England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/05/2012

Mrs Justice Lang:

1. The Appellant appeals, pursuant to section 40 of the Medical Act 1983, against the determination of the Respondent, the General Medical Council ("GMC") Fitness to Practise Panel ("the Panel"), on 10 May 2011, that his name be erased from the medical register, and against the Panel's determination on the facts.
2. The Appellant, who was a Consultant Anaesthetist at Yeovil District Hospital, does not contest the Panel's finding that his fitness to practise was impaired on the grounds of:

a) his conviction for theft of drugs from his employer, the Yeovil District Hospital NHS Trust;

b) his misconduct;

c) his adverse physical or mental health, namely, Opioid Dependence Syndrome, currently abstinent (ICD-10, F-11.20).

3. He does, however, appeal against the Panel's determination that he self-administered drugs within the hospital buildings of Yeovil District Hospital. At the hearing, he admitted that he self-administered drugs in the hospital car park, in his car and at his home, but he disputed the GMC's allegation that he also self-administered within the hospital itself.
4. For the reasons set out below, I dismiss his appeal on both grounds.

Facts

5. The Appellant is now aged 47 (his date of birth is 9 November 1964). He qualified as a doctor in 1990, and worked mainly in anaesthetics from 1992. He was specialist registrar from 1996 to 2001, achieving his CCST in anaesthesia in July 2001. In 2001, he became a staff grade doctor at Yeovil District Hospital NHS Foundation Trust, and in July 2003, he was appointed Consultant Anaesthetist there.
6. The Appellant has been abusing medicinal drugs, obtained in the course of his employment, for many years. He started using opiates in 1994, opportunistically taking an ampoule of Fentanyl. In 1995, he had a similar opportunity to use an ampoule of diamorphine. At that stage he was a senior house officer. He knew what he was doing was wrong, but viewed it as experimentation.
7. He began to use Tramadol (which was not controlled and was readily available), and Fentanyl intravenously, whenever he could obtain it. By 1998/99, when he was working in the Midlands, he was using every few weeks, intravenously, in his hospital accommodation and later at his home. At the end of 1999, he was combining Cyclizine with Tramadol, to reduce nausea and to enhance its effects. He also used Cyclizine with Fentanyl. By 2000, his usage escalated to weekly use.
8. At the end of 1999 he took 50 mg of morphine, and in March 2000 he was discovered in possession of a morphine ampoule, at Kidderminster Hospital. He was suspended for 8 months, and given a written warning. During his suspension he did not use drugs at all, but resumed on his return. He told Dr Gilvarry that "just to prove a point or reward himself" he took 50 mcg of Fentanyl on his first day of return to work.
9. From 2001 onwards, he used mainly Fentanyl, once every 6 weeks to 3 months. In 2004 he was given paracetamol, codeine and ibuprofen for lower back pain. He continued using these over-the-counter drugs, on an ever increasing basis, even though they were no longer required for his back condition.
10. In 2007, he discovered Tramadol could be purchased on the internet, and started using it orally. By this stage, he was also using Fentanyl every 4 to 6 weeks. From 2008 his use escalated further.
11. By August 2009, he was using twice a day. Usually he would combine Fentanyl with Cyclizine. He took morphine too, but less frequently, because it was less readily available. He took lignocaine, which is a local anaesthetic, when he used a cannula to assist intravenous use. Initially he was able to use small cannulae but as time progressed he had to use larger cannulae in larger veins. He found it increasingly difficult to insert cannulae into his hands or arms so he began to inject into his neck and groin, which generated a lot of blood.
12. His usual practice was to take up to 16 Nurofen Plus and 4 Co-Codamol tablets when he got up in the morning, and also inject intravenously, before he went to work. At lunch time he might take more tablets. Later in the day he would then inject again, in his car when parked in the hospital car park, or on his way home. He sometimes injected prior to a theatre list and after theatre. On a number of occasions he injected in the car, and then went back to theatre to obtain more Cyclizine, and returned to the car to inject some more. He denied injecting in the hospital buildings, although the Panel made a finding of fact that he did, which I consider in more detail below.
13. The Appellant described to the Panel the effect of a dose of Fentanyl and Cyclizine:

"A. There are two components to it. There is the cyclizine …which made me tremor and a bit woozy …which lasts 20 to 30 minutes, and there is the fentanyl, which would immediately give a euphoric feeling, for want of a better word, and for a few minutes being a little bit unco-ordinated and drunk, if you like, but after a few minutes, I would tend to feel quite – what is the word – sort of excited or manic-type state for 20 minutes or so, and then that would gradually come down to feeling more warm..

