Dr Richard Pool v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 13 November 2014 |
| Neutral Citation | [2014] EWHC 3791 (Admin) |
| Docket Number | Case No: CO/3293/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 November 2014 |
[2014] EWHC 3791 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester
M60 9DJ
Mr Justice Lewis
Case No: CO/3293/2014
Mr James Counsell (instructed by BLM solicitors) for the Appellant
Mr Robin Kitching (instructed by GMC Legal) for the Respondent
Hearing dates: 17 th October 2014
Introduction
This is an appeal brought pursuant to section 40 of the Medical Act 1983 ("the Act") against a decision of 13 June 2014 of a Fitness to Practise Panel ("the Panel") constituted by the Respondent, the General Medical Council ("the GMC"). By that decision, the Panel found certain allegations against the Appellant, Dr Pool, proved and decided that they amounted to misconduct and resulted in an impairment of the Appellant's fitness to practise. The Panel imposed a sanction suspending the Appellant's registration as a doctor for a period of 3 months.
In brief, the Appellant was instructed to appear as an expert witness in a fitness to practise panel of another individual, "A", who was a paramedic. He prepared a psychiatric report on whether A's psychiatric problems were of sufficient severity to impair her fitness to practise. Objection was taken to the ability of the Appellant to act as an expert in this field and that objection was upheld. The Appellant was, himself, subsequently the subject of allegations of misconduct.
The Panel found that the Appellant was not an expert in the field of general adult psychiatry and that he had failed to restrict his opinion to areas of which he had expert knowledge or direct experience and gave evidence on matters outside his professional competence. The Appellant contends that these findings are wrong or that the Panel failed to give adequate reasons for the findings. The Appellant also challenges the finding that his report was inadequate in that he failed to explain the reasons for his opinion that A's fitness to practise was wholly and indefinitely impaired. The Appellant also challenges the sanction imposed of three months' suspension.
THE FACTS
The Background
The Appellant is a psychiatrist. At the material time, he was employed as a consultant psychiatrist in the private sector working in a secure hospital. In August 2011, he accepted instructions from a firm of solicitors, Kingsley Napley, as an expert witnesses in proceedings before the Health Professions Council ("the HPC"). That case involved consideration of the fitness to practise of a paramedic, A, who had been diagnosed as having a personality disorder and post traumatic stress disorder, in part as the result of abuse suffered during childhood. The Appellant prepared a report on A and the question of her fitness to practice. A objected to the evidence being received on the grounds that the Appellant was not an expert. That objection was eventually dealt with at a hearing in March 2012. The HPC concluded that the Appellant did not have sufficient expertise in the field of personality disorders to qualify him as an expert and decided not to admit the Appellant's evidence. A subsequently referred the Appellant to the GMC.
The Charges
The Panel held a fitness to practise hearing over 10 days. Six allegations were made against the Appellant. The first four, as amended, were:
"That being registered under the Medical Act 1983, as amended:
1. On the 21 st October 2011 you produced an expert psychiatric report (The Expert Report) relating to complainant A, on the instructions of Solicitors acting for the Health Professions Council;
2. Prior to producing that report you did not make clear to those instructing you that:
a. you were not an expert in the field of General Adult Psychiatry,
b. your inclusion on the specialist register was in the speciality of Psychiatry of Learning Disabilities rather than General Adult Psychiatry.
3. In the Expert Report you failed to
a. adequately explain your opinion that complainant A's fitness to practise was
i. wholly impaired,
ii. indefinitely impaired,
b. restrict your opinion to
i. areas in which you had expert knowledge or direct experience,
ii. matters that fell within the limits of your professional competence,
c. state where a particular question fell outside your area of expertise;
4. At a hearing before the HPC committee on the 8 th March 2012 you failed to
a. display an adequate understanding of the role and responsibilities of an expert witness,
b. admit that you did not have appropriate expertise in the field of adult psychiatry; "
The fifth and six allegations were not proven and are not material for present purposes.
