Dr Luise Schodlok v General Medical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Sycamore |
| Judgment Date | 18 June 2013 |
| Neutral Citation | [2013] EWHC 2280 (Admin) |
| Docket Number | CO/3183/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 June 2013 |
[2013] EWHC 2280 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester, M3 3FX
His Honour Judge Sycamore
(Sitting as a Judge of the High Court)
CO/3183/2012
The Claimant appeared in Person
Miss C Callaghan (instructed by General Medical Council) appeared on behalf of the Defendant
Hearing date: 11 June 2013
(As Approved by court)
This is an appeal by Dr Luise Schodlok (the appellant), pursuant to section 40 of the Medical Act 1983 ("the Act") against the determination of a Fitness to Practise Panel ("the Panel") of the Medical Practitioners Tribunal Service ("MPTS") of 15 February 2013, that because her fitness to practise is impaired by reason of misconduct, conditions should be placed on her registration. MPTS is the independent adjudication arm of the General Medical Council (the respondent), which took over the adjudication function of the respondent from the 11 June 2012.
The appellant is a registered medical practitioner, who received her undergraduate medical education and training in Germany. She commenced working in the United Kingdom in about 1989 and has worked at a number of hospitals in the United Kingdom. The allegations related to her conduct whilst she was employed as an Orthopaedic Registrar at the Queen Elizabeth Hospital in Woolwich, London, between November 2009 and October 2010.
The appeal is against (i) various procedural decisions made by the Panel; (ii) some of the Panel's factual findings; (iii) the Panel's finding that the appellant's fitness to practise is impaired by reason of misconduct and (iv) the sanction imposed.
The allegations were of, i) rude and aggressive behaviour towards patients and staff; ii) being insulting towards and disrespectful of colleagues; iii) racial abuse of colleagues; iv) the refusal to perform a proper hand over to a senior colleague of equivalent rank; v) failure to co-operate with her employing Trust's referral of her to occupational health and its investigation of her behaviour.
The fitness to practise hearing lasted 40 days, between 10th July 2012 and 15th February 2013. It was originally due to last until 6th August 2012. The first seven days of the hearing were taken up with preliminary argument and rulings. The appellant made an application for judicial review seeking to challenge the respondent's decision not to pay for daily transcripts of the hearing and to refuse the appellant's application not to proceed with some particular charges. Permission was refused on the papers and at a renewal hearing on 6 December 2012 was refused by Hickinbottom J.
Throughout the hearing before the Panel the appellant was unrepresented. The respondent was represented by Simon Jackson QC. Although the hearing recommenced on 7 January 2013 (Day 12) it was not until 9 January 2013 (Day 14) that the case was formally opened. Further preliminary arguments, including an application by the respondent for certain witnesses to be heard by video link had taken place. Two charges were withdrawn by the respondent, as were allegations of impaired fitness to practise by reason of deficient professional performance and adverse health.
In summary, the charges which the appellant faced were as follows:
a. Charge 2 concerned the appellant's conduct towards patient A and the Head of Nursing while attending patient A in a Fracture Clinic on 25 January 2010.
b. Charge 3 concerned the appellant's conduct towards the Orthopaedic Technician, Mr Marshall, while attending patient B at the Fracture Clinic on 25 January 2010.
c. Charges 4(a) to (d) concerned the appellant's conduct towards Mr Marshall while attending for a consultation upon patient C, during a Fracture Clinic on 12 February 2010.
d. Charge 4(e) concerned the appellant's treatment of patient D during the Fracture Clinic on 12 February 2010.
e. Charge 5 concerned the appellant's conduct towards the operational manager on 16 February 2010.
f. Charge 6 concerned her conduct towards a nurse on 24 February 2010 and charge 8 concerned her conduct towards the same nurse as in charge 6 on 16 March 2010.
g. Charge 9 concerned the appellant's conduct towards and treatment of patient F during a Fracture Clinic on 14 June 2010.
h. Charge 10 concerned the appellant's conduct towards a sister on 18 June 2010 in the Day Care Unit.
i. Charge 11 concerned an alleged failure to carry out a handover with a doctor on 14 August 2010.
j. Charge 12 concerned allegations of racial abuse towards a doctor on 3 and 6 September 2010.
k. Charge 13 was concerned with the appellant's conduct towards a doctor and an orthopaedic consultant on 6 September 2010.
l. Charge 14 concerned the appellant's alleged failure to co-operate with the Trust after her exclusion from the Trust on 10 September 2010.
