Udom v General Medical Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 02 December 2009 |
| Neutral Citation | [2009] EWHC 3242 (Admin) |
| Date | 02 December 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6125/2009 |
[2009] EWHC 3242 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE HICKINBOTTOM
CO/6125/2009
Mary O'Rourke QC (instructed by Nabarro) appeared on behalf of the Appellant
Lynn Griffin (instructed by General Medical Council) appeared on behalf of the Respondent
: This is an appeal is brought by Dr Olumide Bassey Udom under section 40 of the Medical Act 1983 as amended (“the 1983 Act”) against the decision of the Fitness to Practise Panel of the General Medical Council (“the GMC”) made on 19 May 2009. The Panel made four separate determinations that day: a determination on impairment, a determination on sanction, a determination on whether the sanction should be immediate, and finally a determination amending the proposed conditions following further submissions in relation to them.
The Panel found that the Appellant's fitness to practise was impaired by reason of both deficient professional performance and his physical or mental health, and directed that his registration be subject to conditions for a period of 9 months with immediate effect. With regard to the conditions, the determination on sanction stated (at pages 7-8): “The following conditions relate to your practice and will be published…”, and then set out conditions in twenty numbered paragraphs. The appeal relates solely to that sanction, and in particular to the conditions imposed.
The Appellant was born and brought up in Western Nigeria. He went to the University of Ibadan, where he qualified in medicine in 1984. He came to England in 1989, and obtained his membership of the Royal College at the third attempt. He then worked in anaesthetics in a number of hospitals in the United Kingdom, before spending 3 years in Saudi Arabia. He returned to the United Kingdom in 1998 and, following 18 months of locum jobs, was appointed as a Consultant Anaesthetist at Grantham Hospital in 2001. He occupied that post until July 2005, when he was employed by the Sherwood Forest Hospitals NHS Trust (“the Trust”) as Consultant Anaesthetist with a special interest in intensive care at Kings Mill Hospital, Mansfield.
In May 2006 there was an allegation made against the Appellant that he had failed properly to monitor a patient post-operatively, and the patient had suffered a bleed. As a result, the Appellant was, first, referred to the GMC by the Trust in a letter dated 6th November 2006; and, second, excluded by the Trust until May 2007, when a Capability Hearing took place. During that period (May 2006-May 2007), he did not work or even enter the hospital premises. The hearing found that he had failed in the management of two cases, although neither patient suffered an adverse outcome. He was reinstated in June 2007, but under conditions of supervision.
In August 2007 he was called to attend a GMC Performance Assessment which reported on 24 September 2007. In the knowledge test, the Appellant scored 57.69 per cent, which was slightly above the minimum level but well below the majority of his peers. Only three others had scored lower than he, and none of those was working as a consultant. In the ten Objective Structured Clinical Examinations (“OSCEs”) that were the subject of the assessment, his performance was rated as unacceptable. Not only was it well below the mean of his peer group, but he fell below the minimum standard of the Royal College of Anaesthetics in eight of the ten examinations. The report concluded, with regard to the Appellant's performance, that his knowledge base was lower than his peer group and just above the minimum acceptable score, and he performed below the minimum acceptable standard in most of the OSCEs.
The assessment concluded that the Appellant's performance was deficient and unacceptable in some areas (assessment of patients' condition, providing or arranging treatment and record keeping); and a cause for concern in others (communication with patients, treatment in emergencies, working within limits of competence and relationships with colleagues/team work). It recommended that the Appellant should not work as an unsupervised consultant.
The assessment triggered a second Capability Hearing in May 2008, which resulted in his dismissal by the Trust. The Appellant's case was also referred to a Fitness to Practise Panel to consider whether his fitness to practise was impaired by reason of his deficient professional performance. Following receipt of a report from a Consultant Psychiatrist (Dr Adrianne Reveley), that reference was expanded to include possible impairment by reason of adverse physical or mental health. In the meantime, an interim order was made on health grounds suspending his medical registration.
The hearing before the Panel took place on 19 May 2009, by when the Appellant had only worked for a few weeks during the previous 2 years. In addition to Dr Reveley's report, the Panel had the benefit of reports and oral evidence from two medical examiners —both Consultant Psychiatrists —Professor Elemer Szabadi and Dr Michael Harris, and from Dr Raheel Aziz, the Appellant's treating consultant psychiatrist. Those experts agreed that, as a result of stressful life events (including events at work, and the death of his brother), the Appellant was suffering from a depressive episode, and Professor Szabadi diagnosed him as also suffering from adjustment disorder. As the Panel noted (at page 7 of their determination on impairment), Professor Szabadi, Dr Harris and Dr Aziz all “agreed that, from a health point of view, in general terms, [the Appellant is] currently fit to practice under supervision”. The Panel expressed concern at the length of time the Appellant took to recognise his illness and seek help, despite advice to do so; and the fact that he had not, even at the time of the hearing, begun the psychological treatment that Dr Aziz considered essential for the Appellant's recovery.
The Panel consequently determined that the Appellant's fitness to practise was impaired by reason of the Appellant's physical or mental health.
In relation to performance, the Panel was “of the view that it [had] received oral and documentary evidence to suggest that the assessment highlighted serious deficiencies across a broad range of areas in [the Appellant's] practice relating to [his] knowledge, experience and technical skill” (page 10 of the determination on impairment). It had the benefit of a Specialist Performance Adviser (Dr Christopher Greenhalgh, a Consultant Anaesthetist). In the determination on impairment, the Panel said (again at page 10):
“The Panel has noted the advice of the Specialist Performance Adviser. Amongst other things, he advised the Panel on basic skills for anaesthesia. His advice was that there is evidence to suggest that you lack certain basic skills and that this is worrying and that it has direct implications for patient safety. The Panel accepts and agrees with this analysis.”
I shall return to the role of Dr Greenhalgh, and other advice that he gave the Panel, which are the subjects of complaint by the Appellant in this appeal.
Of the relationship between the Appellant's health and performance, the determination continued:
“The Panel recognised that there may be an interlinking of your health and your poor performance at the assessment. This was supported by evidence from your wife as to the state of your mental heath at the time. In their evidence the assessors stated that there was one occasion relating to an index case, where you became very upset. Otherwise, they did not note any indication of stress greater than they would normally expect in what are recognised to be stressful circumstances.”
And it concluded, “The Panel has considered all the relevant evidence at the time that the performance assessment took place, and it considers that your adverse physical or mental health does not fully explain your deficient professional performance”—the Panel finding that the Appellant's fitness to practise was impaired by reason of his deficient professional performance, which presented a potential risk to patients.
None of the Panel's findings in their determination on impairment (including the findings that the Appellant's fitness to practise was impaired, and the reasons for that impairment) is contested by the Appellant.
The Panel then proceeded to hear submissions on appropriate sanction, which is governed by section 35D(2) of the 1983 Act. That provides:
“Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—
(a) except in a health 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 12 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 3 years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests.”
This was “a health case”, the Appellant's health being one cause of impairment to his fitness to practise: so erasure was not open to the Panel in this case. It was common ground between the parties that “no action” would be inappropriate in this case, a view with which the Panel understandably agreed (see determination on sanction,...
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