QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF DR MALCOLM NOEL CALHAEM||Claimant|
|THE GENERAL MEDICAL COUNCIL||Defendant|
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Mr Ben Jaffey (instructed by GMC) appeared on behalf of the Defendant
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"Allegation 3: prior to induction of anaesthesia you did not record Patient A's baseline values of,
c. blood pressure
Allegation 10. You allowed the operation to proceed.
Allegation 11.a. In the circumstances, your actions at 10 above were inappropriate."
"Allegation 12. Before and/or during theatre you did not record (including where appropriate the values of) Patient A's,
a. inspired concentration of gases
b. end tidal concentration of isoflurane
c. grade of laryngoscopy
d. breathing circuit
e. mode of ventilation
Allegation 13. Before induction and every five minutes thereafter you did not record Patient A's vital signs.
Allegation 15. After surgery but before Patient A's removal to the recovery room,
a. her colour continued to deteriorate
b. she was cold and clammy to the touch
Allegation 16. You removed Patient A's endotracheal tube.
Allegation 18. Patient A was taken to the recovery room at about 11.30. On arrival her
a. blood pressure was low
b. oxygen saturations were low
c. skin was blue, mottled and clammy
Allegation 20. You left Patient A to anaesthetise another patient. You failed,
b. In any event to record the results of any such examination you may have carried out.
d. In any event to record the result of any such attempts you may have made to establish any such explanation.
e. To order blood samples.
Allegation 22. By about 14.00 Patient A had,
a. failed to regain consciousness
b. become agitated
c. had a decerebrate movement
Allegation 23. By or at this time you failed to,
b. anaesthetise Patient A again
c. replace the endotracheal tube
d. arrange a CT scan
Allegation 24. Between 12.00 and Patient A's transfer to the multiple injuries unit at 16.20 you failed,
d. Adequately to record in the Notes such assessments, examinations, clinical signs, treatments, attempts to establish a diagnosis and the like as you may have undertaken."
"I consider that Dr Calhaem's failures, many of which have been admitted, were significant, but not by themselves of sufficient gravity to call into question his registration".
"Yes, I think there are deficiencies in the records, there are deficiencies, I think, in some aspects of communication with colleagues. For instance, I think the conversation with Dr Coleman was not one that I would entirely support. I think that the nursing staff, looking back on it, probably needed more in the way of reassurance and communication so that he could put across his view that it was reasonable to do the various things that he did and did not do."
(1) Dr Calhaem's action in inducing anaesthesia without recording baseline values was irresponsible and a serious departure from good clinical care and practice.
(2) Under anaesthesia but before surgery had commenced Mrs A's condition was unsatisfactory in that her circulation and her oxygenation were inadequate. Dr Calhaem's action in failing to resuscitate, but instead allowing the operation to proceed, was not only inappropriate, but also irresponsible and a serious departure from good clinical care and practice.
(3) Dr Calhaem's actions in failing to record the matters set out in allegations 12 and 13 were (a) inadequate and (b) a serious departure from good clinical care and practice.
(4) The removal of the endotracheal tube was not only inappropriate (as conceded by Dr Davies), but also irresponsible and a serious departure from good clinical care and practice.
(5) At about 12 noon Mrs A was still unresponsive and poorly perfused. Dr Calhaem failed to examine her carefully, or to remain present to supervise cardiovascular and respiratory support. Dr Calhaem's conduct in that regard, and also in failing to record the results of his examination, was irresponsible, unprofessional, compromising his ability to care for his patient, and a serious departure from good clinical care and practice.
(6) Dr Calhaem failed to accept the help offered by another consultant anaesthetist. Between 12 noon and 4.20pm he failed to recognise the severity of the situation or to react appropriately and timeously, and he failed to ensure recannulation at the appropriate time. These failures either individually or collectively were irresponsible, inappropriate, unprofessional and demonstrated a serious departure from good clinical care and practice.
