R (Calhaem) General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 19 October 2007 |
| Neutral Citation | [2007] EWHC 2606 (Admin) |
| Docket Number | CO/9300/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 October 2007 |
[2007] EWHC 2606 (Admin)
Mr Justice Jackson
CO/9300/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Andrew Hockton (instructed by Medical Defence Union) appeared on behalf of the Claimant
Mr Ben Jaffey (instructed by GMC) appeared on behalf of the Defendant
This judgment is in eight parts, namely: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the law; part 5, the first ground of appeal - alleged errors of fact; part 6, the second ground of appeal - challenge to decision on impairment; part 7, the third ground of appeal - challenge to decision on sanctions; part 8, conclusion.
This is an appeal by a consultant anaesthetist against a determination made by the Fitness to Practise Panel of the General Medical Council. That determination was to the effect that (a) the appellant's fitness to practise was impaired because of misconduct and deficient professional performance and (b) the appellant's registration should be suspended for three months. This appeal is brought pursuant to section 40 of the Medical Act 1983 (as amended). The procedure for such an appeal is governed by paragraph 22.3 of the Practice Direction supplementing Part 52 of the Civil Procedure Rules. In particular, paragraph 22.3(2) provides that the appeal will be by way of re-hearing.
The appellant in these proceedings is Dr Malcolm Noel Calhaem, to whom I shall refer as "Dr Calhaem". The respondent in these proceedings is the General Medical Council, to which I shall refer as "the GMC". I shall refer to the Fitness to Practise Panel as "the FTP Panel" or "the Panel". In the proceedings before the Panel, the patient whose treatment was under consideration was referred to as "patient A" or "Mrs A". I shall refer to her as "Mrs A". After these introductory remarks, it is now time to turn to the facts.
Dr Calhaem is an experienced consultant anaesthetist practising in Staffordshire. On 16 November 2004, Mrs A was admitted to the North Staffordshire Nuffield Hospital in Newcastle-under-Lyme for a nasal polypectomy. That is an operation to remove a growth from the nose. The surgeon who carried out that operation was Mr Paul Wilson. The anaesthetist was Dr Calhaem.
In order to induce anaesthesia, Dr Calhaem administered four drugs to Mrs A by means of a small cannula inserted into a vein. Those four drugs were Midazolam (2mg), Propofol (200mg), Fentanyl (75mcg) and Suxamethonium (75mg). The last of those four drugs, Suxamethonium, was a muscle relaxant. The purpose of this drug was to facilitate the insertion of an endotracheal tube. The anaesthetics took effect. Mrs A became unconscious. The endotracheal tube was inserted. Unfortunately, unknown to any of the medical staff, Mrs A was allergic to Suxamethonium and suffered an adverse reaction. She became cyanosed and tachycardic. Her circulation was inadequate.
There was a discussion between Mr Wilson and Dr Calhaem. It was decided to proceed with the operation. During the operation, Mrs A was provided with increased oxygen, but her condition did not improve. Dr Calhaem asked Mr Wilson to stop operating, but by that time the operation was complete. At the end of the operation, Mrs A was cold and clammy to the touch. Mrs A was transferred to the recovery room. Dr Calhaem removed the endotracheal tube. Dr Calhaem remained with Mrs A for a period, during which she did not recover consciousness. She received oxygen through a face mask. Dr Calhaem formed the view (correctly as it turned out) that Mrs A had suffered a reaction to Suxamethonium. He administered ephedrine, which was appropriate medication for that condition.
At around 12 noon, Dr Calhaem left Mrs A and went off to anaesthetise another patient. Another consultant anaesthetist, Dr Coleman noticed Mrs A's condition and was concerned. Dr Coleman increased the oxygen levels which Mrs A was receiving. He then went to Dr Calhaem and offered to help. Dr Calhaem declined that offer. He went back to the recovery room to check on Mrs A himself. At around 2pm, Mrs A still had not regained consciousness. She developed decerebrate movements. Arrangements were made for Mrs A to have an urgent CT scan, x-rays and other tests. Arrangements were also made for her to be transferred to the intensive care unit at another hospital. Subsequently, Mrs A made a full recovery from the adverse effects of the anaesthesia and operation. She was discharged home. Sadly, however, Mrs A died from other unrelated causes.
