QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
MR CHATENYA CHAUHAN |
Appellant |
|
- and – |
||
GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Tom Weisselberg (instructed by Deborah Yates of GMC legal) for the Respondent
Hearing dates: 24th November-27th November 2009, 9th December 2009 and 10th December 2009.
____________________
Crown Copyright ©
The Hon. Mr. Justice King:
The Appellate Jurisdiction of the Court.
Ambit of Charges
Procedure before a FTP Panel
17. - (1) A FTP Panel shall consider any allegations referred to it in accordance with these Rules, and shall dispose of the case in accordance with sections 35D, 38 and 41A of the Act.
(2) The order of proceedings at the hearing shall be as follows –
(a) the FTP Panel shall hear and consider any preliminary legal arguments;
(b) the Chairman of the FTP Panel shall -
(i) where the practitioner is present, require the practitioner to confirm his name and registration number, or
(ii) otherwise, require the Presenting Officer to confirm the practitioner's name and registration number;
(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 in support of it;
(i) the FTP Panel shall consider and announce its findings of fact; …..
I accept the Appellant's analysis that the rules thus require the Respondent to give notice of any particular allegation being pursued against the practitioner and to particularise the facts upon which it is based and it is those facts, where disputed, which the Panel is required to determine in accordance with Rule 17(2). In so far as the Panel, at stage one of its decision process, makes material findings of fact adverse to the practitioner which could themselves have been the subject of a charge of professional misconduct, which however are not within the charges as formulated and particularised in the Notice of Hearing, then those findings in my judgment cannot properly or fairly be used by the Panel to support its findings under the Notice and in so far as the Panel has so used them, then the Notice findings are liable to be held vitiated and set aside. I agree with Silber J. in Cohen v. GMC [2008] EWHC 581 (Admin) 581, paragraph 48 that findings in relation to any particular charge at stage one "must be focussed solely on the heads of the charges themselves". The observations of Pill LJ in Strouthos v. London underground Ltd [2004] EWCA Civ 402 at paragraph 12 that a "it is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed and that the evidence should be confined to the particulars in the charge" must be equally apposite to hearings before the FTP of the Respondent. An associated principle relied upon by the Appellant is that rehearsed by the Privy Council in Salha v GMC [2003] UKPC 80 at paragraph 14, namely that "it s a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised." I should record at once however that the Respondent disputes any breach in this case of any of these principles.
The Panel's approach to questioning/bias
The Background to the charges
"The panel has to decide if with that background that was a justifiable action and I cannot really answer your question directly and say 'No, he should not have done that' because he had all the training he could have in it. The only thing he could improve was his general experience in joint replacement surgery….. some people might have waited a bit longer than him, but I could not sit here and honestly advise you this was an unreasonable thing to do ."
Background Events following the appellant's appointment
BHR
Autolologous Cartilage Transplantation (ACT )
The operation on patient A – 26th November 2004.
The trauma case: June 2005.
Suspension
Retraining programme
Disciplinary Proceedings Brought by the Trust
The charges
The grounds of appeal
Stage one: fact finding: BHR/ACT
i) First that the FTP Panel failed to confine itself to the proper ambit of the charges which the Appellant had been called upon to face in the Notice of Hearing and that accordingly it unfairly took into account a number of extraneous issues and placed reliance upon that which were for the purposes of the determination of the charges, not material matters. The Appellant says he did not anticipate these would be raised against him and were not addressed in his defence;
ii) Secondly that the Panel in reaching its conclusions on the facts under these charges failed to weigh the evidence fairly and that the Panel's written reasons, explaining its determination on the facts at stage one, overlook "significant" areas of evidence central to the Appellant's defence. This in effect combines two grounds – findings not supported by the evidence and an inadequate reasons ground;
iii) Finally there is an allegation of apparent bias which it is said vitiates the decision. Reliance is placed on the manner in which issues were raised and probed by Panel members and on what is said to be its one sided evaluation of the evidence in its reasons.
