“Depending on the size of the exomphalos, the infant may need to have it repaired in one operation or in several stages. If the exomphalos is small and the child is stable, they may have an operation soon after transfer, where the surgeon replaces the contents back inside the abdomen and closes up the base of the umbilical cord. If the exomphalos is larger, contains the liver and/or the child needs to be stabilised, doctors may place a silo or pouch over the intestines, which is closed over a period of days to weeks, to allow the child to grow so that there is room inside the abdomen.”
“Although, I maintain that the primary closure for patient A was the incorrect decision, considering the size of the defect and the size of the baby, but an even greater negligence by Mr E Towuaghantse happened during the post-operative period. Even if the closure was a tight closure, for which there is no doubt that it was, had Mr E Towuaghantse listened to what all the other clinicians were telling him or if he had assessed and considered all possibilities for patient A’s post-operative condition and had opened the abdomen in the intensive care unit or by bringing him back to the operating theatre within the first 3 to 4 hour period following closure, patient A’s viscera would probably have survived, with some damage. In other words the lack of reasonable post-operative management was even more relevant in this case and proper action taken at that stage would have negated an earlier wrong action taken by Mr E Towuaghantse. Even if the tribunal decides that the decision to primarily close patient A’s abdomen was not seriously below what is expected of a reasonably competent consultant paediatric surgeon, although I still believe it was, there is absolutely no defence for Mr E Towuaghantse to not have opened Patient A’s abdomen in a timely manner, to avoid continuing damage to his viscera and organs. There were clear unremitting, non-defensible signs of increased intra-abdominal pressure, which no reasonably trained consultant paediatric surgeon will deny or attribute to lack of fluids.”
“[The panel] is satisfied that these allegations of professional misconduct, if proven, are serious matters which may pose a real risk to patients and could adversely affect public confidence in the profession. It considered that a reasonably and properly informed member of the public would be surprised if Dr Towuaghantse was permitted to return to practise without restriction at this time. After balancing Dr Towuaghantse’s interests and the interests of the public, an interim order remains necessary to guard against such a risk. Whilst the panel notes that the order has restricted Dr Towuaghantse’s ability to practise medicine it is satisfied that the order imposed is the proportionate response. The panel considers that an interim order of conditions will protect the public and the wider public interest whilst permitting him to continue in clinical practice. The panel considers that an order of conditions remains proportionate, appropriate and workable and will manage the risks identified concerning his management of this rare congenital anomaly.”
“In reaching its decision, the Tribunal has borne in mind the serious concerns raised in relation to Dr Towuaghantse’s management, care and treatment of Patient A, a new born baby, who subsequently died. The Tribunal has noted that this case involves a single clinical incident, involving the uncommon condition of exomphalos major, which took place over 4.5 years ago. It has noted that no similar or other clinical concerns have been raised either before or since the alleged incident. Furthermore, the Tribunal has noted that Dr Towuaghantse has been working in a non-consultant grade post for some time, with no concerns raised, and has stated he does not intend to seek or undertake paediatric surgical posts in the future. In all the circumstances the Tribunal considers that there is no information before it today to suggest that Dr Towuaghantse may pose any real current risk to patient safety. Furthermore, while the Tribunal has noted both the Coroner's narrative conclusion and the GMC expert report, it considers that given the long passage of time with no additional concerns raised, a reasonable and well informed member of the public would not be surprised to learn that Dr Towuaghantse had been permitted to remain in unrestricted clinical work pending the conclusion of the GMC investigation. The Tribunal has therefore determined to place no order on Dr Towuaghantse’s registration.” registration.”
“Having listened to Mr Towuaghantse’s submissions and evidence, the Tribunal concluded there is little evidence to suggest that he has come to a full understanding and acceptance of what caused the tragic outcome insofar as Patient A was concerned. In particular, Mr Towuaghantse failed to accept any of the Coroner’s findings. He sought to blame others for what had occurred. That was the case even at the impairment stage in his assertion that his efforts at remediation were thwarted by other staff at the RVI not wishing to work with him. In the judgment of the Tribunal, his expressions of regret and his admission that there were errors fall very far short of what would be required to demonstrate insight in the circumstances of this case. The Tribunal determined that Mr Towuaghantse’s insight is limited at best.”
