Johnson-Ogbuneke v General Medical Council [2016] EWHC 1474 (Admin)

Case No CO/2187/2015

[2016] EWHC 1474 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 28 June 2016

Before

MR JUSTICE IRWIN

Between

NGOZIKA GLADYS JOHNSON-OGBUNEKEAppellant

GENERAL MEDICAL COUNCILRespondent

Ngozika Gladys Johnson-Ogbuneke (Litigant in Person) for in person

Simon Jackson QC (instructed by General Medical Council) for Respondent

Hearing Hearing dates: 14 June 2016

Judgment

Mr Justice Irwin :

Introduction and Determinations

[1]The Appellant appeals pursuant to Section 40 of the Medical Act 1983 against a determination reached on 16 April 2015 that her medical registration should be erased with immediate effect. The Appellant had held posts as a locum registrar in trauma and orthopaedics at the University Hospitals Birmingham NHS Trust in 2010; as a trust doctor in trauma and orthopaedics at the South London Healthcare NHS Trust in 2010 and 2011, and as a doctor in trauma and orthopaedics at the University Hospital of North Staffordshire NHS Trust in 2011. In relation to those three posts a number of allegations were made. Four detailed allegations were found not to be proved. A much larger number of allegations were found proved. They can be summarised as follows: 2(a)-(b): On an occasion in February or March 2010, the Appellant left a fracture clinic without informing her clinical colleagues or the Trust management. (Birmingham) 3(a)-(b): On an occasion in February/March 2010, the Appellant failed to wear a lead apron as an x-ray was obtained in theatre, contrary to the Trust’s policy and an instruction from a consultant. (Birmingham) 5(a)-(e): On 7 October 2010 the Appellant undertook a hip hemiarthroplasty on “Patient A” and in so doing failed to adopt the correct method of approach to reach the hip joint; failed to avoid causing unnecessary damage to surrounding anatomical structures; failed to demonstrate an understanding of the three- dimensional nature of the anatomical structures surrounding the hip joint; failed to remove the femoral head; and failed to record in her operation note the surgical approach that had been taken. Allegation (5f) that the Appellant failed to respond constructively to the concerns raised by a consultant was found not proved. (South London) 6(a)-(b): On 9 March 2011 the Appellant undertook a fixation by dynamic hip screw on “Patient C”, and in the course of the procedure failed to position the femoral head screw correctly and failed to seek advice/or assistance from a consultant. Further, following that procedure (determinations 7(b) (c) and (d)) the Appellant failed to accept the advice of a consultant colleague; failed to respond constructively to the advice of her consultant colleague and failed to work collaboratively with colleagues. An allegation that the Appellant arranged an unnecessary CT scan, exposing Patient C to a high level of radiation, was found not proved. (South London) 8(a)-(f) and (h): it was determined that on 31 March 2011 the Appellant undertook a hip hemiarthroplasty on “Patient D”, in the course of which she failed to cut the femoral neck correctly; failed to ream the femur to the correct angle; failed to reduce the prosthesis; made a hole in the femur; failed to acknowledge her technical errors; failed to seek timely assistance from a consultant colleague and failed to make an accurate record in the operation note by failing to mention the hole in the femur. An allegation (8(g)) that she failed to respond constructively to concerns raised by senior colleagues was found not proved. (South London) 9(a)-(g): On 31 March 2011, the Appellant undertook an ankle fracture fixation on “Patient E”. Following that procedure it was determined that she failed to reduce and fix the fracture to an acceptable standard; failed correctly to place the fibular plate; failed correctly to position the proximal screws; failed correctly to position the diastasis screws; failed to correctly fix the medial malleolus; failed correctly to position the cannulated screws and failed to place the foot into plantigrade position. Further (determinations 10(a) and (b)), following that procedure, it was determined that the Appellant failed to reflect appropriately on her surgical treatment of Patient E and failed to respond constructively to the concerns raised by senior colleagues as to her treatment of Patient E. Further (determination 11), following the procedure on Patient E the Appellant wrongly claimed that the procedure had been supervised by a consultant, Mr Rao. (South London) 13(a)-(d): On 7 June 2011 in the fracture clinic in North Staffordshire the Appellant was consulted by “Patient G”. She failed to diagnose an ulnar nerve injury; failed either definitively to diagnose or to exclude a medial epicondyle fracture; failed to consult a senior colleague in relation to the possibility of such a fracture and failed to consult a senior colleague as to possible alternative methods of treatment of the patient’s symptoms and thereby, as a Fracture Clinic doctor, failed to provide adequate and appropriate treatment for the patient. An allegation (13(e)) that the Appellant failed to reflect upon and/or take account of different ways of treating such a fracture was found not to be proved. Following this episode, it was determined (determinations 14(a)-(e)) that the Appellant failed to reflect on the standard of her treatment of Patient G; failed to respond constructively to the concerns raised by a consultant in relation to Patient G; failed to undertake a literature review as instructed by her consultant colleague; denied knowing Patient G and denied taking the primary care lead for Patient G on 7 June 2011. (North Staffordshire) 15: On 12 July 2011 the Appellant was consulted by “Patient H” and failed to put him on the list for urgent spinal surgery. (North Staffordshire) 16(b): On 12 July 2011 the Appellant was consulted by “Patient I” and failed to send an MRI request form. An allegation that the Appellant had failed to complete an MRI request form was found not to be proved. (North Staffordshire) 17(a)-(b): On 27 July 2011 the Appellant failed to attend to assist a scheduled spinal surgery list and failed to follow proper reporting procedures, before leaving the North Staffordshire Trust. 18(a)-(e) and 19(a)-(c): On 17 July 2013, the Appellant wrote a letter to Mr Oliver Donaldson, a former colleague, in which she threatened him with legal action; accused him of making false and malicious allegations against her to the GMC; implied that he was racist; alleged that he was “dangerous” and that his actions might jeopardise patients’ safety, or words to that effect; and accused him of being dishonest. It was further determined that she had sent copies of the letter to an MP, and to Mr Donaldson’s former and current employers. 20(a)-(b): The Panel further determined, in relation to paragraphs 11, 14(d) and 14(e) above, that the Appellant’s conduct had been both misleading and dishonest.

