Dr Jayaprakash Gosalakkal v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 19 August 2015 |
| Neutral Citation | [2015] EWHC 2445 (Admin) |
| Docket Number | Case Number CO/3881/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 August 2015 |
[2015] EWHC 2445 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Stephen Silber
Sitting as a Judge of the High Court
Case Number CO/3881/2014
Al Mustakim instructed directly by the Appellant
Ivan Hare (instructed by General Medical Council) for the Respondent
Hearing date: 22 nd July 2015
Further Written Submissions served on 24 th and 28 th July 2015
Introduction
Dr Jayaprakash Gosalakkal ("the appellant") appeals under s. 40 of the Medical Act 1983 1 ("the Act") from a decision of the Fitness to Practise Panel ("the Panel") given on 25 July 2014 directing that the appellant's registration be suspended for six months. The Respondent ("the GMC") is responsible for decisions of the Panel.
The appellant had been employed by University Hospitals of Leicester NHS Trust ("the Trust") as a Consultant Paediatric Neurologist at Leicester Royal Infirmary ("UHL") between January 2002 and October 2011. He was the lead clinician for paediatric neurology and he had played a key role in establishing the Video Telemetry Unit at UHL.
The appellant was referred to the GMC by Dr Kevin Harris, the Medical Director of the Trust, on 27 January 2011, as he had identified concerns over the appellant's patient care, communication with other members of his team and his failure to engage with the Trust's attempts to investigate complaints against him. Following a wide-ranging investigation, the GMC referred the appellant to the Panel and a large number of charges were brought against the appellant.
The Panel Hearing
The Panel hearing took place over a total of 43 days between 18 November 2013 and 12 December 2013, and between 23 June and 25 July 2014, during which the Panel heard live evidence from a total of 15 witnesses on behalf of the GMC. It also heard evidence over six days from the appellant himself. The Panel acceded to a submission of no case to answer in relation to head of charge 7(a), and it also found a large number of the heads of charge not proven. It is unnecessary to consider those heads any further.
The Panel found as a matter of fact the following charges proven, namely that the appellant:
i) in March 2009 did not provide good clinical care to Patient D, in that he (a) failed to recognise that the staffing needed to provide safe telemetry was inadequate (head of charge 5(e) ("The safe telemetry charge"));
ii) failed to keep legible clinical notes and/or provide a typed clinic letter in respect of Patient D (head of charge 5(f));
iii) did not cooperate with investigations undertaken and/or commissioned by the Trust, in that he did not: (a) attend meetings on 29 or 31 March 2010, and 19 or 23 April 2010 that the Trust investigators had invited him to (head of charge 6(a)); (b) attend meetings on 31 January 2011 and 7 February 2011 to which he
had been invited by the Trust to discuss the NICHE review (commissioned by the Trust to inquire into the quality of care in the Paediatric Directorate) (head of charge 6(b)); (c) attend a meeting with Dr King of Edgecumbe Health to discuss her report (into relations between clinicians working in the children's hospital and Paediatric Neurology) (head of charge 6(d)); and that heiv) did not communicate appropriately with the parents of a patient in an email dated 7 February 2011 ("the email"), in which he: (a) asserted that a "group of paediatricians" were carrying out a campaign against him (head of charge 8(a)); (b) asked the parents to write to the Trust requesting to see him (head of charge 8(b)); and (c) asked the parents not to tell the Trust that they had received an e-mail from him (head of charge 8(c)). I will refer to these allegations in charge 8 collectively as "the email charges".
After finding those allegations were proven, the Panel proceeded to find that the safe telemetry charge and that the email charges amounted to serious misconduct. It is only these charges which are the subject of the present appeal and I need not, and indeed will not, deal with the other charges.
The safe telemetry charge related to the staffing levels at UHL during video telemetry and the need for monitoring. Video telemetry is a process in which a patient is videoed whilst having the electrical activity in their brain monitored by electroencephalography ("EEG"). At UHL, the patient's anti-epilepsy medication was withdrawn to induce seizures, which could then be monitored. Unfortunately, a child, Patient D, had a seizure and died whilst undergoing the drug withdrawal programme, but it is not suggested that the appellant was responsible for Patient D's death. The appellant was the Lead Clinician for Paediatric Neurology at UHL and the co-author of the "Drug withdrawal and admission protocol for paediatric video telemetry" used in the Video Telemetry Unit ("the Protocol"). The Protocol bore the appellant's name and no other name. The case against the appellant on the safe telemetry charge was based on criticism of the Protocol, which stated that:
"Nurses in charge at station are requested to monitor as much as possible."
The email charge was based on an email sent by the appellant which states that:
"A group of paediatricians have been carrying out a campaign against me and the trust carried out various investigations most of which beased [sic] on falsehoods. They are now trying to prevent me from working at UHL. I would request you write stating your support to
Malcolm.Lowe-Laurie@uhl-tr.nhs.uk
and Kevin.Harris@uhl-tr.nhs.uk
ASAP
Kindly describe how I have treated your son and ask when you can see me next. Please do not say you got this from me
Dr Jay"
It was sent following a telephone call received by the appellant excluding him from the Trust. After determining that the safe telemetry charge and the email charges were proven and amounted to serious misconduct, the Panel then proceeded to conclude that the appellant's fitness to practise was impaired as a result of his misconduct.
The Panel then considered what the appropriate sanction was and it applied the GMC's Indicative Sanctions Guidance ("ISG") working up from no sanction and balancing the doctor's interests against those of the public. As I have explained, the Panel determined that the appropriate sanction was to suspend the appellant's registration for a period of six months.
The appellant challenges the Panel's determinations on its findings first, of serious misconduct on each of those two charges, second, of impairment of fitness to practice and third in relation to the sanction imposed.
The Approach of an Appeal Court to a Decision of the Panel
Appeals under s. 40 of the Act are by way of re-hearing (CPR PD52D, paragraph 19). The Court will allow the appeal where the Panel's decision was: (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings before the Panel ( CPR 52.11).
This Court can allow an appeal where the decision of the panel is wrong ( CPR 52.11 (3) (a)). In the light of some of the submissions of the appellant, it is appropriate to set out some of the guidance given by the Court of Appeal as to how this court should deal with appeals from fact-finding bodies and, in particular, when this court can interfere with decisions of the Panel.
Those established principles are that:
"(i) The court must have in mind and must give such weight as appropriate in the circumstances to the following factors —
(a) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
(b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and
(c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers". Meadows v. GMC [2007] QB 462 [197], per Auld LJ);
(ii) "The Appeal Court conducting a review of the trial Judge's decision would not conclude the decision was wrong simply because it is not the decision the Appeal Judge would have made had he or she been called on to make it in the court below. Something more is required than personal unease and something less than perversity has to be established… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible". ( Assicurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 [197], per Ward LJ);
(iii) "The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow" (ibid);
(iv) "First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon as assessment of the credibility of witnesses are virtually unassailable" ( Southall v. GMC [2010] EWCA Civ 407 [47], per Leveson LJ with whom Waller and Dyson LJJ agreed); and
(v) "Since a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession rather than the administration...
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