QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF ZYGMUNT||Claimant|
|GENERAL MEDICAL COUNCIL||Defendant|
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Mr I Hare (instructed by the GMC) appeared on behalf of the Defendant
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(2) On 17th October 2007 that his fitness to practise was impaired.
(3) On 19th October 2007 that the sanction of two months suspension from the Register of Medical Practitioners should be imposed.
"(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;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
"Thanks for asking me to see this pleasant but unfortunate man that as you know has presented with a three week story of imbalance, headache and intermittent fever. The recent scan shows a posterior basal intrinsic looking lesion on the right side. Although an abscess is unlikely, an infectious cause cannot completely be ruled out. I do feel a further scan (MRI) would be helpful. At the end surgery is likely to be needed but beforehand his infection needs to be dealt with."
He arranged for an MRI scan.
"There are appearances of intrinsic tumour and a high grade glioma seems likely. The ragged walls of this lesion make pyogenic abscess unlikely, but tuberculous abscess is a remote possibility."
Thus, as at 18th March 2001 the diagnosis of two neurosurgeons, Professor Zygmunt and Mr Josan, and one neuroradiologist, Dr West, was that the lesion was a tumour not an abscess.
"The MRI scan shows as you know the lesion identified with [ie, by] the CT. Unfortunately it looks intrinsic but once he is over his current infection a partial removal would be possible. I will see him in clinic at the Priory 3/4/01."
The reference to the clinic was to the outpatient clinic attached to the Priory Hospital. This is the last reference to Patient A by Professor Zygmunt in the clinical notes. Professor Zygmunt went on a pre-booked skiing holiday on 23rd March 2001. On 22nd March 2001 Dr Sandler noted that Patient A's temperature was level and that he was well. He directed that he should be discharged home on Saturday 24th March 2001.
"This gentleman was admitted as an emergency to Solihull Hospital with pyrexia and right frontal headache. An urgent CT scan was undertaken prior to proceeding to a lumbar puncture demonstrated a lesion which was thought to be either a cerebral abscess or tumour. Discussion with a neurosurgeon led to the conclusion that this was likely to be a tumour and that the pyrexia was due to an alternative infection. A diagnosis of upper respiratory tract infection was made and he was treated with intravenous antibiotics. He and his family chose for him to be moved to the Priory Hospital, Edgbaston, for further management.
Consultant Neurosurgeon, Mr S C Zygmunt was kind enough to see the patient, review the scan and agreed that this was an infiltrating glioma requiring further surgical treatment after the present infection had resolved.
He was therefore managed on intravenous antibiotics during the subsequent week along with Dexamethasone for the oedema and headache. By the end of the week he had recovered substantially and was able to be discharged home on 24th March.
The patient will have outpatient review by myself and Dr Zygmunt on 30th March and 3rd April respectively with a view to subsequent readmission for surgical intervention and thereafter for consideration for radiotherapy."
The outpatient appointments did not take place.
Issues before the Fitness to Practise Panel
"9. Prior to your going on leave on or about 23rd March 2001 you --
a. did not properly maintain on your differential diagnosis of Patient A's condition the realistic possibility that the lesion might in fact be an abscess rather than a tumour,
b. did not formulate a management plan to the effect that Patient A should in fact,
(i) remain an in-patient at the hospital,
(ii) remain on continued intravenous
(iii) be subject to close neurological
(iv) be rescanned after five to eight days
further to assess the lesion.
c. did not record in Patient A's notes any in-patient management plan at all,
d. did not inform Dr Sandler orally or otherwise that that Patient A should remain an in-patient on intravenous antibiotics,
e. did not establish appropriate neurological cover,
f. did not inform Dr Sandler,
(i) that you were to be absent from the hospital on leave for the period from on or about 23rd March 2001 to on or about 1st April 2001,
(ii) to whom Dr Sandler should refer for a
consultant neurosurgical opinion during
your absence from the hospital on leave,
g. did not make an appropriate record informing your medical colleagues with the immediate care of Patient A that,
(i) you were to be absent from the hospital on leave, and
(ii) of any arrangement you had made to cover your absence on leave."