Stage two: Impairment
Stage three: sanction
BHR
" 2(a) On 15 July 2002 you applied for the post of consultant in trauma and orthopaedic surgery at the Southend University Hospital NHS Trust.
2(b) During the application and interview process you stated….. that you had broad experience in revision surgery and hip resurfacings.
3. Your actions as set out at 2(b) were (a) misleading (b) dishonest."
4. Once appointed, you expressed an interest in undertaking the procedure of Birmingham Hip Resurfacing and implied that you had sufficient experience to undertake that technique yourself.
5. Your actions as set out at 4 were (a) misleading (b) dishonest.
6(a) In 2003 you began performance of the technique of Birmingham Hip Resurfacing at Southend University Hospital NHS Trust.
6(b) You had insufficient experience to carry out Birmingham Hip Resurfacing as sole or lead surgeon.
7. In 2005 you were interviewed by the Rapid Response Review team on behalf of the Royal College of Surgeons who were carrying out investigations on behalf of the Trust. During the interviews (a) you were asked for your operative log book in order to evaluate your operative experience which you were unable to produce (b) when asked about your experience of Birmingham Hip Resurfacing you admitted that prior to your appointment at Southend NHS Trust you had personally taken part in only six operations and had not performed the entire procedure as sole or principal surgeon."
(i) Charge 2-3:
(ii) Charges 4-5
(ii) Charge 6
(iv) Charge 7 (admitted)
The Panel's Reasoning on the facts in dispute under Charges 2 to 6 .
"the Panel finds that during the application and interview processyou dishonestly exaggerated your experience and therebydeliberately misled your employers".
"considering all these factors, the panel has determined that you had insufficient experience to undertake BHR procedures at Southend Hospital. The panel accepts your training may have been sufficient for you to undertake BHR procedures in a supportive environment but not at Southend Hospital" (the emphasis is the emphasis of this court).
The court's conclusions on the BHR findings under (i) charge 3(a) and 3(b); (ii) charge 5(a) and 5(b); and charge 6
The charge under 2- 3
"As to whether you misled your employers the Panel considers that you exaggerated the extent of your experience by claiming in your Curriculum Vitae (CV) to have "amassed experience in lower limb surgery". You also claimed in your CV to "have a broad surgical ability in lower limb arthroplasty and revision arthroplasty and this extends to hip resurfacing". The Panel has reached the commonsense conclusion that this meant to anyone reading your CV, that you had experience of performing the procedures as sole or lead surgeon. This led your employers at Southend Hospital to believe you were more experienced than you were. The Panel accepts the evidence of Mr. Tosh, Medical Director of Southend Hospital, that he questioned you about your experience in respect of BHR procedures. You gave Dr. Tosh the impression that you had been trained in Mr. McMinn's unit at the Royal Orthopaedic Hospital in Birmingham. Mr. McMinn was a Consultant Orthopaedic Surgeon who pioneered the BHR procedure. You implied to Dr. Tosh that you had been trained by Mr McMinn himself. This was not true. Dr. Tosh asked you about your training logs from the Royal Orthopaedic Hospital. You could not produce them, telling him that you had had a computer problem".
Trained by Mr McMinn
Q: Did he give you the impression he had been trained by Mr. McMinn?
A: I do not think he actually stated that but he implied it and went on to say he would still discuss cases with Mr. McMinn…… cases he had operated on in Southend .
Q: Perhaps more difficult to answer - and you may not be able to answer - these three questions. Do you think he wanted you to believe he had been trained in resurfacing in Birmingham?
A: Yes.
Q: Do you think he wanted you to believe he had been trained in Mr. McMinn's unit?
A: I believe so, otherwise there would be little point in him bringing up the name.
Q: By Mr McMinn?
