Cheatle v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 27 March 2009 |
| Neutral Citation | [2009] EWHC 645 (Admin) |
| Docket Number | Case No: CO/5215/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 March 2009 |
[2009] EWHC 645 (Admin)
Mr Justice Cranston
Case No: CO/5215/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Francis QC and Dennis Matthews (instructed by Radcliffes Le Brasseur) for the Appellant
Mark Shaw QC (instructed by GMC Legal) for the Respondent
Hearing dates: 21–23 January 2009
This is an appeal from a Fitness to Practise Panel of the General Medical Council ("the GMC"), which held that the fitness to practise of Mr. Timothy Cheatle was impaired and directed that his registration be suspended for a period of 10 months. The criticisms made of Mr. Cheatle related to the treatment of a patient, Mrs Mildred Swain, in April 2002. (Mrs Swain is called "Patient A" in the Notice of Inquiry). Anonymity was waived on the first day of the hearing. The appeal is in respect of (a) findings of fact made by the Panel; (b) the Panel's decision that Mr. Cheatle's fitness to practise is impaired; and (c) the decision to impose a sanction of suspension for a period of 10 months. A case against a staff grade surgeon also involved in the care of Mrs Swain, Mr. Choudhury, was heard by the Fitness to Practise Panel at the same time as the case against Mr. Cheatle. There is no appeal on Mr Choudhury's part.
Background
The appellant in this case, Mr Timothy Cheatle, is a consultant in general and vascular surgery. Mr Cheatle completed his training at Norfolk and Norwich Hospital in 1996 and was a consultant there. In October 1999 he moved as a consultant in general and vascular surgery to Old Church Hospital in Romford. Although based at Old Church Hospital, his NHS duties took him to two other hospitals, Brentwood Community Hospital and Harold Wood Hospital. Old Church Hospital has since closed and has been replaced by Queen's Hospital, Romford. There was another consultant general and vascular surgeon at these hospitals, Mr Choudhury. The in-patients of Mr Cheatle and Mr Choudhury at Old Church Hospital were spread around the hospital. In addition the two surgeons visited the wards to see patients in respect of whom their opinion had been sought. Mr Cheatle and Mr Choudhury were assisted by two specialist registrars, two senior house officers and two house officers.
The patient in the case was a Mrs Swain. She suffered from a number of health problems and was being treated by doctors at Old Church Hospital and its associated units. The problems included vascular disease. Following Mr. Cheatle's arrival at Old Church Hospital, Mrs Swain was first seen in his clinic in December 1999 and subsequently, as the disease progressed, by him and other members of his team. A non-surgical approach was adopted initially but Mrs Swain's condition deteriorated. By late 2001 and early 2002 she was experiencing considerable pain in her legs. In addition to receiving treatment from medical practitioners, she was also seen by a podiatrist. On one occasion at least her case was discussed at a multi-disciplinary team meeting.
In the light of Mrs Swain's deteriorating condition, at an out-patient appointment in early February 2002 Mr. Cheatle offered surgery to bypass the blocked artery in her thigh. On the 26 th February 2002 Mrs Swain attended a pre-operative assessment clinic where she was seen by a house officer, Dr. Abigail Waterfall. On 1 st April 2002 she was admitted to Old Church Hospital for surgery, which Mr. Cheatle performed the following day. During the weeks leading up to the operation Mrs Swain continued to be seen by the podiatrist and district nurses.
The blocked artery was bypassed using an artificial graft made of polyetrafluoroethene. The operation is commonly known as a fem pop bypass graft. Post-operatively all went well initially. On the 9 th April 2002 Dr. Waterfall noticed a wound infection. She prescribed an antibiotic (Flucloxacillin) and took a wound swab. On the 10 th April 2002 Mrs Swain was seen by the specialist registrar. On the 11 th April 2002 Mr. Cheatle saw her. He added Penicillin V to the antibiotic regime. The result of the wound swab was not then available. Mrs Swain was thereafter seen by junior and middle grade doctors and was discharged on the 16 th April 2002. The result of the wound swab became available on the 12 th April 2002. This indicated that the infection was unlikely to be sensitive to Flucloxacillin or Penicillin V but the antibiotic regime remained unchanged.