[2]Following those findings, the Panel further determined that the Appellant’s fitness to practice was impaired by reason of her serious misconduct. They concluded that she had repeatedly sought to blame other doctors for her failings and did not appear to have any insight into her conduct, or the impact that her conduct had on others (paragraph 38). The Panel acknowledged that her misconduct, insofar as it arose from poor standard of surgical skills, was capable of being remedied. In so concluding, the Panel took into account testimonial evidence provided by colleagues at the Heart of England Trust, at which the Appellant had worked subsequently to the matters forming the complaints. The Panel noted that the Appellant had been very closely supervised whilst at the Heart of England Trust. They went on to find: “At best your misconduct may have been partially remedied, but the Panel has borne in mind the gravity of the errors you made in 2010 and 2011, your refusal to accept that the mistakes were yours, your inability to reflect on and learn from the mistakes you have made and your propensity to blame others for your own failings. Moreover, you have not expressed any contrition or remorse for your conduct either in your documentary evidence or in your oral evidence during these proceedings. In these circumstances, the Panel cannot be confident that your misconduct has been remedied and that you would not repeat your misconduct in the future.” (paragraph 39)

[3]The Panel went on to note that dishonesty is “by its nature … difficult to remediate” and they had “received no evidence of remediation” (paragraph 40). They concluded that the Appellant’s “dishonesty has been persistent in nature and fell seriously below the standards of conduct that the public and patients are entitled to expect” (paragraph 41). In the circumstances, the Panel concluded that the Appellant remained: “a risk to patients and that public confidence in the profession would be undermined if a finding of impairment was not made. Accordingly the Panel has concluded that [the Appellant’s] fitness to practise is currently impaired.” (paragraph 42)

[4]Turning to sanction, the Panel considered the Appellant’s lack of insight and her attempts to blame others. They considered the public interest, the protection of patients and the maintenance of public confidence in the profession. The Panel considered the proper standards of conduct and behaviour within the medical profession as set out in the GMC’s Guidance “Good Medical Practice”. The Panel also applied the principle of proportionality, weighing the public interest against the Appellant’s interests. They recognised the purpose of sanctions is not punitive but protective.

[5]In the light of those considerations, the Panel considered the potential sanctions in order of escalating seriousness. Taking no action would be wholly inappropriate and insufficient. Undertakings would be inadequate and inappropriate, given the nature of their findings as to the Appellant’s “persistent refusal to take responsibility for [her failings] and [her] inability to learn from [her] mistakes”. The Panel also took into account the findings of dishonesty. The Panel considered that the imposition of conditions on the Appellant’s registration would not be sufficient, appropriate or proportionate in her case.

[6]The Panel went on to consider a period of suspension. They considered paragraph 75 of the GMC Guidance and in particular the guidance on breaches of probity. They concluded the Appellant’s:

“…persistent refusal to accept responsibility for the mistakes you made and your attempt to apportion blame to others demonstrates to this panel that you do have deep-seated personality or attitudinal problems.”

That formulation reflects the language of paragraph 75(e) of the Guidance. The Appellant’s consistent unwillingness to accept responsibility and her continued argument that she was not at fault, demonstrating her lack of insight, brought the Panel to determine that: “A period of suspension would be neither appropriate nor proportionate and would not be sufficient to maintain public confidence in the profession or to protect the reputation of the profession”.

[7]The Panel went on to consider erasure. On the question of erasure the Panel considered the relevant paragraphs of the GMC’s Indicative Sanctions Guidance of April 2009, as amended [“the ISG”]. The Panel had regard to paragraphs 109 and 111 of the ISG, which read:

“109. Examples of dishonesty in professional practice could include … failing to take reasonable steps to ensure that statements made in formal documents are accurate. … 111. Dishonesty, especially where persistent and/or covered up, is likely to result in erasure.”

