The Professional Standards Authority for Health and Social Care v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 28 June 2019 |
| Neutral Citation | [2019] EWHC 1638 (Admin) |
| Docket Number | Case No: CO/250/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 June 2019 |
[2019] EWHC 1638 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: CO/250/2019
Ms Fenella Morris QC (instructed by Browne Jacobson LLP) for the Appellant
Mr Richard Booth QC (instructed by DWF Law LLP) for the Second Respondent
Hearing dates: 22 May 2019
Approved Judgment
I Introduction
This is an appeal under s.29 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”) against a decision of the Medical Practitioners Tribunal (“the Tribunal”) of the General Medical Council (“the GMC”).
This appeal is opposed by the Second Respondent, Mr Andrew Hilton (“the Respondent”). The GMC has stated that it is neutral in relation to the appeal and has not appeared before the Court.
Following a complaint by Patient A, at a meeting on 2 November 2016, the Respondent dishonestly informed Patient A that the Respondent had known from his post-operative assessment of Patient A that a screw used in the surgery was misplaced.
The Respondent came before the Tribunal between 12 and 23 November 2018. The Tribunal found that he was guilty of misconduct by reason of dishonesty but that his fitness to practise was not impaired, and that it was not necessary or proportionate to issue a warning in his case.
II Powers of the Tribunal
The powers of the Tribunal are set out in section 35D of the Medical Act 1983 in the following terms:
(1) Where an allegation against a person is referred under [section 35C(5)(b)] above to [the MPTS—
(a) the MPTS must arrange for the allegation to be considered by a Medical Practitioners Tribunal, and
(b) a Fitness to Practise Panel, subsections (2) and (3) below shall apply.
(2) [Where the Medical Practitioners Tribunal] find that the person's fitness to practise is impaired they may, if they think fit—
(a) except in a health case [or language case], direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as [the Tribunal] think fit to impose for the protection of members of the public or in his interests.
(3) Where [the Tribunal] find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance.”
III Factual Background
What follows is largely taken from the submissions made on behalf of the Respondent. This in turn is in large part a summary of the determination of the MPT on the facts and its conclusions as to the facts.
In March 2014, the Respondent performed a lumbar spinal fusion procedure on Patient A, a private patient, at the BMI Harbour Hospital. The Respondent did not recognise either intra-operatively or post-operatively that the right L2 pedicle screw (“the screw”) was out of place and, as a consequence, made no mention of this to Patient A.
After Patient A had been discharged by the Respondent, he experienced further back problems. He contacted his private medical insurer, Aviva, who arranged a consultation with a different orthopaedic surgeon, Mr Guy Barham. An MRI scan was performed. On 19 April 2016 Patient A was seen by Mr Barham and was referred for a CT and bone scan. At a consultation with Mr Barham on 1 June 2016, Patient A was shown the scan results and was told that the screw was not in bone. Revision surgery was proposed.
On 19 July 2016 Patient A wrote to the Respondent complaining about the outcome of the surgery performed on him by the Respondent. Patient A's letter included the following:
“You carried out a spinal fusion of L2/L3 on March 26 th 2014. I am still having problems with back issues …
My son took a photograph of the x-ray two days after you carried out the procedure and it appears to show that one screw was not in place from day one.
…
[There then followed various numbered questions]
…
4. Why was I repeatedly informed by you over the course of my appointments that my x-rays appeared normal; evidently this is not the case?”
The Respondent finally responded, after chasing by Patient A, on 25 August 2016 [2/472]. His letter included the following:
“I have reviewed your imaging during and since surgery …
I confirm that the right superior L2 screw is placed laterally and therefore may not be in full contact with bone.
…
[There then followed the answers to the numbered questions]
…
With regard to your post-operative x-rays, there was a suggestion that the right L2/3 may be placed too laterally, however as I understood your progress was good, I felt that this did not require any further investigation.”
