Dr Jonathan Richard Ashton v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 19 April 2013 |
| Neutral Citation | [2013] EWHC 943 (Admin) |
| Docket Number | Case No: CO/13492/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 April 2013 |
[2013] EWHC 943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Rolls Building
7 Rolls Building
Fetter Lane
London
EC4A 1NL
The Honourable Mr Justice Stuart-Smith
Case No: CO/13492/2012
Clodagh Bradley (instructed by DAC Beachcroft LLP) for the Appellant
Ivan Hare (instructed by GMC Legal) for the Respondent
Hearing dates: 18 March 2013
Introduction
The Appellant, Dr Ashton, challenges the decisions of the Fitness to Practise Panel of the GMC on 8 November 2012 that he was guilty of misconduct and that his fitness to practice was impaired and on 20 November 2012 that he should be suspended for 6 months and should be suspended with immediate effect.
These proceedings were issued on 14 December 2012. Until the morning of the hearing they were constituted as an appeal under s. 40 of the Medical Act 1983 ["the Act"]. The GMC's power to impose the sanction of immediate suspension derives from s. 38(1) of the Act and must be challenged by an application for termination of the GMC's order pursuant to s. 38(8) of the Act and not by an appeal under s. 40. On the morning of the hearing Dr Ashton issued an application under s. 38(8). The application was granted, thus giving the Court jurisdiction to deal with the real matters in issue between the parties. The reasons why no application was issued until the morning of the hearing are the subject of a separate judgment and need not be referred to further here, save to repeat the cautionary observation that it should not be assumed that the Court will grant permission for the late issuing of an application under s. 38(8) should similar circumstances be repeated.
The Applicable Principles
The test to be applied by the Court in relation to both the appeal under s. 40 and the application under s. 38 is the same: the Court is required to consider the decisions of the relevant committee of the GMC and to decide if it was wrong. If it was, the Court is to substitute its own decision for that of the committee. However, the court should not interfere unless persuaded that a decision, whether in respect of a finding of misconduct or of sanction was wrong: see Silver v GMC [2003] UKPC 33 at [22–23], and Meadow v GMC [2007] QB 462 at [69] per Sir Anthony Clarke MR, [119] and [125] per Auld LJ, and [282] per Thorpe LJ.
When considering the issue of misconduct within the meaning of s. 35C(2)(a) of the Act, it is well established that "mere negligence" is not sufficient. What must be proved against a doctor is conduct that "would be regarded as deplorable by fellow practitioners" or would amount to an "elementary and grievous failure": see Meadow at [200], and Preiss v GDC [2001] 1 WLR 1296 at [28]. It is also well established that a single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending on the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct": see Calhaem v GMC [2007] EWHC 2606 at [29].
The leading authority on the Court's approach when considering a finding of misconduct or impairment is also Meadow. At [197], Auld LJ said:
"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) 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 deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."
The principles to be adopted when the Court considers the question of sanction were considered in Fatnani and Raschid v GMC [2007] 1 WLR 1460. At [17–18] Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said:
"17 The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517–519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.' Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case."
At [26] Laws LJ reiterated the need to give sufficient recognition "to the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal."
I will return to these principles when considering the submissions made in support of and opposition to the various heads of challenge advanced by Dr Ashton.
The Factual Background
Dr Ashton is a registered medical practitioner who, at the relevant time, practised as a general practitioner. Since then he has ceased practice as a GP and, after a period practising emergency medicine in a hospital, most recently has been employed carrying out cosmetic surgical procedures. In July 2009 he had been in practice as a GP for more than 30 years without any previous complaint having been made about his conduct or competence. His registration is, however, already subject to conditions imposed on health grounds relating to the consumption of alcohol.
The present complaint related to Dr Ashton's treatment of a patient who is to be referred to as Patient A. Patient A was a long standing patient of Dr Ashton's and Dr Ashton was always familiar with his past medical history.
It was recorded in Patient A's notes that in December 2008 a radiologist's report had given the opinion:
"Soft tissue node at proximal aspect of pancreatic tail anteriorly of uncertain significance. Lymph node and ectopic pancreatic tissue should be considered. However malignancy cannot be excluded. Referral to Mr Wayman/Mr Raimes and further discussion in upper GI MDT is recommended. Copies: Mr J Wayman CIC, Mr S Raimes CIC JD 12/12/08"
Dr Ashton entered in Patient A's notes "Patient given advice. Will be referred to surgeons as advised" although there was no further note as to whom the reference would be made.
Patient A was seen by another doctor, Dr Wigmore, on 23 June 2009 who recorded that:
"Tiredness symptoms had blackish motions few times; settled now no pain; no indigestion; adbo nad … fob x 3."
Dr Ashton saw Patient A again on 3 July 2009. At this stage it is sufficient to rehearse the facts relating to that consultation and Dr Ashton's subsequent actions as determined by the Fitness to Practise Panel on 8 July 2012 which were as follows:
"You saw patient A on 3 July 2009, recording that he had low haemoglobin, no GIT symptoms and that Faecal Occult Blood test results were awaited. The results of those tests were positive and on 16 July 2009 you made a routine referral of Patient A to the gastroenterologists. The Panel accepts Dr Archard's 1 evidence that the letter of referral was good, and notes also that it included relevant information, including Dr. Wigmore's observations, and attached a list of patient A's current medication."
The referral letter was reviewed by a specialist on receipt. The referral was not upgraded to be urgent, as could have been done. As a result, Patient A attended for colonoscopy and gastroscopy on 18 September 2009. The investigations carried out that day showed that he had advanced disseminated adenocarcinoma of the proximal stomach with jaundice. There were extensive liver metastases; these had not been present at the time of the scan in December 2008. The carcinoma was inoperable and
caused the death of Patient A shortly afterwards, on 21 October 2009. It was not suggested that the death of Patient A was causally related to Dr Ashton's referral on 16 July 2009 being marked routine rather than urgent; nor was it established that Dr Ashton should have sent his referral before 16 July 2009. The only criticism that is relevant to the present proceedings was that, when he sent the referral on 16 July 2009, Dr Ashton should have marked it as being urgent and not as being routine.As a result of a complaint by Patient A's son, Dr Ashton came to...
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