The Hearing
The Panel received a great deal of evidence. They had evidence of the Appellant's curriculum vitae, and a witness statement from the Appellant. The GMC maintains a Specialist Register and a person may be entered as a specialist in a particular speciality: see sections 30 and 34 of the Act. The Appellant's name is entered on the Specialist Register in the category of Psychiatry in Learning Disability. His name is not entered on the Specialist Register in the category of Adult Psychiatry. He explained in his witness statement to the Panel that he had initial experience of treating patients with general adult psychiatric issues as a senior houseman between 1994 and 1999. Thereafter he had worked in the field of personality disorders, including female patients who has suffered sexual abuse and had been diagnosed as having personality disorders and post traumatic stress disorder. That work had been carried out in a variety of secure hospitals. The essential argument put on behalf of the Appellant was that he had obtained sufficient expertise from his experience in his work to enable him to be regarded as an expert in the present case.
The evidence included an expert report from a Dr Martin Baggaley dated 13 December 2012 and a supplementary report dated 18 March 2014. He also gave oral evidence to the Panel. His principal criticism of the Appellant was that he purported to give an expert opinion in the case of an individual who was appropriate for treatment by a general adult psychiatrist when the Appellant was not on the Specialist Register in the category of general adult psychiatry, but was on the Register in the category of Psychiatry of Learning Disability. He was also critical of the fact that the Appellant did not have membership or Fellowship of the Royal College of Psychiatrists. The Appellant had not had any higher professional training in psychiatry and had not held a substantive post in the National Health Service. He had not published in any peer-reviewed journals. In his supplementary report, Dr Baggaley expressed his opinion in the following terms:
"My major criticism of Dr Pool is that he is not on the relevant specialist register and had not worked in a relevant setting for the type of patient he was providing an expert opinion on. That he had failed to publish articles and book chapters, had failed to pass the membership examination of the college, had failed to have undertaken higher professional training, and had never been appointed to a substantive NHS consultant post are all in my mind factors that reduce his credibility as an expert, but are not as important as not being a recognised specialist and not working in the appropriate area. Had Dr Pool been on the general adult specialist register and worked at consultant level for 20 years in general adult psychiatry I would have accepted that he might be able to offer expert psychiatric opinion, although he would have been at a disadvantage in comparison to colleagues who had published, had higher training, had membership of the college and held substantive NHS consultant appointments."
and later
"I believe his conduct fell below seriously below that of a reasonably competent consultant psychiatrist in producing an expert opinion when he was not on the Specialist Register nor working at a consultant level in general adult psychiatry when the case clearly involved an individual who would be considered a case appropriate for a general adult psychiatrist."
One of the principal arguments being advanced on behalf of the Appellant was that a person could acquire expert knowledge either from formal training or from experience gained in the course of work. In his oral evidence, Dr Baggaley, whilst recognising that a person could acquire expertise by experience, was asked about his comment, set out above, that the Appellant had not worked in the type of setting for the type of patient on whom he was providing a report. He considered that a person would not acquire expertise in respect of a particular patient unless the person had expertise "in dealing, assessing or treating that patient". The Appellant did not have the day to day clinical experience of treating or researching such patients. The clinical problems which the Appellant would be dealing with, in the context of patients in secure settings, were different from the clinical problems that arose in this case particularly as the Appellant was being asked to assess the ability of A to function in a job. Dr Baggaley did not consider that that would be an issue that the Appellant would have addressed in the clinical settings in which he worked. Dr Baggaley accepted that some of the skills acquired by the Appellant in his work may be transferable to other settings but the question was not whether it was possible for someone to treat a particular patient but whether it was appropriate for him to act as...
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Upper Tribunal (Immigration and asylum chamber), 2015-08-18, DA/02320/2013
...to be treated as an expert and to what extent there had been compliance with relevant guidance published by the GMC (Pool v GMC [2014] EWHC 3791 (Admin)). In accordance with those directions the Appellant’s representative, Ms Akther, produced a skeleton argument at the hearing in which she ......