Dr Olufemi Adeyinka Adeogba v General Medical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Wood |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWHC 3872 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/218/2014 |
| Date | 07 May 2014 |
[2014] EWHC 3872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Graham Wood QC
Sitting as a Deputy Judge of the High Court
Case No: CO/218/2014
Mr. S. Gurney directly instructed appeared on behalf of the Appellant.
Mr I. Hare (instructed by the General Medical Council) appeared on behalf of the Respondent.
His Honour Judge Wood QC:
Introduction
This appeal has been brought by Dr Adeogba, a Nigerian born and German trained reconstructive plastic surgeon who is now 62 years of age, pursuant to section 40 of the Medical Act 1983 in respect of the decision given on 18 th December 2013 of a fitness to practise panel (FTPP) engaged by the Medical Protection Tribunal Service (MPTS). The effect of that decision, which related to complaints brought by six former patients, was that the Appellant's fitness to practise was impaired by reason of his serious misconduct in respect of plastic surgery procedures carried out on those patients over a two year period between 2008 and 2010, and further that he should be erased from the medical register.
The panel hearing, which was scheduled to last for 20 days, took place over a much shorter period. The Appellant did not attend, and was not represented, and the FTTP proceeded to hear the case in his absence. The only live evidence was that of the independent expert instructed by the prosecutor, the General Medical Council. It is the Appellant's case that he only became aware of the outcome for the first time when he accessed his e-mails in early January. Still within the stipulated time period for the bringing of an appeal under the 1983 Act, the Appellant did so, originally acting in person. He has subsequently retained the services of counsel under direct access, and Mr Gurney has appeared on his behalf on this appeal.
Background
The Appellant was not domiciled in the United Kingdom prior to obtaining registration in about 2004, and he practised substantially in Germany in plastic and aesthetic surgery. However, that year he took up the opportunity to work as a visiting plastic surgeon at the Birkdale clinic at different locations in England, practising for the most part in Rotherham, and in Crosby, Merseyside. In the period between 2007 and 2011 he undertook hundreds of procedures, including breast augmentation surgery. Apparently, he maintained a home in Germany, and would usually stay in hotels or other local accommodation on a short-term basis when carrying out surgery for the Birkdale clinic.
Following some publicity arising out of an ill-advised marketing campaign with which the Appellant's name was associated, several Birkdale patients on whom the Appellant had operated came forward to complain about their procedures formally to the General Medical Council. It would be fair to say that some of these patients had already expressed dissatisfaction with the outcome of their plastic surgery. These procedures had been carried out in a period between March 2008 and August 2010. Two patients had undergone rhinoplasty procedures, and four had had surgery for breast augmentation and/or uplift. These patients alleged, variously, that they had been given insufficient information about the risks, that procedures had been carried out which they had not wanted, or that they were subject to neglectful or poor after care.
Complaints which were made to the GMC were investigated by the usual process, and subsequently dealt with by an Interim Orders Panel (IOP) in February 2012 at which the doctor was present, but not represented. The decision of the IOP was that the Appellant's registration should be suspended for a period of 18 months. The Appellant was very disappointed by this decision, and because he had no home in the United Kingdom, or reason to work here, and his German work had fallen off, he decided to return to Nigeria to spend time with his ageing mother. Unfortunately he did not inform the GMC of this fact.
In the meantime, the GMC continued to investigate the allegations in anticipation of a full fitness to practise hearing, and obtained expert evidence from a consultant plastic surgeon, Mr Percival. Although this court has not been made aware of the precise steps which were taken between the IOP determination and November 2013, it would seem that various case management decisions were made. The Appellant had been invited to participate in these, having no representation, and e-mail communications were sent to him, but insofar as he was not answering those e-mails, it was assumed that he did not wish to play a part, and arrangements were made for the final fitness to practise hearing. It is to be noted that the doctor had given as his registered contact address, in addition to his e-mail details, an address in Erlangen in Germany. It was this address with which the GMC communicated.
