Dr Ashish Dutta v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 01 February 2013 |
| Neutral Citation | [2013] EWHC 132 (Admin) |
| Docket Number | Case No: CO/11483/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 February 2013 |
2013 EWHC 132 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester M3 3FX
Mr Justice Haddon-cave
Case No: CO/11483/2012
Ms Mary O'Rourke QC (instructed by Eastwoods Solicitors) for the Appellant
Mr Ivan Hare (instructed by GMC Legal) for the Respondent
Hearing date: 12/12/2012
INTRODUCTION
This appeal raises issues concerning what doctors may and may not do whilst suspended from the medical register.
The Appellant ("Dr Dutta") is a doctor. The Respondent ("GMC") is the regulator for doctors under the Medical Act 1983 and the body responsible for the Fitness to Practise Panel ("FPP") and the Interim Orders Panel ("IOP") of the Medical Practitioners Tribunal Service.
This is an appeal under section 40 of the Medical Act 1983 by Dr Dutta against a decision of the FPP made on 28 th September 2012 ordering his immediate suspension from the medical register for 12 months upon findings of misconduct and impairment of his fitness to practice.
THE FACTS
Aesthetic Beauty Clinic
Dr Dutta together with his wife, Wendy Dutta, a nurse, operated a cosmetic surgery business called Aesthetic Beauty Clinic. The business was operated at two premises, in Newcastle and Sunderland.
Patient AS
On 2 nd September 2009, a woman (who will be referred to in this judgment as "Patient AS") attended Aesthetic Beauty Clinic in Newcastle with a view to undergoing cosmetic surgery to her breasts. She was seen by Dr Dutta, who examined her and referred her to a surgeon in London, Mr Aslam, for breast augmentation surgery.
IOP suspension — 18th September 2009
On 18 th September 2009, Dr Dutta appeared before the IOP. Dr Dutta was charged with misconduct involving the presentation of monthly requisitions to pharmacists for ampoules of morphine, diamorphine and pethidine. There was evidence that Dr Dutta had self-injected pethidine whilst at work. The hearing took place at the time of an investigation by the Police Controlled Drugs Inspector and NHS Counter Fraud. Dr Dutta was suspended from the Performers' List by his Primary Care Trust. The IOP decided to suspend Dr Dutta's registration for 18 months from the date of its decision. Dr Dutta did not challenge the IOP's decision.
The GMC's letter dated 18 th September 2009 notifying Dr Dutta of the IOP's decision suspending him for 18 months stated:
"This means that, amongst other things, it is not open to you to hold any appointment as a medical practitioner for which registration with the GMC is required while your registration is subject to an order for interim suspension. In addition, the other privileges of registration set out in the Medical Act 1983 (as amended) are also not open to you whilst your registration is suspended. You should not undertake activities, such as prescribing or signing statutory certificates whilst you are suspended. It is your responsibility to check (with the GMC) the appropriateness and legality of any activity proposed whilst your registration is suspended."
Patient AS — September 2009 to March 2010
Despite his suspension on 26 th September 2009, Dr Dutta nevertheless saw Patient AS again. He did so at a joint consultation with Mr Aslam. On 30 th January 2010, Dr Dutta was also present at Patient AS's breast operation performed by Mr Aslam. Patient AS signed a consent form before the operation naming Dr Dutta as "Responsible health professional". The Post-Operative Notes filled in by Dr Aslam read "RV by Dr Dutta 1/52", i.e. indicating that Dr Dutta would carry out a post-operative review after a week. On 2 nd March 2010, Patient AS attended Aesthetic Beauty Clinic with post-operative problems. Her surgical wounds were weeping and not healing properly. She was seen by Dr Dutta. On 10 th March 2010, Patient AS again attended The Aesthetic Beauty Clinic with continued post-operative problems. She was again seen by Dr Dutta who referred her to Mr Aslam.
Suspension lifted — 14th March 2010
On 14 th March 2010, the IOP carried out a six month review and decided to lift Dr Dutta's suspension.
On 21 st March 2010, Mr Aslam re-operated on Patient AS. Mr Aslam recorded in his notes on that day: "Been regularly seen by Dr Dutta and dressed. Has had a course of antibiotics." On 25 th April 2010, Mr Aslam re-sutured Patient AS. On 8 th May 2010, Dr Dutta re-operated on Patient AS removing the original 800 cc breast implants and re-inserting 625 cc polyurethane implants under local anesthetic. The stitches began to split again and one of the wounds leaked fluid. On 10 th May 2012 Dr Dutta inserted a drain. On 17 th May 2010, Dr Dutta referred Patient AS to another surgeon, Mr Erdmann. Mr Erdmann advised the immediate removal of the drain and the left implant. This was done by Dr Dutta on 19 th May 2010.Dr Dutta checked her stitches on 21 st May 2010.Patient AS was then transferred to the care of Mr Erdmann who took a wound swab which revealed staphylococcus aureus. In December 2010, Patient AS underwent reconstructive surgery to both breasts by Mr Erdmann.