Mrs A and her family did not make any complaint about Dr Calhaem's conduct. The management of the Nuffield Hospital, however, were justifiably concerned about what had happened. They referred to the matter to the GMC. The GMC duly investigated. The upshot of that investigation was that proceedings were brought against Dr Calhaem before the FTP Panel.
There was a substantial amount of common ground between the parties in the FTP proceedings. I shall now read out certain allegations which were made by the GMC and admitted by Dr Calhaem. ]
"Allegation 3: prior to induction of anaesthesia you did not record Patient A's baseline values of,
a. pulse
b. oxygenation
c. blood pressure
…
Allegation 10. You allowed the operation to proceed.
Allegation 11.a. In the circumstances, your actions at 10 above were inappropriate."
Dr Calhaem further admitted that allowing the operation to proceed was a departure from good clinical care and practice, but not a "serious" departure.
"Allegation 12. Before and/or during theatre you did not record (including where appropriate the values of) Patient A's,
a. inspired concentration of gases
b. end tidal concentration of isoflurane
c. grade of laryngoscopy
d. breathing circuit
e. mode of ventilation
Allegation 13. Before induction and every five minutes thereafter you did not record Patient A's vital signs.
…
Allegation 15. After surgery but before Patient A's removal to the recovery room,
a. her colour continued to deteriorate
b. she was cold and clammy to the touch
Allegation 16. You removed Patient A's endotracheal tube.
…
Allegation 18. Patient A was taken to the recovery room at about 11.30. On arrival her
a. blood pressure was low
b. oxygen saturations were low
c. skin was blue, mottled and clammy
…
Allegation 20. You left Patient A to anaesthetise another patient. You failed,
…
b. In any event to record the results of any such examination you may have carried out.
…
d. In any event to record the result of any such attempts you may have made to establish any such explanation.
e. To order blood samples.
…
Allegation 22. By about 14.00 Patient A had,
a. failed to regain consciousness
b. become agitated
c. had a decerebrate movement
Allegation 23. By or at this time you failed to,
…
b. anaesthetise Patient A again
c. replace the endotracheal tube
d. arrange a CT scan
Allegation 24. Between 12.00 and Patient A's transfer to the multiple injuries unit at 16.20 you failed,
…
d. Adequately to record in the Notes such assessments, examinations, clinical signs, treatments, attempts to establish a diagnosis and the like as you may have undertaken."
The hearing before the FTP Panel was conducted over a period of nine days between June and October 2006. The Panel heard evidence from Mr Wilson, Dr Coleman, a number of hospital staff, Dr Calhaem, and two expert witnesses. The expert witness on behalf of the GMC was Dr Simon Mackenzie. The expert witness for Dr Calhaem was Dr Nicholas Davies. Both experts were experienced consultant anaesthetists.
During the course of the evidence, further common ground emerged between the parties which I shall now summarise. During the course of his evidence, Dr Calhaem admitted that it was inappropriate to proceed with the operation in view of Mrs A's condition. Dr Davies, who was the defence expert witness, accepted in his report that the endotracheal tube was removed too soon after the operation. He added, however, that this was a misjudgment which most anaesthetists have made in the course of their careers. Dr Davies also accepted that it would probably have been valuable if Dr Calhaem had accepted Dr Coleman's offer of assistance. In relation to the incident as a whole, Dr Davies' conclusion was as follows:
"I consider that Dr Calhaem's failures, many of which have been admitted, were significant, but not by themselves of sufficient gravity to call into question his registration".
When Dr Davies gave oral evidence, he confirmed the contents of his report. Towards the end of his evidence a Panel member enquired which particular aspects were of concern. Dr Davies gave the following answer, which appears on the transcript of day 6 at page 47:
"Yes, I think there are deficiencies in the records, there are deficiencies, I think, in some aspects of communication with colleagues. For instance, I think the conversation with Dr Coleman was not one that I would entirely support. I think that the nursing staff, looking back on it, probably needed more in the way of reassurance and communication so that he could put across his view that it was reasonable to do the various things that he did and did not do."
Thus, it can be seen that a number of breaches of duty by Dr Calhaem to Mrs A were admitted. I would summarise the breaches which were admitted as follows: (1) failing to record baseline values before inducing anaesthesia; (2) allowing the operation to proceed; (3) failing to keep proper...
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