[8]The Panel also had regard to paragraph 82 of the ISG, which they found relevant to the Appellant’s case:

“a. particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor. b. a reckless disregard for the principles set out in Good Medical Practice and/or patient safety. c. doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients. … h. dishonesty, especially where persistent and/or covered up. i. putting own interests before those of patients (see Good Medical Practice – “Make the care of your patient your first concern” on the inside cover … j. persistent lack of insight into seriousness of actions or consequences.”

[9]The Panel went on to make the following, final determination and conclusions, culminating in erasure:

“28. The Panel considers that your departures from the principles of Good Medical Practice and your subsequent misconduct and dishonest behaviour indicate that you are fundamentally incapable of working as a doctor. Throughout this hearing you have continued to assert that you were not at fault. You have shown an inflexible attitude as demonstrated by your refusal to ask for help and advice from colleagues, in particular senior consultant colleagues, when you were clearly out of your depth. Your patient notes were incomplete and inaccurate in some instances, which the Panel considers was an attempt to cover up your clinical failings. Furthermore, whilst the Panel accepts that you may have good theoretical knowledge of orthopaedic surgery, it appears that you may have exaggerated your clinical and surgical experience and ability. There were blatant failures in the surgical procedures you carried out. The Panel also has some doubts as to the number of procedures you claimed to have carried out previously. 29. In the Panel’s view you have put your career and own interests before those of your patients. Throughout these proceedings you have not expressed any contrition or remorse for your failings, which could have had catastrophic outcomes for your patients. It was not until you made your submissions on sanction that you offered an apparent apology for the adverse outcomes of your surgical procedures. Furthermore you have demonstrated a complete lack of insight into your clinical deficiencies. You failed to recognise your surgical limitations, you do not appear to have learnt from your mistakes or reflected on how your clinical errors have impacted on patient safety. 30. The Panel recognises that all doctors make mistakes, however most doctors who make mistakes are prepared to acknowledge and take responsibility for them. You appear to be totally unable to ever accept that you have made any mistakes in the cases before this Panel. That fact itself presents a particular danger to patients. 31. The Panel has made findings of dishonesty against you and it considers that your dishonesty was persistent. Furthermore, during these proceedings, the Panel has found that you lied on at least two occasions. The Panel is of the view that the public interest requires that it be made clear that your repeated dishonest behaviour is unacceptable and will not be tolerated. 32. The Panel has accepted the Legal Assessor’s advice and has considered whether the length of time that has elapsed since the events in question and the commencement of these proceedings could be a mitigating factor which justifies reducing the sanction. However, for all the reasons outlined above, the Panel has determined that your misconduct is fundamentally incompatible with your continuing to practise medicine. 33. Having taken account of all the evidence put before it, the Panel is satisfied that erasure is the only proportionate sanction in order to protect patients and the public interest, to uphold public confidence in the profession and to maintain the reputation of the profession. Accordingly, the Panel has determined to erase your name from the Medical Register.”

[10]I note that the hearing before the Medical Practitioners’ Tribunal Service occupied 26 hearing days between 9 March and 16 April 2015.

Developments since the Determinations

[11]The Appellant sought to appeal the Panel’s determination. The Respondents sought to strike out the appeal, an application which was dismissed by Cheema-Grubb J on 11 December 2015. Case management directions were given on that occasion and the appeal fixed for March 2016. The Appellant applied for an adjournment of the appeal and May J, by an order of 11 March, vacated the appeal date. Following other orders as to documents, the matter came before me.

Approach to the Appeal

[12]I have borne in mind the helpful summary of the proper approach to such an appeal set out by Sir Stephen Silber in Jayaprakash Gosalakkal v General Medical Council

[2015] EWHC 2445

(Admin) at paragraphs 12-14 as follows:

“12. Appeals under s. 40 of the Act are by way of re-hearing (CPR PD52D, paragraph 19). The Court will allow the appeal where the Panel's decision was: (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings before the Panel (CPR 52.11). 13. This Court can allow an appeal where the decision of the panel is wrong (CPR 52.11 (3) (a)). In the light of some of the submissions of the appellant, it is appropriate to set out some of the guidance given by the Court of Appeal as to how this court should deal with appeals from fact-finding bodies and, in particular, when this court can interfere with decisions of the Panel. 14. Those established principles are that: “(i) The court must have in mind and must give such weight as appropriate in the circumstances to the following factors– (a) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect; (b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and (c) The questions of primary and secondary facts and the over-all value judgement made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”

. Meadows v. GMC

[2007] QB 462

[197], per Auld LJ); (ii) “The Appeal Court conducting a review of the trial Judge's decision would not conclude the decision was wrong, simply because it is not the decision the Appeal Judge would have made had he or she been called on to make it in the court below. Something more is required than personal unease and something less than perversity has to be established… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible”. (Assicurazioni Generali SpA v. Arab Insurance Group

[2003] 1 WLR 577

[197], per Ward LJ); (iii) “The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow” (ibid); (iv) “First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon as assessment of the credibility of witnesses are virtually unassailable” (Southall v. GMC

[2010] EWCA Civ 407

[47], per Leveson LJ with whom Waller and Dyson LJJ agreed); and (v) “Since a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession rather than the administration of the retributive justice, particular force is given to the need to accord special respect to the judgment of the profession decision-making body in the shape of the Panel”. (Fatnani and Raschid v. GMC

[2007] EWCA Civ 46

[19], per Laws LJ).” “(i) The court must have in mind and must give such weight as appropriate in the circumstances to the following factors– (a) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect; (b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and (c) The questions of primary and secondary facts and the over-all value judgement made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers”. Meadows v. GMC

[19], per Laws LJ).”