“Whilst it has found that there is an ongoing risk to patient safety, it also considered that the gravity of the misconduct is such that erasure would remain the appropriate sanction even if there was no ongoing risk to patient safety. In this respect, the Tribunal also had regard to paragraph 108 of the SG which provides that: 108. Erasure may be appropriate even where the doctor does not present a risk to patient safety, but where this action is necessary to maintain public confidence in the profession. For example, if a doctor has shown a blatant disregard for the safeguards designed to protect members of the public and maintain high standards within the profession that is incompatible with continued registration as a doctor.”
“It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognized exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant.”
“As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ("the trial judge"), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.”
“Not only the evidence, but also the determination and findings, at an inquest may be helpful in civil proceedings. Importantly, the inquest findings and conclusion are not binding on any other court and cannot be relied upon to establish liability in a civil claim … the evidence heard at the inquest, and the findings and conclusion, may be of interest and assistance in relation to disciplinary or fitness to practise proceedings, or to other investigations.”
“[The GMC] is not required to conduct itself as a court. Its members may usefully bear in mind the language of Lord Loreburn LC in Board of Education v. Rice[1911] AC 179 , 182, where, dealing with the decision of an administrative body the Lord Chancellor said that ‘they must act in good faith and fairly listen to both sides, for that is the duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial … They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.’”
“43. There is not so great a divide between Hoyle v Rogers and Spackman and the more recent disciplinary cases where the issues, parties and evidence are different. The present case however is not one in which a particular relevant issue was decided in proceedings to which the registrant was a represented party, as arose in Spackman. The crucial point about the role of the disciplinary tribunal is that it should be the decision maker on the issues and evidence before it; it should not adopt the decision of another body, even of several judges, as a substitute for reaching its own decision on the evidence before it, on the different issues before it. None of that precludes the GMC under its Fitness to Practice Rules considering the judgments in a case in which evidence later at issue before the GMC was given. But they are not relevant for the purposes of substituting one judgment for the other, because it is the FTPP's statutory duty to decide the issues before it. The issues before it are not those which were before the courts, and the evidence and parties are also different. It may also be unfair for the judgments to be a significant influence on the mind of the tribunal on the crucial issues before it for those same reasons. Constantinides strikes an important note of warning. 44. But the purpose of admitting the judgments here is not to substitute one judgment, or several, for the judgment of the FTPP or even to treat those judgments as rebuttable prima facie evidence of the correctness of the allegations which the FTPP is to decide. The avowed basis for their admission may not go as far as perhaps it could have done in the authority of Spackman. To the extent that the judgments were taken as prima facie proof of any fact relied on, they would be rebuttable, and would have to be weighed against the evidence called by Dr Squier. 45. It is not unfair for the judgments to be admitted, for the same reasons. The FTPP must find for itself the facts necessary to reach a conclusion on the quality of the expert evidence given by Dr Squier in the light of the allegations as to its shortcomings, and the evidence before the FTPP. The FTPP should be very careful to avoid any actual or inferred findings of the judges on the quality of Dr Squier's evidence being used as evidence of the truth of the allegations, because that risks substituting another body for its functions. And its task is not that of the judges in those cases; the issues crucially are different, as are the parties and the evidence which it will have to consider. 46. The balance struck by the FTPP between the probative value of the judgments and any prejudicial effect is reasonable. The material is potentially relevant and the judgments here are clearly not peripheral. Moreover the specific findings have been redacted so there is less of it available to require Dr Squier to devote time and energy to dealing with findings as opposed to focussing on the quality or otherwise of her evidence, to which the allegations relate. That has also reduced the prospect of the judgments being used for an irrelevant or unfair purpose. It is less likely, if not impossible, for the findings on the matters of importance for the FTPP's own task to be resolved by the judgments. Although the fact that Dr Squier was not a party meant that she could not necessarily deal with criticisms in the court proceedings, and some were clearly put to her, she can deal with them before the FTPP. 47. The proof of whether the judgments are in reality irrelevant or used for an irrelevant purpose will be shown by the FTPP's ultimate decision on the allegations. It is not for this court and not for a court now at this stage to anticipate that possibly irrelevant or unfair use might be made of the judgments, and to rule that the FTPP decision on admissibility is therefore wrong in law. The purpose for which its admission is sought is neither irrelevant nor to make unfair use of it. The opportunity for irrelevant or unfair use is markedly reduced by the redactions. Dr Squier still has the opportunity to say that any particular passage or finding of fact would be unfair and to seek to have it removed. That is an opportunity she has not yet taken up. It is by no means an inevitability or even the likely outcome of the admission of the evidence that irrelevant or unfair use would be made of it. But if it is, the decision will be appealable on that ground. 48. I do not accept the submission that the admission of the judgments would reverse the burden of proof. The judgments, as redacted, do not include findings on the allegations which it is for the FTPP to decide. They provide background, context and proof of what I would expect to be often non-contentious matters. The FTPP has to find the allegation proved by the GMC on the evidence that the scope and content of Dr Squier's expert evidence was below the standard required of an expert; the allegations are not that the evidence was wrong, or rejected by the judges. Dr Squier can explain how she would have dealt with any aspects seen as critical in the judgments, but they are not the focus of the case and the redactions have essentially been sufficient to prevent that or at least to prevent it in any significant degree. It is inevitable that the FTPP will know or infer, whatever happens, that her evidence was not accepted and that there were criticisms of its quality.”
