"A" v General Medical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Waksman QC |
| Judgment Date | 19 June 2014 |
| Neutral Citation | [2014] EWHC 4708 (Admin) |
| Docket Number | CO/1285/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 June 2014 |
[2014] EWHC 4708 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
His Honour Judge Waksman QC
(Sitting as a Judge of the High Court)
CO/1285/2014
Mr J Hyam and Miss K Beattie (instructed by Berrymans Lace Mawer LLP) appeared on behalf of the Claimant
Mr Phillips QC (instructed by General Medical Council) appeared on behalf of the Defendant
APPROVED JUDGMENT
Introduction
Before dealing with the substance of the case before me I have to deal with an application which was made at the commencement of the hearing that my judgment should be anonymised in so far as there are references to the applicant pursuant to CPR 39.2.4. For the reasons given at the end of this judgment I accede to that application; the applicant will therefore be referred to as "Mr A".
This is an application made under section 41A(10) of the Medical Act 1983 to revoke entirely an order made on 14th January 2014 "the Order", made by the Interim Orders Panel of the General Medical Council (now known as the MPTS) ("the IOP") against Mr A, a consultant neurosurgeon at Hurstwood Park Neurological Centre, Princes Royal Hospital, West Sussex ("Hurstwood Park").
The order imposed conditions on Mr A's practice including a supervision condition. Mr A has an NHS practice in which he is employed by the Brighton and West Sussex University Hospital NHS Trust, and a private practice. He also had a practice in the Cayman Islands which is not subject to the order and is outside the jurisdiction. Mr A is now 49. He qualified in 1987. He has worked at Hurstwood Park since 2002.
The order was made for the maximum period allowable for an extension from the High Court was necessary ie 18 months. The conditions are as follows. Here I read from the letter dated from the 14th which records in the same terms the decision communicated orally on the day before:
"1. You must notify the GMC promptly of any post you accept for which registration with the GMC is required and provide the contact details of your employer.
2. You must allow the GMC to exchange information with your employer or any contracting body for which you provide medical services.
3. You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination.
4. You must inform the GMC if you apply for medical employment outside the UK.
5. You must obtain the approval of the GMC before accepting any post for which registration with the GMC is required, and (importantly)
6. a. Your day to day work must be supervised by a registered medical practitioner of consultant grade or equivalent.
(The Glossary defines supervision as: "The doctor's day to day work must be supervised by a consultant, who may be off site but must be available on-call. However, as a minimum, the doctor's work must be reviewed at least once a fortnight by the supervising consultant via one to one meetings and case based discussion.")
b. You must seek a report from your supervisor for consideration by this panel, prior to any review hearing of this panel."
The following parties had to be informed of the imposition of these conditions: an employer, a locum agency, a line manager and prospective employer.
The supervision condition could be complied with at Hurstwood Park but in the circumstances which have arisen which I describe below [Mr A] has felt reluctant to return there to work; however he would do so if the order was revoked. In practical terms his private practice here had to be curtailed because of the reluctance of the private hospitals concerned to allow a consultant to practice where supervision is required.
An example of this is the letter from the director of the Spire Hospital at Haywards Health, Andrew Lennox, dated 27th January 2014, which refers to the supervision condition and then says he is unclear as how Mr A would be able to fulfil this in his private practice at the hospital and then.
"As a result your practising rights will remain suspended until such time hat this condition is lifted or that you would be able to demonstrate how you could comply with the restriction in the hospital."
The other hospitals involved are the Spire Hospital at Tonbridge Wells and Hurstwood Park and the Harley Street clinic. While most of his time in the UK is spent at Hurstwood Park the vast majority of his income here comes from his private work. Before the order was made Mr A worked at least one week every 2 months additionally at Christie Tomlinson Memorial Hospital in Grand Cayman. Given the restrictions on his United Kingdom practice now in force, he is working exclusively in the Cayman Islands and he wishes to return to his previous pattern of working, with the vast majority of it based here.
The two operations
The core element in the complaint considered by the IOP concerned two operations performed by Mr A at Hurstwood Park in October 2012 and they arose thus. A patient, whom I will also anonymise and refer to as "Mrs H", had been exhibiting seizures in her right leg and following a brain scan Mr A correctly diagnosed a small tumour, about 2 centimetres in length as being responsible. It was probably benign but the most appropriate course was to remove it. Mr A performed that operation on 17th October. Following the operation the removed tissue was examined in the usual way and a further brain scan was taken. Unfortunately this revealed that the tissue removed was healthy brain tissue located immediately adjacent to the tumour, which was still therefore in situ. By 24th October Mr A had spoken to Mrs H about this and obtained her consent to a second operation to be performed on 25th October, this time successfully.
Following her discharge Mrs H exhibited some motor deficiency in her right leg which could have been related to the removal of the healthy brain issue. No doubt there has been no certain conclusion to that effect. It appears that she took no legal action against the hospital in this regard.
Mr Todd's Report
Following an internal investigation by the hospital the local Trust commissioned an expert report from Mr Nicholas Todd, a consultant neurosurgeon, and he produced it on 29th October 2013 ("the report") I read the following extracts from the report. At paragraph 21 he refers to the medical notes of 22nd October and after the first operation but before the second, saying that on the right-hand side there was a lack of movement. On 23rd October she was starting to mobilise. On 24th October there were headaches. The steroids had been stopped but the decision was made to give her small doses of steroids if the headaches did not improve. Consent for further surgery was taken on 24th October 2012, and I quote:
"The notes do not record why the decision had been made to repeat the surgery and there is no note that comments on repeat imagining. Of course, we know subsequently why a second operation was performed but all I can say is that there is nothing in the notes prior to the second operation to tell us why the second operation was required. In fact the notes are those of a patient who was doing well postoperatively with a plan to discharge home in the near future."
Then paragraph 37 records that after discharge by her GP:
"No active movement in her right ankle or foot. She reports that this only occurred following the second surgery and has not changed with time."
At paragraph 62 he records:
"We know from the postoperative imaging that [Mr A] resected a volume of brain immediately posterior to the tumour. The tumour itself was not resected.. This raises three points: there was a failure of neuro-navigation, there was a failure of the surgeon to be aware that the Stealth system was indicating a position of the tumour that was incorrect; and thirdly there was a failure to recognise that what was being resected was normal brain not a tumour."
Then paragraph 63, dealing with the first point:
"…neuro-navigation system has an accuracy of 3–4mm under ideal conditions. In this case the Stealth system appears to have indicated that the tumour was in a different position to the actual position of the tumour. From the notes that I have seen it is not possible to say why there was a failure of neuro-navigation in this case."
He dealt with that further in paragraph 64. He records:
"…neuro-navigation can give inaccurate results and it is crucially important that the operating surgeon uses his general knowledge of neuro-anatomy, imaging etc to confirm that the craniotomy is being put into the right place. That did not occur in this case, I presume. Another problem that is specific to neuro-navigation is that because the surgeon relies on the very high accuracy of the neuro-navigation system the tendency is to perform much smaller craniotomies and if a very small craniotomy is misplaced then there is no opportunity to look above or below the centre of that craniotomy which might otherwise have led to identification of the tumour."
The third issue he said in paragraph 65 related to the fact he removed normal brain thinking it was a tumour. He said:
"In my experience a meningioma has a very different consistency to normal brain and I am surprised that this mistake was made. We know from the postoperative imaging that the resected specimen was of brain posterior to the tumour the tumour does not appear to have been resected at all."
He to goes on to say:
"Oedematous brain has a...
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