QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR ANDREW FRANCIS HOLTON
|- and -
|THE GENERAL MEDICAL COUNCIL
Robert Englehart QC (instructed by the GMC) for the Respondent
Hearing dates: 16, 17 October 2006
Crown Copyright ©
Stanley Burnton J :
The facts in outline
"a long way short of the requirement of a consultant undertaking a post in paediatric neurology. ...Despite this fact Dr Holton soon found himself dealing with an ever increasing paediatric neurology workload. …
Dr Holton therefore found himself under-trained, overworked and working in professional isolation. The CSAC believes this is a significant mitigating factor in relation to the main findings of this report.
To compound these difficulties it is clear that neurophysiology resources in Leicester are under-resourced. There is often a wait of many weeks for a child to have a standard EEG recording and we found at least one case of a child having to wait over 12 months for a 24 hour EEG recording. Dr Holton therefore found himself having to rely on his own clinical judgment far more than would be generally acceptable in a department dealing with many children with epilepsy."
"The paediatric neurology CSAC members take the view that Dr Holton is to be regarded as a very hard working and conscientious doctor, who has the support of his colleagues in Leicester. Dr Holton is also clearly a very knowledgeable doctor. … Dr Holton firmly believed that epilepsy could account for many neuro-developmental problems in children and that through early aggressive treatment better long term developmental outcome could be achieved. However, in our assessment of his writing on this subject it is clear that he has taken up his position in a complex scientific debate ahead of available evidence. That is, he has not given appropriate consideration to available scientific literature, which supports consideration contrary to his own view.
Dr Holton's reading and writing on the issue reflect in him a deeply held conviction that many children might be helped by anti-epileptic medication. This had led him over the past several years, in the opinion of the CSAC, to over-diagnose children as having epilepsy and in turn to over-treat their symptoms. The result is a lack of concordance between the medical practice of Dr Holton and his peers practising wholetime in paediatric neurology.
"The expectation, therefore, is that up to 4 out of 10 children with intractable seizures who are not being reviewed by a trained paediatric neurologist who has access to specialist neurophysiology facilities may be wrongly diagnosed. This is in direct concordance with the percentages identified in this review. That is, of the 214 children reviewed at stage 2, 78 (36%) in the view of CSAC members, felt it by far more likely than not that they did not have epilepsy. In our view 67 (31%) of the children we saw were over-treated."
The children whose cases were considered in the review included those treated before 1 July 1997.
"Generally, professional colleagues who worked with Dr Holton on an equal level … found him supportive and effective and considered his advice to be sound."
"Dr Holton was described by some staff variously as obsessive, arrogant, opinionated, irrational, unwilling to listen (some staff and parents), moody, angry and as giving unrealistic expectations to parents. These views were almost always as a result of conflict over patient management and a questioning of Dr Holton's clinical practice."
"The gulf between the two sets of opinions concerning Dr Holton were striking and there appears to be no middle ground. For each opinion supporting Dr Holton it was possible to find an opposing view.
Overall it would appear that those who are not in any disagreement with him found him polite, supportive and helpful, while those that found themselves in disagreement with him found him difficult to deal with."
"A few letters have been reviewed in which expressions of gratitude and praise in the strongest terms have been described. No attempt has been made to invite additional letters of support, but anecdotally it is understood from some witnesses that several parents continue to speak in support of Dr Holton and his care of their children. Some parents who had concerns nevertheless expressed their admiration for his hard work and dedication."
On the other hand:
"Many parents describe being made to feel belittled and as if they had no right to question Dr Holton if they did air concerns or questions with him.
Many witnesses considered that Dr Holton gave overly-optimistic expectations to parents of their child's likely improvement under his clinical management. As the child's progress failed to achieve the initial promises and where parents became concerned at levels of drug prescriptions, or side effects and raised these issues with Dr Holton, the parent's views changed to observations of dominance, failing to listen and arrogance."
"Whatever the rights and wrongs of Dr Holton's clinical practice, he was on the one hand well respected by many professional colleagues and by his junior doctors, but on the other hand was unable to convince professional colleagues who took issue with him on the subject, of the rationale of his approach.
While many staff interviewed would be happy to work with Dr Holton again, there are members of medical, nursing, and administrative staff who consider that the conflict of personalities are (sic) such that professional relationships with Dr Holton have broken down irretrievably."
The grounds of appeal
(a) Did the Panel wrongly take into account the professional performance of Dr Holton before the date when section 36A and the Performance Rules came into force, namely 1 July 1997?
(b) In determining whether Dr Holton's performance was seriously deficient, did the Panel wrongly leave out of account matters which were considered by the Assessors to be and were relevant?
(c) Did the Panel err in departing from the conclusions of the Assessors when they had insufficient competence and/or there was no or no sufficient evidential justification for them to do so?
(d) What was the status of the evidence of lay witnesses? Among other objections made to their evidence, Miss O'Rourke submitted that because the contemporaneous medical records relevant to their evidence were not before the Panel they could not be effectively cross-examined. In addition, some of their evidence, she submitted, related to events before 1 July 1997.