The Parties’ Positions

[13]I have had available to me the extensive bundles provided by both the Appellant and by the Respondent. I have seen a sequence of full written submissions from the Appellant as follows: Grounds of Appeal 8 May 2016; Skeleton of Arguments 8 May 2016; Response to GMC Skeleton Argument and Addendum to Response Statement of 24 May 2016; Cross-References on Documents to support appeal hearing (29 May 2016); Appeal Personal Points of 6 June 2016. There was also submitted to me by the Respondent a Skeleton Argument of 13 March 2016.

[14]The Appellant represented herself in the appeal before me. Anticipating that she would be unrepresented, I set out to identify from her written documents the principal points which she sought to advance. I then invited her oral submissions under those heads. She made submissions throughout the morning of the appeal and into the afternoon, and then again for approximately an hour in reply to leading counsel for the Respondent. I asked the Appellant on a number of occasions to focus on why she said the Panel were wrong to reach a determination which she challenged. On more than one occasion, I asked the Appellant if there was anything she wished to add as to the points she sought to advance. Broadly speaking, I follow the sequence of points as we addressed them during the hearing.

[15]It is fair to say that the Appellant regards none of the determinations of the Panel as being fair or appropriate. She accepted in general terms before me that she has made some mistakes as a junior doctor might be expected to do. She rejects any allegation of dishonesty. She asserts that she was open to guidance and to fresh instruction at all times. She rejects the severity of the criticisms of her technical or surgical failings. She emphasised to the Court her commitment to her career, as witness her continued work after the events giving rise to the complaints, and her voluntary attendance at a number of courses over recent times, for which she has paid herself.

[16]It is also clear that she suggests the explanation for the complaints and for the Panel’s determination is bias, prejudice and malice on the part of those surgeons who raised complaints against her, and bias on the part of the GMC panel. She suggests that the bias in those cases arises from prejudice based on gender and race.

The Refusal of the Panel to Adjourn the Hearing

[17]At the outset of the hearing on 9 March 2015, the Appellant made, through counsel, an application to adjourn. She had submitted a written application for postponement on 4 March. The basis of the application was that if the matter proceeded, the Appellant would have to represent herself. It was submitted that a three month adjournment was appropriate. It was suggested that would allow the Appellant to obtain sufficient funds from sources in Nigeria to pay for legal representation. Funding by the Medical Protection Society had been withdrawn in September 2013.

[18]The Panel considered the application, balancing the public interest in promptness against the interests of the Appellant. The Panel noted that the hearing date had been fixed in October 2014 and a number of GMC witnesses scheduled for the hearing window of March and April. The Panel also noted the context that these allegations were by then a number of years old. The Panel also noted a lack of documentary evidence supporting the Appellant’s suggestion that she would achieve improved funding. The Panel were aware that many doctors represent themselves in such hearings. They were aware of the Appellant’s degree in law. For those reasons the Panel rejected the application.

[19]Before me, the Appellant’s primary criticism of this decision was that it meant her hearing was unfair, because she said she had not received the documentation for the Panel hearing until the day the hearing began on 9 March.

[20]It is correct that the final hearing bundles were delivered to the Appellant under cover of a letter dated 6 March 2015, these consisting of C1 – Witness Statement Bundle; C2 – Exhibit Bundle; C3 – Expert Report Bundle; and C4 – Medical Records Bundle. However, on 20 June 2014 the GMC had sent to the Appellant a letter (“the Rule 7 letter”) setting out the allegations formulated by the GMC for comment by the Appellant. Annex A to the letter detailed the draft particulars of allegations, in very similar terms to the allegations which were tried. Annex B consists of the list of documents and pagination of documents containing the material assembled in the hearing bundles. The documents were provided. Subject to one point as to allegedly missing x-rays, to which I will return, no complaint is made that the papers served in June 2014 upon which the GMC intended to rely omitted documents relied on in the hearing. On the same day the GMC wrote to the Appellant including additional material “not included in the original Rule 7 bundle as they do not support the particulars of allegation but are copied for your information should you wish to reference them in your response”. Copies of both bundles of documents were sent to Radcliffes LeBrasseur as well as to the Appellant.

[21]The Appellant’s complaint is that she did not have the hearing bundles in time to prepare for the hearing. However she does not challenge the fact that the relevant documents had been supplied some nine months earlier. I have also already noted that the hearing took up 26 days, proceeding at a very moderate pace, and an even longer hearing (of 30 days) was anticipated at the outset.

[22]I see no basis upon which it can properly be said that the Panel misdirected themselves or was “wrong” to refuse the late application for adjournment.