A: I think that is - I want to be absolutely fair here. Yes, from my perspective it would appear that he was keen to make that inference but I do not think he actually made that claim, but I am talking about meetings of many years ago"
The significance of the appellant's training logs: informing the Panel's findings of dishonesty on those charges alleging dishonesty:
"13. As part of the investigation by the Southend Hospital into your training, Mr. Sefton was asked to review theatre records against your log. Mr. Sefton told the Panel that he only reviewed the Harrogate Hospital theatre records. ….. He said a comparison between those records and your logs showed that you had undertaken four lower limb arthroplasties as principal surgeon and that there were eight other cases in which you had been one of the surgeons. Your log recorded that you had undertaken 17 lower limb arthroplasties. The discrepancies between your logs and theatre records, during your training period at Harrogate Hospital in 2000, indicate an exaggeration by you of your experience. Accurate training logs are an essential part of the trainee assessment process. These logs will have formed the basis of your trainers' impression of your experience".
The Panel's reasoning under (ii) Charge 4-5; (iii) 6(b)
"20. Once you had been appointed to your post at Southend Hospital, you expressed an interest in undertaking BHR procedures and implied that you had sufficient experience to undertake that technique yourself.21. The Panel accepts the evidence of Mr. Packer, Consultant Orthopaedic Surgeon and Clinical Director of Orthopaedics at Southend Hospital, who gave evidence that he had a discussion with you regarding your interest in undertaking BHR procedures. Mr. Packer's advice as your Clinical Director was that you should establish yourself within the Orthopaedic Department (the Department) and then it would be discussed again. Despite this advice and without any further discussion with your Clinical Director, you went ahead and started to undertake BHR procedures. The Panel notes that you participated in a peer appraisal on 2nd July 2003, with your Clinical Director in attendance. The appraisal record shows a specific question about what clinical issues you would like to address over the next 12 months and you made no mention of your intention to perform BHR procedures that same month.
22. The Panel considered the evidence of Mr. Lake, Consultant Trauma and Orthopaedic Surgeon, the GMC's expert witness, in relation to the sufficiency of your experience to undertake BHR. Mr. Lake told the Panel that he was of the opinion that he would not profoundly object to you performing BHR procedures. However, Mr. Lake's concern was that your Clinical Director had advised you that you should build up a large core of primary standard total joint replacements before you moved into BHR procedures. Mr. Skinner, Consultant Orthopaedic Surgeon based at the Royal National Orthopaedic Hospital in Stanmore, the expert witness called on behalf of the defence, indicated that the views of the Clinical Director or Medical Director are relevant before a surgeon decides to undertake specific types of surgery.
23. Whilst the Panel notes the evidence of Mr. Lake and does not disagree with that evidence, it considered it in the context of what was happening at Southend Hospital at the time, and the specific needs of your employer and the Department. You had been clearly advised to become established within the Department and bolster your experience in terms of undertaking total hip replacements before moving on to more complex procedures.
24. The Panel notes that before taking up your Consultant post at Southend Hospital, you had never performed the BHR operation as lead surgeon either supervised or unsupervised. The Panel accepts that newly appointed consultants do undertake procedures which they may not have performed before as lead surgeon. However, the Panel accepts the evidence of your Clinical Director that, had he been aware of this in relation to BHR procedures, arrangements would have been made for you to receive further training. The Panel notes that at that time the Department was sceptical of the BHR procedure and whether it should be undertaken, at all, at Southend Hospital.
25. You knew that had your employer known the truth, you would not have been permitted to undertake those procedures. In cross-examination, you were asked three times whether you had told anyone that, prior to your arrival at Southend Hospital, you had never undertaken a BHR procedure on your own. You evaded this simple question. The Panel considers that this characterises your deliberate attempts to conceal the truth about your lack of experience.
26. Considering all these factors, the Panel has determined that you had insufficient experience to undertake BHR procedures at Southend Hospital. The Panel accepts that your training may have been sufficient for you to undertake BHR procedures in a supportive environment but not at Southend Hospital."
Charge 5(a) and(b)
" Charges 4-5 and 6(b)
22. When considering Charges 4-5 (misleadingly and/or dishonestly implying that he had sufficient experience to undertake the BHR technique) and charge 6(b) (having insufficient experience to carry out BHR) the Panel concluded that (decision para 25):
1. the Appellant had not informed the Trust that he had never undertaken BHR procedure as lead surgeon (either supervised or unsupervised); and
2. the Appellant knew (on the basis of discussions that he had had with Mr. Packer, the Clinical Director at Southend Hospital) that if the Trust had known that to be the case, he would not have been permitted to undertake any BHR procedures.