(e) Were the conditions imposed by the Panel on Dr Holton's registration inappropriate and excessive?
(a) whether the performance of a doctor before the section came into force on 1 July 1997 can be taken into account by a Panel in proceedings under that section.
(b) what matters may be taken into account by a Panel when deciding whether a doctor's performance has been seriously deficient.
The statutory provisions
(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct—
(a) 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
(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified.
(2) Where a fully registered person, whose registration is subject to conditions imposed under any provision of this section by the Committee on Professional Performance[or under section 41A by the Interim Orders Committee or the Committee on Professional Performance, is judged by the Committee on Professional Performance] to have failed to comply with any of the requirements imposed on him as conditions of his registration the Committee may, if they think fit, direct that his registration in the register shall be suspended during such period not exceeding twelve months as may be specified in the direction.
(3) Where the Committee on Professional Performance have given a direction for suspension under any provision of this section the Committee may direct—
(a) that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction; or
(b) that the registration of the person whose registration is suspended shall, as from the expiry (or termination under subsection (5)(b) below) of the current period of suspension, 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 Committee think fit to impose for the protection of members of the public or in his interests;
but, subject to subsection (4) below, the Committee shall not extend any period of suspension under this section for more than twelve months at a time.
(6) Where the Committee on Professional Performance have given a direction for conditional registration, the Committee may—
(a) direct that the current period of conditional registration shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;
(b) revoke the direction or revoke or vary any of the conditions imposed by the direction; or
(c) direct that the registration shall be suspended during such period not exceeding twelve months as may be specified in the direction;
but the Committee shall not extend any period of conditional registration under this section for more than three years at a time.
(By 2005 under transitional Rules the Committee on Professional Performance referred to in section 36A had become the Fitness to Practise Panel sitting as a Performance Panel.)
"their opinion on such of the following matters as appears to them to be relevant, that is to say whether-
(a) the standard of the practitioner's professional performance has been seriously deficient;
(b) the standard of the practitioner's professional performance is likely to be improved by remedial action;
(c) the practitioner should limit his professional practice, or cease professional practice;
(d) no further action needs to be taken on the Report
and in each case the Panel's reasons for their opinion."
The procedure of the Committee at a performance hearing shall be as follows—
(a) the complainant may give evidence to the Committee and the complainant or his representative may address the Committee;
(b) the complainant may be questioned by—
(i) the Solicitor,
(ii) the practitioner or his representative,
(iii) members of the Committee, the legal assessor and the specialist adviser;
(c) the Solicitor shall present the case to the Committee and may call and question his witnesses including persons called by the Committee under paragraph 9(3) of Schedule 1;
(d) the Solicitor's witnesses may be questioned by—
(i) the practitioner or his representative,
(ii) members of the Committee, the legal assessor and the specialist adviser,
(iii) the Solicitor for a second time;
(e) the practitioner may give evidence to the Committee—
(i) on any matter relating to the provision of these Rules under which the referral was made to the Committee, and
(ii) as to whether the standard of his professional performance is seriously deficient
and may call and question his witnesses;
(f) the practitioner and his witnesses may be questioned by—
(i) the Solicitor,
(ii) members of the Committee, the specialist adviser and the legal assessor,
(iii) in the case of his witnesses, the practitioner for a second time;
(g) the practitioner or his representative may address the Committee as to the matters referred to in subparagraph (e) of this paragraph;
(h) the Committee shall decide—
(i) whether the standard of the practitioner's professional performance is seriously deficient; and
(ii) if so, whether to make a direction under paragraph (a) or (b) of section 36A(1) of the Act.
The Assessors' Report in detail
"This means that the GMC will question a doctor's registration if it believes that the doctor is, repeatedly or persistently, not meeting the professional standards appropriate to the work that the doctor is doing – especially if the doctor might be putting patients at risk. This could include failure to follow the guidance in the GMC's booklet "Good Medical Practice."
"The job description implied that candidates who were not trained might wish to apply for the post, and that opportunities for training would exist after the successful applicant had taken up the appointment and started to work. The lay reader would be entitled to be taken aback at the concept of a doctor being appointed to a post for which he or she had not been trained. The implication was that an incompletely trained candidate could "pick up" the necessary additional training after starting work in the post. This was somewhat akin to saying that an ordinary motor car driver could start work driving HGV lorries without any training in driving a lorry. However at the time of Dr Holton's appointment it was by no means unique for job descriptions for Consultant posts to allow for the appointment of untrained or incompletely trained applicants. What happened in Leicester was no different in this regards from other places in the UK.
What was possibly different about Dr Holton's case was that the employing authority apparently took no responsibility for the training provided after Dr Holton's appointment. There appears to have been no formal training plan, no clear educational aims identified, and no goals or end-points established. No-one was appointed to supervise the process. There was no mechanism to ensure progress was being made, and there was no mechanism to ensure that adequate training had been achieved. Worse still, Dr Holton's opportunities to receive the necessary training were curtailed because of the increasing pressures from his work."