The list of "charges" which was prepared ran to13 in total. In summary they were as follows:
In relation to patient CT, who underwent a breast augmentation procedure in March 2008, it was alleged that the Appellant failed to provide sufficient information for informed consent, failed to give sufficient time before the operation, failed to take an adequate medical history, failed in respect of post-operative complications, and failed to take adequate photographs. It was also alleged that a burn had been caused during the procedure.
In relation to patient LD, who underwent a rhinoplasty procedure in May 2008 similar allegations were made in relation to photographs, informed consent and the appropriate time for reflection, and it was further alleged that the surgery was inappropriate given the presenting complaint under the clinical circumstances.
In relation to patient RP, who underwent both an original rhinoplasty in August 2008 and a revision rhinoplasty procedure in December 2008, in addition to a similar series of allegations in respect of the pre-operation steps, it was alleged that the operation had not been carried out to an adequate standard, and that there was no appropriate plan for reconstruction in respect of the revision rhinoplasty procedure.
In relation to patient TS, who had combined breast augmentation and uplift in February 2010 allegations were made in relation to the lack of information for informed consent, the inadequacy of the medical records, and the obtaining of a medical history.
In relation to patient MR who had breast augmentation in April 2010, preoperatively it was alleged that inadequate information for informed consent had been provided, and the procedure itself was said to be inadequately performed. There were allegations post-operatively in relation to recording the concerns of the patient, and providing advice on the management of the implant malposition.
Finally in relation to patient SJ, who had a combined mastopexy and breast augmentation in August 2010 there were allegations made about the failure of provision of information for informed consent, and the obtaining of an adequate medical history.
By the time that the matter was ready for hearing, the GMC had accumulated a substantial body of evidence, which included statements from the various complainants, their medical records, and the report of Mr Percival. The General Medical Council (Fitness to Practise) Rules 2004 (the "Rules"), provide for 28 days notice to be given of any fitness to practise hearing, and on 6 th November 2013 this notice was sent to the Appellant by recorded delivery to his German address, and by e-mail, with a copy of the index documents and a list of the witness statements. The entire bundle, which ran to over 2000 pages, was not forwarded, but the Appellant was asked to raise any objection to the documentation, and for an indication as to whether he required any witnesses to attend to give oral evidence.
In so far as the Appellant had not engaged for a considerable period of time, it could not have been expected that there would be any meaningful response to this communication, and indeed the witnesses were asked to make themselves available for telephone questioning only, should the need arise, with their witness statements being admitted as evidence in chief.
The hearing had been scheduled for 20 days. On the first day, 9 th December, there was no appearance or representation on behalf of the Appellant. As is usual in such circumstances, the FTTP was required as a preliminary step to determine whether or not there had been effective service under the Rules. It was noted that the physical notice had been returned as undeliverable, although this was the registered address that had been given by the Appellant. The e-mail notice had not bounced back.
Submissions were made on behalf of the GMC that if the panel was satisfied that effective service had been achieved, and that all reasonable efforts had been made to serve the Appellant, it should proceed pursuant to Rule 31 on the exercise of its discretion to hear the matter in his absence. Legal advice was given by the legal assessor, and the FTTP, after a short deliberation, determined to proceed in the absence of the Appellant. The short reason communicated at the hearing was that " he would be unlikely to cooperate should we adjourn and that it is in the public interest to continue". Full reasons were given in a final written determination, to which I shall refer later in this judgment.
The fitness to practise hearing then continued, with counsel...
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General Medical Council v Olufemi Adeyinka Adeogba
...of the High Court) having admitted fresh evidence, determined that the Panel was wrong to proceed in the absence of Dr Adeogba: see [2014] EWHC 3872 (Admin). On 28 November 2014, His Honour Judge Bird (similarly sitting as a deputy Judge of the High Court) also decided that the (differently......