R ( Campbell) v General Medical Council

JurisdictionEngland & Wales
JudgeLord Justice Judge
Judgment Date11 March 2005
Neutral Citation[2005] EWCA Civ 250
Docket NumberCase No: C1/2004/1271
CourtCourt of Appeal (Civil Division)
Date11 March 2005
Between
The Queen (on the Application of Jennifer Campbell)
Appellant
and
The General Medical Council
Respondent

[2005] EWCA Civ 250

Before

Lord Justice Judge

Lord Justice Longmore and

Lord Justice Jacob

Case No: C1/2004/1271

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ADMINISTRATIVE COURT

THE HON. MR JUSTICE SILBER

Royal Courts of Justice

Strand, London, WC2A 2LL

David Wolfe (instructed by Bindman & Partners) for the Appellant

Beverley Lang QC and Gerard Clarke (instructed by the General Medical Council) for the Respondents

Lord Justice Judge
1

This is the judgment of the Court.

2

This is an appeal by Jennifer Campbell against the decision of Silber J, dated 28 May 2004, refusing her application for judicial review of the decision of the Profession Conduct Committee of the General Medical Council ("the Committee"), dated 2 October 2003, dismissing a charge of serious professional misconduct against Dr Nigel Birkin.

3

The essential argument before Silber J was that the Committee's decision was flawed on what we may fairly describe as public law "reasons" grounds. Silber J concluded that the Committee had complied with its obligations to give reasons, and in particular that it had made sufficient and detailed findings about the seriousness of the errors established by the complaint. This conclusion was criticised by Mr David Woolfe in his grounds of appeal, but following the production in December 2004 of the Fifth Report of the Shipman Inquiry, chaired by Dame Janet Smith, he sought, and permission was granted for the appeal to proceed on an additional basis, not argued before Silber J. He was not invited to consider the correctness of nor to disapply the decision of the Judicial Committee of the Privy Council ("the Board") in Silver v General Medical Council [2003] Lloyd's Med. 333. We are now required to do so.

4

The case proceeded throughout on an agreed basis that the complainant who set the disciplinary process in motion was entitled to make an application for judicial review and challenge the decision of the Committee on "traditional" judicial review grounds. This is plainly a highly unusual process, and as we understood it, only the second occasion when such proceedings have been taken, and the first to reach this Court. The application was made after enquiry of the Council for the Regulation of Healthcare Professions whether it would exercise the powers vested in it by s 29 of the National Health Service Reform and Healthcare Professions Act 2002 to refer a decision to the High Court. The Council declined to do so because the "deadline" for any such referral had already lapsed before it was firmly established that the Council was vested with the necessary jurisdiction. Accordingly there was no practical alternative to Ms Campbell's application for judicial review.

5

The disciplinary proceedings against Dr Birkin were set in train by Jennifer Campbell. They were subject to the Professional Conduct Committee (Procedure) Rules 1998, which came into effect on 15th January 1989. Ms Campbell's complaint was referred to the Professional Conduct Committee, which in due course convened a hearing. In accordance with the procedure laid down by rule 27 evidence in support of the "facts alleged" as well as evidence by and for Dr Birkin was presented. The Committee was required to make a fact finding decision, and then, as a separate exercise of judgment, to consider whether the facts admitted and proved were "not insufficient to support a finding of serious professional misconduct".

6

We shall gratefully adopt Silber J's careful summary of the essential facts.

7

At all material times Dr Birkin was a consultant paediatrician employed at Noble's Hospital, Isle of Man. From 1992, he had single-handedly created a paediatric service in the Isle of Man, and for 15 years, had run the neonatal unit unaided. His career was long and distinguished. His many patients included two small children, Michael Boyle and Amy Tasker.

Michael Boyle

8

Jennifer Campbell gave birth to Michael Boyle on 7 December 1998, at 24 weeks' gestation. He weighed 710 grams.