- "at the time of appointment, Dr Holton was not adequately trained in paediatric neurology. Indeed he had not received any full time exposure to paediatric neurology during either his registrar or senior registrar training.
- even after appointment, Dr Holton did not receive any full-time supervised training in paediatric neurology. What training he did receive was part-time, but without any clear educational goals or end-points. A number of components were omitted altogether.
- there was no generally agreed definition of the standard to be expected of a consultant paediatrician with a specialist interest in paediatric neurology when Dr Holton was appointed. How can one apply a standard when no standard existed?
- there was no definition of the essential or desirable competencies for such a post when Dr Holton was appointed.
- as pointed out by the British Paediatric Neurology Association in an appendix to the report "Review of the Management of Patients with Epilepsy by Dr A Holton Between 1990 and May 2001", Dr Holton:
- "never had training as a paediatric neurologist, is to be viewed as a general paediatrician who was practising outwith any formal clinical network, without support from a tertiary centre based paediatric neurologist and also without adequate support frorm neurophysiology facilities for much of the last 12 years."
- When considering expectations of Dr Holton's professional performance, it is essential to take into account other major background factors, to be described elsewhere in this report, which would have effectively prevented almost anyone from functioning as a Consultant Paediatrician with an interest in neurology. These factors included, in particular the extreme lack of facilities to investigate patients, the active attempts made by hostile hospital staff to prevent Dr Holton providing a proper standard of written communication, and the vastly excessive workload that Dr Holton had to sustain over a very prolonged period. For example, excluding out-patient clinics extending well into the evening, and excluding all on-call duties (1 in 2 rota), the Assessment Panel calculated from Dr Holton's job plan current at the time of his suspension that he had no less than 9 fixed sessions per week, vastly in excess of recommended duties for a Consultant."
"Accordingly, the view of the Assessment Panel is that the standard to be expected of Dr Holton's professional performance should be that of a Consultant Paediatrician who, although untrained in paediatric neurology had, by dint of his special interest, accumulated experience in neurology, almost entirely self-taught and almost totally unsupervised, practising neurology in isolation and in the face of immense difficulties and obstacles to clinical practice, difficulties which must all be taken into account."
- the nature of Dr Holton's training
- the background to Dr Holton's appointment
- the working arrangements at the Leicester Royal infirmary and the work patterns in paediatric neurology in the region and in adjacent regions
- the RCPH enquiry
- subsequent actions taken by those acting on behalf of the RCPCH
- the responses of the University of Leicester NHS Trust to the whole situation.
"It is self-evident that any assessment of Dr Holton's performance must take into account all the background factors that could have affected his performance, including those listed above."
"Acceptable means that the evidence demonstrates that the doctor's performance is consistent with the performance described in Good Medical Practice.
Cause for Concern means that there is evidence that suggests performance may not be acceptable but that there is not sufficient evidence to suggest seriously deficient performance."
"It is a fact that some of Dr Holton's patients with suspected epilepsy were incorrectly diagnosed as having epilepsy. It must be remembered that a high proportion of these cases arose prior to the 1 July watershed. In relation to the assessment of epilepsy, the Assessment Panel identified a number of features:
- Prior to his suspension, Dr Holton tended to over-value behaviour problems or educational problems as features of epilepsy. This applied to both patients with established epilepsy and to those whose only problems were behavioural or educational. This was undoubtedly attributable to the unique position he was in, of being exposed to paediatric neurology problems without any formal training, a situation in which false beliefs flourished and became enhanced. It was quite clear from the medical record review that these symptoms were perceived to have markedly improved in a considerable number of patients on new or additional anti-epileptic medication. This response may have in part been a placebo effect, but in some cases it may have been the result of the sedative or calming effect of medication e.g. carbamazepine. Whatever the reason for the initial response, even if it only lasted a few weeks or months, it tended to reinforce a belief that the basic approach was a correct one, and that all that was need was some adjustment or increase in therapy. It is all too easy to see how without training one could find one's over-valued beliefs becoming enhanced. What was missing was a more self-critical and detached approach, a theme that will be touched upon elsewhere in this report.
- Prior to his suspension, Dr Holton tended to over-diagnose absences, and tended to interpret normal features of behaviour as being absences.
- Prior to his suspension, Dr Holton over-valued epilepsy as an explanation for non-epileptic recurrent episodes (for example abnormal movements).
- Prior to his suspension, Dr Holton over-interpreted or incorrectly interpreted some EEG reports, thereby tending to over-diagnose epilepsy.
Dr Holton fully acknowledged his errors in assessment of patients with suspected epilepsy during the initial interview. He also fully acknowledged his errors during the case based discussions. During discussions of individual topics relating to the diagnosis of suspected epilepsy, in the case based discussion, Dr Holton was generally able, without any difficulty, to identify where a diagnosis had been mistaken, and he was also able to explain how his assessment of patients would now differ. It was clear to the Assessment Panel that the Royal College of Paediatrics "Independent Performance Review", by largely excluding Dr Holton from the process, had effectively acted as a bar to progress….
