The Queen (on the application of Professor Ian Young) v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 09 March 2021 |
| Neutral Citation | [2021] EWHC 534 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 March 2021 |
| Docket Number | Case No: CO/1771/2020 |
[2021] EWHC 534 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Holgate
Case No: CO/1771/2020
Robert Kellar QC (instructed by Carson McDowell LLP) for the Claimant
Peter Mant (instructed by GMC Legal) for the Defendant
Hearing date: 14/01/2021
Approved Judgment
Introduction
On 14 November 2018 an Assistant Registrar (“AR1”) of the General Medical Council (“the GMC”) decided that allegations against the Claimant, Professor Ian Young, relating to his conduct in 2004 and 2006 should not proceed any further by virtue of rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 (SI 2004 No 2608) (“the 2004 Rules). Subsequently, another Assistant Registrar (“AR2”), acting under rule 12 of the 2004 Rules, reviewed that determination and, by letters dated 9 January and 23 March 2020, substituted a fresh decision, this time that the allegations should proceed.
Rule 4(5) provides:-
“No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed.”
It is important to emphasise at the outset that the Registrar's task is not to see whether an allegation can be made out or whether there is unfitness to practise. Rule 4 simply involves a form of triage.
Likewise, although it will be necessary in this judgment to refer to findings which have been made by others, as well as to the allegations against the Claimant, it is not the Court's role in these proceedings to express any conclusions about the merits of those matters. This judgment should not be treated as if it does.
With the permission of Lewis J (as he then was) the Claimant applies for judicial review of the decision made by AR2, contending that the power to review under rule 12 was not engaged, alternatively, that if it was, the power was exercised unlawfully. I would like to express my gratitude to counsel for their written and oral submissions and also to Mr. Roberts for his written submissions.
The Claimant is Professor of Medicine at the Queen's University, Belfast, where he has previously served as the Director of the Centre for Public Health. He is Deputy Medical Director and Consultant Chemical Pathologist at the Belfast Health and Social Care Trust. He is the Chief Scientific Advisor to the Department of Health (Northern Ireland).
Professor Young qualified from the Queen's University in 1985. Apart from the matters the subject of the decisions under challenge he has no adverse regulatory history at the GMC during a long and distinguished career.
On 5 February 2018 the Claimant self-referred to the GMC following publication on 31 January 2018 of the Report by Mr. Justice O'Hara on “The Inquiry into Hyponatraemia-related Deaths” (“the Report”). That Inquiry had been established in December 2004 under the chairmanship of John O'Hara QC (as he then was) to examine the events surrounding and following the deaths of a number of children in hospitals in Northern Ireland. The allegations considered by the GMC are based upon findings in the Report.
Hyponatraemia
Hyponatraemia refers to a condition in which the concentration of sodium in the blood falls below safe levels. It can arise from excessive losses of sodium caused, for example, by vomiting. It can be related to the dilution of sodium levels in the blood through excess fluid. That can result from excessive intravenous infusions (“IV”) or by excessive water retention, or a combination of both.
Several of the children had been given an IV infusion of “Solution No.18” which contains only 0.18% sodium chloride. It is a low saline or hypotonic solution, containing only 20% of the sodium chloride found in blood. That low concentration cannot replace sodium lost through vomiting or diarrhoea and, if administered excessively or too quickly, can result in dilutional hyponatraemia. This may occur, for example, if solution No.18 is given inappropriately where a patient has already suffered sodium losses or excessive water retention. For example, children may react to illness or surgical stress with a Syndrome of Anti-diuretic Hormone Secretion (“SIADH”), which inhibits urine production and causes water retention.
If left untreated, a significant fall in sodium concentration may induce a cerebral oedema, leading to raised intracranial pressure, swelling of the brain stem, coma, respiratory arrest and death.
The symptoms of hyponatraemia are often lethargy, headaches, nausea and vomiting. The severity of the symptoms reflects the rate at which the sodium level falls. A diagnosis can be made straightforwardly by testing the levels of sodium in the blood. According to paragraph 1.33 of the Report, safe IV fluid management of a child with sodium losses cannot be assured without carrying out those tests and understanding the fluid balance. Dilutional hyponatraemia should not happen in a hospital because such a patient will be the subject of active fluid therapy or management. It is a preventable hospital illness.