On 27 September 2016 Mr Barham performed revision surgery. On 3 October 2016 Patient A emailed the Quality and Risk Manager at the BMI hospital, reiterating his complaint about the spinal fusion procedure performed by the Respondent.
On 2 November 2016, a meeting took place. In attendance were Patient A and his wife, the Respondent, the BMI Quality and Risk Manager, and two other members of hospital staff, including a note taker. At that meeting, the Respondent said that he had known about the misplaced screw post-operatively, that he had not wanted to worry Patient A and that he had adopted a watch and wait approach. It was not in fact the case that the Respondent had known about the misplaced screw post-operatively.
Towards the end of the 2 November 2016 meeting, Patient A demanded £10,000 financial compensation from the Respondent and threatened referral to the GMC if payment was not made. The Respondent asked him to email about this, which Patient A did. The Respondent did not respond. Accordingly, on 26 November 2016 Patient A referred the Respondent to the GMC.
On 16 November 2017 the GMC sent a Rule 7 letter and enclosures to the Respondent. One of the allegations (not from the start) was an allegation of dishonesty regarding the 2 November 2016 meeting which was found proved by the Tribunal.
In oral submissions, Mr Booth QC for the Respondent showed how the allegation of dishonesty regarding the 2 November 2016 arose because in the letter of the Respondent in reply to the Rule 7 letter, his answer was that he did not deliberately mislead Patient A about the results of the x-rays. On the contrary, he did not check the x-rays until after the complaint of Patient A. This then led to the secondary case, which in the event was the one which led to the finding of misconduct, that if the Respondent did not mislead earlier, then he lied at the meeting of 2 November 2016 when he stated that he had known about the misplaced screw post-operatively.
The Tribunal hearing lasted for 10 days from 12 November 2018 to 23 November 2018. The Tribunal consisted of a Legally Qualified Chair, Ms Angela Black, a Lay Tribunal Member, Mr Darren Shenton, and a Medical Tribunal Member, Dr Alan Shepherd.
The Tribunal heard evidence from Patient A and from the Respondent. The Tribunal had reservations about the evidence of Patient A, finding his manner of dealing with the Respondent to be “unattractive”. It regarded the Respondent as a credible and reliable witness, who had given his evidence in a straightforward and consistent way. It found that he had accepted that he had made a mistake in that the screw was misaligned and not (fully) in the pedicle. The Tribunal found that “ the Respondent presented as someone who had been open with Patient A.”
The Tribunal also heard expert evidence from two spinal surgeons, Mr Mohammed for the GMC and Miss Morgan for the Respondent. The key elements of this appeal do not turn on their evidence. Prior to the meeting of 2 November 2016, the Respondent requested a copy of CT scans ordered by Mr Barham and within the control of Patient A, so that he could assess properly whether the screw was in the bone or not. Patient A refused to let the Respondent see those CT scans. It was only as a result of defence requests that those CT scans were made available shortly before the Tribunal hearing.
At the conclusion of the evidence at Stage 1, the respective Counsel made submissions on the facts. Counsel for the GMC felt it necessary to clarify Charges 7a and 7b at that point. The GMC's primary case at that point was that what was said by the Respondent in the meeting on 2 November 2016 was true. In fact, the Tribunal went on to reject the GMC's primary case, but to accept its secondary case. The Chair set out the legal advice prior to the Tribunal's deliberations.
The Tribunal made its determination on the facts on 21 November 2018, day 8 of the hearing. That determination was detailed and properly reasoned.
The Tribunal found that the Respondent had failed on more than one occasion to review adequately Patient A's post-operative imaging in that he failed to recognise that the right L2 screw was out of place. In particular, he ought to have reviewed the evidence of the x-rays and failed to do so: he has now revised his practice and now does consult with the x-rays on such reviews. However, the Tribunal accepted the Respondent's evidence to the effect that, at all times when Patient A was his patient, he had not noted that the screw was misaligned.
The Tribunal found as a fact that, following the surgery performed by the Respondent, Patient A's pain was gradually reducing and his symptoms were...
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