It is important to point out that the patients who were misdiagnosed prior to Dr Holton's suspension were in a minority. The initial impression was indeed negative, the result of a highly biased selection of case records whereby the Assessment Panel was presented with a selected subset comprising the very worst examples of assessment of treatment. However once the Assessment Panel was able to examine a random selection of cases a very different picture was presented, and the Panel was able to see a large number of cases which had been correctly assessed. Indeed even the flawed Trust had indicated that the misdiagnosed patients were in the minority.
The Assessment Panel was careful to examine all other areas of Dr Holton's practice, other than suspected epilepsy, including paediatric neurology and general paediatrics, and overall no significant problems were identified.
The Assessment Panel concluded that [prior to his suspension], Dr Holton had made some errors in the assessment of patients with suspected epilepsy, but that he had fully and freely recognised and corrected these errors. All doctors make mistakes. Few work in an environment quite so unfavourable for the recognition and correction of mistakes, and as explained in the conclusions of this report the Assessment Panel is of the view that the background to Dr Holton's practice was the reason for the delay in recognition of the problems in the assessment of epilepsy. The Assessment Panel's view is that these problems in the assessment of epilepsy were largely not of Dr Holton's making. The GMC Performance Assessment process has demonstrated that Dr Holton has, almost entirely through his own efforts, fully and comprehensively recognised and corrected the problem, and the conclusion of the Assessment Panel is that the overall grading for Assessment should be Acceptable."
"3. Providing or arranging treatment
Overall assessment: Cause for concern
349. It is a fact that some patients who had been diagnosed as having epilepsy, whether this diagnosis was correct or incorrect, were inappropriately treated. In relation to the assessment of epilepsy, the Assessment Panel identified a number of features:
- Once epilepsy had been suspected, it was sometimes found that a patient would be left on anti-convulsant medication even if the response to treatment was poor. Whereas in some cases this lack of response was followed by cessation of treatment and re-evaluation of the case, in some patients a sequence of events was set up whereby one or more additional anti-convulsants were introduced.
- There was a tendency in some patients to add in multiple anticonvulsant drugs without withdrawal of agents that had not proved beneficial on their own.
- There was an unusual readiness to use prednisolone in high dosage, which was regarded as clinically inappropriate.
350. Concern about treatment applied to only a minority of cases that were studied in the Performance Assessment. The Assessment revealed plenty of cases in which Dr Holton's treatment of epilepsy had been acceptable.
351. The Assessment revealed no general concerns regarding Dr Holton's treatment of general neurology patients with the exception of his use of certain untested or unproven therapies.
352. The Assessment provided little data on Dr Holton's treatment of general paediatric disorders, by the limited data available indicated acceptable treatment.
353. Data obtained from clinical colleagues in third party interviews suggested that in general Dr Holton's treatment of patients was acceptable.
354. It became clear to the Assessment Panel that Dr Holton had fully and freely recognised the erroneousness of his treatment of certain patients with suspected epilepsy. During the case based discussions it was evident that he had corrected these errors, and that they would not be repeated. As when discussing Dr Holton's performance in the area of patient assessment, the Assessment Panel's view is that the problems of treatment of epilepsy were largely not of Dr Holton's making, and that it would be quite unreasonable for him to take all of the blame.
355. However there were two other areas of treatment that caused the Assessment Panel some concern. This related to the treatment of patients with other neurological disorders, including those with various encephalopathies, for example after a head injury or after an episode of cerebral hypoxia. The first concern was that it was noted that Dr Holton had a tendency to use vitamin E supplementation in clinical situations (e.g. Charcot Marie Tooth disease – hereditary sensorimotor neuropathy; facial palsy) for which there was no objective evidence that this treatment would be of any value. During the case based discussions, Dr Holton was willing to concede that there was no controlled trial evidence to support the use of vitamin E in the clinical situations in which this agent had been deployed. Dr Holton was also willing to accept the point that when using an unproven and unconventional treatment it would have been highly desirable for the parents to have been given a full explanation as to the unlicensed and unproven status of the drug, and given a choice as to the drug's use. The Assessment Panel nevertheless felt that Dr Holton's residual enthusiasm for the use of this drug in neurological disorders was uncritical and unusual.
356. The second concern was Dr Holton's use of the drug desferrioxamine. Desferrioxamine is an iron-chelating agent, licensed for use in paediatrics to treat acute iron poisoning and to treat patients with chronic iron overload as in for example, thalassaemia. In patients with thalassaemia the need for regular blood transfusions eventually leads to a toxic accumulation of iron in the body. The drug is also used to treat acute iron poisoning in children who have ingested iron compounds. Dr Holton's use of this drug came to the Assessment Panel's attention in a patient on the intensive care unit in whom a CT scan had shown no evidence of intercranial bleeding. Dr Holton nevertheless believed that despite the CT scan findings there might have been intercranial bleeding. This is technically possible; a CT scan does not always detect certain types of intercranial haemorrhage. Dr Holton's concerns, as explained to the Assessment Panel during a case based discussion, was that a hypothetical haemorrhage might have in turn released elemental iron, which in turn might have proved toxic to the brain, and that this warranted treatment with desferrioxamine. Dr Holton was under the impression that there was evidence to support this theory, and that this drug was being routinely used for this purpose in certain centres in the USA. The medical members of the Assessment Panel have investigated these claims. Discussion with paediatric intensive care specialists in the UK and USA indicates that desferrioxamine is not in routine use in acute neurological situations either in the UK or the USA, although colleagues were aware of a few individuals who had been known to use this drug. An examination of the scientific and medical literature indicates that the basis for the use of this drug appears to be some old (>10 years) animal data, unsupported by any controlled studies in human patients. The Assessment Panel felt that Dr Holton's continuing enthusiasm for this unlicensed and untested treatment was uncritical and misplaced.
