Dr. Julie Margaret Mallon V. The General Medical Council
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Johnston,Lord Marnoch |
| Neutral Citation | [2007] CSIH 17 |
| Court | Court of Session |
| Published date | 09 March 2007 |
| Year | 2007 |
| Docket Number | XA100/05 |
| Date | 09 March 2007 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Johnston Lord Marnoch | [2007] CSIH 17 XA100/05 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in the APPEAL by DR JULIE MARGARET MALLON Appellant; against THE GENERAL MEDICAL COUNCIL Respondent: _______ |
For the appellant: Cullen QC, McGregor; Shepherd & Wedderburn
For the respondent: McAuley QC, Dunlop; Anderson Strathern
9 March 2007
Introduction
[1] This is an appeal under section 40 of the Medical Act 1983, as amended, against a decision of the respondent's Fitness to Practice Panel (Professional Conduct) (the Panel) dated 15 September 2005.
[2] The appellant is a general practitioner. Since 1997 she has been in practice at the Central Health Centre, Cumbernauld (the Centre). On 19 August 2002 at about 4.15 pm child A was brought to the Centre by his mother and her sister. He was in the course of an asthmatic attack. The appellant treated him. Immediately before he arrived she knew that he had twice been admitted to Yorkhill Hospital, Glasgow for treatment for asthma and that he had been discharged from there only four days previously. She had read his hospital discharge prescription earlier that day.
[3] The appellant had the child nebulised and at about 5 pm she sent him home. By about 6 pm his condition worsened. He was brought back to the Centre. While the appellant was treating him there, he suffered a respiratory arrest. At 6.53 pm he died.
The charge
[4] The appellant was charged before the Panel with serious professional misconduct. The charge was of the gravest kind. It alleged that when the appellant first treated the child at the Centre, she failed to diagnose that his asthma attack was acute and potentially life-threatening; that she failed to have him admitted to hospital as an emergency; that this failure resulted in the loss of his life; and that at a Fatal Accident Inquiry (FAI) into the death she gave untruthful evidence about her treatment of him.
[5] There were further allegations that the appellant failed to take a sufficiently detailed history from the child's mother; that she failed to carry out a proper examination of him before nebulisation; that she failed to keep proper notes of her examination and that after the nebulisation she failed to give him the steroid prednisolone.
[6] There was also a separate but related issue as to the appellant's preparation for the nebulisation of the child. It was alleged that she acted inappropriately towards the child and his mother at the time of her examination by being dismissive of the seriousness of his condition, by being unsympathetic to his distress, by asking them to leave her consulting room because she was busy, and by discussing the cost of masks at a time when the child and his mother were in an obviously distressed state. The question of masks was important because the charge also alleged that the appellant needlessly delayed the nebulisation of the child while his aunt travelled to his home to uplift a mask.
The evidence
[7] The appellant insisted that her diagnosis of a mild to moderate attack had been correct. She did not dispute the allegations that when the child was brought to the Centre she did not take a detailed history of his recent use of his inhaler, that she did not take a peak flow reading before nebulisation and that she did not record the child's respiratory rate at the time of her initial examination. There was evidence that these were appropriate clinical steps. The appellant also admitted that she did not give the child prednisolone after nebulisation. She relied on guidance notes in the British National Formulary, and issued by the journal Thorax, which, she maintained, suggested that the giving of prednisolone was an option only; but both of the expert witnesses on this point, Dr Richard Harker for the respondent and Dr Guy Norfolk for the appellant, were of the opinion that in the circumstances she ought to have given it.
[8] In light of the findings of the Panel, we need consider the allegations regarding the appellant's preparation for nebulisation only in relation to the question of the mask. The appellant admitted that she delayed the nebulisation procedure until the child's aunt had gone to his home and returned with the necessary mask. There was a conflict of evidence between the appellant and the child's mother as to why this happened.
[9] The child's mother said that when she asked the appellant "Can't you just give him some nebuliser," the appellant said "Well, have you got a mask?" and "Well, they cost between £20 and £30. Can't nebulise without one. Do you have one?" The mother said that there was one at home. The appellant said "Well, can you go and fetch it?" The mother could not drive and was not prepared to go for the mask. Her sister then drove to the house for it. Her round trip took just over ten minutes.
[10] The appellant's account was to the effect that she asked the child's mother if she had her nebuliser mask with her. According to the appellant,
"Mum said 'I haven't got it on me but it's at home', and I replied 'Well, you can't leave. You can't leave and take [the child] away from here', and her reply was along the lines 'Oh, it's fine, my sister's here'. So I said 'Well, where is it?', 'It's just two minutes down the road'. I says 'Well fine. You know, apparently they cost £20, £25. If you can get it, fine. If you can't fine', and she went off to get it - she went off to get her sister."
[11] The appellant's account was in essence that this exchange was light-hearted. In the following passage of her evidence in chief, she suggested that she saw some advantage in the delay.
Q Did you see any disadvantages in delaying the nebulisation for the time it would take to get the mask from his home, when you knew where it was?
A No.
Q Did you think there might be some advantage in a slight delay before doing that?
A Yes, because of the child's anxiety to be nebulised, I thought waiting a few minutes might help him to accept it a bit easier.
It is significant, however, that the appellant admitted that she raised the topic of the cost of masks and that she had masks available at the Centre.
The decision of the Panel
The findings in fact
[12] On 14 September 2005 the Panel announced its findings in fact. It dismissed much of the charge, including the allegations that the appellant's failure to take appropriate action resulted in the loss of the child's life and that the appellant gave untruthful evidence at the FAI. But it found the following allegations to have been proved:
"3 Upon his attending the surgery on that date, at about 1600, you failed to undertake proper enquiries about child A's recent condition in the following respects,
(a) you failed to take a sufficiently detailed history of his condition from his mother by enquiring as to ...
(iii) when he last used his inhaler
(iv) how often throughout the day his inhaler had been used ...
4 You failed to carry out a proper examination of child A in respect that you failed to take a peak flow reading prior to nebulisation ...
6 You failed to keep proper notes in child A's records of your examination in respect that you failed to record his respiratory rate at the time of initial examination ...
7 You acted inappropriately towards child A and his mother ... at the time of the said examination by ...
(d) by discussing the cost of masks at a time when the patient and his mother ... were in an obviously distressed state ...
8 You delayed, without good reason, in commencing nebulisation of child A, whilst his aunt travelled to child A's home to uplift a mask ...
10 In any event, following nebulisation ...
(c) you acted inappropriately by not giving child A prednisolone."
Serious professional misconduct
[13] On 15 September 2005 the Panel found that, in respect of all of these findings, the appellant's actions were inappropriate and were not in the best interests of the patient. More seriously, in relation to findings 4, 7(d), 8 and 10(c), the Panel found that her actions were "irresponsible." Having regard to all of these findings, the Panel concluded that the appellant was guilty of serious professional misconduct. These were its reasons.
"The General Medical Council's guidance Good Medical Practice (May 2001) states that 'patients must be able to trust doctors with their lives and well-being,' and that 'good communication between patients and doctors is essential to effective care and relationships of trust.' Good Medical Practice further states 'you must make the care of your patient your first concern.' It also indicates that 'all patients are entitled to good standards of practice and care from their doctors, which must include an adequate assessment of the patient's conditions, based on the history and symptoms and, if necessary, an...
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