Risks of using Solution No.18 and the dangers of dilutional hyponatraemia began to be understood more clearly from the early 1990s (Report para. 1.35).
This judgment is arranged under the following headings:-
Overall Chronology
| Headings | Paragraph Numbers |
| Overall Chronology | 14–37 |
| The Report by Mr Justice O'Hara | 38–50 |
| Legal Framework | 51–72 |
| A summary of the decisions by the Assistant Registrars | 73–93 |
| A summary of the grounds of challenge | 94 |
| Ground 1 | 95–112 |
| Ground 2 | 113–140 |
| Ground 3 | 141–148 |
| Conclusion | 149 |
It is necessary to begin with the tragic events which took place in late 1996, although the Claimant did not become involved until much later in 2004.
In the evening of 21 October 1996 Claire Roberts, who was then aged only 9, was admitted to the Royal Belfast Hospital for Sick Children (“RBHSC”). She had symptoms of vomiting, lethargy and very slurred speech. The Report described her condition as “reduced consciousness” (paragraph 2.39). Claire was placed on an IV infusion of Solution No.18. Around midnight a blood test revealed a serum sodium level of 132 mmol/l (millimoles per litre), just below the normal range of 135 to 145 mmol/l.
During the afternoon of 22 October 1996 Claire's condition declined and she suffered a number of seizures. Her Glasgow Coma Scores and level of consciousness reduced. Diagnostic tests were not carried out. Blood tests were not repeated until 9:30pm. The results at 11:30pm revealed that her serum sodium had fallen to the “dangerously low” level of 121 mmol/l (Report 3.146).
At around 2.30pm on 23 October 1996 Claire suffered respiratory arrest. Just under an hour later she was transferred to the paediatric intensive care-unit. A CT scan was carried out at 5.30am revealing severe cerebral oedema. Sadly, it was clear that because of her brain injury Claire could not survive and so life support was discontinued later that day.
Claire's death was not referred to the Coroner at that stage. The cause of death was certified as being “cerebral oedema secondary to status epilepticus.” Hyponatraemia was omitted from the certificate, despite it being “the only confirmed diagnosis at the time.” On the other hand, the certificate referred to status epilepticus, despite the unconfirmed status of that diagnosis in the absence of any EEG test. By contrast, the certificate did not mention another unconfirmed diagnosis, namely viral encephalitis (Report e.g. paragraph 3.203). The Inquiry made strong criticisms of two consultants responsible for Claire's care (Dr Steen, a consultant paediatrician and Dr Webb a consultant paediatric neurologist) for failing to refer Claire's death to the Coroner and for their contemporaneous explanations of the cause of death (Report 3.242).
At the time, Claire's parents, Alan and Jennifer were led to believe that her death resulted from a viral infection and encephalitis, although the autopsy report had excluded the latter (Report 3.206, 3.227 and 3.240 to 3.241). They were not told about the hyponatraemia (see also 3.242 to 3.244).
O'Hara J was satisfied that a “cover-up” of the cause of death was attempted by Dr Steen and to some extent by Dr Webb, but the NHS trust had not been complicit in that attempt (Report 3.242 and 3.245–3.248).
On 21 October 2004 Ulster TV broadcast a programme which examined the deaths of three other children from hyponatraemia. This gave rise to considerable media interest and public disquiet. In November 2004 the Minister who then had responsibility for health in Northern Ireland set up the public inquiry under the chairmanship of Mr. O'Hara QC.
Mr. and Mrs. Roberts saw the documentary. They had never really understood why their daughter had died. They recognised similarities between what had happened to the other children and to Claire. They immediately contacted the hospital and raised questions about the role of fluid management in Claire's deterioration (Report 3.253). The Medical Director of RBHSC asked one of the consultants responsible for Claire's treatment, Dr Steen, to review the case notes, and if there was any reason to suggest that fluid and electrolyte management had been a factor, to ask inter alia the Claimant to review those notes to determine whether the case should be referred to the Coroner (Report 3.254). This was the first time that the Claimant became involved in the matter. O'Hara J found that “he was eminently...
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