QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Ronald Jack Cohen
|- and -
|General Medical Council
Catherine Callaghan (instructed by GMC Legal) for the Respondents
Hearing dates: 29 February 2008
Further written submissions served on 8 and 12 March 2008
Crown Copyright ©
The Honourable Mr Justice Silber :
(1) the Appellant's actions and failings were of a standard significantly below that which was to be expected of a medical practitioner (" the factual findings");
(2) the Appellant's fitness to practise was impaired (" the fitness to practice findings");and that
(3) it was appropriate to impose conditions on the Appellant's registration (" the sanctions findings").
II. The facts
a. the appellant did not carry out a neurological examination of Mr. B (including a discussion with him to assess the presence of any residuary neurological signs of the recent CVI);
b. Mr B should instead have been advised of the potential risks of suffering a further CVI;
c. the appellant should have made a note of the pre-operative consultation with Mr. B; and that
d. the appellant should be criticised for these omissions in the pre-operative stage.
III The Procedure to be followed by the Panel
[This is the start of Stage 1]
(c) the person acting as secretary to the FTP Panel shall read out the allegation, and the alleged facts upon which it is based;
(d) the Chairman of the FTP Panel shall inquire whether the practitioner wishes to make any admissions;
(e) where facts have been admitted, the Chairman of the FTP Panel shall announce that such facts have been found proved;
(f) where facts remain in dispute, the Presenting Officer shall open the case for the General Council and may adduce evidence and call witnesses in support of it;
(g)the practitioner may make submissions regarding whether sufficient evidence has been adduced to find the facts proved or to support a finding of impairment, and the FTP Panel shall consider and announce its decision as to whether any such submissions should be upheld;
(h )the practitioner may open his case and may adduce evidence and call witnesses to support it;
(i) the FTP Panel shall consider and announce its findings of fact;
[This is the end of Stage 1 and the start of Stage 2]
(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;
[This is the end of Stage 2 and the start of Stage 3]
(l)the FTP Panel may receive further evidence and hear any further submissions from the parties as to the appropriate sanction, if any, to be imposed or, where the practitioner's fitness to practise is not found to be impaired, the question of whether a warning should be imposed;
[This is the end of stage 3]
17B. In a written submission in response to Mr. Moon's note received just before I handed down judgment, Miss Callaghan contended that although Campbell was decided under a different disciplinary regime from that which applied in the appellant's case, the reasoning in that case is applicable to the present regime with the consequence that the appellant's previous good character and testimonials which provided evidence of his reputation and his conduct both before and after the time when Mr. B was the appellant's patient were not relevant until stage 3 and therefore this material should not be considered at stage 2. For the reasons which I have explained in the post-judgment note at the end of this judgment, it was neither necessary nor practicable for me then to determine if this contention was right because even if it was correct, the Panel's decision was still wrong on the impairment to practice issue for the other four reasons which I had explained in the draft judgment and which individually or cumulatively had led me to that conclusion.. Those four reasons for finding that the Panel's decision was wrong are set out in paragraphs 68 to 71 below. I have therefore assumed for the purposes of this judgment that the Campbell case precludes consideration of appellant's previous good character and his conduct both before and after the time when Mr. B was the appellant's patient. I will make further comments on the Campbell case in paragraphs 74 and 75 below
IV. The Approach on this Appeal to the Decision of the Panel
"125.For the following reasons I can see no basis for faulting Collins J's simple expression of the test, save that I doubt whether the adverbial emphasis of "clearly" adds anything logically or legally to an appellant court's characterisation of the decision below as "wrong" ".
"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: [in his judgment the phrase "as is appropriate in the circumstances" is highlighted].
1) 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;
2) The tribunal had the benefit, which this court normally does not, of hearing and seeing the witnesses on both sides
3) The questions of primary and secondary facts and the over-all value judgment to be made by tribunal, especially the last, are akin to jury questions to which they may reasonably be different answers"
"The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case".
"28…It seems to me that it is possible, at least, to discern a difference of emphasis in the way that Auld LJ formulates the test we applied under section 40 compared to the formulation of Laws LJ.. That said, it is probable that in most cases the result will be the same whatever formulation is adopted. I can envisage cases on the margins, however, where that may not be the case".
V. The hearing before the Panel
"However, there seems to have been a disregard for Mr [B's] neurological symptoms. It seems extraordinary that in his preoperative visit, he did not discuss the recent stroke with Mr. B, even though he knew about it. He did not make a neurological examination and therefore had no first hand knowledge of Mr [B's] preoperative neurological state."
"I think that that attitude, even for practitioners as senior as Dr Cohen and myself, is no longer an acceptable practice – to shield a patient who is adult and of sound mind and able to understand in that rather patriarchal way from the realities of the situation."
