Gannon v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 06 July 2015 |
| Neutral Citation | [2015] EWHC 1998 (Admin) |
| Docket Number | CO/613/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 July 2015 |
[2015] EWHC 1998 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT LIST
Sitting at
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Mr Justice Holgate
CO/613/2015
Mr Hockleton (instructed by details not supplied) appeared on behalf of the Applicant
Ms Catherine Callaghan (instructed by details not supplied) appeared on behalf of the Respondent
(As approved)
This is a renewed application for permission to apply for judicial review of the decision of the Defendant's Assistant Registrar given on 31 May 2014 and communicated to the Claimant by letter dated 30 July 2014; whereby it was decided that a number of possible allegations against the Claimant in relation to the period 1998 to 2007 should be referred to the Case Examiners under Rule 4(2) of the General Medical Council (Fitness to Practise) Rules Order of Council 2004, SI 2004 2608.
It was also decided under Rule 4(5) that there were exceptional circumstances which in the public interest were sufficient to justify an investigation being pursued under Rule 8 notwithstanding that the matters raised fell outside the normal 5 year time limit for taking such action.
The Claimant is a Consultant Surgeon employed by the Heart of England NHS Foundation Trust. Between 2001 and March 2006, he was the Medical Director (Surgery) for the Trust. Prior to that, he occupied the position of Clinical Director.
The case arises out of a report by Sir Ian Kennedy into the response of the Heart of England NHS Foundation Trust ("HEFT") to concerns about the surgical practices and treatment of breast cancer patients by Mr Ian Patterson.
The Kennedy report concluded that for a number of years Mr Patterson carried out surgical procedures which were described as mastectomies, but which had intentionally left behind significant amounts of breast tissue for which he had not obtained informed consent from patients and which had therefore exposed those patients, so it is said, to an increased risk of recurrence of cancer.
The Kennedy report, in summary, concluded that Senior Managers within the Trust (including the Claimant) had failed to take effective action to protect patients in response to repeated concerns expressed about Mr Patterson's surgical practices.
The Defendant is currently investigating Mr Patterson's fitness to practise and it has also decided to investigate the Claimant's fitness to practise although the concerns arise out of events which occurred more than 5 years ago.
Mr Patterson was appointed by the Trust in 1998 as a Surgeon specialising in vascular surgery and breast cancer surgery. At that time, the Claimant had been the Trust's Clinical Director of General Surgery and in that capacity he had been responsible for Mr Patterson's appointment.
In 2002 to 2003, Oncologists and Pathologists had started to raise concerns about Mr Patterson's surgical practices. In 2003, an Oncologist, Dr Stockdale, carried out an audit of Mr Patterson's patients which indicated high numbers of patients having further procedures to remove tissue after having apparently had mastectomies.
In 2004, the Claimant commissioned a report into these concerns known as the Wake report, which concluded that conservative surgical resections were taking place which might have had a negative impact on relapse rates. Quality assurance checks took place in 2004 which raised further concerns about Mr Patterson's practices. Nevertheless, he was allowed to continue to perform variations on standard mastectomy procedures for another 3 years.
In 2007, Mr Patterson was instructed to cease carrying out cleavage sparing mastectomies and shade after mastectomies. In 2009, a limited recall of patients commenced and this was expanded to a total recall of all patients in 2011. Mr Patterson was then excluded from the Trust in 2011 and suspended by the Defendant in 2012.
The potential allegations so far as the Claimant is concerned arise from the report by Sir Ian Kennedy which was published on 19 December 2013. The terms of reference for him to consider and report upon were the Trust's response to concerns raised about Mr Patterson's practice. He was not asked to report on or to apportion blame.
I turn to look at the statutory framework within which the decision sought to be impugned was taken in this case.
Section 35C of the Medical Act 1983 applies when an allegation is made to the Defendant against a registered person that his fitness to practise is impaired. In addition, section 35C also applies where it comes to the attention of the Council that a person's fitness to practise is called into question by one of the matters set out in sub-section 2, but no allegation has been made to that effect against that person by someone else (see Section 35CC(3)).
The grounds upon which a Practitioner's fitness to practise can be regarded as impaired include misconduct and deficient professional performance. The 2004 Rules set out the procedure for investigating allegations of impaired fitness to practise. The Rules provide for an investigation to follow up to 3 stages.
First of all, there is an initial consideration of the allegation by the Registrar under Rule 4.
Secondly, if the matter proceeds further there follows an investigation by the Defendant's Investigation Team and then consideration of the allegation by Case Examiners under Rule 8, followed by their determination as to whether the allegation should proceed further.
Thirdly, if an allegation is pursued further, it may in some cases be referred to a Fitness to Practise Panel, otherwise known as an FTP panel, which is empowered to determine the merits of the allegation in accordance with Rule 17.
Rule 4 provides as follows:
"4.
(1) An allegation shall initially be considered by the Registrar.
(2) Subject to paragraph (5) and Rule 5, where the Registrar considers that the allegation falls within section 35C(2) of the Act, he shall refer the matter to a medical and a lay Case Examiner for consideration under Rule 8.
(3) Where-
(a) the Registrar considers that an allegation does not fall within section 35C(2) of the Act; or
(b) in the case of an allegation falling within paragraph (5), the Registrar does not consider it to be in the public interest for the allegation to proceed.
He shall notify the Practitioner and the maker of the allegation (if any) accordingly.
[…]
(5) No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest, in the exceptional circumstances of the case, for it to proceed."
I note also that under sub-paragraph 4, the Registrar is given a power before deciding whether to refer an allegation under Rule 8 to carry out further investigations. The nature of the Registrar's functions under Rule 4 were considered by Collins J in the case of R (Rita Pal) v The General Medical Council [2009] EWHC 1061 (Admin).
The general principles are set out in the judgment between paragraphs 32 and 35. They are not challenged on behalf of the Claimant in this case. It was there explained that the task of the Registrar under Rule 4 is to consider and decide whether the allegation falls within the ambit of section 35C (2), a process sometimes referred to as 'triage'. It is no part of the Registrar's functions under this provision to decide whether there has been unfitness to practise, or in general to make investigations at that stage to see whether the facts of the complaint can be established or not. Normally speaking, the Registrar only looks at the allegations that have been made and decides whether, if they were to be established, they would be capable of supporting a finding of professional misconduct or some other matter falling within the section of 35C(2).
Because the Registrar is given a discretion as to whether to carry out investigations against the background I have described, ordinarily the High Court could not be asked to intervene with a refusal on his part not to pursue investigations unless that decision could be regarded as perverse. Of course, that is a very high hurdle for a Claimant to overcome. In putting forward submissions on behalf of the Claimant today, Mr Hockleton, when dealing with the arguability of the claim, has not sought to advance any such argument.
His, as it were, 'best shot' has been put in terms of the alleged unfairness of the Assistant Registrar in this case through failing to give the Claimant an opportunity to make representations on the possibility of action being taken under Rule 4 before the decision was made.
If a matter proceeds beyond the Rule 4 stage, the next relevant provision is to be found in Rule 7. Under Rule 7 sub-paragraph 2, it is provided that:
"The Registrar shall carry out in any investigations whether or not any have been carried out under Rule 4(4) as in his opinion are appropriate to the consideration of the allegation of the Rule 8."
On behalf of the Council, Ms Callaghan has explained to the court that it is at this stage that the investigatory team in many cases will take action to ensure that sufficient information regarding the allegations is obtained. So in the present case that would include firstly obtaining the documents which were available to the Kennedy review, and secondly obtaining relevant information from HEFT.
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