357. Dr Holton indicated to the Assessment Panel that he acknowledged that there is now a far greater emphasis on evidence based medicine, and the need, where possible, for treatment to be based on controlled studies, The residual concern of the Assessment Panel was the impression, admittedly based on only two drugs, that Dr Holton was fundamentally uncritical about the use of these drugs and was overly enthusiastic about their possible value. One can only speculate, but it is possible that his uncritical streak was a chink in Dr Holton's armour that may have fostered his enthusiasm for a rather over-vigorous and uncritical approach to the drug therapy of epilepsy. The limitations to this conclusion are:
- It is based on the use of only two drugs
- It is speculative
- It fails to take into account the background to Dr Holton's clinical practice, and in particular the fact that he was untrained in paediatric neurology. It is highly likely that had Dr Holton been exposed to proper supervised clinical training in paediatric neurology, then any tendencies to over-value particular approaches would have been exposed to scrutiny and down-regulated.
358. Taking all these matters into account, the Assessment Panel concluded that "Cause for concern" was the appropriate overall assessment for Dr Holton's provision of treatment."
"382. Set against a few examples suggesting that communication was not a strength, the overwhelming body of data obtained in the Performance Assessment indicated that Dr Holton was good at communicating with patients and parents.
383. Positive features that were highlighted included:
- Dr Holton checked that patients were happy and understood information
- Dr Holton talked to parents on the paediatric intensive care unit with a nurse present. (This is regarded as good practice).
- Dr Holton took telephone calls from worried parents and was always available
- Parents were given options regarding treatment
- Dr Holton would go and talk to parents to obtain a history rather than rely on a history taken by someone else
- Dr Holton would listen to the views of parents, nursing staff and a health care assistant before making a decision
- Dr Holton was very good at going over information with parents who had learning difficulties
384. In addition, it should be noted that during the phase 2 OSCE examination and the simulated surgery, Dr Holton showed excellent communication and interpersonal skills."
"386. Dr Holton was regarded by his health professional colleagues as very caring and showing great respect for patients and parent, including respect for the need for confidentiality, and the Assessment Panel was provided with ample positive data on these aspects. There was one negative observation, from Sister Brown, who reported that medical records had been left in the corridor outside the clinic room sometimes – she made a habit of putting the notes away if she found them.
387. Set against a suggestion in the complaints of parents that Dr Holton was unwilling to refer patients for a second opinion, the review of the medical records showed that in fact Dr Holton did indeed refer patients for a second opinion when this was appropriate. There is also information to show that he sometimes volunteered to arrange a second opinion when he sensed that a family was unhappy with his care."
The conclusion of SDP is not based on selecting one problem and then considering it in isolation. The term SDP, as used in GMC Performance Assessment, is applied only as an overall conclusion when analysing the totality of the assessment.
The suggested conclusion of SDP fails to take into account the fact the performance was acceptable in the majority of the cases of that one condition.
The suggested conclusion of the SDP fails to take into account the fact that the doctor had recognised his error in diagnosis and treatment of this one condition, and had taken effective steps to correct the problem; the performance assessment had demonstrated that the problem had been rectified.
The suggested conclusion of the SDP fails to take into account the fact that the performance was acceptable in the doctor's diagnosis and treatment of all other conditions, both within neurology and within general medical paediatrics.
Attention is drawn to the document "Performance procedures; a guide to the arrangement" (GMC, December 2000). Under the heading "Procedures", the guide indicates that the procedures:
"take into account a doctor's individual circumstances and the environment in which he or she works".
The guide also makes specific reference to the doctor's performance being –
"examined in the context of his or her own environment and circumstances".
The question instructs the Performance Assessors to ignore or set aside the Performance Assessment procedures, but the Assessors feel it would be inappropriate to do so. It would be unfair to change the rules after the completion of an assessment.
It is self evident that assessors cannot perform a valid assessment of professional performance whilst intentionally excluding the doctor's individual circumstances (including his training) and the situation in which he was or is working.
"It would appear that the Performance Assessors are now being instructed to disregard the GMC guidance. The Performance Assessors reiterate that they feel that this represents a significant and inappropriate deviation from the GMC Performance Assessment procedures."
"Thus in one sense what the report did in fact (at least in part) satisfied the second instruction, concerning disregarding the formal job title, though it did take into account the various circumstances and factors which directly affected Dr Holton's performance.