The Admission of the Evidence of Mr Christopher Rand, Deceased

[23]Mr Rand was an important witness. He was a senior consultant orthopaedic surgeon at the South London Healthcare Trust until retirement in March 2012. He gave important evidence relating to allegations 5, 6, 7, 8, 9, 10 and 11. His evidence was contained in a statement dated 2 April 2013. He was critical of the Appellant’s technical abilities as a surgeon, her treatment of Patients C, D and E, and in particular critical of her response to concern and criticism. Mr Rand had raised concerns about the Appellant with colleagues in the South London Trust in May 2011. At his instigation, a number of his colleagues and he had written to the Medical Director of the Trust. However, he died before the hearing.

[24]The GMC applied to the Panel that they should receive his witness statement on the basis of his knowledge and engagement, the significance of his evidence to the Tribunal’s considerations, the fact that he made the statement for the purpose of such proceedings, and following the approach laid down in the relevant sections of the Criminal Justice Act 2003.

[25]The Appellant opposed the application before the Panel, stating that it was simply unfair that evidence should be taken from a witness who was dead and whom she would be unable to cross-examine. In her Grounds of 8 May, she wrote this:

“I neither had the benefit of cross examining Mr Rand … and the Panel “refused” to accept my direct answers to Mr Rand’s witness statement, which they had adopted in totality against me. This was not only unfair, but also very harsh as it meant that I lost the chance to cross examine this witness, but my counter arguments to his witness statement, was denied and rejected by the Panel, yet I am still alive and living; and this is a matter that directly affects me. Even when in D21 document I added some of my response to Mr Rand’s witness statement, the Panel will not let me read this into the Transcript. Thus, although Mr Rand was dead as of January 2015, his witness statement was accepted in totality, but I was denied any chance to present a formal response to Mr Rand’s witness statement … I was practically “silenced” by the Panel.”

[26]It is of some interest that in the course of her response to the GMC’s application to strike out this appeal, heard before Cheema-Grubb J, the judge was told by the Appellant that she had been denied the opportunity to make representations to the Panel on the receipt and weight of this evidence. As Mr Jackson QC for the GMC pointed out, this was not so. The document prepared by the Appellant on this issue was submitted to the Panel and they indicated that they would read it. They declined to permit the Appellant to read it into the record orally. The document is 57 pages long and although not confined to Mr Rand’s evidence, addresses much of what he had to say in detail.

[27]Before me, the Appellant claimed that the Panel had indicated they would not read the submissions from the Appellant. Reading the transcript of 31 March, day 16 of the hearing, it is plain that the Panel said the opposite: they would read and consider the submissions made.

[28]I reject any criticism of the decision to admit the statement of Mr Rand as hearsay evidence. There is no basis for suggesting that the Panel did not consider the Appellant’s submissions in relation to that evidence or were not properly able to understand and accommodate the lack of cross-examination of the witness.

Bias by Mr Rand

[29]In her Grounds of 8 May (paragraph 28), her Skeleton of 8 May (page 18) and orally, the Appellant has attacked the good faith of Mr Rand, suggesting he was biased against her and that he “cajoled and rallied up” the other witnesses who were critical of her performance. The Appellant says that he took a different attitude to other registrar level doctors than he did to her, and that his different reaction was due to racism and sexism.

[30]Mr Rand was indeed highly critical of the quality of medicine provided by the Appellant. It was his evidence which addressed the procedure on Patient A on 22 December 2010, when he said she had ignored the patient’s anatomy and had just “burrowed straight down to the hip”. He was so critical of her surgery and of her failure to comprehend what she had done wrong, that he was very unhappy when she was appointed on the second occasion to the Trust in December 2011. As he put it in his witness statement (paragraph 26):

“although I had nothing against Dr Johnson-Ogbuneke personally, I had significant concerns about her operative ability, and more importantly, her lack of insight into her poor operative ability.”

He declined to have her operate on any of his patients, and he told her so directly.

[31]Mr Rand recorded the Appellant’s reaction. He said that she behaved in a manner which was “sarcastic and unhelpful” and that he found her manner “quite combative”. In early January 2011, Mr Rand said matters came to a head. “Dr Johnson-Ogbuneke seemed to take the view that I was discriminating against her on the grounds of race/sex/religion”. Mr Rand when on to state “I understood at the time that I would be vulnerable to accusations of discrimination if I banned her from operating, but I felt strongly that it was the correct action” (paragraph 31). Shortly afterwards the Appellant was removed from Mr Rand’s firm and was assigned to work for one of the other consultants, Mr Chatterton.

[32]Mr Rand took no further action in relation to the Appellant until just after she had left the Trust. He explained in his witness statement how, in early April 2011:

“I went to a trauma meeting and saw some of the junior doctors huddled around some x-ray images on the computer screen. They appeared to be quite animated. I went over to have a look and I saw the x-rays of a patient who I now know to be Patient E. This patient had undergone an ankle fixation by Dr Johnson-Ogbuneke on 31 March 2011. When I saw the x-rays I was speechless. The totality of the failure to fix this ankle was spectacular.”

