England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 December 2007

1. MR JUSTICE COLLINS: This is an appeal against the decision by a Fitness to Practise Panel of the GMC following a hearing, which was completed on 17 July 2006, that the appellant should be erased from the Medical Register. The appellant I shall refer to as "Dr S".
2. The charges, which he faced, related to, in part, his performance and, in part, to allegations of positive misconduct. So far as performance is concerned, it was alleged that between February and August 2003, when he was working as a Senior House Officer at a particular hospital, and thereafter between August 2003 and March 2004, when he was a Senior House Officer at a different hospital, his professional performance was seriously deficient in a number of respects. It is apparent from the case, as presented, that the reason for that was largely because of his consumption of alcohol. It is a sad situation because undoubtedly he is a man with very high intelligence.
3. He was a scholar at Westminster School and graduated from Cambridge with a First-Class Honours degree. There is no suggestion that his performance was in any way defective until early 2003. It is not necessary, I think, to go into details of the way in which the performance was deficient. It included clinical knowledge, competency in relation to, among other things, prescribing, note taking, discharge letters and time keeping.
4. What perhaps was the more serious, so far as the ultimate sanction was concerned, were the allegations that related to misconduct. The first of those related to an incident in June 2004 when he attended Charing Cross Hospital and asked whether he could examine patients in order to practise for his MRCP examination. That, in itself, was no problem in the sense that such a request is relatively common by doctors who are sitting for the MRCP. However, the problem was that he was, at the time, not employed at Charing Cross Hospital. He had not asked anyone for permission to do what he sought to do, and worse (although this was, I think, one of only two allegations that he did not accept, but were in time proved against him) he asked the sister in charge of the ward whether he could examine the relevant patient and was told that he should not because the patient was too unwell.
5. Nonetheless, and contrary to the wishes and instructions of the nursing staff, he did go on to examine the patient. That perhaps would not, itself, have created any major problem, but unfortunately in the course of the examination he purported to give the patient advice. That advice included the suggestion that he was not being cared for in an appropriate fashion at the hospital, and that he would be much better if he were to move to another hospital. That inevitably caused considerable concern and distress not only to the patient but also to his wife, and tended to undermine the trust that the patient had in the hospital where he was a patient. As it happens, the patient died a relatively short time thereafter. He was very seriously ill. To add to it all, the appellant was under the influence of alcohol at the time he undertook this examination. That was, as the Panel, in due course, found, a very serious example of misconduct.
6. The second incident amounted to what was described as harassment of a particular lady. It seems that the appellant took the view that this particular lady had been the subject of unfair media attention and he sought to, as he put it, come to her assistance. Unfortunately the assistance that he sought to give went far beyond anything that was reasonable and involved what she regarded as serious harassment rendering it necessary for her to seek police protection. He was warned by the police that he should make no further attempt to contact her. He disregarded that warning and in July 2004 he received a formal warning under the Protection from Harassment Act 1997 stipulating that he should make no further attempt to contact the lady in question. She was, not surprisingly, considerably upset by the attentions that he gave to her and by the harassment.
7. He was at the time, and indeed this is largely the basis of the appeal, suffering from severe alcohol dependency and depression. There is an added factor, which is of considerable importance in deciding this appeal, namely the question whether he was, in addition, suffering from a form of affective disorder, or hypomania, and whether this was, in reality, the reason for the conduct which led to his being before the Fitness to Practise Panel. The charges concluded that by reason of the matters, which were set out, his Fitness to Practise was impaired because of (a) adverse physical or mental health, (b) misconduct, and (c) deficient professional performance.
8. As I have said, he admitted all the allegations against him save for the two relating to the indication by the nursing staff at the Charing Cross Hospital that he should not examine the patient in question. Those were found against him and there is no appeal against that finding.
