Cases against the medical profession: an extended review by Marina Wheeler QC

18 June 2021 by Marina Wheeler QC

During the pandemic, the public’s gratitude to the medical profession has been palpable. But rightly, practitioners continue to be regulated, supervised by the Courts. Here we report a clutch of decisions highlighting some common themes: the importance of transparency and maintaining public confidence in the profession; managing conflicts of interest; making and handling findings of dishonesty. 

In R (on the application of Young) v General Medical Council [2021] EWHC 534 (Admin), the Administrative Court upheld the decision of a GMC Assistant Registrar (AR) to proceed with charges against the Claimant notwithstanding a previous Assistant Registrar had taken a contrary view. 

The events giving rise to the case were tragic. In October 1996 Claire Roberts, age 9, died at the Royal Belfast Hospital for Sick Children two days after admission. Her death wasn’t referred to the Coroner and the certificate failed to record the diagnosis – hyponatraemia, a condition where sodium in the blood falls dangerously low, leading to cerebral oedema.

In late 2004, a public inquiry was convened following a documentary about the deaths of three other children from hyponatraemia, which prompted Claire’s parents to contact the hospital. The Claimant – Professor of Medicine at Queen’s University, Belfast – was asked to review Claire’s clinical notes and met with Mr and Mrs Roberts in December 2004. A letter to them followed in January 2005 to which he contributed. In May 2006 he gave evidence at the inquest convened to investigate Claire’s death. 

The Inquiry’s Report, published in January 2018 heavily criticised Claire’s treating consultants and accused them of covering-up failures in treatment. The Claimant also faced criticism for not acknowledging to Claire’s parents “the very many failings in care” despite his view that monitoring hadn’t been sufficiently frequent given the severity of her condition.  This “lack of openness” also tainted the January 2005 letter, described in the Report as “inaccurate, evasive, and unreliable” and misleading assertions were repeated to the Coroner. The Report concluded that the Claimant had “shifted from his initial independent role …  to one of protecting the hospital and its doctors”. The criticisms led to two charges of professional misconduct. 

In November 2018, an Assistant Registrar (AR1) considered the five-year limitation period in Rule 4(5) of the GMC (Fitness to Practise) Rules 2004 and decided that the public interest in investigating “these concerns” was insufficient to justify waiving it. “Countervailing considerations” included the large lapse of time, an assessed low risk to the public given the absence of any “fitness to practice history” (ie prior misconduct) and the Claimant’s skills, knowledge and professional achievements. On being informed of the GMC’s decision to take no further action, Mr Roberts sought its review. 

On review, the second Assistant Registrar (AR2) found AR1’s decision to be materially flawed within the meaning of Rule 12(2)(a). She took a fresh decision, “waiving” the five-year limitation period and adding an additional charge.

The Claimant unsuccessfully challenged this decision by way of judicial review. The Court held that AR1’s decision was materially flawed. Simply put, he had misread the Inquiry Report and misunderstood the nature and gravity of the criticisms levelled against the Claimant. He wrongly thought the main criticism was a failure to review the accuracy of sections of the January 2005 letter which fell outside the Claimant’s specialist expertise. This overlooked serious criticism of matters omitted from the letter and from other communications with Claire’s parents. Indeed, the decision missed the key point: the Claimant’s absence of candour in circumstances where the duty had special importance, namely when providing information to the family of a patient who has died while undergoing treatment in a hospital. The allegation the Claimant faced was “of deliberately misleading the family of a deceased child and a Coroner in relation to cause of death”. 

Granted, said the Court, the purpose of the 2004 Rules is to protect doctors. But regard must also be had to the overarching objectives of the GMC: to protect the public, ensure proper professional standards, and promote and maintain public confidence in the medical profession (emphasis added). These were very serious matters “going to heart of public’s confidence in the profession”. AR1 had “failed to appreciate the significance of the alleged lack of candour … and if substantiated, its effect on maintaining public confidence in the profession”. 

In Haris v General Medical Council [2021] EWCA civ 763, the Court of Appeal upheld a decision that a sexual motivation was the only rational conclusion to draw from a Medical Practitioners Tribunal (MPT)’s finding that a GP had performed non-clinically indicated, intimate examinations without consent. 

Before the MPT, Dr Haris denied that incidents described by two female patients had occurred, but the MPT found that they did. The “examinations”, performed without gloves, bore a striking similarity. The MPT found that they could “reasonably be perceived as overtly sexual” but ruled that the GMC had not proved that the conduct was sexually motivated. In doing so, it appeared to rely on evidence that Dr Haris suffered from Asperger’s syndrome and had no interest in sexual matters, despite an acceptance in cross-examination that this diagnosis was not inconsistent with having sexual urges and did not mean he was incapable of having a sexual motivation for his behaviour.  

The GMC appealed successfully to the High Court under s.40A of the Medical Act 1983. The GP in turn appealed, unsuccessfully. Before dismissing the appeal, the Court confirmed Foster J had correctly identified the following principles:  

• the appellate court may interfere with an evaluative decision (as here) if there is an error of principle or if the decision fell outside the bounds of what an adjudicative body could properly and reasonably decide: Baba-Garba v GMC [2019]; and

• the court will be especially cautious about upsetting conclusions of primary fact which depend on an assessment of the credibility of witnesses, but it is under less of a disadvantage when the question is what inferences are to be drawn from specific facts (as here): GMC v Jagjivan [2017].

The Court of Appeal upheld Foster J’s finding that the reasoning of the MPT was muddled and flawed. “This was not a case”, the Court observed, “which turned on who bore the burden of proof. The only question was whether it was more likely than not that that the doctor’s actions were sexually motivated”. It explained,

[T]he best evidence as to motivation was the behaviour itself: it was not just capable of being perceived as overtly sexual it was overtly sexual… In the absence of a plausible explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not.

