The Queen (on the application of Squier) v General Medical Council

Hearing dates: 22 nd and 23 rd January 2015

This is the rolled up hearing of an application for judicial review of two decisions of the Fitness to Practise Panel, FTPP, of the Medical Practitioner's Tribunal Service of the General Medical Council. The registrant Claimant faces allegations that her fitness to practise is impaired. The first decision of 23 September 2014 held that five judgments of the High Court and one of the Court of Appeal Criminal Division in six cases of alleged non-accidental head injury to infants, "shaken baby syndrome", in which the registrant had given evidence as an expert consultant paediatric neuropathologist, would be admitted in evidence subject to redactions to exclude most, but not all, says the Claimant, of the adverse comments and findings in the judgments. The issue before the FTPP concerned the relevance and fairness of admitting those judgments as evidence, especially in the light of the vagueness by the General Medical Council as to the role which those judgments would play and in the light of the gravity of the allegations Dr Squier faces. These include allegations that she deliberately misled the courts and acted dishonestly. Dr Squier has declined to suggest further redactions to the judgments, though pointing in these proceedings to remaining comments seen by her as adverse.

The second FTPP decision of 23 September 2014 was to the effect that, with some changes, the allegations against Dr Squier were adequately particularised. Further amendments were made without opposition on 26 September 2014. The GMC then applied to amend the allegations, giving further particulars; and in a decision of 17 December 2014, the FTPP agreed. Those amendments were not opposed but that decision, though not formally challenged, does not deal with the gravamen of Dr Squier's complaints about the earlier decision.

The Claimant seeks the quashing of those decisions. The matter is of some urgency as the 40 day FTPP hearing is due to commence on 2 ^nd March 2015 though the case might be postponed to September 2015 with an 80–90 day estimate. The FTPP case is one of considerable complexity. There may be three stages in total to the FTPP proceedings: findings of fact in relation to the allegations, then a finding as to whether or not the Registrant's fitness to practise was impaired, and if so consideration of sanction. This challenge to the decision on admissibility only relates to the admissibility of the judgments at the first stage of finding facts in relation to the allegations. Sir Robert Francis QC for the Claimant accepted that different conclusions might, but not necessarily would, apply at either of the two later stages. The FTPP in its decision recognised that different considerations might apply at those stages as well.

Background

The FTPP proceedings concern evidence given by the Claimant in six cases as an expert witness between 2006 and 2010. Her evidence was subject to severe judicial criticism, though it was not the judges but the National Police Improvement Agency which made the complaint in 2010 leading to these proceedings.

The allegations as they stand after the 18 December 2014 decision may not yet be in their final form as the GMC can still seek further amendments, whether to give more particulars of the allegations or not. However, currently the allegations are listed by reference to each of the six cases in sequence. There are many common features; I take the first case out of the six in the list as an example.

"2 a) You provided expert opinion evidence outside your field of expertise by:

i) presenting opinion evidence, based upon biochemical research, as to the likelihood that a low level fall could have caused the brain injury which baby 'A' suffered;

ii) presenting opinion evidence based in the fields of ophthalmic pathology and/or ophthalmology;

iii) giving an opinion in relation to the likelihood of baby A having had a lucid interval between injury and death.

b) You made assertions in support of your opinion which you knew or believed were insufficiently founded upon the evidence available, in that you:

i) asserted that baby A had vomited four or five times between an alleged fall at approximately 16:30 and 23:30 and that 'baby A vomited repeatedly over the next five hours';

ii) asserted that there was a left sided unilateral subdural haemorrhage.

c) You provided expert opinion evidence in which you purported to rely upon research papers including those set out below, whereas in fact the research did not support your opinion in the way in which you suggested, namely that in the circumstances of this case an accidental low level fall as opposed to an inflicted injury could have caused the brain injury:

[6 research papers are identified]

d) You provided expert opinion evidence in which you purported to rely upon research papers including that set out below, whereas in fact the research did not support your opinion in the way in which you suggested, namely that the child may have had a lucid interval:

Arbogast KB et al (2005)

3. You failed to present your report and the research material you relied upon in a way which was as complete and accurate as possible.

4. You failed to discharge your duties as an expert in that you:

i) Failed to work within the limits of your competence;

ii) Failed to be objective and unbiased;

iii) Failed to pay due regard to the views of other experts;

5. Your actions and omissions as described above in paragraphs 2 and 3:

i) Were misleading;

ii) Were irresponsible;

iii) Were deliberately misleading;

iv) Were dishonest;

v) Were likely to bring the reputation of the medical profession into disrepute."

The same pattern is in essence repeated in relation to the evidence given by the Claimant to the CACD on appeal against conviction.

The FTPP was satisfied that the case was adequately particularised, in part because Dr Squier could cross refer the allegations to a schedule of evidence and then further to the GMC's then draft opening statement for the detail of the "wrap up" charges, allegations 4 and 5, in the example of the allegations I have given. No specific point from the judgments is relied on formally as part of any allegation. None of the allegations, either in the example cited or in any of the others, are particularised by reference to any finding in the judgments. I note that allegation 5 now reads that the Claimant's conduct reads was "likely to bring" the reputation of the medical profession into disrepute rather than "did bring" its reputation into disrepute as it had before. This is in the light of the extensive redaction of the judicial criticism of Dr Squier from the judgments.

The schedule of evidence dated July 2014 is by name just that. It starts with warnings as to its role. It says that it was drafted for the assistance of all parties and "is an overview of the GMC evidence underlying each of the factual allegations. It does not bind the GMC in the presentation of its case. The GMC is not limited to presenting its case to the evidence referenced in the schedule. This schedule only lists the factual allegations against Dr Squier. The general allegations (such as failing to discharge her duties as an expert; dishonesty; failing to act objectively; etcetera) will be a matter of inference for the panel having heard all of the evidence."

I take, by way of example, allegation 2a from the first set of allegations which I have referred to above. This is cross referenced in the schedule to evidence comprising various reports by Dr Squier with page numbers, to the civil and criminal hearing transcripts with page references, and to "supporting evidence" which comprises the GMC expert's reports with page references and paragraphs of the judgment; the paragraphs in the judgment have not yet been updated in the schedule to take account of redactions so some references are to now redacted paragraphs. The judgment is referred to in the schedule in relation to allegations 2(a)(i), 2(b)(i) and (ii), also making a third point, as if it were part of the allegation, to the effect that evidence that vomiting may have been the result of viral infection was ignored (that may have been dropped now as an allegation though remaining in the schedule for want of updating). Allegations 2(c) relating to research papers cross refers as "evidence" to passages in Dr Squier's reports, transcripts and "supporting evidence" from the GMC's experts. No particulars whatsoever are provided in the Schedule of allegation 3.

The draft opening statement, in its current form, post-dating the decisions challenged and reflecting the current redacted versions of the judgments and the current version of the charge adds some information about the allegations. I take the same first case, which was the example examined in court, simply because it was the first case on the list of allegations. But its form was not said to be atypical or aberrant. There is more narrative and explanation in the opening statements on allegations 2(a) and (b) but there is no mention of viral infection. A narrative of varying degrees of detail is provided in relation to allegation 2(c) concerning research reports but it is often very little. It only provides examples of an allegation, not the allegation as formulated in the list of allegations, but instead of an allegation that "when giving evidence she does not...