"1. You have admitted to the Panel that prior to induction of anaesthesia you did not record Patient A's baseline values of pulse, oxygen saturation or blood pressure. The Panel does not accept that readings taken two and a half hours earlier on the ward would be acceptable as baseline values, as they could have changed. The Panel also notes the document 'Recommendation for standards of monitoring during Anaesthesia and Recovery' (December 2000) published by the Association of Anaesthetists of Great Britain and Ireland. It recommends that:
(1) 'Monitoring devices must be attached before induction of anaesthesia and their use continued until the patient has recovered from the effects of anaesthesia.
(2) 'All information provided by monitoring devices should be recorded in the patient's notes. Trend display and printing devices are recommended as they allow the anaesthetist to concentrate on managing the patient in emergency situations'.
You did not adhere to this guidance.
2. In these circumstances the Panel has found that your actions were irresponsible and a serious departure from good clinical care and practice.
3. You administered drugs at about 11:00 to induce anaesthesia.
4. Under anaesthesia, but before surgery commenced, Patient A's condition was unsatisfactory in that her circulation was inadequate, including as indicated by her colour. She was tachycardic and her oxygenation was inadequate. You failed to commence resuscitation with oxygen and intravenous fluids. You allowed the operation to proceed. The Panel concurs with Dr Mackenzie, the GMC's expert witness, that it was an error to proceed with the operation given the patient's condition after transfer to theatre. The correct course of action would have been to connect monitors, obtain readings and commence resuscitation with oxygen and intravenous fluids in order to stabilise the patient. As a result of these failings the Panel has found your actions to be inappropriate, irresponsible and a serious departure from good clinical care and practice.
5. You have admitted to the Panel that before and/or during theatre you did not record (including where appropriate the values of) Patient A's, inspired concentration of gases, end tidal concentration of isoflurane, grade of laryngoscopy, breathing circuit and mode of ventilation.
6. Before induction and every five minutes thereafter, you did not record Patient A's vital signs. In evidence, Dr Mackenzie referred to this as poor practice and although the Panel accepts that you were unable to do this during the operation, you should have recorded the vital signs at a later time that day. Your actions were inadequate and a serious departure from good clinical care and practice.
7. After surgery, but before Patient A's removal to the recovery room, her colour continued to deteriorate. She was cold and clammy to the touch. You removed Patient A's endotracheal tube. Both Dr Mackenzie and Dr Davies, your expert witness, agree that the tube should not have been removed. Dr Davies opined that the removal of the tube may have increased the risk to the patient. The Panel finds that the removal of Patient A's endotracheal tube was inappropriate, irresponsible and a serious departure from good clinical care and practice.
8. Patient A was taken to the recovery room at about 11:30. On arrival her blood pressure was low, oxygen saturations were low and skin was blue, mottled and clammy. By about 12:00 Patient A was still unresponsive and poorly perfused. You left Patient A to anaesthetise another patient. The Panel views this decision with great concern given that machine readings covering 11:35 to 12:09 all show that the patient was suffering from low oxygen, low blood pressure and tachycardia. The experts agree that this showed poor perfusion, which you have now also accepted.
9. You failed to examine Patient A carefully. The Panel accepted the evidence of Nurse Whitaker that the usual examination did take place, but given her description of what had occurred it is satisfied that it was not a careful examination. Dr Mackenzie stated that this was an unusual situation and needed more than the usual examination. You further failed to record the results of any such examination you may have carried out. You failed again to record the result of any attempts you may have made to establish any explanation for Patient A's condition. You failed to order blood samples. The Panel is concerned that you did not remain with the patient to supervise cardiovascular and respiratory support.
10. This conduct, apart from the failure to take blood samples which would not have been of immediate assistance, put the patient at risk. It was irresponsible, unprofessional, compromised your ability to care for your patient, and was a serious departure from good clinical care and practice.