9. The question of the existence of hypomania (as I shall put it) was raised in evidence by two doctors, in particular, one called on behalf of the Council, a Dr Shanahan, the other called on behalf of the appellant, a Dr Wells. Mr Hugh-Jones, on behalf of the appellant, submits that here we have a medical problem, and the appellant's conduct, which led to his appearance before the Panel, resulted from ill health. In those circumstances a decision that he be erased was inappropriate.
10. He accepts, as indeed was the clear evidence from both the doctors who gave evidence, that he was undoubtedly not fit to continue to practise medicine at the time that the hearing took place. What is contended is that this being a medical problem it was capable of being treated medically, and that in those circumstances the appropriate sanction should have been suspension rather than erasure.
11. My attention has been drawn to the relevant parts of the indicative Sanctions Guidance of April 2005: a document which the courts have, from time to time, indicated is one which the relevant Panel should take into account, and whose content is supported by decisions of the court.
12. It is important to note that one of the questions that had to be considered by the Panel was maintenance of public confidence in the profession. The other two vital considerations are the protection of patients and the declaration, and the upholding of, proper standards of conduct and behaviour.
13. Sanctions are not a punishment. They are imposed in order to protect patients and to ensure that doctors who are not properly capable of acting as such, and treating patients competently, should not be able to do so. If a doctor has been guilty of misconduct, whether or not directly connected with his activities as a doctor (for example, he has been convicted of a criminal offence, which is not directly related to his practice as a doctor) that can inevitably reduce public confidence in the profession. It is also a breach of the proper standards of conduct and behaviour to be expected of a doctor, thus a sanction of lesser or greater seriousness, depending on the nature of the misconduct, can be imposed.
14. In imposing sanctions the Panel must apply the principle of proportionality weighing the public interest against the interest of the practitioner. If a practitioner can, through treatment or training, or the imposition of conditions of one sort or another, be brought back to be trusted as a competent doctor, or if guilty of a form of misconduct, but a highly competent practitioner, the public interest may indicate that in such a case it would be wrong to deprive the public of his services for any longer than is strictly necessary.
15. Suspension is intended to send out a signal that the behaviour is regarded as unacceptable, but is not so serious as to justify erasure. That may rise not only because of the nature of the conduct in question, but also where there has been an acknowledgment of fault and where the Panel is satisfied that there is unlikely to be any repetition.
16. So far as erasure is concerned, it is to be noted that there is a distinction drawn, which has always been drawn, albeit now they are dealt with by the same Fitness to Practise Panel, between cases which are regarded as health cases and cases regarded as conduct cases. There used, until recently, to be a division between the two, but it must be borne in mind that the division cannot necessarily be strictly applied because health issues may be material where there has been misconduct. However, the misconduct may be so serious that notwithstanding that it was caused by what might be regarded as health problems, it has to result in erasure, particularly if it appears to the Panel that there is a lack of insight and so a real risk of repetition of such sort of conduct.
17. In setting out the factors which are material in deciding upon suspension, as opposed to erasure, the guidance notes that no evidence of repetition is a factor. The Panel may be satisfied that the doctor has insight and does not pose a significant risk of repeating, and, in cases where the only issue relates to the doctor's health, there is a risk to the patient's safety if the doctor is allowed to continue to practise even under conditions. That means that in a pure health case it may well be appropriate to impose suspension rather than merely conditions.
18. Erasure is likely to be appropriate where there is a serious departure from professional standards, where serious harm is done to others, where there is a continuing risk and where there is a persistent lack of insight into the seriousness of actions or their consequences. It is noted that erasure is not available in cases where the only issue relates to the doctor's health. That then is the guidance that the Panel has to apply and in this case they clearly considered the guidance and took it properly into account.
19. The Panel in indicating to the doctor why it had decided as it did (and I am not going to go through everything that was stated) noted that it had to balance the health issues against the very serious misconduct and deficient professional performance found by it. It went on:
20. "The Panel has heard that your severe alcohol dependence and possible affective disorder have pervaded your work as a doctor, and may also have played a part in the incidents of misconduct and your poor professional performance."