Q. How would the manic excited state manifest itself?

A. I think I would just be wanting to get things done quickly. It is a sort of euphoric type state, but the first few minutes, I would be quite …spaced out, but then that goes quite quickly into this excited phase for another 15 – 20 minutes."

He added that Cyclizine had a slightly sedating effect, which affected his walking.

14. There was an occasion in the first half of 2009 when Mr R. Barry, Lead Operating Department Practitioner, observed the Appellant in the anaesthetic room appearing very uncoordinated, with trembling hands, and unsteady on his feet. Mr Barry asked him if he had forgotten to take some medication. The Appellant did not reply, but left the room and returned a few minutes later, looking much more controlled, and they continued with the theatre list in the usual way. Mr Barry assumed at the time that he had an underlying illness which was controlled by regular medication.
15. The Appellant suffered withdrawal symptoms in the later years, which he described as "a feeling of anxiety and some sweating". He accepted in evidence to the Panel that there was a potential risk to patients caused by his addiction. He acknowledged that his state of mind and judgment were "impaired". Between 2007 and 2009, there was a "relentless escalation" and his life was "chaotic" and "falling apart".
16. The Appellant developed septicaemia and endocarditis in August 2009, as a result of infection arising from intravenous drug use. He had a cerebro-vascular accident, and required an aortic valve replacement. He has been left with neurological deficits with regard to peripheral vision, short term memory and mild dysphasia. He had an epileptic seizure in August 2010, and has been prescribed medication to control epilepsy.
17. While he was in hospital, his wife found the drug paraphernalia he was storing in his car. She confronted him, and he gave her an incomplete account of his drug use, greatly minimising both its extent and length. The explanation he gave to the Panel was that he could not face telling her the whole story because, when he had been suspended in 2000, he lied to his wife, denying that he had the ampoule of morphine for his personal use, and she said "If I ever find out you are lying to me, that is it".
18. On 15 September 2009, Dr Howes, Consultant in Anaesthesia & Intensive Care at the Hospital Trust, was informed by the Appellant's wife that she had found a large quantity of drug paraphernalia hidden in the Appellant's car and in his home study. Dr Howes visited his home and observed two canvas bags, one aluminium case and a black bin bag, all full of syringes, needles, empty drug containers, and other used drug detritus.
19. Dr Howes then spoke to the Appellant on 16 and 18 September 2009 and he admitted that, over the past 18 months, he had been taking ever increasing quantities of over-the-counter medicines, which had progressed to the use of intravenous drugs. He had used the remains of syringes from patients at the hospital, particularly Fentanyl and Morphine. The Appellant subsequently admitted that this was an untruthful account because he failed to disclose the extent of his drug abuse, and the length of time it had been continuing.
20. In his evidence to the Panel, he accepted that if he was found to be taking drugs whilst at work in the hospital buildings, it would impact on his future employability
21. On 28 October 2009, the Appellant was arrested and interviewed by police. The record of interview shows that the Appellant told the police that he had been taking over-the-counter Codeine for about three years, and oral Tramadol for about two years. This escalated into use of intravenous drugs which he had been taking from the hospital for about 18 months since the end of 2007 or the beginning of 2008. Again, this was an incomplete and untruthful account of his drug abuse. It is noteworthy that the subsequent criminal charge of theft was limited to the period from 1 March 2008, presumably based on the Appellant's account in interview. A truthful account would have disclosed theft of drugs over a longer period of time.
22. The Appellant was suspended from work whilst the Hospital Trust conducted an investigation and disciplinary procedure. At an investigation meeting on 5 November 2009, the Appellant said that his use of drugs began in 2006. He was taking over the counter drugs - paracetamol, codeine and ibuprofen. He then began to buy Tramadol over the internet. In 2008, he began to take Fentanyl intravenously; and also Cyclizine, Morphine and Lignocaine. He took most of the drugs from theatre, but did not use them whilst at work. Once again this was an incomplete and untruthful account of his drug abuse. Nonetheless, the Appellant signed the notes of this meeting to confirm their accuracy.
23. On 11 January 2010, the Appellant attended a disciplinary hearing and was summarily dismissed for gross misconduct. The reasons given in the decision letter were:

"The panel determined that you had committed gross misconduct as you admitted taking large quantities of drugs from the Trust and injecting them intravenously, that you admitted that you knew taking drugs from the Trust was an offence at the time you were taking them. The panel were also particularly concerned that you breached the trust of your patients and colleagues by not confiding your drug taking to your colleagues when you admitted that you knew all the time you had a problem.