These were findings that plainly fell within the ambit of the Charges, in that the Appellant was found to have insufficient experience (by reference to the requirements of Southend Hospital) to undertake the BHR procedure" (the emphasis is the emphasis of this court).
Charge 6
ACT.
8 In 2002 and 2003 you expressed an interested in performing Autologuous Cartilage Transplant (ACT) at the Southend University Hospital NHS Trust.
a. You informed Mr. Packer (Clinical Director orthopaedics) that such surgery did not have to be part of a clinical trial, Admitted and Found Proved.
b. You were aware or ought to have been aware that such surgery did have to be a part of a clinical trial under NICE guidelines, Found Proved.
c. You were made aware that Southend University Hospital NHS Trust did not have funding to perform ACT operations, Admitted and Found Proved.
d. On 26th November 2004 you conducted an arthroscopy of Patient A who presented with a osteochondral defect of the femoral condyle of the knee. Admitted and Found proved.
e. You made no adequate record pre-operatively of a treatment plan, Found Proved.
f. ...i) During the procedure you took a loose fragment from the knee (the sample). Found Proved.
....
...ii) During the procedure you excised a biopsy from the knee (the sample) for tissue culture. Not Found Proved.
g. Following the procedure you sent a sample to a private company, Verigen, for tissue culture, and for the purposes of ACT, Admitted and Found proved.
h. You did not obtain patient consent
i. for the removal of the sample for tissue culture, Found Proved.
ii. to send the sample to a private company. Found Proved.
i You made no adequate record of the excision of the biopsy. The Panel made no finding in relation to this paragraph as it did not find that you excised a biopsy.
j. You made no adequate record of the sample being sent to Verigen, Found Proved.
k. You did not follow trial protocols established for taking and submitting a sample for ACT. Found Proved.
l. In removing the sample and treating it as a sample for use in ACT you were aware that the Trust by which you were employed had not agreed to funding for the ACT. Found proved.
m. You submitted the sample for ACT despite the fact that you were aware that it was not part of a clinical trial. Found Proved.
9 Your actions as set out in paragraphs 8(a) and 8(e) to (m) were
i. inappropriate. Found proved in relation to paragraphs 8(a), (e), (g), (h)(i), h (ii), (j), (k), and (m) only.
b. unprofessional; Found proved in relation to paragraphs 8(a), (e), (g), (h)(i), (h)(ii), (k) and (m) only.
Charges dependent upon a finding of pre-planned procedure : charge 8(e); charge 8(h)(i)
" paragraph 8(e) and (f)(i) have been found proved28. You admitted in evidence that during the procedure you took a loose fragment from Patient A's knee on 26th November and the Panel finds this proved. In relation to whether you made no adequate record pre-operatively of a treatment plan and whether you excised a biopsy from the knee, the Panel has considered the chronology of events prior to the procedure being carried out.
29. The Panel considered the conflicting evidence in relation to the events that occurred on 26th November 2004, and has had to determine who was more likely to be telling the truth. In relation to these events, the Panel accepts the evidence of Mr. Harvey, who was then an employee of Verigen, a company which undertook cell culturing for ACT. Mr. Harvey was clear in his recollection of events on that day, he was open, he appeared honest and had no apparent motive to be untruthful.
30. You, on the other hand, had every reason to conceal what you were doing. The Panel noted your interpretation of the NICE Guidelines as applied to Patient A. You sought to persuade the Panel that he did not fall within the ambit of the NICE Guidelines at that time. The Panel has heard evidence that ACT involves three stages; harvesting, culturing and then implanting cartilage cells.
31. The Panel heard evidence from Mr.Kumar, who was one of the Indian visitors to London and Southend Hospital on 26th November 2004. He was called to give evidence, in particular, about the events of that day. He told the Panel that they were visiting the United Kingdom (UK) for the sole purpose of gathering information in relation to ACT and its potential for development India.