(1) He did not maintain a "differential", ie, alternative working diagnosis that the lesion might be an abscess not an tumour.
(2) He did not direct that Patient A should remain an in-patient at the Priory Hospital on intravenous antibiotics until his return from holiday.
(3) He did not record that, or any, management plan in the clinical notes or otherwise in writing.
(4) He did not arrange for neurosurgical cover during his absence and inform Dr Sandler who was to provide it.
"Professor Zygmunt failed to maintain abscess on his differential diagnosis. In any event, he should have devised a management plan which he should have recorded and communicated to the other healthcare professionals charged with the care and treatment of Patient A. That plan should have provided for, at the least, continued intravenous antibiotic treatment as an in-patient. Dr Sandler and others would then have been clear about Professor Zygmunt's intentions for the management of Patient A. The plan should also have indicated who would be responsible for providing neurosurgical cover during Professor Zygmunt's absence."
(1) Is the Panel's finding on element (2) supportable?
(2) If not, may it make any difference to the findings of serious professional misconduct?
(3) Was a finding of serious professional misconduct justified on the facts admitted or found?
The First Issue
"The Panel found that it was inherently improbable and perverse that Dr Sandler would have directed and recorded that Patient A's antibiotic treatment be discontinued contrary to the expressed opinion of a fellow consultant, who had shared care of the patient, without recording his reasons for so doing. In fact, the Panel concluded that Professor Zygmunt had considered that the provision of antibiotics was the province of Dr Sandler."
"5.13. Allegation 9(d)
The Panel found Professor Zygmunt's conduct inadequate in light of the requirement in 'Good Medical Practice' (July 1998 edition) to --
'keep colleagues well informed when sharing the care of patients" and 'work with colleagues in the ways that best serve the patient's interests' . . .
5.17 . . . .
The Panel finds that it would have been in Patient A's best interests had Professor Zygmunt informed Dr Sandler, explicitly, that he wished Patient A to remain an inpatient undergoing treatment with intravenous antibiotics . . .
The Panel had regard to the requirements of 'Good Medical Practice' as detailed in paragraph 5.13 above."
It also noted, when considering allegations 9(b)(i) to (iv) Professor Zygmunt's own evidence that a patient with a glioma should not be sent home and that he wished Patient A to be maintained on intravenous antibiotics.
"Q. Should he have remained an in-patient with intravenous antibiotics in that time?
A. Very difficult question. Ideally, with hindsight, yes, but putting myself into that position, I think there was a case for sending him home. It is quite common to send patients home with this kind of malignant brain tumour, or suspected malignant brain tumour. They benefit from high dose steroids, you want them in the best possible shape for an elective surgical procedure, so sending people home for short periods of time is reasonable practice."
He repeated the gist of his answer at page 238 C to D and with a qualification and in a different context at 243 G.
The Second and Third Issues
Fitness to Practise
"(j) the FTP Panel shall receive further evidence and hear any further submissions from the parties as to whether, on the basis of any facts found proved, the practitioner's fitness to practise is impaired;
(k) the FTP Panel shall consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, and shall give its reasons for that decision . . . "
The rules reflect the words of section 35C(2) of the Act which, on a natural reading, requires impairment of fitness to practise to be established by reason of, and therefore as well as, one of the five circumstances specified in the subsection upon which the finding must be based.
The issue is far from easy to define as Smith LJ observed in her fifth Shipman Report at paragraphs 25.42 and 43:
"25.42. The advantage of the concept of 'impairment of fitness to practice' is that it is capable of embracing any or all of the types of problem that the GMC habitually encounters, ie, misconduct (including breaches of the criminal law leading to convictions or cautions), deficient professional performance, adverse health or determinations.