21. It then referred to the case of Crabbie v GMC, to which its attention had been brought. It is a decision of the Privy Council of 2002, unreported number 7 of 2002. That was a case of a doctor who had been found guilty of causing death by dangerous driving, having driven with a blood alcohol content of 240, which is some three times the limit. She had an alcohol problem. The argument was that she should not have been dealt with, in those days, by the Conduct Committee, rather her case should have been put to the Health Committee.
22. The Privy Council took the view that that was not appropriate. The misconduct was so serious in that case as to justify the matter being put to the Conduct Committee. In fact, she had been sentenced to five years' imprisonment, which strongly suggests that the sentencing judge did not accept that this was entirely down to her alcohol problem, but clearly took the view that she fully appreciated that she was unfit to drive, but nonetheless decided to do so.
23. It also makes the point, and it is a point that is already clear from the sanctions guidance, that if there is a health reason for the professional performance deficiencies, or possibly even for misconduct, it may be appropriate to deal with the doctor on health grounds rather than on other grounds. Much will depend obviously upon the individual circumstances of the case and the seriousness of the misconduct.
24. The Panel went on:
26. "The Panel considers that each separate incident of misconduct was extremely serious. Your actions in relation to your examination of patient A at the Charing Cross Hospital demonstrated a grave lack of responsibility on your part towards the patient, his relatives and your colleagues. Your contacts with [the lady in question], who was unknown to you, amounted to serious psychological violence.
27. …
28. The Panel has determined that you suffer from severe alcohol dependence, depression and a possible affective disorder. It has heard evidence from Dr Shanahan, consultant psychiatrist, that the pattern of your behaviour which led to this Panel's finding of impairment fits consistently with alcohol dependence and a possible affective disorder. Therefore, your actions and performance may have been influenced by your illnesses. However, you repeatedly failed to accept the help suggested which might have addressed your alcohol dependency and prevented your misconduct and deficient performance.
29. The Panel notes that Dr Shanahan concluded in his second report … that your insight into your health problems has improved, but your belief that you have insight is not borne out by your actions. Dr Shanahan also concluded that you are not currently fit to practise under any circumstances. Dr Wells, consultant psychiatrist, stated in his evidence before this Panel that you have only partial insight and that you are not fit to practise. Your current treating psychiatrist, Dr Davis, stated in her letter … that you continue to describe some angry outbursts, have little insight into your problems and appear rather overconfident. The Panel further notes that although you say you are aware of the need to be abstinent from alcohol, you are not currently abstinent. You have previously achieved short periods of abstinence but have relapsed."
30. It should be noted that the Panel had evidence, and were singularly unimpressed by it, that the evening before he gave evidence to the Panel he had drunk alcohol. It is true that there was no indication that he had had an excessive amount of alcohol. Nonetheless, in the context of his knowledge that alcohol dependency was what was leading to the problems that he had created for himself, and the conduct in question, it was clearly a serious matter that he had not been able to abstain from taking alcohol, despite his knowledge of the harm that it was doing. The Panel went on:
32. "It causes this Panel deep concern that, despite the extensive treatment you have received over the years, including help from several psychiatrists, admittance to the highly regarded residential Stepps programme and offers of assistance and support from your supervisors during your SHO rotation, you are now no nearer to achieving abstinence from alcohol, than you were when this treatment began, approximately two years ago."
33. The Panel indicated that they had taken into account the principle of proportionality and went on:
35. "Your unacceptable behaviour undermines the confidence in the medical profession, damages its reputation and has placed patients at risk. The public expects appropriate standards of behaviour from a doctor and is entitled to expect that a registered practitioner will conduct himself in an appropriate professional manner. The findings made against you represent a very serious breach of the principles that are central to Good Medical Practice."