The panel considered your mitigating evidence which was that you were extremely contrite, that you have latterly sought help for your drug addiction and that you felt your actions were a product of your addiction. The panel also considered that you had a previously good sickness absence record and that there were no known patient safety issues as a consequence of your drug taking.

The panel reached the decision that the fair and reasonable course of action based on the evidence provided is that you are summarily dismissed from your post for gross misconduct."

24. On 27 January 2010, the Appellant's padlocked locker in the operating theatre changing-room was opened. A white clinical coat was found, with pockets full of drug paraphernalia, including needles, used Fentanyl theatre-labelled syringes, ampoules of Lignocaine and Cyclizine, syringes and empty syringe packets, broken ampoules and gloves. Some of the syringes were blood-stained and the coat was also blood-stained.
25. On 8 April 2010, the Appellant was convicted at the Yeovil Magistrates Court of theft, contrary to s.1(1) and 7, Theft Act 1968. The particulars of the offence were that between 1 March 2008 and 1 September 2009 he stole parented^[1] controlled drugs and related material of a value unknown belonging to Yeovil District Hospital. No doubt the Magistrates were given the same incomplete account of the Appellant's drug abuse, which the Appellant gave in his police interview.
26. The Claimant was sentenced to 12 weeks imprisonment, suspended for 2 years. He was made subject to a supervision order and a night time curfew from 8 April 2010 to 7 September 2010. The reason for the custodial sentence was said to be:

"So serious that custody is the only option, massive breach of trust affecting not only your employer but your family, and it has been going on for quite a period and only discovered when you developed an illness as a result of your addiction."

27. The Appellant was assessed by the Practitioners Health Programme ('PHP') in November 2009. He was admitted for a 6 week period of in-patient rehabilitation at Clouds House in early 2010, and subsequently attended the aftercare group. While at Clouds House, he disclosed a full account of his drug use, which naturally remained confidential. Since then, he has been attending the Doctors and Dentists group and Narcotics Anonymous. The Appellant said he had not abused drugs since he fell ill in August 2009.

GMC proceedings

28. Dr Howes, acting on behalf of Yeovil District Hospital NHS Trust, reported the matter to the GMC on 23 September 2009.
29. On 24 November 2009, the Interim Orders Panel suspended the Appellant's registration for 18 months, pursuant to s.41A Medical Act 1983, on the grounds that it was necessary for the protection of members of the public, in the public interest and in his own interests. At the hearing, his solicitor informed the Panel that the Appellant first began taking intravenous drugs about 18 months ago. He said that the Appellant began to take over-the-counter medication from 2005 onwards, and in late 2006 he began to take Tramadol, purchased over the internet. Again, this was an untruthful account.
30. On 24 May 2010, the GMC informed the Appellant that, in the light of his conviction, the Registrar had decided to refer his case to a Fitness to Practise Panel for consideration.
31. The Appellant agreed to be examined by two medical examiners.
32. Dr Martin Briscoe, Consultant Psychiatrist, prepared a report dated 23 September 2010. The Appellant told him that his addiction to opiates began 5 or 6 years ago when he took Codeine for backache. From about 2006, he took Tramadol, and from 2007 he began to inject Fentanyl. This was an incomplete and untruthful account of his drug abuse.
33. Dr Briscoe's opinion was that the Appellant was suffering from an opioid dependence syndrome, classified as ICD-10 F.11.20 and that his fitness to practise was impaired because of his substance misuse. He went on to say:

"He would benefit from continued medical supervision and monitoring. Currently I am of the opinion that he is not fit to practise in any capacity, but that he requires further assessment from an occupational health expert and possibly further neuropsychological testing to help determine which branches of medicine may best suit Dr Cornish. Any future return to medicine will also need to consider potential risk of relapse should his work involve access to opiate drugs."

