Cohen v General Medical Council
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWHC 581 (Admin) |
| Docket Number | Case No: CO/10135/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 March 2008 |
[2008] EWHC 581 (Admin)
Mr Justice Silber
Case No: CO/10135/2006
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Angus Moon QC (instructed by Nabarros) for the Appellant
Catherine Callaghan (instructed by GMC Legal) for the Respondents
Hearing dates: 29 February 2008 Further written submissions served on 8 and 12 March 2008
The Honourable Mr Justice Silber :
Introduction
1. Dr Ronald Jack Cohen (“the appellant”), who is a consultant anaesthetist, appeals against the decision of the General Medical Council's (“the respondents”) Fitness to Practice Panel (“the Panel”) on 4 November 2006 to impose conditions on his registration under section 35D(2) (c) of the Medical Act 1983, as amended (“the Act”).
2. The precise findings of the Panel, which are the subject of this appeal, are that:
(1) the Appellant's actions and failings were of a standard significantly below that which was to be expected of a medical practitioner (“the factual findings”);
(2) the Appellant's fitness to practise was impaired (“the fitness to practice findings”);and that
(3) it was appropriate to impose conditions on the Appellant's registration (“the sanctions findings”).
3. Each of these three findings was made at a different stage of the hearing as I will explain in paragraphs 15 to 18 and 47 to 48 below. Pending the imposition of a sanction, the Panel also imposed an interim suspension order on the appellant which has now expired with the consequence that the outstanding appeal against it has become academic. For that reason it is not being pursued.
II The facts
4. The complaint which led to the appellant's appearance before the Panel was made by Mr B who underwent surgery for suspected cancer of the colon on 19 November 2004 at the London Clinic, which is a private hospital. The appellant was the anaesthetist, who was responsible for anaesthetising Mr B in the course of that surgery.
5. The appellant had been appointed a Consultant Anaesthetist in 1980, but from 1994, he has practised only in the private sector. Apart from Mr B's case, the appellant was of good character with no other previous adverse findings made against him by the respondents. As I will explain, there were many references extolling the skills and expertise of the appellant. Mr. Angus Moon QC, counsel for the appellant, told me that a complaint has very recently been made to the respondents about the appellant but it is not known what action (if any) the respondents will take in relation to it. Both Mr. Moon and Miss Catherine Callaghan, counsel for the respondents, sensibly and correctly in my view agreed that I should not attach any importance to this complaint and I will not do so.
6. Mr B had suffered a cerebro-vascular incident (“CVI”) in about September 2004. He had also suffered a radical prostatectomy for prostate cancer and a transient cerebral ischemia (stroke) in 2000, an episode of atrial filbration (a disturbance of the heart rhythm) and longstanding hypertension (high blood pressure). Mr. B was also moderately obese, a moderate to heavy drinker and had been previously a heavy smoker.
7. Prior to the operation on 19 November 2004, the appellant had been provided with a number of Mr B's medical records including a partially legible preliminary discharge summary from the Leicestershire Royal Infirmary dated 11 October 1984. The legible part of that summary referred to Mr B's CVI stating the main diagnosis was “stroke”. In the light of this history, the appellant rated Mr B as high risk, categorising him 9 out of 10 on a scale of risk.
8. On the evening of 18 November 2004, the appellant met Mr B, together with members of Mr B's family, to discuss the anaesthetic aspects of the operation, which was scheduled for the next day. During this consultation, the appellant did not discuss Mr B's previous CVI with Mr B as the appellant did not want to raise further concerns in the patient prior to the planned major surgery. The appellant carried out a “passive” neurological examination of Mr B, which involved first observing Mr B as he spoke to the appellant, second noting that Mr B could stand and walk a few steps towards the appellant, and third shaking Mr B's hand.
9.The Panel found that:
a. the appellant did not carry out a neurological examination of Mr. B (including a discussion with him to assess the presence of any residuary neurological signs of the recent CVI);
b. Mr B should instead have been advised of the potential risks of suffering a further CVI;
c. the appellant should have made a note of the pre-operative consultation with Mr. B; and that
d. the appellant should be criticised for these omissions in the pre-operative stage.
10. The appellant admitted all the facts alleged against him in relation to the pre-operative consultation in the course of the hearing before the Panel, save for the allegation that he had failed to carry out a neurological examination of Mr B to assess the presence of residual neurological symptoms associated with the recent CVI.
11. The appellant also admitted that he did not keep an appropriate record of the procedures undertaken in the anaesthetic room prior to the operation the next day. As to the notes of what occurred within the operating theatre itself, equipment readings were printed out at the end of the operation but these had subsequently been lost. No criticism of the appellant was made of the fact that these records had been lost, but no print-outs could be made of the pre-operative procedures, which had taken place in the anaesthetic room. The appellant accepted in evidence that it was incumbent on him to keep a record of the anaesthetic procedures undertaken, the drugs administered and Mr. B's physiological signs in the anaesthetic room but that he had failed to do so.
12. During the operation which lasted for 2 1/2 hours, Mr. B's condition was stable throughout and monitors recorded various physiological parameters. The appellant accepted in evidence that his manual anaesthetic records were wholly inadequate and that these deficiencies had the potential to put the patient at risk.
13. Mr B remained under the appellant's care until 24 November 2004. During the time when Mr B was in the appellant's care, the appellant was made aware from the nursing and clinical notes that there was a weakness in Mr B's left leg, a complaint of a change post-operatively, of increased weakness in Mr B's left arm and a recurrent requirement to reduce Mr B's high blood pressure. Some of these symptoms would according to Dr Rollin, the expert anaesthetist called by the respondents, have indicated that Mr. B had suffered a further stroke. The appellant denied that he had been made aware of Mr B's belief that he had suffered a further stroke. He did, however, admit during cross-examination that Mrs. B had expressed concerns to him that her husband had suffered a stroke either during or after the operation. The Panel, however, found that the appellant had failed to pay appropriate attention to Mrs B's concerns as they must have emanated from Mr.B, who would have been likely to have been aware of the symptoms as he had suffered a stroke about two months previously. The Panel found that the appellant did not conduct an examination of Mr B to assess any changed neurological symptoms or to arrange for assessment by another medical practitioner with appropriate expertise. It was accepted by the respondents that Mr. B did not suffer a further stroke during or after the operation.
14. Save in respect of relatively minor respects, the appellant admitted the facts which I have set out. On the subject of the post-operative neurological examination, there were issues first about whether the appellant had been made aware of Mr. B's belief that he (Mr. B) had suffered a further CVI and second about whether the appellant had paid appropriate attention to Mr B's concerns. These issues were resolved against the appellant. It was however, no part of the respondents' case that Mr. B had in fact suffered a further CVI during the operation or post-operatively. The Panel found, contrary to the appellant's case, that the appellant's actions were first inappropriate, second unprofessional, third of a standard significantly below that expected of a registered medical practitioner and fourth not in Mr B's best interests.
III The Procedure to be followed by the Panel
15. The procedure, which has to be adopted by the Panel, is set out in Rule 17 of The General Medical Council (Fitness to Practice) Rules Order of Council 2004 ( SI 2004 No 2608) (“the rules”) and it provides, in so far as is material with my comments in ordinary print and in square brackets, that:
… [This is the start of Stage 1]
(c) the person acting as secretary to the FTP Panel shall read out the allegation, and the alleged facts upon which it is based;
(d) the Chairman of the FTP Panel shall inquire whether the practitioner wishes to make any admissions;
(e) where facts have been admitted, the Chairman of the FTP Panel shall announce that such facts have been found proved;
(f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it;
(g)the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be...
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