37. Finally this:
39. "Although the Panel recognises that health issues may have contributed to your actions, it has decided that you were aware of your alcohol dependence and later your possible affective disorder but failed to act on the advice given to you from many professionals that you should abstain from alcohol and comply with appropriate treatment. The recent assaults and your continued alcohol dependence, which you still fail to address, suggest a significant risk of repetition of your behaviour."
40. There was a letter before the Panel from his treating doctor. She did not, herself, attend to give evidence. The Panel was entitled to take the letter into account. What she said was that she had reviewed the appellant on the date of the letter, which was 19 June 2006. He indicated that he had been feeling better with less mood liability since taking a particular drug. However, he did continue to describe some angry outbursts and had little insight into his problems and appeared rather over-confident. Her impression was that his main problem continued to be alcohol dependent syndrome and he may have an affective disorder which was responding to mood stabilisers, that being the drug which he had been prescribed.
41. In addition to the continuing drinking, shortly before the hearing he had also been guilty of two assaults upon his wife: one in February 2006 and one in June 2006. They were not serious assaults in that they were charged as common assaults. Therefore they presumably did not cause any injury of significance. Nonetheless they were an indication that notwithstanding that he had, certainly by the time of the second assault, started treatment, he was still unable to control himself properly. Those assaults, in themselves, were properly regarded as conduct which was not appropriate, to say the least, for a medical practitioner. It is true that they were not part of any specific charge. That was not surprisingly, since they had occurred after the charges had been preferred. However, it is accepted by Mr Hugh-Jones that the Panel was entitled to take that conduct into account in assessing whether there was a risk of repetition of the sort of conduct which had led to his appearance before the Panel.
42. The main complaint that is made by Mr Hugh-Jones is that the Panel misinterpreted the evidence in concluding that the affective disorder was a possibility rather than a probability. The Panel was wrong in those circumstances to regard the affective disorder as not a causative factor in the conduct in question. If they had properly considered the evidence and reached proper conclusions upon it, they ought to have decided that this was a medical problem rather than a conduct case and that, therefore, the appropriate sanction was, as I have indicated, suspension.
43. I have been taken through the evidence given by the two doctors, Dr Shanahan and Dr Wells. I also have to note, as I have been referred to it, the letter from the treating doctor that was consistent with the conclusion reached by the Panel. Dr Shanahan's starting point was that, as he put it, his overall view was that almost all if not all of the incidents were related to alcohol. Therefore he felt very strongly that if there was any question that the doctor had continued to drink the prognosis was poor. However, he did concede in chief that because some of the behaviour was a little bit grandiose, as he put it, it would appear that it was necessary to consider the potential for there being a hypomanic diagnosis as well.
44. He did not think he could rule out the presence of alcohol in any of these so-called hypomanic activities. He was inclined to believe that absent alcohol the hypomanic picture would not be so problematic, but that when the alcohol was there the appellant was completely disinhibited and it was then that things went wrong. He also indicated in chief that it was his view that most of his behaviour in relation to the lady, who he harassed, was driven by the fact that he was drinking.
45. In cross-examination it is fair to say that he modified his views somewhat. He accepted that, particularly in relation to the harassment, that the grandiosity was somewhat more hypomanic than alcohol driven. He had
46. Dr Wells' diagnosis put to him and he accepted that there was an indication, certainly, that there were symptoms consistent with the existence of some hypomanic disorder, although it is not possible to identify the precise nature of such disorder, if it existed, until he abstained from alcohol.
47. He accepted that various observations, which had been recorded in relation to the appellant's competence, were consistent with hypomania, but also consistent with alcohol use. He indicated that one must seriously consider, as he put it, a dual diagnosis. So far as the Charing Cross Hospital incident is concerned, he said that he did not exclude hypomania, but one must also include alcohol disinhibition. As I have already said, in relation to the harassment he accepted that it was "hypomanic style behaviour". He said that the approach must be to get the alcohol under control and then deal with the underlying hypomania if it existed. He accepted that it was not easy always to decide which should come first. He was asked:
48. "Q. In effect, if, for example, the hypomania was successfully treated it would be a reasonable inference that the biological temptation to drink would also be reduced?