34. In the light of a subsequent report by Dr Gilvarry (which I consider below), Dr Briscoe accepted that the Appellant would be able to practise on a limited basis with appropriate supervision, monitoring and restrictions.
35. Dr Welch, Consultant Psychiatrist, prepared a report dated 8 November 2010. She also diagnosed opioid dependence syndrome, currently abstinent, classified as ICD-10, F11.2. The Appellant described to her an initial use of over-the-counter drugs; the purchase of Tramadol from 2007; commencing use of Fentanyl from the end of 2007; extending to Morphine and Cyclizine subsequently. Once again, the Appellant gave her an incomplete and untruthful account of his drug abuse.
36. In Dr Welch's opinion, the Appellant's fitness to practise was impaired because any recurrence of his drug use would cause severe impairment. She concluded that he would be fit to practise on a limited basis and under medical supervision, avoiding opioid drugs. The Appellant's good use of the support available to him significantly reduced the risk of relapse and the longer he remained abstinent, the lower the risk of relapse.
37. On 3 February 2011, the Appellant was informed that the allegation of impairment by reason of health would be considered at the Panel hearing, together with the conviction.
38. On 29 March 2011, the GMC notified the Appellant that there would be a hearing before a Fitness to Practise Panel on 3 May 2011.
39. On 18 April 2011, the Appellant's solicitors disclosed the report of Dr Eilish Gilvarry, a Consultant Psychiatrist specialising in substance misuse, dated 24 March 2011. This report disclosed to the GMC, for the first time, that he had been abusing drugs for much longer, and to a much greater extent, than he had previously admitted. According to Dr Gilvarry, the Appellant accepted that he had not told "the whole story" to the Yeovil authorities, only informing them of the escalating difficulties from 2007 onwards. This edited account was then passed to the GMC, the police and PHP. He accepted that, when interviewed by the GMC assessors, he withheld the full history from them too.
40. Dr Gilvarry's opinion was that his opiate addiction problem began in 1994 and within a few years he fulfilled the ICD-10 criteria of the dependence syndrome, namely, a strong desire to use; impaired capacity to control substance use behaviour; tolerance; pre-occupation with use; persistent use despite clear evidence of harmful consequences.
41. Given the long history of dependence, she considered there was a risk of relapse in the future, and he would need to be closely monitored for the next few years, with random testing. However, she concluded that, because of his intensive rehabilitation and continuing support, he was fit to practise, provided he was closely monitored and given medical supervision. He should not work in a field where drugs are readily available and there should be a careful audit of any prescribing he might undertake.
42. The Panel heard evidence and submissions on six days, between 3 and 10 May. The 'Allegation' against the Appellant was in the following terms:

"That being registered under the Medical Act 1983, as amended:

1. Between 2003 and January 2010, you were employed as a Consultant Anaesthetist by Yeovil District Hospital NHS Trust (the 'Trust');"

2. Between 2007 and August 2009 you took various quantities of the following drugs from the Trust"

a fentanyl,

b morphine,

c cyclizine,

d lignocaine;

3. The drugs described at paragraph 2 were

a for your own use,

b self-administered

i on trust premises,

ii in your vehicle,

iii at your home;

4. On 8 April 2010 you were convicted at Yeovil Magistrates' Court of Theft by employee contrary to S1(1) and 7 of the Theft Act 1968, in that between 1 March 2008 and 1 September 2009 at Yeovil you stole parented, controlled drugs and related material of a value unknown belonging to Yeovil District Hospital;

5. On 8 April 2010 you were sentenced to

a 12 weeks' imprisonment, suspended for 2 years,

b 5 months' curfew between 2230hrs and 0930hrs, with electronic monitoring,

c pay £85 prosecution costs;

6. On the 6 September 2010, you were medically examined by Dr Sarah Welch, Consultant Psychiatrist, who diagnosed you as suffering from a medical condition, the nature of which is set out in schedule 1;

7. And that by reason of the matters set out above your fitness to practise is impaired because of your

a misconduct,

b conviction,

c adverse physical and mental health."

43. Schedule 1 read:

"Opioid dependence syndrome, currently abstinent (ICD-10 Code F.11.20)."

