Professional Standards Authority for Health and Social Care v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 19 November 2020 |
| Neutral Citation | [2020] EWHC 3122 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 November 2020 |
| Docket Number | Case No: CO/12/2020 |
[2020] EWHC 3122 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Farbey
Case No: CO/12/2020
and
Ms Fenella Morris QC (instructed by Browne Jacobson LLP) for the Appellant
Mr Ivan Hare QC (instructed by GMC Legal) for the First Respondent
The Second Respondent made written submissions only
Hearing date: 22 October 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an appeal by the Professional Standards Authority for Health and Social Care (“PSA”) against a decision of the Medical Practitioners Tribunal (“MPT”) of the General Medical Council (“GMC”) which is the first respondent. The MPT determined that the second respondent (who was a cardiologist regulated by the GMC) should be suspended from the register for a period of one year following disciplinary proceedings in which he was found to have excessively prescribed potentially addictive drugs to a person whom I shall call Patient A.
The MPT determined that the second respondent's fitness to practise was impaired by reason of misconduct. In imposing a suspension as opposed to an erasure from the register, the MPT considered that the second respondent's conduct was not fundamentally incompatible with his inclusion on the medical register.
The PSA challenges the MPTs decision on the basis that the suspension order is an insufficient sanction for the protection of the public: the second respondent's registration ought to have been erased. There are three grounds of appeal. First, the MPT's approach to the imposition of the sanction was irrational and wrong. Secondly, the MPT failed to have sufficient regard to the relevant guidance on sanctions. Thirdly, the MPT took an irrational approach to the second respondent's insight into his misconduct.
Factual background
The facts which gave rise to the MPT proceedings may be taken from the MPT's decision documents. The second respondent qualified as a doctor in 1966. His specialism was cardiology but he had a private practice as a General Practitioner (“GP”). He had undergone no formal GP training, which he regarded as unnecessary because of his work in general medicine and “the minor nature of his patients' ailments.”
Patient A attended a consultation with the second respondent on 1 November 2011. In subsequent years until 2017, Patient A sought from him, and was on multiple occasions prescribed, the following drugs: zolpidem (a sleeping tablet); co-proxamol (a strong painkiller); dihydrocodeine (a strong painkiller); mirtazapine (an antidepressant); and diazepam (a tranquiliser).
Over the same period, Patient A also obtained multiple prescriptions from her GP for drugs including antidepressants, zolpidem, dihydrocodeine and diazepam. On 23 June 2017, Patient A was diagnosed with (among other things) prescription drug dependency. The second respondent has in the past confirmed in writing that he was aware from the start that Patient A demonstrated the behaviour of an addict.
In 2011, the second respondent was issued with a letter of advice from the GMC relating to his prescribing. In 2016, he appeared before the GMC's Investigation Committee and was issued with a warning relating to his prescribing of benzodiazepines.
The proceedings before the MPT took place between 25 February and 15 March 2019, and then 28 October to 29 October 2019. Before the MPT, the GMC made numerous allegations of misconduct which need only be broadly summarised for present purposes. In essence, it was alleged that the second respondent had prescribed excessively a number of different drugs to Patient A; had failed adequately to assess or appropriately refer her to mental health services; kept inadequate records; failed to inform Patient A's GP that he had issued Patient A with prescriptions; and lacked adequate expertise to treat her. The allegations were (save in one immaterial respect) either admitted by the second respondent or found proved.
On the basis of the facts which it had found proved, the MPT determined that the second respondent's actions amounted to misconduct. It went on to consider whether his fitness to practise was currently impaired by reason of misconduct, balancing the various factors which it regarded as weighing for and against impairment. The MPT expressed grave concerns in relation to the second respondent's poor practice over a six-year period despite an advice letter in 2011 and a warning in 2016. It described his lack of insight as “intractable” such that “he is unlikely to remediate and there is a material risk of repetition.” The combination of lack of insight, unfocused training, lack of any apology and lack of reflective practice meant that the risk of repetition could not be regarded as low. The MPT concluded that the second respondent's fitness to practise was impaired.