The Assessment Panel's response to these matters is that by excluding certain important factual data from consideration, bias is introduced, and any resulting opinion ceases to be objective and the whole process of Performance Assessment loses integrity. Whilst it is plain that the Assessment Panel is of the view that the stated preconditions to the 6 questions are flawed, the Assessment Panel recognises that ultimately its duty is to assist the CCP, and with the preceding caveats in mind the 6 questions are answered as follows… ."
"Q1. What would the Panel's assessment be of the 15 specified categories of Good Medical Practice?
Of the overall gradings of the 15 categories of the Good Medical Practice, the overall grading would remain unchanged for 14. However, for "providing or arranging treatment" the overall grading would change from "Cause for Concern" to "Unacceptable". This would be on the basis of the problems in the area of epilepsy diagnoses and management prior to Dr Holton's suspension, which practice would be viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients, and a hostile work environment.
Q2. What would the Panel's response be to the 4 questions (a) (b) (c) (d) in Rule 13 (2)?
In the report, the 4 questions were originally dealt with as follows:
1. Seriously deficient performance? No
2. Is remedial action likely to help? Remedial action not needed
3. Should practice be limited? No
4. Is further action needed? No
The answers to questions 2-4 would be unchanged, but he answer to question 1, "Has the standard of the practitioner's professional performance been seriously deficient?" would change from "No" to "Yes". This change would be on the basis of the problems in the area of epilepsy diagnosis and management prior to Dr Holton's suspension, which practice would be viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients and a hostile work environment.
Regarding remedial action, the position is that Dr Holton has already recognised and accepted the problems relating to his previous approach to epilepsy, and the Performance Assessment demonstrated that he has already taken the necessary remedial action.
Regarding the need to limit practice or take further action, the answers remain unchanged at "No".
Q3. Would the Panel's overall assessment differ from the formal report if the standard was to be that of a Consultant Paediatrician with a special interest in neurology?
This question is unanswerable as it stands, because it conflicts with the immediately preceding instruction which is that the formal job title should be disregarded.
If the words "disregarding his formal job title" are excised from the preceding instruction, then the answer would be the same as the answers to the immediately preceding Questions 1 and 2 (see paragraphs 54 to 60, 71 above)"
"If it is the view of the GMC that the remit of the assessment should be changed in this very fundamental way, then the answer is that which is contained in the answers to questions 1 and 2, namely:
- For "Providing or arranging treatment" the overall grading would change from "Cause for Concern" to "Unacceptable".
- Under Ruled 13, the answer to question 1 "Has the standard of the practitioner's professional performance been seriously deficient?" would change from "No" to "Yes".
Both these changes would be on the basis of the problems in the management of epilepsy diagnosis and management, which would have been viewed that much more seriously if one excludes all the facts concerning training, lack of resources (e.g. diagnostic and clerical), single handed practice, professional isolation, immense work overload, the need to deliver a general paediatric service as well as manage neurology patients, and a hostile work environment."
"The position is that Dr Holton has already recognised and accepted the problems relating to his previous approach to epilepsy, and the Performance Assessment demonstrated that he has already taken the necessary remedial action."
It followed that in their view, no remedy or limitation of professional practice was required.
"85. Although at the time Dr Holton was practising there was a lack of evidence to support certain aspects of his approach, recently published research now offers scientific support for one aspect of what he did. The Performance Assessors refer to the following paper, which is exhibited as "Exhibit Pressler et al 2005":
"Pressler RM, Robinson RO, Wilson GA, Binnie CD. Treatment of interictal epileptiform discharges can improve behaviour in children with behavioural problems with epilepsy. Journal of Pediatrics 2005; 146:112-117."
86. This research comes from a prestigious unit and was published in what is arguably the most highly regarded paediatric medical journal. The work comprised a double-blind, placebo-controlled, crossover study. The conclusions were (i) that suppressing inerictal discharges can improve behaviour in children with epilepsy and behavioural problems, particularly partial epilepsy and (ii) that focal discharges may be involved in the underlying mechanisms of behavioural problems in epilepsy."
The FTP Panel's decision
"The Panel noted that the Assessors in setting their standard for your post had included the adverse factors which complicated and at times impeded the quality of your performance. However, the Panel considered that these factors were more appropriately taken into consideration after decisions had been taken as to the quality of your performance."
"1. The Assessment Panel did not apply the correct standard for the job you were doing, that is, Consultant Paediatrician with a special interest in Neurology
2. The Assessment Panel made a flawed decision in deciding not to take account of the proportion of time spent by you on epilepsy in particular when considering your overall performance.
3. The Assessment Panel mistakenly considered that your current understanding of your areas of deficiency, which reflects hindsight, justified them awarding you a more positive grading.
4. It heard evidence that the comments from parents in the Third Party Interviews were not taken into consideration by the Assessment Panel when they considered their grading."