9

Between 13 March 1999 and 12 April, Dr Birkin failed to keep proper growth charts. These would have shown a weight gain of 105 grams in two weeks, slower than the expected gain of 300 grams. When Dr Birkin saw Michael on 12 April, he failed to carry out a full examination and make a proper note of the child's head circumference. Between 6 April and 29 April, he failed to arrange regular weekly recordings of the head circumference, and to carry out weekly ultrasound scans. When he saw Michael at his clinic on 26 April, despite clear evidence of a rapidly increasing head circumference, Michael was not admitted for medical assessment and treatment in hospital. Dr Birkin failed to arrange for an immediate surgical referral, instead writing to Mr P L May, consultant paediatric neurosurgeon at Alder Hey Children's Hospital asking him to see Michael within "the next week or 10 days". Thereafter Michael was readmitted to Noble's hospital after his parents had telephoned Liverpool Women's Hospital directly seeking assistance from them. It was then that the admitting doctor at Noble's Hospital made a diagnosis of marked hydrocephalus.

Amy Tasker

10

Amy was born on 19 November 1997, and admitted to Noble's Hospital as an emergency patient on 5 December 1997, presenting with symptoms of septicaemia. Next day, Dr Birkin arranged an ultrasound scan of Amy's head. This was reported as showing "slight symmetrical dilatation of the ventricles without evidence of intraventricular haemorrhage or midline shift". A further ultrasound scan of the head on 29 December was reported as showing that both lateral ventricles appeared to be dilated.

11

Amy was seen again by Dr Birkin on 6 February 1998. He failed to undertake a full examination, or to make adequate clinical notes, or to record the circumference of her head. An ultrasound scan on the same date was later reported as showing gross dilatation of the lateral ventricles, and dilatation of the third ventricle. Dr Birkin wrote to Amy's general practitioner and described the ultrasound scan at the end of December as normal (when it was not) and suggesting significant ventricular growth during the previous 4–5 weeks. He saw Amy on 20 February. Again he failed to undertake a clinical examination, and made no medical note of his findings. The child's head circumference, by now 42.2cm, was not recorded on a head circumference chart. Such a record would have provided a graphic illustration of how Amy's head circumference had moved from below the tenth centile at birth to over the ninetieth centile at 14 weeks.

12

When Dr Birkin saw Amy again on 16 March, he again failed to make a clinical examination, and although Amy's head circumference was now 43.8cm, again no record was made of these findings. He arranged a further appointment for 14 April, but failed to write to Amy's general practitioner.

13

In summary, no full clinical examination was carried out between 6 February and 14 April. No adequate clinical notes were made. Dr Birkin failed to take weekly head circumference measurements, supplemented by ultrasound scans weekly, or as necessary. Despite Amy's worsening condition, a referral to Alder Hey Children's Hospital was delayed. Amy became very ill. She was admitted to Noble's Hospital on 8 April as an emergency patient.

14

The Committee concluded that Dr Birkin's treatment of Michael Boyle was "substandard, not in the best interests of the patient and likely to compromise patient safety". It further found that his treatment and management of Amy fell below acceptable standards. In short, there was sufficient evidence which could (not did) support a finding that he was guilty of serious professional misconduct. Thereafter rule 28 applied.

15

This is headed:

"28. Circumstances, character, history and pleas in mitigation in cases relating to conduct

(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the chairman shall invite the solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor of the complainant may adduce oral or documentary evidence to support an address under this rule. [emphasis supplied]

(2) The chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid." [emphasis supplied]

16

Rule 28 itself distinguishes between the issue of serious professional misconduct, or as we shall describe it from time to time hereafter, culpability, and mitigation. The process is plainly intended to be sequential, first, whether or not the allegation of serious professional misconduct is proved, and in the express word of rule 28(2), "then", mitigation which the heading to rule 28 strongly suggests is a shorthand reference to the plea in mitigation. All the matters referred to in rule 28(1) are addressed by the complainant, or the advocate presenting the case against the practitioner, both by way of submissions and evidence. Even allowing for the obligation on the advocate conducting the proceedings against the practitioner to ensure that the interests of justice are served, neither the...

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