[33]Mr Rand’s statement goes on to explain the background to this “trimalleolar ankle fracture dislocation”. It is not necessary for me to set out all of the details of the procedure. His view was not merely that the operation had failed to reduce and fix the fracture, but that the Appellant had made the injury worse, in two ways: firstly by opening up the fibular fracture, and secondly by opening up the distal tibiofibular joint. She had placed a screw in contact with the tendon behind the medial malleolus, and a screw into the joint space between the talus and the medial malleolus. In fixing the plate on the lateral side of the ankle there should be three screws above and three screws below the facture and the plate firmly fixed into the bone. In fact, the top of the plate was not on the bone and the screws above the fracture do not enter the bone. Mr Rand set this out, and concluded that “the lack of fixation is plainly obvious”. Mr Rand reviewed the operation notes, stimulated by the x-ray images. He found there was an extremely long tourniquet time, recorded by the Appellant at 2 hours 30 minutes, but by the anaesthetist at 2 hours 42 minutes. Mr Rand’s view was that routine practice means tourniquets are let down after two hours.

[34]As Mr Rand described it in his statement, Patient E was under the care of Mr Gill, another consultant. There were discussions between Messrs Rand, Gill and a third consultant, and all three came to the conclusion that the procedure needed revision as soon as possible. Mr Rand, in the following week, carried out the revision of the ankle. Following the revision, Mr Rand wrote to Patient E’s GP, stating that the first surgery, undertaken by the Appellant, had been “well below what might be called minimum acceptable standards”.

[35]In paragraph 51, Mr Rand described how Dr Alexis Thomas, the senior house officer who had assisted the original operation, came to see him as she was concerned about the original procedure. Mr Rand stated that “I recall that I reassured her that the Trust were taking the matter seriously and it was not just going to be ignored”. I asked her to prepare a letter to Mr Roger Smith, the medical director, about what had happened”. Dr Thomas subsequently did so, and she gave evidence to the Panel.

[36]Around the same time, Mr Rand recalled that he had seen an email sent by the Appellant to Mr Rao, who was the Clinical Lead orthopaedic consultant. This email was date 1 April 2011. In the course of it the Appellant appears to describe this operation as a “credit to me”.

[37]Following Mr Rand’s surgical revision of the ankle, he wrote a letter to Mr Roger Smith on 6 May criticising the Appellant’s surgery. He forwarded to Mr Smith a final report signed off by five other consultants in the hospital who were aware of the facts and acquainted with the Appellant, those being Messrs Chatterton, Edwards, Gill, McAllister and Franklin. All were subsequently witnesses. This letter was jointly signed (and dated 4 May) and repeats the criticisms of the fixation in the first operation, and of the extended tourniquet time. The group of consultants state “it is quite clear that there has been a total failure to achieve any of the aims of internal fixation”. They describe the operation as:

“a spectacular failure and goes against all principles of ankle fixation, however what compounds the situation with regards to Mrs Johnson-Ogbuneke as opposed to the patient is that in an email to Mr Rao and Mr Chatterton she states that she was pleased with her efforts on this difficult fracture and that it is a credit to her! This lack of insight and judgement as to her operative abilities makes her very dangerous.”

[38]In a further letter dealing with these matters of 29 March 2012, Mr Rand concluded as follows:

“In summary, it was my opinion that [the Appellant] was an intelligent lady with an excellent knowledge of orthopaedics and the orthopaedic literature and I am not at all surprised that she attained the Specialist Orthopaedic Fellowship from the Royal College of Surgeons in Ireland. However, it is her lack of technical ability in theatre rather than her knowledge that I question, more than that it is her complete lack of insight into her own limitations. Over the years I have had the privilege to work with many excellent trainees and it has been a real pleasure to be associated with them. However occasionally there have been those who are lazy, limited in their knowledge, lacking enthusiasm, or possess indifferent clinical judgement. Some we have been able to coax along until they have either reached the required standard or made their own decision that orthopaedics is not for them. Very occasionally there has been a trainee where I have to sit down and advise they are really not suited to be a surgeon, but GJO is the only orthopaedic doctor under my responsibility for whom I have had to take a formal action in over 20 years as a consultant. In summary her lack of technical ability is only matched by her lack of insight into her failings.”

[39]In their determination at paragraph 27, the Panel rejected any bias on the part of Mr Rand. They found Mr Rand’s “written evidence to be credible”.

[40]I can see no reason for criticising the Panel’s conclusions on this point. Like the Panel, I find the Appellant’s continued insistence on bias unimpressive. There was ample evidence before the Panel upon which they could exclude bias and conclude that there was a consensus supportive of the criticisms formulated by Mr Rand.

The GMC’s Expert Witness Mr Helm

[41]As is normal procedure, the GMC sought the advice of an independent expert, in this instance Mr Helm, consultant orthopaedic surgeon. He reported on all of the matters under investigation. Those reports were all provided to the Appellant. He was cross-examined by the Appellant at some length.

[42]In her Grounds of 8 May at pages 29 and 30, the Appellant makes two key criticisms of Mr Helm. She states that he was not qualified to give expert commentary on her surgery on the grounds that:

“he is a general orthopaedic surgeon with specialist interest in hand surgery. Mr Helm does not possess any specialist training in ankle trauma or management, in hip or elbow orthopaedic surgery.”