"ii. On your admission you spent most of your clinical time (1997-2001) assessing/managing patients with epilepsy. Many were complex and difficult cases. Even if you made errors in only a significant minority of cases the consequences for those children and their families were substantial.
iii. This Panel does not accept the Assessment Panel's argument that, because in clinical areas other than epilepsy your skills were satisfactory, an overall grading of "Acceptable" is justified.
iv. You made mistakes in a central area of your practice on a number of occasions with adverse consequences to some children and their families. The fact that in 2003 you recognised and acknowledged the seriousness of these mistakes, and would now act differently, does not excuse them. The essence of a performance assessment is not what you would do now, but what happened then.
In summary, the Panel endorses the Assessment Panel's conclusions about your failings in the assessment of epilepsy. It considers them to be serious, of sufficient frequency, and of sufficient consequence to cause harm to patients. It rejects the argument that epilepsy formed only a small part of your work. It has no doubts from the Assessors' own individual ratings from their medical record review that this area of your practice was Unacceptable."
"In evidence Dr Rosenbloom commented that they had seen no criticism of your management expressed by tertiary referral centres to which you had referred some patients. However, this Panel noted evidence from statements to the Trust by two consultants that they had expressed concern regarding your treatment of epilepsy but you had been unwilling to alter your views which is consistent with the findings of the Department of Health (2003 – Bamford) Report. It also noted that the Community Paediatricians had expressed concern to the Trust about your practice and their concerns were drawn to your attention well before your suspension in May 2001.
The Panel considers that your inappropriate and uncritical treatment of, albeit a small proportion of patients, to be serious, of sufficient frequency and potential harm to regrade your performance in this area to Unacceptable."
"When considering this issue of your relations with patients under the headings both "Communication" and "Respect" the Panel concluded that the Assessors had given too much weight to the evidence obtained in the artificial conditions of Phase 2 of the performance assessment. They disregarded the conclusive evidence from numerous sources that the Trust was receiving a steady stream of letters detailing patient complaints about your behaviour. The report prepared for the Trust by the Royal College of Paediatrics and Child Health and the Behaviour Report, also provide evidence of actual incidents involving unsatisfactory behaviour."
"The Assessment Panel relied on data from health service staff in reaching their conclusion that your communication with patients was acceptable. The Panel considers that the Assessment Panel erred in concluding that the overwhelming body of data obtained in the performance assessment indicated that you were good at communicating with patients and parents.
There was a substantial volume of evidence in the Third Party Interviews which indicated that some parents considered your communication with them had been unsatisfactory. The Assessment Panel excluded this data from their final decisions on your performance against these areas of Good Medical Practice.
Negative features highlighted by parents in the Third Party Interviews included:
- You were dismissive, patronising and bullying;
- You failed to discuss treatment or provide or discuss management options;
- You reacted poorly to being challenged by parents;
- You failed to answer parent's questions or provide information
- Your failed to check that parents had understood what you told them
These views from parents given as part of the performance assessment are consistent with those expressed by some parents who gave evidence to the Behaviour Report. They were also repeated by the parent complainants who gave evidence directly to this Panel.
This Panel acknowledges that on many occasions your communication with patients and their parents was excellent. In balancing this acknowledged excellence in communication against the negative features highlighted above, this Panel has concluded that the appropriate grading for this category is Cause for Concern."
"The Panel considered each of these subheads separately and endorses the view of the Assessment Panel that the issues of patient confidentiality, referral and accessibility offered no cause for concern. Nevertheless, the Panel concluded that there was ample evidence from a variety of sources that you did not always treat patients or their relatives with the politeness and respect to which they were entitled. In the Third Party Interviews for example, the Assessors themselves graded 48 out of 99 responses as either giving "Cause for Concern" or "Unacceptable" in terms of "Respect for Patients".
Although the Panel noted that your behaviour met the GMC criteria most of the time it was concerned at the disturbing number of complaints of brusqueness, rudeness or loss of temper. There are sufficient accounts of similar behaviour experienced by members of staff to satisfy the Panel that on the balance of probability your behaviour towards the parents of patients could be erratic and even at times hostile. It was specifically noted that this was particularly the case when your unorthodox views on diagnosis and treatment were challenged.
This conclusion was reinforced by the evidence given by members of staff interviewed for the behavioural report to the effect that the number of complaints about your practice had significantly increased in the years immediately prior to your suspension. It noted that many of these complaints referred to your attitude and behaviour and that you were reported to be reluctant to take these complaints seriously.
In summary, the Panel was satisfied that there was sufficient evidence of you acting in such a way as to undermine patient trust as to give cause for concern."
"The Panel notes the Assessment Panel's opinion in their Supplementary Report that the Assessors would have considered your professional performance to have been seriously deficient (with some caveats) if they had applied the same standard that this Panel now has adopted.
The Panel has decided that the standard of your professional performance has been seriously deficient."