49. "A. I completely agree.
50. Q. In other words, to judge an untreated hypomanic in drink is asking the sufferer to deal with both addictions at once without him knowing which is the cause?
51. A. Yes. As I said earlier, it is setting him up to fail essentially, which is completely unfair.
52. Q. I wonder whether in fact the fairest thing in the medical assessment you make of him to treat him as a sick doctor with a dual diagnosis requiring such treatment as can best return him to practice?
53. A. I think that is the fairest way forward here."
54. He accepted that it was possible that the hypomanic element might have been overlooked.
55. It seems to me that it is fair to say, on an overall consideration of his evidence, that although he clearly accepted that there might well be a hypomanic disorder in the background, he was not prepared to say that it probably had a causative effect on the misconduct, and certainly on the misconduct in relation to the Charing Cross Hospital, which was very serious in itself. Certainly it was a possibility, but it was not, in my view, erroneous for the Panel to regard him as going no further than indicating his acceptance of it being a possibility, rather than anything more than that. Certainly he was not saying that in his view it was probable that a hypomanic disorder was substantially responsible for the alcoholism, itself, responsible for the misconduct and lack of competence demonstrated by the appellant.
56. Dr Wells' evidence was more positive in favour of the appellant. He was asked in his evidence-in-chief:
57. "Q. If a person who is alcoholically dependent and currently using alcohol, does that also prevent a clear diagnosis of an affective disorder?

A. 58. If one is being formal, prudent and as precise as possible then, yes, although one can have a fairly clear idea and a good hunch that there is an underlying or an additional component to the person's presentation, but formally as stated in both ICD-10 and DSM4 you cannot make a firm diagnosis of one of these affective disorders in the presence of alcohol or other drugs.

58. Q. How then did you reach your conclusion in March of this year?

A. 60. Because he had been through the Stepps programme and when I saw him he had been abstinent for a considerable period of time."

60. It has been suggested by Mr Hugh-Jones that his answer about inability to make a firm diagnosis was directed not at affective disorder in general, but at the particular form of affective disorder from which he might suffer. I confess that I do not read that answer in that way. He is making the point that if one is being as precise as possible, one cannot make a positive diagnosis of the existence of any form of affective disorder while other drugs or alcohol are being taken. However, he was able to form the view, he felt, for a good enough reason, particularly as there had been the period of abstinence when he saw the appellant, that there was an underlying affective disorder, although he was not able to identify precisely what was the nature of that disorder at the time.
61. It was put to him that the behaviour suggested a hypomanic state. He said he agreed with that, but also thought that alcohol would probably be involved as a factor. He thought it was very difficult to be clear and precise as to what caused what or what led to the incidents that themselves led to the allegations. However, having stated that having seen the appellant when he was abstinent from alcohol he then exhibited phenomena that would be in keeping with the diagnosis of affective disorder, and having an affective disorder can itself trigger the consumption of alcohol. As he put it, it was complicated, it was a muddle and he did not think anybody had actually got to grips with the situation fully.
62. That again is significantly less than positive evidence that in his view the hypomanic disorder, in whatever form it took, was itself, in this case, a trigger for the alcoholism which led to the misconduct and the poor performance in question.
63. He observed that in his view the appellant was perfectly capable of abstinence and demonstrated that when he was surrounded by adequate support, such as when he was in the Stepps treatment programme. He observed later that it was important that the appellant should remain abstinent and he knew that, but he was not sure that the doctor was capable of so doing. It was his view that he should be abstinent from alcohol. A proper diagnosis should then be made because it was not possible to make a clear diagnosis while he was still drinking, and then treatment for that diagnosis could be instigated and he hoped that it could be successful.
64. He stated that it was his view that the appellant was lacking in insight. He was focusing on his alcohol dependence and did not have insight into the additional condition, that is to say the possible affective disorder. He only, therefore, had partial insight.