32. In your response to Linda Underwood, General Manager of Diagnostic Imaging at Southend Hospital, you said that these visitors wanted to see how a trauma list was run in the UK and that they were on a general fact finding mission, with no particular interest. In your evidence, you stated that the Indian visitors, who had been invited to Southend for your hospitability, were free on the afternoon of 26th November 2004. As such, they requested to go with you to Southend Hospital to see how hospitals in England worked. You, therefore, invited them to observe your trauma list. However, in evidence about his visit to Southend on 26th November 2004, Mr. Kumar stated "We were there for that one procedure that Dr Chauhan did and even that whole procedure, once Mr Chauhan performed the procedure, we did not even wait for it to be totally completed, I think we stepped out before that, so there was one procedure that we saw and then we stepped out because we got an idea of the hospital, the infrastructure and we had already seen an ACT procedure in the morning so this was something that came by so we took the opportunity and made the best of it."
33. The Panel formed the view that Mr. Kumar's evidence was tailored to suit your case, in that there were occasions when he disclosed detail not sought by a question. The Panel was not satisfied with his evidence overall, though elements of it, inconsistent with your testimony, disclosed the falsity of aspects of your evidence.
34. The Panel notes from all the evidence adduced, including the live evidence from each of the Orthopaedic Surgeons, that Patient A was a prime candidate for ACT. You had specific interest in ACT and had received all the relevant training and had also spent a year at Smith and Nephew participating in cartilage research. You had demonstrated the technique in India and according to Mr. Edwards, the then Managing Director of Verigen, you were part of a "select" group of clinicians in the UK interested in ACT. Given these factors, the Panel finds it inconceivable that you would not have considered the possibility of ACT for Patient A when you reviewed him in the clinics on 20th October and 24th November 2004, and listed him as the first case on your trauma list which took place on 26th November 2004. The Panel accepts Mr Harvey's evidence that on that day he was asked by Mr. Edwards to drive you and the two Indian visitors back to Southend following a meeting at Verigen to discuss the development of ACT in India. Mr .Harvey was very specific in his recollection of events, recalling that you, whom he knew, sat in the front seat of his car. He even recalled where he had parked his car that day when he came to London to collect you and the Indian visitors. You denied that you were at the meeting or in Mr. Harvey's car.
35. The Panel has determined that it is significant and not simply a coincidence that the visitors from India were present on 26th November 2004.You had set yourself up as an intermediary between Verigen and the Indian Market. You ensured, by placing Patient A on your trauma list, that you would be undertaking his knee procedure in the presence of the visitors from India. It is significant that Patient A was first on the trauma list, despite his operation not being a medical emergency, and you abandoned the remainder of your list to your junior so that you could deal with the loose body ("the sample"). This lends credence to the fact that the Indian Visitors were present only for a pre-planned ACT procedure.
36. You made no note pre-operatively of your planned operation because, had you done so, you would have been prevented from undertaking the ACT procedure, as had occurred previously with another patient. Mr. Neil Davis, Trauma and Orthopaedic Team Leader in Theatres at Southend Hospital, told the Panel that he was alerted by theatre staff because there was a procedure planned in theatre by you that they were unfamiliar with and they wanted to bring that to Mr. Davis's attention. It was clear from what followed that this procedure was harvesting tissue for culture as part of ACT. Given all the factors set out above, the Panel is satisfied that, on the balance of probabilities, your intention from the outset was to commence an ACT procedure."
Charge 8(h(ii)): failing to obtain Patient A's consent for sending the sample to the private company.
"In relation to your conversation with patient A, the Panel does not accept that you obtained a valid consent for the sample to be sent to a private company for tissue culture. You gave Patient A general information about ACT procedure and asked for his consent to send it for tissue culture whilst he was still under the effects of anaesthesia and analgesia. You told the Panel that the patient's mother was also present and Patient A confirmed this. However, the Panel does not accept that appropriate or informed consent was given at this time. It considers that the first time that Patient A gave verbal consent was at his out-patient appointment on 1 December 2004".