"1. You shall confine your practice to working as a Specialist Registrar in the approved higher Medical Training programme in Neurophysiology in the West Midlands Deanery to which you were appointed in 2003;
2. You must obtain satisfactory ongoing assessments and obtain a satisfactory annual performance review (RITA) and you must provide the GMC with copies of the reports on your performance and progress;
3. You shall draw up, in conjunction with the Regional Postgraduate Dean or his nominated deputy, a written Personal Development Plan which addresses the following areas of deficiencies identified by this Panel:
a. Developing a reflective approach to your practice.
b. Skills in communication, and respect for patients.
c. Developing good relationships with colleagues and working in teams;
4. You shall forward a copy of your Personal Development Plan to the GMC within three months of the date in which these conditions become effective;
5. You shall meet with the Regional Postgraduate Dean or his or her nominated deputy, on a six monthly basis to discuss your progress towards achieving the aims set out in your Personal Development Plan;
6. You shall agree to the appointment of a mentor, approved by the Regional Postgraduate Dean or nominated deputy, who shall not be your programme director or a workplace supervisor;
7. You shall allow the GMC to send to the Regional Postgraduate Dean a copy of the report of the assessment of your professional performance and of this determination. You shall permit the Dean to disclose this information to any other person involved in your supervision or retraining;
8. You shall allow information about the standard of your professional performance any remedial action which you have taken in relation to your performance, to be exchanged between the GMC and any person who assists you in complying with these conditions;
9. You shall allow the GMC to obtain information from the Postgraduate Dean or his/her nominee and any other relevant person about the standard of your professional performance and any remedial action you have taken in relation to your performance."
I. The finding of seriously deficient professional performance
The standard to be applied, and the facts to be taken into account, in assessing whether a practitioner's professional performance has been seriously deficient.
The opening words of section 36A(1) make it clear that it is the standard of the past professional performance of the practitioner in the work which he has actually been doing to which the CPP must direct its attention.
The emphasis is in the original.
17. … The purpose of assessment is not to punish a practitioner whose standards of professional performance have been seriously defective, but to improve those standards, if possible, by a process of supervision and retraining, for the protection and benefit of the public. …
38. … The purpose of all the provisions is to protect the public from sub-standard medical care, not to punish practitioners for blameworthy acts or omissions.
… I start with the declared purpose of the Act of 1979 and the policy behind its enactment that it is intended to make provision "with respect to the carrying on of and the persons who carry on" estate agent's activities. The provisions giving the Director (of Fair Trading) power to disqualify are intended for the protection of the public and it would be quixotic to suppose that Parliament intended that the public should be protected from the activities of a practitioner convicted a week after the Act came into force but not from those of the practitioner convicted a week before. Should Parliament be supposed to have regarded the imposition of a disqualification which precluded a person convicted of a serious mortgage fraud only a month or two before the passing of the Act from continuing to act as an estate agent as "unfair?" In my view, Parliament might well have considered it unfair to allow such a person to continue in practice to the possible detriment of the public whilst prohibiting a person convicted of a similar offence a month or two after the Act of 1979 came into force.
The performance procedures in the present case have been regulated by the General Medical Council (Professional Performance) Rules Order of Council 1997 (SI 1997/1529) ("the Rules") as corrected in November 1997 and March 1998. The Rules, which provide a comprehensive framework for the procedures, came into force on 1 July 1997. The CPP are therefore entitled only to look at matters which occurred after 1 July 1997.
The evidence of the lay complainants
The competence of the Panel and their regradings
"Where does responsibility for the deficiency lie? Although you were not fully trained as a Paediatric Neurologist, you had read widely and taken opportunities to expand your knowledge. The Panel is satisfied that despite your relative isolation there was no good reason why your understanding of what diagnosis and treatment of epilepsy was appropriate should not have been on par with that of consultants in comparably designated roles at that time. The Panel heard convincing evidence about your very heavy workload and some of the resource constraints, such as delays in getting letters typed. It is aware that you campaigned for an expression of consultant staff in Paediatric Neurology for several years and were only successful in 2000. The Panel has noted written evidence you made no attempt to argue that your failings were due to your workload or stress.
The prime responsibility rests with you. Perhaps because you were the lead consultant with responsibility for epilepsy, or because of your academic approach, or because of the intensity with which you approached clinical work, you failed to take adequate note of clinical presentations and clues. You did not show a reflective approach to the diagnosis and treatment of some of your patients with epilepsy. You did not always listen to parents and children or to concerned colleagues. Some parents and professional colleagues considered your approach to be an arrogant one.
As a consequence the service you provided patients was not always reliable. The Panel has heard evidence that professional colleagues attempted to raise concerns about your approach sometime prior to your suspension, but with no constructive response. The ability to reflect and refine diagnosis and treatment approaches in difficult areas of clinical practice, in the context of feedback from patients, parents and colleagues is an essential component of good medical practice. This is at the core of our seriously deficient performance. It is likely that most of the problems in relation to communication and respect stem from an inappropriate response to challenge rather than a lack of professional skills in working with patients. You performed well in the clinical competency tests undertaken by the Assessment Panel."
Conclusion on the substantive finding of seriously deficient professional performance
The conditions imposed by the Panel
Was the Panel required to impose conditions?
The content of the conditions imposed by the Panel
"1. You shall confine your practice to working as a Specialist Registrar or Consultant in Neurophysiology."
"2. You must obtain satisfactory reviews of your clinical and academic progress in your current Specialist Registrar training programme and you must provide the GMC with copies of the reports on your performance and progress."