65. That, I hope, is a reasonable summary of the significant parts of the evidence of both the doctors concerned. It is only if the conclusion reached on the evidence put before it by the Panel is one which it would be wrong for the Panel to have reached, that it would be appropriate for this court to interfere. If it was a reasonable conclusion which was reached, then it would be wrong for an Appellate court to interfere with it, even if the judge might possibly not have reached that same conclusion.
66. That is not the situation here. I am entirely satisfied that the conclusion that was reached by the Panel as a matter of fact, namely that there was a possible involvement of an affective disorder was reasonable, and accorded with the evidence that was before it.
67. Accordingly, the ground of appeal, which asserts that the Panel was wrong to reach that conclusion, is not made out.
68. The suggestion is then made that, in any event, the Panel failed properly to take into account the effect of his illness, be it affective disorder alcoholism, or a combination of those, in deciding on what was the appropriate sanction. There can be no question but that the Panel's view that the misconduct was serious was correct. The effect on the patient in the Charing Cross Hospital was highly damaging and the conduct in relation to the lady, whom he harassed, was equally damaging and entirely inappropriate for a doctor.
69. The view taken by the Panel that this fell far below the standard to be expected of a registered medical practitioner is undoubtedly correct. Further it would have lowered public confidence in the profession if conduct, such as this, were not to be treated with the greatest seriousness, and it was clearly a proper candidate for the most serious sanction, namely erasure.
70. The key to the approach taken by the Panel is to be found in the passage that I have already cited towards the end of its reasons. They state, in terms, that although they recognise the health issues might have contributed to his actions, the Panel decided that he was aware of his alcohol dependence and later his possible affective disorder. He failed to act on the advice given by many professionals that he should abstain from alcohol and comply with appropriate treatment. They refer to the recent taking of alcohol that he still failed to address, which suggested significant risk of repetition. In my view they were perfectly entitled to take the view that is indicated in those observations.
71. Mr Hugh-Jones submits that it was unfair to hold against him that he had failed to act on the advice given, because the affective disorder may well have meant that he was not in a position to have the appropriate insight into his condition and into the need for the treatment. The Panel was entitled, in my view, to take the view that it did on the basis that he had had the advice and he had not taken it. He knew that he needed to abstain and was capable of appreciating that the sort of conduct of which he was guilty was totally out of order.
72. In those circumstances, even if there was an affective disorder it was not the sort of case where that could be taken into account in his favour in assessing whether the serious misconduct should result in a lesser sanction than might otherwise have been appropriate.
73. It seems to me that for the same reasons it cannot be said that the sanction was disproportionate. Its reasons were, in my view, entirely adequate to explain why the Panel had reached the conclusion that it did. I recognise that this is, in many ways, a sad case because we have here a talented and highly intelligent doctor who undoubtedly has medical problems which, no doubt, have, to an extent, contributed to the misconduct of which he has been found guilty.
74. Nonetheless, for the reasons I have given, I am satisfied that the Panel did not err in reaching the decision that they did and imposing the sanction that they did. In those circumstances, I must dismiss this appeal.
75. MR WEISSELBERG: My Lord, I am grateful for that. The GMC have asked for its costs of the appeal and ask your Lordship to assess them now.
76. MR JUSTICE COLLINS: Is this an insurance case?
77. MR HUGH-JONES: It is a Medical Protection Society, yes--
78. MR JUSTICE COLLINS: You cannot resist?
79. MR HUGH-JONES: I do not resist it. I have seen the summary schedule and do not resist the amount.
80. MR JUSTICE COLLINS: I think I have only seen your schedule. I do not think I have seen the GMC's. I am not surprised you do not resist it. In that case the appeal is dismissed with costs assessed in the sum of £4,755.50.
81. MR HUGH-JONES: On behalf of the appellant, may I thank you for the attention paid to the detail of this case. I am grateful, my Lord.
82. MR JUSTICE COLLINS: I am glad I could deal with this today.