In fact, the Court concluded “that that inference was overwhelming.”  

Other features of the case, beyond the GP’s behaviour, properly gave rise to inferences which the MPT failed to consider. The GP’s defence, the Court said, was of “obvious significance”.  He did not advance a clinical justification or argue the touching was accidental. He denied any intimate touching and said they had made up the allegations. Accusing these women of lying plainly affected the question of motive and the GP’s professed lack of interest in sex. The “obvious inference” from false denial was that he knew there was no innocent explanation for what he had done.  

In Bux v General Medical Council [2021] EWHC 762 Mostyn J. upheld the decision of a MPT to direct the appellant’s erasure from the medical register after finding he had written sub-standard, non-CPR-complaint medico-legal reports for a solicitors’ firm where his wife was a salaried partner. 

The appellant wrote reports (described by the Court as “superficial” and “unanalytical”) in support of claims brought by AMS Solicitors against travel companies on behalf of clients who alleged they had suffered food poisoning on holiday. The defendants passed the claims to their insurers who generally paid out the small level of damages sought. The Claimant produced the reports “on an industrial scale” but eventually complaints reached the GMC about his failure to disclose a connection with AMC Solicitors and the poor quality of the reports. This led to his erasure and subsequent appeal. 

The central ground of appeal alleged there was no conflict of interest, the issue having been decided by a preliminary-issue judgment in a County Court claim where the appellant acted as an expert witness. The Court rejected this. The preliminary issue judgment was admissible in inquisitorial regulatory proceedings pursuant to r.34(1) of the 2004 Rules, said the Court, but plainly it was not binding. Furthermore, whilst the Judge’s finding on conflict may not have been a model of clarity, he clearly found a real risk of a conflict and ruled the appellant’s report inadmissible. 

In dismissing the appeal, the Court noted that the duty of an expert witness to give an objective, unbiased opinion carried with it an obligation to disclose any actual or potential conflicts of interest. A conflict, said the Court, will arise when an expert witness’s opinions are either (1) actually influenced or (2) capable of being influenced by his personal interests. The existence of a conflict doesn’t necessarily disqualify an expert or render his evidence inadmissible or of no weight. But the court must be made aware of the conflict as soon as possible, to enable it and the other parties to assess its implications. There is a high duty of candid disclosure on an expert witness, as justice must not only be done but be seen to be done.

The MPT had additional evidence of misconduct which the County Court Judge hadn’t seen. Challenged by an insurer to explain his connection to AMS Solicitors, the appellant gave what the Court described as a “seriously inaccurate answer”, claiming the MDU had assured him he was following regulatory guidelines when, in fact, it had warned him of the possible adverse consequences of failing to declare his connection. This dishonesty, the Court stated, irrespective of the decisions on other charges, would have justified the sanction of erasure. As it was, in light of all the evidence, the Court considered it would have been “perverse and wrong to find anything other than appellant had an actual, serious conflict of interest”. 

In Gupta v Northampton Hospital Trust [2021] EWHC 965 (QB) the High Court dismissed a consultant oncologist’s challenge to his suspension pending the outcome of investigations into misconduct allegations, applying the three-limb American Cyanamid test for granting interim injunctions:

1. Is there a serious issue to be tried?
2. Would damages be an adequate remedy?
3. Does the balance of convenience favour granting an injunction?  

The Claimant was employed at Northampton General Hospital and also undertook private work at various locations. In early 2020, it was suggested he was promoting private services to patients attending his NHS clinic and that he had received large sums for additional duty hours that were not authorised. At the end of the year, the wife of a patient (GG) on an end-of-life pathway disclosed that the Claimant had been billing her husband privately for short, weekly telephone calls of no clinical value. The Defendant’s Medical Director initiated an investigation under the Trust’s Medical Staff Concerns Policy but did not initially exclude the Claimant. 

According to the Medical Director, concerns mounted over the following weeks about other patients and as evidence from GG’s family emerged. These matters, together with a concern that the Claimant may have been seeking to interfere with the investigation by contacting GG’s wife and asking if they had put in a complaint against him, led to the decision to exclude the Claimant. 

The Claimant applied for an interim injunction with orders directing his reinstatement and seeking to prevent the Defendant from contacting or sharing information with the Claimant’s private work providers, relying on Article 1 of the First Protocol to the European Convention on Human Rights (AP1).   

It was common ground that damages wouldn’t provide an adequate remedy given the impact of exclusion on the consultant Claimant’s professional reputation.  

However, the claim fell at the first hurdle. The Court was not satisfied that there was serious issue to be tried. The allegations were very serious and the available evidence was cogent. It was not just a dispute about charges and potentially defrauding the Defendant. There were safeguarding concerns, amounting to an allegation of financially abusing a terminally ill patient. Further, the decision to exclude was taken cautiously and in a considered way. The Defendant was required to keep the exclusion under review and given the approach to date, there was no reason to think this wouldn’t be done. 

The Court accepted the Defendant’s submission that following Braganza v BP Shipping Ltd [2015] an unjustified interference with the Claimant’s private practice would be a breach of the implied term of trust and confidence. Accordingly, the AP1 claim added nothing to the contractual position. The Court also rejected the claimed prohibition on informing other organisations. It noted the Medical Director’s evidence that although the Trust’s policy did not address this specifically, requirements to notify others had strengthened after the Paterson Inquiry and he felt under an obligation to do so. The Court accepted the proposition that “transparency is important in the medical context and the sharing of information, provided it is done in good faith, is to be encouraged.” It found, on this point too, that the Defendant had acted rationally and in good faith so there was no serious issue to be tried. Accordingly the claim was refused.