The Appellant went on to criticise the expert on the ground that:

“Mr Helm had confirmed that he did not have access to any patient’s clinical notes, to have assessed the allegations, and the clinical states of the patients, he under oath, withdrew the charges against me for patients A, B, C and D but the Panel still went ahead with all the charges.”

[43]The Appellant is simply wrong in both of the assertions she has made. When the Appellant cross-examined Mr Helm to suggest that he lacked the necessary expertise, he maintained that he did have the relevant expertise:

“I am a consultant orthopaedic surgeon. My special interest in elective surgery is hand surgery and upper limb surgery, but also I do the full on-call rota as well, so that means dealing with orthopaedic fractures and emergencies anywhere.”

[44]Very shortly thereafter, Mr Helm confirmed that he had looked at the clinical notes of each patient with which the Panel was concerned.

[45]Despite these answers (and the contents of the Skeleton Argument of the Respondent) the Appellant repeated both these criticisms orally before me. She asserted that Mr Helm had conceded he did not have the clinical notes for the patients. I asked her, initially during the sitting, and subsequently over the short adjournment, if she could find any reference in the transcript to such a concession by Mr Helm. She was quite unable to do so. She attempted to misconstrue a passage of the transcript to that effect, quite without sense or success.

[46]In the course of the preparation for the hearing I read the reports from Mr Helm. Mr Jackson took me to a number of passages in the reports for the purposes of comment. In my judgment they are plainly scrupulous and carefully constructed expert comments.

[47]It is noteworthy that the comments of Mr Helm in relation to patient E were particularly carefully expressed and calibrated. The failure to diagnose ulnar nerve lesion in the elbow of the child concerned, the failure to diagnose an epicondyle fracture, and whilst suspecting such a fracture, failure to seek senior guidance, were addressed by considered comment on the part of the expert. In my judgment the criticisms of Mr Helm’s expertise and methodology are without foundation. There is no basis for concluding that the Panel were wrong to rely upon his evidence in reaching their determinations.

Missing X-rays

[48]Patient G was a child with an elbow injury. He fell on the trampoline on 4 June 2011 and was seen the same day in casualty. Three days later he was seen by the Appellant in the orthopaedic department. As the determinations recite, the criticism here is that the Appellant failed to diagnose nerve injury or nerve compromise and failed either to diagnose a fracture of the humerus or to refer to a consultant for a more senior opinion.

[49]A specific criticism of the Panel advanced by the Appellant was that she was not given access to x-rays of the patient taken on 7 June. It is accepted that no such x-rays were produced in the hearing. The Appellant asserts that such x-rays were ordered by her. However, there is no record of such x-rays having been performed and no record of them having been ordered or assessed on the day by the Appellant.

[50]I have looked closely at the letter to the GP dictated by the Appellant on 7 June. It indicates that there existed x-rays from the casualty admission three days earlier and it indicates that, following anticipated review ten days hence, further x-rays should be obtained. The letter does not indicate that the Appellant had commissioned x-rays on 7 June. No such x-ray report has been found, nor is there any other reference to x-rays of that date.

[51]I conclude that it is highly probable no x-rays were commissioned by the Appellant on 7 June. There is certainly no basis for concluding that the Panel’s determinations were wrong by reference to missing x-rays of that date.

Inappropriate Evidence and/or Bias by Other Witnesses before the Panel

[52]Mr Oliver Donaldson is currently an orthopaedic “Shoulder Fellow” in Liverpool. In late August 2011, Mr Donaldson was a specialist registrar in trauma and orthopaedics at the Morriston Hospital in Swansea. The Appellant had no long-term posting there. Over 23 and 24 August 2011 Mr Donaldson was the registrar on the night shift and the Appellant was a locum senior house officer on the day shift. They did not work directly together. However, on 9 July 2013, Mr Donaldson signed a statement including criticisms of the Appellant’s work in 2011, for “an unacceptable number of omissions in what would be considered routine management for a newly admitted patient” incomplete at the point of handover to the night shift. Mr Donaldson’s statement suggested that a significant similar amount of work was “handed over” on the evening of 24 August. He reported further concerns to do with the Appellant’s attitudes and “an obvious lack of respect and heavy reliance on the nurse practitioner”.

[53]According to his statement, on the morning of 25 August 2011 Mr Donaldson had asked to speak to the Appellant privately and had highlighted his concerns. His statement continued:

“She was unable to accept my concerns, stating that her care of patients had been appropriate. I made prolonged attempts to convince her otherwise but she remained unwavering in her opinion of the care she gave patients. I therefore raised my concerns with the consultant on call …”

[54]It was this statement which provoked the letter from the Appellant to Mr Donaldson of 17 July 2013 giving rise to determinations 18(a)-(e) and 19(a)-(c).

[55]In her Grounds of Appeal of 8 May, the Appellant submits that it was wrong of the Panel to admit evidence from Mr Donaldson, on the ground that he was a doctor of similar seniority to her, since she had in the past achieved registrar status and he, too, was a registrar at the time. In oral submissions to me she argued that GMC Regulations only permitted assessments for future transfers and appointments to be made after working with a colleague for twelve weeks, whereas her acquaintance with Mr Donaldson was much shorter. She further suggested that Mr Donaldson had been unfair in his comments.