44. The only issue disputed by the Appellant was the extent to which he had self-administered the named drugs on hospital premises. Although he accepted he had self-administered in the car park, he denied that he had self-administered in the hospital buildings. However, the Panel concluded, on the balance of probabilities, that he did self-administer in the hospital buildings.
45. Finally, the Panel determined that, in the light of his conviction and misconduct, erasure was the appropriate sanction.

Appeals

46. The Appellant's right of appeal pursuant to section 40 of the Medical Act 1983 is governed by CPR Part 52. Rule 52.11(3) provides:

" The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

47. Practice Direction 52, paragraph 22.3(3), provides that the appeal will be by way of re-hearing.
48. The nature of the High Court's jurisdiction on appeal has been considered by the Court of Appeal in two recent cases.
49. In Meadow v General Medical Council [2007] QB 462, Auld LJ said at [197]:

"On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, 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. (i) 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. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

50. In Raschid v General Medical Council [2007] 1 WLR 1460, Laws LJ said at [16] – [20]:

"16. it seems to me to be clear that we should follow the guidance given in the cases before the change in the appeal system effected on 1 April 2003 …there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment.

17. The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their lordships delivered by Lord Rodger of Earlsferry:

"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517 – 519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p.519: 'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession bring many benefits but that is part of the price'. Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case."

18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This .. engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:

"28. …In the appellant's case the effect of the committee's order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions such as the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

"29. That is not to say that their Lordships may not intervene if there are good grounds for doing so…

19. There is …no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd's Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

"the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."

20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. 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 judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."

51. Mr Morris relied upon the judgment of Newman J. in Abrahaem v GMC [2004] EWHC 279 (Admin), at [6], where he said that the degree of deference will be higher in cases where medical procedures are in issue, which are within the sphere of expertise of the professional body, than in cases such as Dr Abrahaem's, which involved dishonesty and possession of drugs.
52. In my judgment, this Court should follow the guidance given by the Court of Appeal in preference to the judgment in Abrahaem, which pre-dates Meadow and Raschid and is only a first instance decision. However, this is of academic interest only since, on the facts of this particular case, the conclusions I have reached are entirely in accordance with those of the Panel.

Medical Act 1983

53. Section 35C(2) Medical Act 1983 provides, so far as is material, as follows:

"A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of:

(a) misconduct;

(c) a conviction …. for a criminal offence;

(d) adverse physical or mental health;"

54. Section 35D sets out the powers of a Fitness to Practise Panel:

"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.

(2 ) Where the Panel find that the person's fitness to practise is impaired, they may, if they think fit –

(a) except in a health case, direct that the person's name 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 twelve 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 three years as may be specified in the direction, with such requirements as the Panel think fit to impose for the protection of the public or in his interests."

55. The procedure of the Panel is governed by the General Medical Council (Fitness to Practise) Rules 2004. Rule 17 provides for a staged decision-making procedure, which requires the Panel to hear evidence and submissions at each stage:

a) the Panel shall consider and announce its findings of fact (Rule 17(2)(i));

b) the 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 (Rule 17(2)(k);

c) the Panel shall consider and announce its decision as to the sanction or warning, if any, to be imposed (Rule 17(2)(n)).

The finding of fact that the Appellant self-administered in the hospital buildings

56. The Appellant appeals against the Panel's finding of fact that he self-administered intravenous drugs in the hospital buildings.
57. The Panel's conclusions were as follows:

"The Panel did not find you to be a credible witness given that you have consistently lied about your drug history.

By your own admission, at the material time your drug use had become chaotic and you were taking drugs from the hospital, when you could, and were injecting twice daily. You told the Panel there were times when you could not wait the 20 minutes to get home. The Panel considers that you could not have had the self-control not to self-administer the drugs within the hospital. It concludes that, given your serious drug addiction, you would not always have been able to delay until you had the opportunity to return to your car.

Furthermore, the Panel does not accept your evidence that your hospital locker was used as a temporary hold for drug paraphernalia to be disposed of. It considers the equipment found within the locker to be a relatively small amount compared to that found in your car and at your home. It has been suggested that the absence of any cannulae within the locker indicates that you were not self-administering within the hospital. The Panel do not accept this.

Therefore, on the basis of the evidence provided, particularly the contents of your personal locker, the episode in the presence of Mr Barry and the fact that by your own admission your life was becoming more chaotic, with your drug abuse out of control, the Panel is satisfied that it can reasonably infer, on the balance of probabilities, that you did self-administer drugs within the hospital buildings."

