QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|DR OLUMIDE BASSEY UDOM||Appellant|
|GENERAL MEDICAL COUNCIL||Respondent|
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Lynn Griffin (instructed by General Medical Council) appeared on behalf of the Respondent
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"The Panel has noted the advice of the Specialist Performance Adviser. Amongst other things, he advised the Panel on basic skills for anaesthesia. His advice was that there is evidence to suggest that you lack certain basic skills and that this is worrying and that it has direct implications for patient safety. The Panel accepts and agrees with this analysis."
I shall return to the role of Dr Greenhalgh, and other advice that he gave the Panel, which are the subjects of complaint by the Appellant in this appeal.
"The Panel recognised that there may be an interlinking of your health and your poor performance at the assessment. This was supported by evidence from your wife as to the state of your mental heath at the time. In their evidence the assessors stated that there was one occasion relating to an index case, where you became very upset. Otherwise, they did not note any indication of stress greater than they would normally expect in what are recognised to be stressful circumstances."
"Where the Panel find that the person's fitness to practise is impaired they may, if they think fitó
(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 12 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 3 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."
First, she submitted that the conditions imposed were such that they robbed the Appellant's registration of all effect, so that he could not practice medicine at all during the nine-month period for which the conditions applied. Such conditions were unlawful because (a) conditions could not be imposed that denied the doctor any and all ability to practise medicine, because in substance that would be a suspension rather than a conditional registration; and (b) by imposing conditions over and above effective suspension, the Panel breached section 35D(2) of the 1983 Act which permitted suspension of registration or conditions on registration, but not both.
Second, she submitted that Dr Greenhalgh went beyond the proper scope of a Special Performance Adviser to the Panel by giving his personal opinion evidence on, for example, how long the Appellant would need to be "retrained" by way of clinical attachment. There was no opportunity to challenge that evidence, and no other evidence available to the Panel on that issue. In those circumstances, she submitted that the Panel acted unlawfully in considering and accepting the Adviser's evidence.
Those grounds are related because Miss O'Rourke submitted that the Panel erred in making the conditions emasculating the Appellant's registration referred to in the first ground, because they accepted Dr Greenhalgh's evidence which forms the basis of the second ground. However, the grounds can sensibly be considered separately, which I propose to do.
"You must confine your medical practice to National Health Service clinical attachment or attachments of not less than 12 weeks in total, where your work will be supervised by a named consultant. Any of these attachment(s) should be of at least 3 weeks' duration and should be in accordance with the GMC's 'Guidance on the use of clinical attachments'".
"Clinical attachments are purely observational (therefore the doctor does not require registration)..."
That emphasises the fact that it is a characteristic of such attachments that a doctor on clinical attachment is not able to undertake any of the duties of a registered medical practitioner, and the Panel were using the concept of clinical attachment in that conventional sense. That is underscored in Condition 11 itself, where there is specific reference to the fact that any clinical attachments undertaken by the Appellant "should be in accordance with the GMC's 'Guidance on the use of clinical attachments'".
"... the Panel considers that in the demanding and stressful specialty of anaesthetics, a clinical attachment is essential as a first step in your return to practise.
The Panel has concluded in the light of all the evidence that it would not be appropriate for you to return to supervised work until you have undertaken a clinical attachment, followed by a review hearing. The Panel determines that to allow you to practise, even under stringent conditions, without first being reviewed by a future Panel, would not be in the best interest of patients or in your own interest.
The Panel recognises that this might be seen as so restrictive as to amount to suspension. The Panel considers that it would be unsafe at this stage to allow you to practise even under supervision. Allowing you to observe and learn from others is in your own interest and that of patient safety. If this were not possible conditions would not have been appropriate and the only alternative would have been suspension."
"5. For doctors with deficient performance, it is difficult to envisage the circumstances when a clinical attachment would be appropriate as, in the overwhelming majority of instances, the panel will either wish to set clear boundaries on the extent to which the doctor may practise and the degree of supervision required, or will need to make an order for suspension... However, for doctors who... have been out of UK practice for many years, there may be occasions where a short clinical attachment is of benefit to their rehabilitation into part-time or full-time work.
6. If a panel does set a condition limiting the doctor's practice to clinical attachments they should expect to review the order after a short period - not normally longer than 6 months - in order to evaluate the doctor's progress and capacity to move from clinical attachment to supervised practice."
The distinction drawn in paragraph 6 between "clinical attachment" and "supervised practice" again emphasises that "clinical attachment" does not envisage any practice, supervised or a fortiori not supervised, that requires registration. It is limited to observation, notation, discussion with a supervisor, and interaction with patients in a clinical context, short of anything for which registration with the GMC as a doctor is required. Furthermore, that paragraph indicates that any clinical attachments that are considered appropriate in a rehabilitation context are likely to be short, and subject to early review, within 6 months, for the good reason that progress towards rehabilitation is likely to be, at best, very slow, if the doctor cannot practise, even under supervision, during its course. That is even more so in a field such as anaesthetics which, it was common ground before the Panel and me, is quintessentially a hands-on discipline involving the choice, prescription and physical administration of drugs for the purposes of anaesthetising a patient, none of which can be performed within the limits of a clinical attachment or other than under registration.