"Postoperatively, Dr Cohen again did not examine Mr [B's] nervous system, despite complaints of weakness and fear of another stroke. He took the reports from the nurses at face value, and attributed any weakness to the effects of the epidural, which he thought was one-sided. It is possible that this may indeed have been the cause of the symptoms. Nevertheless, he should have satisfied himself about the actual extent of the symptoms by examining the patient, or referring him for a neurological opinion."
"Q. You will see at head 17 of the heads of charge that we deal with the various actions and failings, but I should like to ask you, since we have dealt with the pre-operative and post-operative care together, to give your views to assist the Panel in relation to head 17 covering the pre-operative and the post-operative phases. Is there any comment that you feel able to make as to whether this was appropriate or inappropriate in terms of treatment and care pre-operatively?
A. It was inappropriate pre-operatively in so far as there was insufficient attention paid to the recent history of a stroke, and the same thing goes for the post-operative phase, except that, of course, in the post-operative phase there was then the allegation of a further stroke.
Q. Head 17(b) is "unprofessional". Is there anything you wish to say about pre-operative and post-operative [care] in relation to that allegation?
A. There is a professional requirement upon an anaesthetist to take an appropriate pre-operative history covering all the relevant aspects and a professional obligation upon any doctor, when confronted with a patient complaining of a set of symptoms, to pay appropriate attention and take appropriate steps.
Q. Head 17(c) alleges "of a standard significantly below that expected of a practitioner in your position and with your knowledge and experience". What do you wish to say about the pre-operative and post-operative phases in relation to that allegation?
A. Dr Cohen is a very experienced practitioner and clearly has a level of knowledge, from the way he conducted this, entirely in keeping with his consultant status and I would have expected him to have done these things.
Q. The allegation there is of a standard significantly below that expected. What can you say about that particular phrase, "significantly below"?
A. In these two aspects of care, separated from the others, the standard was significantly below.
Q. Finally, head 17(d), "Not in Mr B's best interests". Is there any comment that you have to make in a similar way?
A. Not in Mr B's best interests in that, by not taking a complete history, if indeed he did not, the risk assessment would have been incomplete and that would not have been in Mr B's best interests; and, in not paying sufficient attention to the possibility of neurological symptoms post-operatively, there may have been a delay in diagnosis, and that would not have been in Mr B's best interests."
"Dr Cohen's notes leave a great deal to be desired. They are scanty in the extreme. ... The standard for an anaesthetic record is that an anaesthetist taking over the case should be able to establish from the record what has been given and how the patient has responded, and should be able to continue with the anaesthetic using the information on the chart alone. This record falls far below that standard."
a. his failure to record the date of the stroke, or assess its effects, in the pre-operative assessment note;
b. his lack of an anaesthetic plan and lack of a record that epidural anaesthesia had been discussed;
c. In respect of the anaesthetic chart, his failure to record a timescale, pre-induction values (baseline recordings of blood pressure, heart rate and oxygen saturation), or values obtained in the anaesthetic room;
d. his failure to record whether the drug vecuronium (a muscle relaxant) or any reversal drugs were administered;
e. his lack of a record of ventilator settings, or of the gas mixture administered;
f. his lack of a record of the drugs used in the epidural during the operation;
g. his failure to record physiological variables.
"Dr Cohen's anaesthetic record is inadequate in every respect. The preoperative assessment is incomplete, the details of induction and maintenance of anaesthesia are scanty and there is no recording of times or of physiological variables. It is stated that the printout from the monitors has been lost. Even if this is so, the records which are usually written by hand are largely absent or incomplete, and this cannot be blamed on the loss of the printed record".
"Because that indicates a level of recording which makes it completely apparent to other professionals – and this would be an anaesthetist – what has been given, when it was given, what effect was achieved, what went on through the course of the anaesthetic, if something did go slightly awry what measures were taken to compensate or to remedy it. It would also give an account of the course of the operation: blood loss, urine output, time duration, and so on, so that this is a contemporaneous record of events as they occur, and that is, if you like, the professional standard required of anaesthetists."
"On balance, and bearing in mind the criticisms that she had made of the appellant's pre-operative assessment, post-operative assessment and lamentable note-keeping, I nevertheless feel that the appellant's treatment and care of [Mr B] fell within the range that would be expected from a reasonable competent anaesthetist of the same level of skills, knowledge and experience. The reason for this opinion is that his actual treatment in what was a very complex and risky case, was competent. The failures such as they were, were in the field of record keeping and assessment and possibly in communication"
"[The appellant's] management of this case can be criticised on a number of grounds. However I do not consider that these were so serious as to amount to misconduct, such that his registration might be called into question"
"I think that the core anaesthetic was carried out to a standard entirely in keeping with what might be expected of a consultant anaesthetist, the heart of the matter"
V1 The Grounds of Appeal
(i) The Panel erred in concluding that the appellant's actions were of a standard significantly below that to be expected of a registered medical practitioner;
(ii) The decision of the Panel that the appellant's fitness to practice was impaired was wrong; and that
(iii) The decision of the Panel to impose conditions upon the appellant's registration was wrong in that it was disproportionate and the effect of the conditions was and is unworkable and/or disproportionate.