District nurses cared for Mrs Swain following her discharge. On the 22 nd April one of them spoke to Mr. Cheatle's secretary to obtain an early outpatient appointment for her. On the 23 rd April 2002 Mrs Swain was re-admitted to Old Church Hospital since that day she had suddenly developed a wound haematoma. Mrs Swain was seen by a succession of three doctors in the Accident and Emergency Department. It was initially thought that an operation should be performed that day. By the time the third and more senior doctor, Mr. Kullar, saw her, the bleeding had stopped. His plan was to admit Mrs Swain to hospital and he discussed her case with Mr. Cheatle over the telephone. Mr. Cheatle proposed that a Duplex scan be performed the following day and that Mrs Swain should be reviewed the following morning.
It is almost certainly the case that Mrs Swain's graft was infected and that the joint between the graft and the artery had consequently leaked, a serious complication. Mrs Swain was admitted to the ward under the care of the on-call consultant surgeon and was seen by him and his team the following morning. The plan was to transfer her care to Mr. Cheatle's team. Mr. Cheatle did a ward round on the 24th April 2002. As he arrived on the ward Mrs Swain was being taken for her scan. He spoke to Mrs Swain and one of her daughters, Mrs Milton, as she was being wheeled from the ward. He did not see her on the ward that day, nor did any member of his team. At about 11.10pm on the 24th April 2002 Mrs Swain started to bleed profusely from the wound. She was seen and treated by a registrar, a senior house officer and at least one senior nurse. Mr. Cheatle was not informed.
On the 25th April 2002 Mr. Cheatle was operating. Mrs Swain was seen by one of his specialist registrars. Mr. Cheatle did not know of Mrs Swain's condition or what had transpired the previous evening. On the 26th April 2002 Mrs Swain was seen again by the specialist registrar on a ward round. Mr. Cheatle still did not know of her condition. At about 10.00pm on the 26th April 2002 further bleeding occurred. Dr. Waterfall attended initially and subsequently other doctors did so, including a specialist registrar. The latter concluded that Mrs Swain needed to be taken to theatre to have the artery clamped and telephoned Mr. Cheatle, who was at home, to confirm this. By this time, however, it was too late to save her. Tragically Mrs Swain died at 12.54am on the 27th April 2002.
In 2003 there was a coronial enquiry into Mrs Swain's death. Eventually, on the 26 th March 2007 the General Medical Council sent Mr Cheatle a Notice of Hearing of an allegation that his fitness to practise was impaired as a result of the failures it identified in relation to the treatment and care of Mrs Swain. A Fitness to Practise Panel heard the allegation against Mr Cheatle (and Mr Choudhury) over 16 days from the 30 th April 2007. The Fitness to Practise Panel comprised five members and had the assistance of a legal assessor. The majority of the five members were laypersons, two being magistrates. The two medically qualified members were a part-time consultant gastroenterologist and a fellow of the Royal College of Surgeons. I return to their findings later in the judgment.
THE LAW
(a) Fitness to Practise Panels of the General Medical Council
The current fitness to practise procedures — introduced as a result of amendments in 2002 to the Medical Act 1983 ("the 1983 Act") — are divided into two main stages. The first is investigation, overseen by the Investigation Committee; the second, adjudication, entrusted to Fitness to Practise Panels. Part V of the 1983 Act provides for the Investigation Committee to investigate allegations that a medical practitioner's fitness to practise is impaired (section 35C). A Fitness to Practise Panel is then able to make a direction for the erasure, suspension or conditional registration of a medical practitioner whose fitness to practise it finds is impaired (section 35D). On 31 May 2008 the civil standard of proof was introduced for fitness to practise Panels for fact finding. Previously, and in this case, the criminal standard applied. An Investigation Committee or a Fitness to Practise Panel is able to issue a warning to a practitioner regarding his future conduct or performance (sections 35C (6) and 35D (3) respectively). Section 44A provides for the effect on registration of a conviction or disqualification.
Paragraph 1 of schedule 4 to the Act empowers the GMC, with Privy Council approval, to make rules governing the procedure to be followed by Fitness to Practise Panels. The applicable rules are the General Medical Council (Fitness to Practise) Rules 2004 ("the Rules"). Rule 17 requires Panels to make three sequential decisions: (1) on findings of fact (rule 17(2)(i)); (2) on whether fitness to practise is impaired (rule 17(2)(k)); and (3) on any sanction to be imposed (rule 17(2)(n)).
(b) Appeals from a Fitness to Practise Panel
The appeal to this court from a Fitness to Practise Panel is under section 40 of the 1983 Act. Section 40...
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