25.43. The disadvantage of the concept is that it is not at all clear what it means. The concept is not defined in the 1983 Act or in the Rules which are to govern the operation of the new procedures. The only relevant legislative provision is at section 35C of the 1983 Act, where it is said that a doctor's fitness to practise shall be regarded as 'impaired' by reason only of misconduct, deficient professional performance, a conviction or caution, adverse physical or mental health or a determination. That section imposes a limitation upon the routes by which a doctor's fitness to practise might be found to be impaired, but it does not help in understanding what an impairment of fitness to practise is. I have said elsewhere in this Report that the expressions 'serious professional misconduct' (SPM) and 'seriously deficient performance' (SDP) were difficult to define or even to recognise. I believe that even greater difficulty will be encountered with 'impairment or fitness to practise' unless it is clearly defined."
I respectfully repeat and adopt her observation in paragraph 133:
"There is an urgent need for the GMC to formulate the standards, criteria and thresholds by which the impairment of fitness to practise is to be judged."
"Neither the Act nor the Rules define what is meant by impaired fitness to practise but for the reasons explained below, it is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all."
This is unhelpful. To advise a decision-making Panel as to the test which it must apply that "the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise ..." (my emphasis) does not define a test at all. It identifies and begs the question without providing any guidance as to how it is to be answered.
"25.50. I think it will be helpful, in the resolution of the problems that I am about to outline, if I analyse the reasons why a decision-maker might conclude that a doctor is unfit to practise or that his/her fitness to practise is impaired. In the examples I discussed above, four reasons for unfitness recurred. They were (a) that the doctor presented a risk to patients, (b) that the doctor had brought the profession into disrepute, (c) that the doctor had breached one of the fundamental tenets of the profession and (d) that the doctor's integrity could not be relied upon. Lack of integrity might or might not involve a risk to patients. It might or might not bring the profession into disrepute. It might be regarded as a fundamental tenet of the profession. I think it right to include it as a separate reason why a doctor might be regarded as unfit to practise, because it is relevant even when it arises in a way that is quite unrelated to the doctor's work as a doctor."
That passage demonstrates, as is I think self-evident, that the concept of fitness to practise is not limited to clinical performance.
"25.48. Another potential problem arises with the time when fitness to practise is measured or assessed. The 1983 Act permits an FTP Panel to take action on registration if it finds that the doctor's fitness to practise is impaired. That implies that the impairment must be present at the time of the hearing. So, if a doctor has committed a serious act of misconduct a year ago, does that indicate that his/her fitness to practise is currently impaired? I understand that the GMC has been advised that, although section 35D(2) of the 1983 Act refers to a finding that a doctor's fitness to practise is impaired, present impairment of fitness to practise can be founded on past matters. That seems sensible. The doctor's current fitness to practise must be gauged partly by his/her past conduct or performance. It must also be judged by reference to how s/he is likely to behave or perform in the future."
"62. Any approach to the issue of whether a doctor's fitness to practice should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the profession'. In my view, at stage 2 when fitness to practice is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practice has been impaired. It must not be forgotten that a finding in respect of fitness to practice determines whether sanctions can be imposed: section 35D of the Act.
63. I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practice is impaired.
64. There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet exercise whether the practitioner's fitness to practice has been impaired. Indeed section 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practice is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'."
The qualification is that I would substitute the present for the past tense in the second sentence of paragraph 62.
"Apart from this one episode in 2001 when you failed to act in accordance with the requirements of 'Good Medical Practice' in the areas identified, the Panel has received no evidence that suggests you pose a risk to your patients. To the contrary, the evidence of senior professional colleagues, given without reservation, was that you are a safe doctor. The period of suspension which the Panel has imposed in order to mark its disapproval of your misconduct should not result in a deterioration of your surgical skills. The Panel has not identified any areas of your practice which require remedial training."
"Professor Zygmunt's actions and omissions taken as a whole fell significantly below the standards reasonably to be expected of a competent, experienced consultant. In all the circumstances, and having applied the relevant tests, the Panel has concluded that his fitness to practise is impaired by reason of his misconduct."
The "relevant tests" applied were identified on page 69:
"The Panel has taken account of the GMC's 'Indicative Sanctions Guidance'. That document states at section 1-2, paragraph 1 that:
'It is clear that the GMC's role in relation to fitness to practise is to consider concerns which are so serious as to raise the question whether the doctor concerned should continue to practise either with restrictions on registration or at all."