Inayat Inayatullah v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 21 October 2014 |
| Neutral Citation | [2014] EWHC 3751 (Admin) |
| Docket Number | CO/16494/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 October 2014 |
[2014] EWHC 3751 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Dove
CO/16494/2013
Mr M Forde QC (instructed by Eastwoods) appeared on behalf of the Appellant
Mr P Mant (instructed by the General Medical Council appeared on behalf of the Respondent
This is an appeal brought under sections 38 and 40 of the Medical Act 1983 as amended. There are a number of procedural matters which I need to deal with before turning to the substance of the judgment.
Firstly, at the hearing of this matter the Appellant applied, again, for an adjournment of the hearing. The matter had been adjourned previously on 17 June 2014 when it was called on before Collins J and the court order that was made at that time made it plain that there would be no further grants of applications for adjournments of this matter. A further application to adjourn had been made and refused on 1 October 2014 by Master Gidden on the basis of papers submitted by the Appellant and Respondent. The basis of that application and, indeed, of the application before me, was that the absence of the Appellant from the UK presented difficulties in relation to obtaining instructions from him and that therefore it was only just that the proceedings should be adjourned. Given the previous order that had been made in this case, the overriding objective, the limited prejudice to the Appellant and the need for these proceedings to be concluded, I rejected that application and proceeded to hear the matter.
At the outset of the hearing the second procedural issue which emerged was that there was an application to amend by the addition of a ground five, which I shall turn to in due course. As far as I could see, no substantive injustice was to be caused by the inclusion of ground five and, indeed, Miss Eleanor Grey QC, who appeared on behalf of the Defendant, was able to absorb the substance of that ground and provide further written submissions as well as oral submissions on the point. I therefore granted permission for that ground to be added.
After the hearing and on mature reflection, bearing in mind the issues which had emerged during the course of argument, Mr Martin Forde QC (who did not represent the Appellant at the hearing before the Respondent) communicated to me that ground three of these proceedings was no longer to be before me and was abandoned.
The background facts
The Appellant in this case was the subject of a sting operation undertaken by investigative journalists, who arranged for actors to pose as patients and present themselves to his general practice clinic, making complaints of various symptoms. During the course of the consultations with them they were wired with cameras and in effect, therefore, the consultations were the subject of covert surveillance. What transpired at those consultations and the filming of them formed the subject of the charges which were made by the Respondent to this appeal and the subject of the hearing which commenced on 27 September 2013 is the subject of these proceedings.
A number of charges that were made against the Appellant were not proved. The charges which were proved related to two patients in particular. Firstly, the charges related to a patient known in the proceedings as AC. He was consulted twice. The first occasion was on 30 June 2011 and there were a series of charges against the Appellant, which were found proved, in relation to the conduct of that consultation. It was found proved that the Appellant had failed to maintain eye contact with the patient and listen attentively to him. It was further proved that he had failed to obtain details of weight change and rectal bleeding, including the nature of that bleeding, for the purposes of understanding the patient's complaints. It was found proved that he had failed to undertake a rectal examination and failed to refer the patient for further assessment. The Panel found proved that the patient had not been diagnosed by the Appellant and, further, that the Appellant had failed to make an adequate record of the consultation and manage it appropriately. All of these charges related to the clinical conduct of the Appellant.
Patient AC attended for a further examination on 2 August 2011. In respect of that consultation, it was found proved that the Appellant had failed to take a further medical history and failed to assess or diagnose the patient or properly manage the consultation.
Importantly for the purposes of these proceedings, there was a further charge based upon the records which the Appellant had kept of that examination. It was found that the Appellant had inaccurately recorded in Patient AC's notes that he had examined him when, in fact, he had not. In the records of the patient the Appellant recorded: "git-soft".
The contention that the note was inaccurate was founded on the filming of the consultation which showed that, in fact, the Appellant had not undertaken any examination which could found the making of that record. This was an allegation which was strongly resisted by the Appellant. He initially contended that the film had, in fact, been doctored or edited so as to exclude the part of the consultation which would have substantiated the note which he had taken.
The Appellant was asked about this allegation in his evidence in-chief. What is said is recorded in the transcript of the proceedings within day six at page 44 as follows:
"Q. With the benefit of hindsight and having seen the video footage, having reflected on the last case, having attempted to enhance the electronic notice board still, what you do say now about whether you conducted an examination or not?
A. It is — I always — that is the way I work, if I have written something, I should —
Q. Keep your voice up.
A — I must have done it. Okay. If I have written something I must have done it. But it is a long time ago so I am just speaking from memory. So a possibility I might not have done it, but I am just speaking from my memory …
A. What I said is the way I work, I always, when I do something I write it. But here, it was quite some time ago, so I am speaking from my memory. I am speaking from my memory and I might have not done it. I might have done it, I might not have done it.
Q. Just pause. You might have done it, you might not have done it?
A. Yes.
Q. Let us explore then how this entry appears written in here. If it is the case that you might not have examined this patient, how do you account for the fact that we have an entry here which is the same entry or the first part of the entry from 30 June 2011 at the top of the page, when we know you did examine the patient, did you write gastrointestinal tract was soft and no viscera was palpable? Explain to the Panel how did that entry get there?
A. Because I examined the patient and that is why the entry has gone [in].
Q. You said a few moments ago in essence, 'Maybe I did and maybe I did not,' so obviously if you did examine that will explain it, but what if you did not?
A. If I did not then I would not write it. I am just speaking from my memory. If I have not done it then I would not write it, but I am just saying, I am not a dishonest person, I would not try to mislead anybody, but what I am saying is that if I have written it, then I have done it. But I am just speaking from memory. I cannot say anything else."
As might be imagined, the Appellant was cross-examined about this issue at some length. In the transcript of day seven at page 68 he stated that his examination of the patient was missing from the film of the consultation. Later on in the transcript of day seven at page 82 he said that he might not have examined the patient.
Turning to the second patient, who was the subject of the charges, known in the proceedings as JB, these charges related to a single consultation. It was found that the Appellant had failed to ask what his presenting symptoms were or take an adequate history, to assess or diagnose the patient, to provide treatment or properly manage the consultation.
The conclusions in relation to clinical practice, which were the subject of these charges, were themselves the subject of contentious expert evidence. On behalf of the Respondent an expert, Dr Isaac, was called, who concluded that the Appellant's standard of care in relation to all of these charges "did seriously fall below a minimal standard of reasonable professional competence". In his report he declared that where there was a "range of professional opinions", he had indicated that potential range in his report. This observation was part of a suite of declarations made to accompany the expert report.
The expert who was called by Appellant, Dr Bennett, made a similar declaration in relation to the fact that where there was a range of professional opinion he had indicated that range within the observations in his report. At the hearing there was an attack by the Respondent upon Dr Bennett's detachment and objectivity, based on the fact that he was known to the Appellant and had, indeed, worked with him on a fairly regular basis. It was suggested to him in the course of cross-examination, therefore, that his observations lacked independence and objectivity and that, therefore, less or little weight could be attached to them.
Having heard both the factual and expert evidence, the Panel then received submissions on all of the matters relevant to this preliminary and fact-finding stage of the...
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