The appellant admitted the first charge (which related to employment details) and additionally admitted the fact that she had attended patient A referred to in charge 2. The appellant denied all other charges. The Panel heard oral evidence on behalf of the respondent from a total of 20 witnesses and on behalf of the appellant from eight witnesses, including the appellant.
In the event the Panel found the majority of the charges not proved but did find proved the majority of the charges relating to the appellant's behaviour towards Mr Paul Marshall, charges 3 and 4. Mr Marshall was an orthopaedic technician working in the Fracture Clinic.
I will return to the Panel's decision-making process presently but I pause to observe at this point that it was only in relation to four findings of fact, all relating to Mr Marshall, that the Panel determined that they amounted to serious misconduct which impaired the appellant's fitness to practise and upon which the sanction was based.
Those four findings were as follows:
(i) On 25 January 2010 the appellant attended patient B in the Fracture Clinic and shouted at Mr Marshall, the orthopaedic technician, in the presence of patient B (charge 3(b)).
(ii) On 12 February 2010, during a Fracture Clinic, the appellant was rude and verbally aggressive towards Mr Marshall when he reminded her that patient C was waiting to be seen (charge 4(b)).
(iii) On 12 February 2010, during the Fracture Clinic, when the appellant did attend upon patient C, she was again rude and verbally aggressive towards Mr Marshall (charge 4(c)). (iv) On 12 February, during a Fracture Clinic and during the treatment of patient D, the appellant refused Mr Marshall's request for further, investigations into patient D's calf pain(charge 4(e)(ii)).
I mention this now because in both her grounds and skeleton argument the appellant seeks to challenge other findings of fact by the Panel which did not amount to serious misconduct which impaired her fitness to practise. In the grounds of appeal these were described as paragraphs 2(a), 4(d)(i), 4(e)(ii) and paragraph 10. I made it clear at an early stage of the hearing before me that only those four findings of fact could properly be the subject of the appeal which is limited by the provisions of section 40 of the Act as follows:
(i) "(1) The following decisions are appealable decisions for the purposes of this section, that is to say -
(a) a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration…"
(ii) Thus the appeal is concerned with those four findings of fact only and the determination of impairment and the sanctions which flow from them.
In addition the appellant challenged a number of procedural decisions of the Panel as follows:
(i) The decision to permit Mr Marshall to give evidence via video link.
(ii) The decision to permit Mr Marshall to refer, when giving evidence, to a letter he had written to Mr Scott of the appellant's employing Trust on 15 February 2010.
(iii) The decision to restrict the time given to the appellant for cross-examination of Mr Marshall.
(iv) The decision not to admit in evidence a letter of complaint of 15 February 2010, prior to her cross-examination of Mr Marshall.
In my judgment the Panel correctly approached its decision-making task in three stages. First, it made a determination on the facts. Second, it made a determination on the impairment and third, its determination on sanction. In its determination on impairment, it followed the two-step approach identified by Cranston J in Cheatle v General Medical Council [2009] EWCA 645 (Admin), by first deciding whether the appellant's actions amounted to serious misconduct and, if so, whether the appellant's fitness to practise was impaired by reason of misconduct.
Those findings of fact which the Panel found did not amount to misconduct or serious misconduct were not further relied upon by the Panel and are not relevant to this appeal. I identified at paragraph 9 of his judgment those findings of fact that were held to amount to serious misconduct falling far below the standards of any registered medical practitioner.
In the third stage the Panel considered the question of sanctions and took into account the General Medical Council's Indicative Sanction Guidance and applied the principle of proportionality. It determined that it would not be proportionate or in the public interest to take no action and determine that the appropriate course was to impose conditions on the appellant's...
To continue reading
Request your trial