Patient AS subsequently complained to the GMC about her treatment by Dr Dutta and Mr Aslam.
Dr Dutta charged by GMC — 9th May 2012
On 9 th May 2012 Dr Dutta was charged by the GMC with 11 disciplinary offences relating to the care and treatment of Patient AS. The charges read as follows:
"1. Whilst suspended by the Interim Orders Panel between 18 September 2009 and 15 March 2010 you provided clinical care and treatment to Patient AS.
a. This was in breach of your IOP order,
b. Not in the best interests of AS.
2. In providing clinical care to Patient AS you failed to warn her of the risk of the insertion of 800 cc implants;
3. Following the operation on 30 January 2010 you failed to arrange for Patient AS to be seen expeditiously by Mr A in view of post operative complications;
4. In providing clinical care to Patient AS you did not
a. Attempt to identify the underlying cause of the breast wound,
b. Ensure that Patient AS was seen expeditiously by Mr A in view of post operative complications following the second operation on 21 March 2010.
5. On 26 and 28 April 2010 you reviewed Patient AS when you attempted to re-suture her wounds despite a first attempt failing;
6. On 2 May 2010 you inappropriately advised Patient AS to have further implants inserted;
7. On 8 May 2010 you inappropriately inserted 625 cc implants into each breast;
8. You failed to expeditiously refer Patient AS to another suitable qualified surgeon for a second opinion;
9. On 10 May 2010 you inserted a drain subjecting Patient AS to a heightened risk of infection;
10. You did not have the appropriate surgical qualifications to conduct the procedures on 8 May and 10 May 2010;
11. You inappropriately referred to yourself as a 'consultant cosmetic surgeon'.
and that by reason of the matters set out above your fitness to practise is impaired because of your misconduct."
Hearing before FPP
The matter came before the FPP which held a nine-day hearing between 18 th June and 28 th September 2012. Dr Dutta was present at the FPP hearing and was represented throughout by Counsel, Mr Martin Forde QC. The GMC was represented by Miss Zoe Johnson QC. Both Dr Dutta and Patient AS gave evidence and were cross-examined by Counsel.
Dr Dutta admitted working at Aesthetic Beauty Clinic and seeing Patient AS on a number of occasions during his period of suspension. He admitted Charges 5, 6, 7 and 8. He denied the remaining charges, and in particular Charge 1. He argued through Counsel that merely looking at Patient's AS post-operative wound, and passing on information about it to Dr Aslam, was de minimis.
FPP's decision and letter of 1st October 2012
The FPP found Charges 1, 3, 4, 5, 6, 7, 8 and 9 proved and Dr Dutta's fitness to practise impaired and suspended his registration for a further period of 12 months. The present appeal solely concerns the FPP's finding that Charge 1 of the charges was proved. The FPP's findings in relation to the other seven charges are not appealed.
On 1 st October 2012, the FPP wrote to Dr Dutta confirming its findings and reasons in a letter headed 'Outcome of Fitness to Practice Hearing' letter of 1 st October 2012. The FPP found Charge 1 proved against Dr Dutta "in its entirety". The FPP held that Dr Dutta had seen Patient AS at his clinic on a number of occasions during the period of his suspension, including 2 nd and 10 th March 2010, and had provided "clinical care and treatment" to her connected with her post-operative after-care. In so holding, the FPP dismissed Dr Dutta's attack on the credibility of Patient AS whose evidence it found to be truthful. In contrast, the FPP said Dr Dutta had put forward a "disingenuous smokescreen" and presented an "unreliable" version of events "knowing the gravity of practising in breach of [his] suspension order". The FPP held: "The Panel considers that, in any encounter between her and you, she would have regarded you as the doctor responsible for her care. You allowed this misapprehension to remain". The FPP held that it was satisfied that Dr Dutta "held [himself] out as a doctor providing clinical care and treatment to Patient AS" during his suspension period. The FPP observed that section 41A(11) of the Medical Act 1983 provided that a practitioner whose registration is suspended by the IOP "shall be treated as not being registered in the register notwithstanding that his name still appears in the register". For these...
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