“The Tribunal considered the question of conflict and determined, without hesitation, that there was no conflict of interest in Mr Alizai’s case. Having heard his evidence, read his various reports and considered the case in the generality, there is nothing to support the proposition that he was affected by bias, whether real or apparent.”
“The Respondent omitted the antenatal notes for Patient A from the material placed before the Tribunal. The notes were essential for the Tribunal’s understanding of the discussions between Patient A’s parents and the paediatric surgeon Mr Lall, and decisions made prior to Patient A’s delivery. (The Appellant was working as a locum, employed for six months to replace Mr Lall.) When the Appellant produced two documents (from images on his mobile phone, and which he had obtained at the time of the inquest into the death) from antenatal clinic appointments with Mr Lall, the GMC obtained antenatal records, but which were incomplete. There was no letter to the GP to reflect the discussions at those appointments. The absence of this letter was a significant handicap to the Appellant, who was accused of failing to discuss the case with the parents. Earlier discussions with the parents, conducted by Mr Lall, were important in any consideration of the Appellant’s alleged failings and the seriousness of them.”
"The purpose of FTP 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."
"The Sanctions Guidance contains very useful guidance to help provide consistency in approach and outcome in MPTs and should always be consulted by them but, at the end of the day, it is no more than that, non-statutory guidance, the relevance and application of which will always depend on the precise circumstances of the particular case."
“Their Lordships find the inclusion in the charge of allegations that Dr Misra gave information he knew to be untrue rather puzzling. The substantive allegations against Dr Misra were that he had been informed of each of the four telephone calls and requests for home visits. Dr Misra had admitted being informed of only two of them. So there was a substantive issue as to whether he had been informed of the other two. If he were to maintain his denial at the hearing and be believed that would be an end of the issue. If his denial were to be disbelieved then the Committee would have to consider his conduct regarding Mrs Berryman on the footing that he had received four requests to visit her but had failed to do so and on the footing also that he had lied on oath about two of the telephone calls. What the GMC's point was in adding to the charge first an allegation that he had earlier told the same lie to Mr Berryman and secondly that the lie had been repeated in his solicitor's letter to the GMC is not clear. Their Lordships enquired of Mr Greene, counsel for the GMC, whether it was a general GMC practice where charges of professional misconduct were being made to add to the factual allegations on which the charges were based an allegation of dishonesty in the event that the respondent doctor had had the temerity to deny any of the factual allegations. Counsel told their Lordships that it was not the general practice and that he was not aware of a previous case where that had been done. No explanation of why it was thought right to add the allegations of dishonesty in the present case was offered. In their Lordships' opinion the addition of the allegations of dishonesty in the present case was unnecessary and oppressive. The allegations added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him.”
“Ms Amao was perfectly entitled to say that she did not accept the findings of the panel: she had a right of appeal which she was entitled to exercise. In all the circumstances it was thoroughly inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied that she would be acting improperly if she did not "accept the findings of your regulator".”
“The implausible, incredible and inconsistent explanations provided on oath to the Tribunal were plainly relevant to Dr Awan's insight into his misconduct and the risk of repetition and yet the Tribunal failed to refer to this matter in its determination on impairment and then to reflect this aggravating factor in its determination on sanction.” 67.I rejected this ground of appeal. At [37] I held: “ I think that it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined.”
“…the "risk" is not an actual risk to the child but a risk that the judge has got it wrong. We are all fallible human beings, very capable of getting things wrong.”