[56]In my view, there is absolutely nothing in this criticism. The evidence from Mr Donaldson did not depend upon his relative seniority, although in fact that was present at the time, given his position as a specialist registrar and hers as a locum senior house officer. His evidence was relevant to the letter she had written, not to matters of clinical judgement. In any event, it was perfectly open to the Panel to make an assessment of his evidence, even had they considered that the two were of equal medical status, and indeed even if some supposed rule of medical etiquette should have prevented comment such as that made by Mr Donaldson.

[57]The evidence of Professor Sir Keith Porter was relevant to determinations 2 and 3, namely the findings that the Appellant had left a fracture clinic without informing the relevant colleagues and that on one occasion she had failed to wear a lead apron in surgery. Sir Keith was the Clinical Service Lead for Trauma Services and the Professor of Clinical Traumatology at Birmingham. He was informed as to the x-ray gown episode by a consultant anaesthetist. In her written Grounds of 8 May and in oral submissions, the Appellant disputed that the (unidentified) consultant anaesthetist in question was a credible informant to Professor Porter. She wrote that: “I thus implore of the court to please revoke the decision on those charges as they lack credibility and were borne out of heresy (sic) and malice of the said consultant anaesthetist against me to Prof Porter”.

[58]I find these allegations to be without foundation. It is also in my view unarguable that the Panel were wrong to rely upon this evidence in reaching their determination. That is so not least because the Appellant agreed that she had not worn a lead apron on one occasion, seeking to justify that by saying it was acceptable practice not to do so in the case of a single x-ray exposure, provided she stood behind a colleague who was wearing such an apron.

Bias by the Tribunal

[59]On a number of occasions in her written and oral submissions, the Appellant accused the Tribunal of bias. She complained that she was given insufficient time and was “silenced”, that the Panel misread her evidence, and that Mr Jackson QC had been given ample time for his submissions by the Tribunal but she was not. She complained that she was prompted by the Panel to move on and that in almost every respect the Tribunal’s findings were overly hostile to her. It is not necessary for me to take each determination of the Panel separately in order to address these suggestions.

[60]There is in my view no evidence of bias, or of any improper handling of the Appellant in the course of the hearing. It was clear in the hearing before me that the Appellant’s submissions were diffuse, often repetitive and unfocussed. Making every allowance for the difficulties of a litigant in person faced with the end of her professional career, it appeared to me that the Appellant often advanced what she wished would be the case rather than the facts. She was poorly organised. Her assertions as to what had happened were not reliable, as the example of Mr Helm and his access to medical records makes plain. In any significant hearing, case management and some limitation on time is inevitable and appropriate. The hearing took 26 days. I also note that the Appellant has acquired a law degree, in addition to her medical and surgical training.

The Overall Findings of the Panel

[61]I have addressed the criticisms advanced by the Appellant. Although I note that she disagrees with almost all of the findings of the Panel, no purpose would be served by a discursive rehearsal of all those findings here. There is no substance to the points she has advanced. I see no other difficulties with the conclusions of fact reached by this specialist tribunal in the face of extensive factual evidence and expert opinion.

[62]I see nothing in the submissions, or all of the material placed before me, that would demonstrate the substantive determinations of the Panel were wrong.

Fitness to Practise and Erasure

[63]As I have indicated, some of the Appellant’s written and oral submissions were to the effect that these failures, if proved, nevertheless did not impugn her fitness to practise. I have already alluded to her work at the Heart of England Trust. The Appellant had also conducted a specific study through Southampton University of fractures of the posterior malleolus and had otherwise continued keeping her professional knowledge up to date. She had a number of references. She told me she was passionately attached to her profession and considered that she had a good deal to offer professionally. Such factors should have led the Panel to conclude that her fitness to practise was not impaired, or the very least to consider that a sanction short of erasure would be sufficient to meet the case.

[64]I reject these submissions. I must have well in mind the fact that the Panel had a specialist understanding of what the medical profession expects of its members in practice. The Panel saw this great volume of evidence and was able to assess the witnesses on behalf of the GMC very much better than I am able to do, looking at statements and transcripts. The overall value judgements made by the Panel are particularly deserving of respect, in an appeal such as this.

[65]I find no basis for concluding that this Panel’s findings as to fitness to practise and sanction were in any sense unreasonable or misguided, given the evidence before them. Even if I were not to accord them “special respect”, on the facts of this case I would conclude that their decisions were appropriate. Indeed, the course of the hearing before me tended to support the conclusion that the Appellant has fixed ideas, lacks insight and remains unable to comprehend her own failings.

[66]For all these reasons this appeal fails.

[67]At the conclusion of the hearing, Mr Jackson applied for the costs of the GMC if he succeeded. I gave permission to the Appellant to submit written representations as to why costs should not follow the event if she lost, and/or as to why the amount of costs claimed should be reduced. I will give a further short written conclusion on costs when I am in possession of those submissions.