11. The Panel has heard that by about 14:00 Patient A had failed to regain consciousness, became agitated and had decerebrate movements. By, or at this time, you failed to accept the help offered by another consultant anaesthetist, Dr Coleman. The Panel heard evidence that the offer of such assistance would have been unusual and demonstrated his concern. You also failed to anaesthetise Patient A again, replace the endotracheal tube, arrange a CT scan, or arrange for Patient A's transfer to intensive care. As the leader of a team, you should have ensured that all of these actions had been undertaken.
12. Between 12:00 and Patient A's transfer to the Multiple Injuries Unit at 16:20, you failed to recognise the severity of the situation, to act appropriately or timeously to the severity of the situation or to ensure recannulation at the appropriate time. The Panel is most concerned that you left Patient A at 13:45 to start to anaesthetise your fifth patient that day, thus severely compromising your ability to treat a patient who had been unconscious for several hours. Dr Davies opined that this was a risk he would not have taken. You admit to failing adequately to record in the notes such assessments, examinations, clinical signs, treatment and attempts to establish a diagnosis you may have undertaken.
13. The Panel has found that these failures, either individually or collectively were irresponsible, inappropriate and unprofessional and demonstrated a serious departure from good clinical care and practice.
14. The Panel is satisfied that your care of Patient A on16 September 2004, fell below the standards expected of a registered medical practitioner. There were clear departures from the guidelines in the GMC's publication 'Good Medical Practice' (2001). That publication makes it clear that 'serious or persistent failure to meet the standards in this booklet may put your registration at risk'.
15. Specifically this publication states that 'good clinical care must include:
• an adequate assessment of the patient's conditions, based on the history and symptoms and, if necessary, an appropriate examination;
• Providing or arranging investigations or treatment where necessary;
• Taking suitable or prompt action when necessary;'.
16. It states that in 'providing care you must keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed'.
17. You failed to adhere to this guidance. Your assessment of the patient's condition was inadequate and you failed adequately to record in the notes such assessments, examinations, clinical signs, treatment and attempts to establish a diagnosis as you may have undertaken.
18. The Panel has also had regard to the joint guidance of the Royal College of Anaesthetists and the Association of Anaesthetists of Great Britain and Ireland, 'A Guide for Departments of Anaesthesia, Critical Care and Pain Management'. (Second Edition 2002). It states that: 'although it is not a legal requirement to keep an anaesthetic record, if this standard of record keeping is not maintained and professional requirements are not being met, patients are put at risk'. It goes on to state that: 'the record must be such that if another doctor were required to take over the case, this record would allow systematic and ready access to all the information required'. On a number of occasions you failed to keep adequate records.
19. The Panel has also had regard to the 'Indicative Sanctions Guidance' (2005) and in particular paragraphs 11, and 53 to 58. Notwithstanding your Counsel's submission that the errors in treatment of patient A were a single incident on one day, the Panel has formed the view that your failings were a succession of serious errors in different areas of anaesthetic practice which put your patient at risk.
20. The Panel therefore finds that your fitness to practise is impaired because of your misconduct, and your deficient professional performance."
1. The Panel made seven errors in its finding of fact.
2. The Panel was wrong to find impairment on the basis of misconduct or performance for a number of separate reasons.
3. The sanction of three months' suspension was wrong in principle, excessive and disproportionate.
"(1) This section applies where an allegation is made to the General Council against—
(a) a fully registered person ... that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—
(b) deficient professional performance..."
"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.
(2) 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 twelve 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 three 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."
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence."
"In the instant case there can be little doubt that there was negligence and that it was open to the Committee to find that this constituted professional misconduct. However the Committee should have gone on to consider as a separate issue whether this amounted to serious professional misconduct. It is by no means self-evident that if this question had been posed it would have been answered in the affirmative. It was relevant to consider that this was an isolated incident relating to one patient (albeit over a number of days) as compared with a number of patients over a longer period of time. It was also relevant to take account of his long period (some 40 years) of unblemished professional conduct and the particular difficulties of conducting a single-handed practice in a deprived area of London."