"Q: So the consent that you gave to being part of this whole thing was when? Was that to Mr Skinner?
A: No, it was to Mr Chauhan that I gave consent to have the body sent off.
Q: Are you saying that happened immediately after the operation or What?
A: It could have either been on the day of the operation or when I returned to the clinic.
Q: Did you sign anything?
A: I did yes. I am sure I signed something and my mother countersigned.
Q: You cannot remember when that was?
A: No"
Apparent Bias/ the Fairness of the Hearing .
Q. do you think that a working knowledge of local policies, guidance, information ……. the sort of things that someone who is newly arrived at a hospital might think is pretty important an issue of personal responsibility to undertake on arrival and not necessarily wait for someone to tell you?
A: yes. I think it is fair to say that if you are working in a new establishment you should be familiar with procedures …. in this particular hospital ..I had many discussions about this is what I want to do…what I need. There was ample opportunity for management, Clinical Director, Medical Director and colleagues to say "look Chet, this, is how we do it here". Now I accept it is a shortcoming of mine that I did not go out and find a new procedures policy …but at that time it was very, as Mr Packer put it, loosely applied. They were not using that policy.
Q: As an entirely lay person …… do you understand my concern as someone who is appointed to a new post in a hospital would not think ……. to actually make sure that equally at a professional level you were going to be aware of policies and procedures that appertained to that particular post?
A: I accept but if custom and practice at that place of work is such that those policies although existing are not used then one does what custom and practice dictates.
Q: I would not want a conversation with you about custom and practice. We have had no evidence about that but do you accept that the policy existed before you arrived and it would have been available to you?
A: I accept that I was informed that a policy existed a year and a quarter after I started
Q: The question was: do you accept that the policy existed when you arrived?
A. I am told it existed.
Revd. Lloyd-Richards: Thank you.
It is suggested that this interchange demonstrates a partisan approach on the part of the panel member, given Mr Packer, the Clinical Director, had confessed to not being aware of the terms of the policy not brought to the attention of the Appellant, and appeared to be aimed at "deflecting a criticism properly levelled at the Trust" and "galvanising the complaint against the Appellant".
Overall conclusions on the appeal against the stage one findings
Impairment
"at stage 2 when fitness to practise 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 other relevant factors known to them, in answering whether by reason of the doctor's misconduct his or her fitness to practise (is) impaired".
Sanction
30 March – 13 May 2009
Mr. Chatenya Chauhan
Mrs Eileen Carr –Chair
Lay Member
Trustee – BASIC (Brain and Spinal Injuries Charity). Justice of the Peace – Chair, Adult Bench, Chair, Youth Bench. Retired NHS Director. Chair of the General Chiropractic Council and a Lay Member of the North Western Deanery |
Reverend Robert Lloyd-Richards
Lay Member
Chaplaincy Manager, Cardiff and Vale NHS Trust, Ass. Lecturer Cardiff University, Non-clinical Teacher, School of Medicine, Cardiff. Member of the College of Health Care Chaplains, and The Association of Hospice and Palliative Care Chaplains. Member of the British Horological Institute. Vice chair of Cardiff and Vale Clinical Ethics Committee. Member of the Local Research Ethics Committee. |
Dr Michael Sheldon
Medical Member
GP (urban, previously rural). Appraiser. Medical member: FHSAA (Family Health Services Appeals Authority). Fellow of the Royal College of GPS. Chairman of The Whole-Person-Health Trust (Registered Charity No:1098671). Member of Church of England Deanery Synod, Tower Hamlets, London. |
Dr David Sinclair
Medical member
General Medical Practice. Member: BMA, RCGP. Honorary Senior Lecturer, Bute Medical School, Saint Andrews university. Previously: GP Trainer, Member of BMA Boards of Science & of Medical Education & of Scottish Council BMA |
Mr Arnold Simanowitz
Lay Member
Solicitor, former Chief Executive of Action for Victims of Medical Accidents (now Action Against Medical Accidents), former Chair of Croydon Community Relations Council; Member Clinical Risk and Safety Board Connecting for Health. Trustee, St Wilfred's Hospice. |