58. Prior to setting out its conclusions, the Panel set out an impressive summary of the evidence and submissions relating to this issue, lending support to the Respondent's submission that the Panel properly took into account the Appellant's evidence and submissions in reaching its conclusions.
59. The reasons were fully and clearly stated and, in my judgment, met the standard which is required of a lay panel of a professional disciplinary body.
60. The Appellant's first submission was that the Panel's reasoning in reaching the conclusion that the Appellant was not a credible witness was flawed. Although the Appellant initially lied about the extent of his drug abuse, this was part of his dependence syndrome. He subsequently told the truth voluntarily and should have been given credit for doing so.
61. I do not accept the Appellant's submission. The evidence demonstrated that the Appellant persistently lied about his drug abuse. Before the Appellant's drug abuse was discovered in August 2009, he was dishonestly obtaining drugs and lying to his wife and hospital authorities in order to disguise his drug abuse, thus enabling him to continue to feed his addiction. But, on his own case, he has not abused drugs since August 2009, when he was found out, and so the lies after that date, to the Hospital Trust, to the police, to his solicitor, to the GMC and the medical examiners must have a different explanation. The most likely explanation is that the Appellant has been seeking to minimise the extent of his drug abuse so that he would be treated less severely by the authorities.
62. I accept that the Appellant gave Dr Gilvarry a fuller history of his drug abuse, just as he had to his treating doctors at Cloud House. However, I do not consider that the Appellant was entitled to much credit for having volunteered a fuller history to the Panel. Once Dr Gilvarry's report was disclosed to the GMC, he could no longer deny his earlier history of drug abuse. During the hearing before me, his counsel submitted that he should be given credit for having agreed to disclose Dr Gilvarry's report. However, he was not obliged to disclose it or rely on it. Presumably he concluded that the benefits of Dr Gilvarry's evidence outweighed the disadvantage that he would be shown to have lied about his past.
63. Nor do I consider that it was 'improbable' that the Appellant would have chosen to lie about self-administering in the hospital buildings when he had admitted to extensive use elsewhere. The Appellant acknowledged in his evidence that it would have been "wrong" to inject in the hospital buildings. He accepted in cross-examination that, if he was found to be taking drugs whilst at work in the hospital buildings, it would impact on his future employability. He hopes to continue to practise as a doctor. So he had a motive to lie to the authorities, and to the Panel, about self-administering in the hospital buildings.
64. The Appellant's submission that "after commencing in-patient treatment he disclosed the complete history and since 2010 consistently told the truth about his drug history" is not supported by the evidence. He says that he disclosed the complete history when receiving in-patient treatment in early 2010 but he then gave an incomplete and untruthful account to the GMC medical examiners in late 2010.
65. The Appellant's second submission was that the Panel's reasoning in reaching the conclusion that the Appellant would not have been able to delay injecting until he had the opportunity to return to his car was flawed, because it failed to take into account the Appellant's evidence that he was always able to exercise sufficient control over his drug-taking, and choose when and where to inject.
66. In my judgment, the Panel was entitled, on the evidence, to conclude that the Appellant's drug abuse had become so extensive, "out of control" and "chaotic" that he would not have had the self-control not to self-administer within the hospital. It was telling that the Appellant confessed that he sometimes could not even wait for the 20 minutes it took to drive out of Yeovil before he needed to inject. I agree with the submission made by counsel for the GMC to the Panel, namely, if he was genuinely able to exercise restraint and choose where and when he injected, why did he choose the hospital car park, which was part of the hospital premises and a very public place where he would be recognised? The answer being that he was desperate and beyond caring by that point.
67. I accept that he would have faced practical difficulties in absenting himself for periods of time, up to an hour, without being detected. But it must also have been difficult for him to absent himself in order to self-administer in the hospital car park. Plainly the conditions at the hospital enabled him to do so. In this context, the Panel would have been well aware of his evidence that self-administration could take any time between 10 minutes and an hour, and taken that into account. I find it inconceivable that the Panel failed to take this evidence into account, and reject the Appellant's submission to this effect.
68. The Appellant's third submission was that the Panel was wrong to conclude that Mr Barry's evidence to the effect that the Appellant was unco-ordinated, unsteady and trembling in the anaesthetics room, but that these symptoms disappeared after a few minutes absence, was an indication that the Appellant had self-administered drugs in the hospital.
69. The Appellant did not seek to challenge the reliability of Mr Barry's evidence, nor did he have any recollection of the occasion. His description of the effects of Cyclizine and Fentanyl strongly suggest that one or both of these drugs were the reason for his tremor, unsteadiness and lack of co-ordination. He explained that these physical side-effects wore off 20 minutes or so after administration. At the Panel hearing, Counsel for the GMC submitted that, on the evidence, the likely explanation was that the Appellant had just self-administered the drugs in the hospital, and so was still displaying the physical symptoms. If he had self-administered at home, or in the car park, the effects would already have subsided by the time he was in the anaesthetic room, about to begin the theatre list. In my judgment, the Panel was entitled to rely on this incident as part of the circumstantial evidence supporting the GMC's allegation that he was self-administering drugs in the hospital buildings.
70. The Appellant's fourth submission was that the Panel was wrong to reject the Appellant's evidence that the hospital locker was used as a holding place for used drug detritus brought from his car or home, and instead to treat it as circumstantial evidence supporting the GMC's submission that he was injecting in the hospital buildings.
71. In my judgment, the Panel was entitled to reject the Appellant's explanation for the drugs paraphernalia (gloves, syringes, needles, ampoules) in his hospital locker. It was highly implausible for several reasons. First, the photographs showed vast quantities of used drug detritus in his car and at his home, whereas the quantity in his locker was relatively small. Second, it was unlikely that he would take the risk of transporting large quantities of used drug detritus into the hospital. Thirdly, the material was loose in the pockets, not bagged up.
72. It was far more likely that the Appellant was using the locker to store drugs paraphernalia for use whilst at work. There were blood stains on the white coat suggesting that bloodied syringes etc had been placed in the pockets, causing staining. The presence of drug ampoules of the type which the Appellant was using suggested that he was storing them in the locker for use at work. There were empty syringe packets, suggesting that syringes had been removed from the packets for use by the Appellant.
73. The Appellant relies on the fact that no cannulae were found in the locker. This is hardly conclusive; the cannulae may have been disposed of by the Appellant. In my judgment, the Panel was entitled to conclude that this fact, taken alone, was not sufficient to displace the inference which it drew from the rest of the contents of the locker.
74. With the benefit of advice from the Legal Assessor, the Panel correctly directed itself on the use of circumstantial evidence and on the burden and standard of proof.
75. In my judgment, the Appellant has failed to establish any grounds for overturning the Panel's determination of fact.