"62. Although in Krippendorf the Board did not criticise the phrase 'repeatedly or persistently' in the GMC's guidance, it is important to bear in mind that that guidance is a generalisation seeking to cover a very wide range of professional performance. The professional demands made on a general practitioner are very different from those made on a consultant surgeon. A continuing failure to organise the efficient management of a general practice may (in a sufficiently bad case) amount to seriously deficient performance, but in the nature of things it must be assessed on very different evidence from that relating to shortcomings of technique in major surgery. It would plainly be contrary to the public interest if a sub-standard surgeon could not be dealt with by the CPP unless and until he had repeatedly made the same error in the course of similar operations. But as a general rule the GMC should not (and their Lordships have no reason to suppose they would) seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to make out a case of seriously deficient performance against any practitioner.
63. At some points in his submissions Mr Hendy referred to tortious liability for negligence, suggesting that seriously deficient performance must be at least as serious as negligence. Their Lordships do not consider negligence to be a relevant or useful concept at a performance hearing before the CPP. Negligence is concerned with compensating loss proved to have been caused by a breach of a practitioner's duty of care. Seriously deficient performance is a much wider concept since (as already mentioned) it can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients. It does not depend on proof of causation of actionable loss. (On the other hand one isolated error of judgment by a surgeon might give rise to liability in negligence but would be unlikely, unless very serious indeed, to amount by itself to seriously deficient performance.)"
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
198. As to what constitutes 'serious professional misconduct', there is no need for any elaborate rehearsal by this Court of what, on existing jurisprudence, was capable of justifying such condemnation of a registered medical practitioner under the 1983 Act before its 2003 amendment. And, given the retention in the Act in its present form of section 1(1A), setting out the main objective of the GMC 'to protect, promote and maintain the health and safety of the public', it is inconceivable that 'misconduct' - now one of the categories of impairment of fitness to practise provided by section 35C of the Act - should signify a lower threshold for disciplinary intervention by the GMC.
200. As Lord Clyde noted in Roylance v General Medical Council  1 AC 311, PC, at 330F- 332E, 'serious professional misconduct' is not statutorily defined and is not capable of precise description or delimitation. It may include not only misconduct by a doctor in his clinical practice, but misconduct in the exercise, or professed exercise, of his medical calling in other contexts, such as that here in the giving of expert medical evidence before a court. As Lord Clyde might have encapsulated his discussion of the matter in Roylance v Clyde, it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, Collins J, in Nandi v General Medical Council  EWHC (Admin), rightly emphasised, at paragraph 31 of his judgment, the need to give it proper weight, observing that in other contexts it has been referred to as 'conduct which would be regarded as deplorable by fellow practitioners'.
201. It is also common ground that serious professional misconduct for this purpose may take the form, not only of acts of bad faith or other moral turpitude, but also of incompetence or negligence of a high degree."
"26. I acknowledge without cavil that Collins J's judgments are careful and humane. But I have to say that they do not in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal. Applying these principles I am driven to conclude that there was not in either of these cases any proper basis established for overturning the sanctions set by the Fitness to Practise Panel."
(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct".
(2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct".
(3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.
(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance".
(5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct".
Part 6: The second ground of appeal - challenge to decision on impairment
(1) Dr Calhaem did a number of things which were right, for example bagging in theatre, diagnosing allergic reaction to Suxamethonium, treating that reaction with ephedrine, administering Midazolam after the decerebrate movements, and so forth.
(2 This was an isolated case involving a single patient.
(3) Mrs A received the right treatment and she made a full recovery from the incident.
(4) Neither Mrs A nor her family has complained to the GMC.
Part 7: The third ground of appeal - challenge to decision on sanctions
"Having regard to all these matters, the Panel has concluded that the proportionate response to your misconduct and deficient professional performance is that your name be suspended from the Register for a period of 3 months. The Panel has decided that this period adequately reflects the degree of seriousness of your conduct. It is also intended to facilitate your return to practice."