whether any was actually given or whether it was rectified prior to administration of the first dose but this is clearly below an acceptable standard of care and whilst one could consider on its own that this was nearly a simple mistake. It would be in my opinion that this has to be taken in the light of other allegations."
Those then are the factual allegations which led the Interim Orders Panel of the defendant to impose an interim order of conditions and then maintain it and the subsequent three hearings before that Panel.[19]The principles that I am required to apply are those identified by the Court of Appeal in Hiew. These principles are well-known. It is not any part of the function of the court on an application of this sort to carry out an evaluation of the material available to decide whether or not the allegations made have been substantiated or not. Rather the court is required to arrive at an evaluative judgment as to whether or not suspension or the imposition of conditions is necessary in the interest of patients, and the doctor, having regard to the allegations that are made. The underlying assumption being that interim measures will apply for a relatively short period while investigations are completed and the various procedural steps taken to enable the case to be put before a Fitness to Practice Panel or disposed of on an another basis.[20]I am also bound to give the appropriate level of respect to a specialist Tribunal, having regard to the fact that they have concluded on four separate occasions that the necessary and proportionate course is to impose the conditions that have been imposed. The material which is relied upon in support of the application as justifying the continuation of the interim conditions is, as I have said, the report of Mr Chell. The report is not satisfactory in a number of respects, not least the fact that the report does not attempt to resolve the factual issues that he identifies in particular in relation to patients B and C.[21]Nonetheless, I am just about satisfied, on the basis of what is said in relation to patient A, that the General Medical Council have demonstrated a sufficient risk to the public and to patients to justify the continuation of the interim conditions applying the statutory test and approaching it in the way mandated by the Court of Appeal in Hiew.[22]I am also, but to a lesser extent, satisfied this is the appropriate course having regard to what is said about patient D and in particular the notion that the patient concerned even on an estimated basis could not sensibly be regarded as weighing 75 kilos.[23]So far as the other allegations are concerned I am not satisfied those alone would justify imposition of an interim order for conditions at any rate on the state of the evidence as it currently is.[24]The next question therefore is how long I should continue the interim order for. The submission made on behalf of the General Medical Council is that I should continue the interim order for a period of 10 months. The justification for this is that the defendant is based in Hungary. The likelihood is that it will be necessary to refer the matter to a Fitness to Practice Panel. Before that can be done various procedural steps have to be taken and in any event a further report has to be obtained from Mr Chell because recently, or as recently as the 5th December further records were obtained from the trust responsible for patients A, B, C and D which it is suggested may enable the outstanding factual issues to be resolved by Mr Chell so as to enable him to express a clearer opinion, at any rate in relation to patient B, C and D.[25]Balanced against that is the unsatisfactory nature of the evidence which has been relied upon which does not appear to have been subjected any degree of critical analysis at any prior stage as far as I can see. A possible solution in those circumstances, balancing the interests of the doctor with the interests of the public would be to grant an extension but for a significantly shorter period than the General Medical Council seek for the purpose requiring the General Medical Council to return to court seeking a further extension, once the further report from Mr Chell has been obtained.[26]It was submitted on behalf of the General Medical Council that I ought not to adopt that course because if the opinion obtained from Mr Chell in the light of the further records suggests that allegations in relation to any one of four patients concerned cannot be maintained, then it would be appropriate to refer the matter back to an interim orders Panel for further consideration, just as it will be the case that if the further records provided to Mr Chell enabled Mr Chell to express a more seriously adverse view.[27]I bear in mind that the General Medical Council is an organisation with limited resources to fund litigation. I bear in mind that the costs involved for the General Medical Council in having to return to court on a regular basis is a significant burden for the organisation to bear and I bear in mind also that it is open to a medical practitioner to apply to discharge an interim order in appropriate circumstances.[28]All of this leads me, I have to say with a great deal of hesitation, to accede to the submission made on behalf of the General Medical Council and to extend this interim conditions order for a period of 10 months. I do so because, as I have said, in relation to patient A the level of care appears fairly clearly to have fallen seriously below the requisite standard and because the interim order imposes conditions and not suspension. I bear in mind also that, as I have said, once the further report from Mr Chell has been obtained, the GMC will refer the matter back to an Interim Orders Panel for further consideration if the report obtained suggests that at least that one of one or more of the allegations currently relied upon could not be sustained.[29]It will be open to the doctor to challenge the outcome if dissatisfied. In those circumstances, and I say with some hesitation, I am prepared to accede the submission made by the General Medical Council.[30]HIS HONOUR JUDGE PELLING: Yes. Have you an order?[31]MR PHILLIPS: I am obliged my Lord, yes. Could I invite your Lordship to consider a statement of costs which has been served and sent through to the doctor.

HIS HONOUR JUDGE PELLING: Do you have a copy for me?

[33]MR PHILLIPS: I do, together with the draft order.

HIS HONOUR JUDGE PELLING: Thank you.

[35]FOR THE CLAIMANT: Your Lordship will note that service was (inaudible) that is the standard amount that your Lordship will be aware of (inaudible).[36]HIS HONOUR JUDGE PELLING: Yes. I am looking at the work on documents. Yes I will allow the costs. Thank you very much.