On the final day of the hearing, the MPT considered sanction. At that stage, the second respondent supplied two statements and gave oral evidence. He said that he had stopped work as a GP on 18 December 2018 because of a discussion with an adviser from the Care Quality Commission who had impressed upon him that GP work was a speciality and that his experience was limited.
The second respondent said that he had experience of prescribed drugs, in particular lorazepam, from his time working at Charing Cross Hospital in the 1970s. He had no experience of dealing with addicted patients and their needs. He had been deceived by Patient A who was “clever and manipulative.” By prescribing drugs in a manner that was different to established practice, he was “trying to make an academic point.” For the first time, he apologised to the GMC for his errors. He had not apologised to Patient A, saying that she was happy with her treatment. He rejected the suggestion that he posed a risk to patients in the future: he had removed “all contentious issues.”
In reaching its conclusion on the appropriate sanction, the MPT considered the relevant guidance. It weighed the mitigating and aggravating factors in the case. As regards mitigating factors, the second respondent had made some admissions to misconduct. During the course of a long career, he had received no complaints from patients. Patient A had been complimentary about him.
As regards aggravating factors, the MPT emphasised the second respondent's intractable lack of insight. He had prescribed excessive drugs without informing Patient A's GP over a sustained period of time when he knew that she was a vulnerable patient at risk of overdose. He had blamed Patient A rather than recognising her behaviour as symptomatic of addiction. Patient A was not an isolated case: by his own admission, the second respondent had prescribed benzodiazepines on a long-term basis to 20 other patients.
In reaching its decision to impose a suspension order, the MPT gave decisive weight to the fact that the second respondent had ceased to practise as a GP. For this reason, it held that his conduct was not fundamentally incompatible with his inclusion on the medical register.
By notice and grounds of appeal filed on 3 January 2020, the present appeal was launched. On 27 February 2020, the GMC's Case Examiners decided to allow the second respondent's application for voluntary erasure. On 6 March 2020, the GMC informed the parties that this decision would (in effect) be stayed pending the determination of this appeal. The PSA's position is that the MPT's order, even if now coupled with voluntary erasure, would be insufficient for the protection of the public. A court-imposed erasure is necessary in light of the importance of upholding confidence in the medical profession and the importance of the maintenance of standards.
Legal framework
The High Court's jurisdiction
The PSA may refer a suspension decision of a MPT to the High Court if it considers that the decision is not sufficient for the protection of the public (section 29(4) of the National Health Service Reform and Health Care Professions Act 2002). The protection of the public includes not only matters relating to the health, safety and well-being of the public but also the maintenance of public confidence in the medical profession and the maintenance of proper professional standards and conduct (section 29(4A) of the 2002 Act).
The court will treat any such reference as an appeal against the relevant decision (section 29(7) of the 2002 Act). The proceedings will be governed by CPR Part 52. The court's consideration is therefore limited to a review of the decision and is not a rehearing ( CPR 52.21(1)). An appeal will be allowed if the panel's decision is “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings” ( CPR 52.2(3)).
The correct approach to the MPT's findings
The approach that the court should take to the factual findings and evaluative assessments of the specialist MPT is well-established in case law and is not in dispute. It has recently been summarised by Foster J in Professional Standards Authority for Health and Social Care v Health and Care Professions Council & Andrews [2020] EWHC 1906 (Admin). The summary includes the following propositions (at para 3 of the judgment):
“(b) The court, as any appeal court, will...
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Professional Standards Authority for Health and Social Care v Health and Care Professions Council
...in the judgment of Farbey J in Professional Standards Authority for Health and Social Care v General Medical Council and Dighton [2020] EWHC 3122 (Admin) at paras 16–17, as follows:- “ Legal framework The High Court's jurisdiction 16. The PSA may refer a suspension decision of a MPT to the......
- Professional Standards Authority for Health and Social Care v General Medical Council