The sanction of erasure

76. The Appellant appeals against the Panel's determination that the appropriate sanction for his conviction and misconduct was erasure from the medical register. (Erasure is not an available sanction in respect of a practitioner whose sole impairment is adverse physical or mental health.)
77. In its determination the Panel said:

"Having determined that your fitness to practise is impaired by reason of your misconduct, your conviction and your adverse physical and mental health, the Panel has considered the submissions made by Miss Dudley-Jones, Counsel, on behalf of the GMC and those made by Mr Morris, Counsel, on your behalf, regarding the appropriate sanction, if any, that should be imposed on your registration."

…

Mr Morris submitted that you accept that your misconduct and breaches of Good Medical Practice are serious. However, he submitted that your misconduct was undoubtedly related to your opioid addiction and that you otherwise appear to be, and are, a man of integrity. He submitted that, in all the circumstances, it is not necessary and would be disproportionate to erase your name from the medical register. He concluded that it would be appropriate to impose a lesser sanction which would serve to protect the public interest in all its aspects.

The Panel has had regard to the Indicative Sanctions Guidance (April 2009 with August 2009 revisions) and is aware that the decision as to the appropriate sanction, if any, to impose on your registration is a matter for this Panel exercising its own judgment.

The Panel has considered whether it is necessary for the protection of members of the public, in the public interest or in your own interests to make a direction in relation to your registration. In doing so, it has balanced the public interest against your own interests and has taken into account the principle of proportionality.

The Panel has borne in mind its duty to protect the public, to maintain public confidence in the medical profession, and to uphold proper standards of conduct and behaviour as set out in the GMC's document "Good Medical Practice".