VII Was the appellant's conduct of a standard significantly below that to be expected of a registered medical practitioner?
"your actions and failings identified at 9., 11., 12., and 16. above were
c of a standard significantly below that expected of a registered medical practitioner,
d not act in Mr B's best interest"
"Dr Rollin gave as her opinion that pre-operative assessment, post-operative care and record keeping are subsidiary to the core anaesthetic process. She stated in the areas that she considered to be subsidiary, that you had fallen significantly below the standard to be expected but that your delivery of what she described as "core anaesthesia, the safe delivery of anaesthetic to a patient", was of a competent and acceptable standard. In light of this, her opinion was that your fitness to practise was not impaired.
However, the Panel does not accept this view. It regards pre-operative assessment, note-keeping and post operative care to be integral parts of the anaesthetic process and as important as core delivery. Your failings were serious and had the potential to put Mr. B at risk
The Panel concluded that your actions and failings, during the consultation of 18 November 2004, in the anaesthetic room pre-operatively, and post-operatively were inappropriate, unprofessional and of a standard below that expected of registered medical practitioner"
VIII. The Finding that the Appellant's Fitness to Practise was impaired
"A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of -
"11. 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.
12. The Merrison Report stated that 'the GMC should be able to take action in relation to the registration of a doctor ... in the interests of the public', and that the public interest had 'two closely woven strands', namely the particular need to protect the individual patient, and the collective need to maintain confidence of the public in their doctors.
13. ...in addition to protection of the public, the public interest includes, amongst other things:-
a. Protection of patients
b. Maintenance of public confidence in the profession
c. Declaring and upholding proper standards of conduct and behaviour."
" The Panel concluded that your actions and failings, during the consultation of 18 November 2004, in the anaesthetic room pre-operatively, and post-operatively were inappropriate, unprofessional and of a standard below that expected of registered medical practitioner.
Accordingly the Panel found that your fitness to practice is impaired"
(ii) The submissions of counsel
"if, for instance, Mr B had needed to be transferred to the care of another clinician that clinician could be seriously disadvantaged in assessing what had happened".
"in the light of these matters, the Panel is satisfied that the imposition of conditions on your registration would be the most effective way of remedying the deficiencies in your practice, whilst in the meantime protecting patients from harm" .
"However I do not consider that these were so serious as to amount to misconduct, such that his registration might be called into question"
The Panel unfortunately failed to give any reasons or any cogent reasons why it disagreed with this opinion.
(v) The Campbell case
"I am able to say without hesitation that his anaesthetic expertise is of the highest standard… I …indeed actively seek his assistance when I require an anesthetist … and he provides an exemplary level of care and attention to patients".
IX The Sanctions issue
(1) the appellant's actions and failings were of a standard significantly below that which was to be expected of a medical practitioner is dismissed;
(2) the appellant's fitness to practise was impaired is allowed; and that
(3) it was appropriate to impose conditions on the appellant's registration is allowed and that instead the appellant should receive a warning.
"whilst in no way seeking to persuade the Court to alter its decision or the result of this appeal, on reflection the concession made by counsel for the Respondent and recorded at paragraph 66 of the draft judgment [which was that the previous good character of the appellant might well be relevant at stage 2] may have gone too far and led the Court into error. The Appellant attaches the decision of the Court of Appeal in R (Campbell) -v- General Medical Council  EWCA Civ 250 to this Note. As is clear from paragraphs 43-46 of that decision matters of "pure mitigation" are not relevant to the second stage of the Panel's inquiry. "Mitigation" may however be relevant both to the question of impairment and the question of sanction (paragraph 46 of the judgment). In the Court's draft judgment, of the six reasons given for the Court's decision on the impairment issue, the second and third reasons (recorded at paragraphs 69-73) may be affected by the Campbell decision. The other four reasons are unaffected by Campbell".
a. She did not recollect making the concession set out in paragraph 66 of the draft judgment (which was also set out in paragraph 17 of the draft judgment) and I will therefore accept that no concession was intended. So it should be regarded as not having been made and I therefore have withdrawn any reference to these concessions from the judgment;
b. Campbell was decided under a different regime from that which applied in the appellant's case but the reasoning in that case is applicable to the present regime with the consequence that the appellant's previous good character and testimonials which provided evidence of his reputation were not relevant until stage 3 and should not be considered at stage 2. I add that I had relied on the appellant's previous good character and testimonials as two of the six reasons which "individually and cumulatively" led me to the conclusion that the Panel's decision that the appellant's fitness to practice was impaired was wrong; and
c. A judge has the power to vary a draft judgment prior to handing down judgment ( Robinson v Fernsby  EWCA Civ 1820,  – ) Moreover when a judge considers that his or her draft judgment is wrong, he is obliged to correct it (ibid ). Miss Callaghan asked me to exercise that power