…

The Panel …considered whether it would be appropriate to impose a period of conditions on your registration. The Panel considers that you are not currently fit to return to unrestricted practice not least as you are only in the early stages of recovery. In addition to this, the Panel is of the opinion that it would not be able to formulate conditions which would be appropriate, proportionate, workable and measurable given the nature of the allegations against you. In the light of these factors together with your serious dishonesty and your criminal conviction the Panel is not satisfied that conditional registration would be an appropriate sanction.

Although the Panel accepts that your misconduct and conviction were linked to your opioid addiction, it does not consider that this fully explains or mitigates your behaviour. Your cavalier experimentation, dating back to 1994, led to your opioid addiction and subsequent misconduct and conviction for theft of controlled drugs and related material in 2009. The Panel considers that your actions constitute a serious breach of trust. Your dishonesty was at the higher end of the spectrum and you were calculating and deceitful. Not only did your theft involve a breach of trust but was persistent and covered up.

The Panel was provided with supportive testimonials submitted from professional colleagues, who were aware of the allegations made against you. These attest to your good clinical skills and competence as a consultant anaesthetist. Although the Panel has taken account of these testimonials they have to be weighed against the misconduct and the evidence in this case which suggests you put your own interests before those of your patients.

The Panel has noted the comments of the health assessors who all concurred that you are fit to practise, albeit not in anaesthesia or in a position of having access to opioids, and provided sufficient monitoring and supervision are in place. The Panel considers that the health assessors were rightly focussed on the health issues in this case, and the prognosis going forward in relation to your addiction rather than the seriousness of your misconduct and subsequent conviction. This Panel has a wider brief and must consider all elements of the case in determining the appropriate sanction.

The Panel is not satisfied that you have sufficient insight into your misconduct. It acknowledges that at the outset of the hearing you admitted many of the paragraphs of the allegation and during your evidence you admitted the full history of your drug dependency. However, the Panel is concerned that but for your health problems in August 2009 your conduct may not have come to light. It also remains concerned that you were not open and frank about your drug history when it was discovered and that you further compounded this when you gave a 'truncated' account to Dr Briscoe and Dr Welch. The Panel considers that this demonstrates evidence of deep-seated personality or attitudinal problems. This opinion is also supported by your actions in 2000 when you returned to work in Kidderminster, following your eight month suspension and abstinence. On your first day back at work you made a conscious decision to reward yourself by taking fentanyl.

The Panel also considers your behaviour to be irresponsible in that you self-administered drugs within your car, on trust premises, where you could have been observed and you took drugs before undertaking anaesthetic sessions. Furthermore, you left contaminated drug paraphernalia in your car and at your home with a total disregard for the safety of your family and others who may have come into contact with it. All this carried an inevitable risk to your patients, your family and the wider public.

The Panel has been informed that there has been no evidence of a repetition of your behaviour since the matters which have brought you before this Panel and it recognises the efforts you have made to rehabilitate yourself. It notes that you have now been abstinent from drug misuse since your hospitalisation in August 2009. However, it is not convinced that you would not repeat your behaviour given the opportunity. You have been out of medical practice since August 2009 and therefore your abstinence has not been tested within a professional setting.

The Panel considers that your misconduct constitutes a particularly serious departure from the principles set out in Good Medical Practice. Indeed the Panel is of the view that you have displayed a reckless disregard for these principles. Doctors occupy a position of privilege and trust in society and are expected to act with integrity and to uphold proper standards of conduct.

The Panel has regard to the Indicative Sanctions Guidance, in particular paragraph 78 and 79 concerning the case of Dr Prabha Gupta v GMC (Privy Council Appeal No 44 of 2001) in which the court adopted the dicta of Lord Bingham, Master of the Rolls, who in the case of Bolton v The Law Society stated inter alia:

'…The essential issue…is the need to maintain among members of the public the well founded confidence that any solicitor [doctor]…will be a person of unquestionable integrity, probity and trustworthiness…The reputation of the profession is more important than the fortunes of an individual member. Membership of a profession brings many benefits, but that is part of the price.'

The Panel considers that your misconduct demonstrates a blatant disregard for patient safety, is likely to undermine public confidence in the profession and bring the standing of the profession into disrepute. The Panel's overriding duty is the protection of patients; your behaviour has put patients at risk and if repeated could do so in the future. The Panel has therefore concluded that your misconduct and criminal conviction for those matters are fundamentally incompatible with you continuing to be a registered medical practitioner.

In the light of these factors, the Panel has determined that suspension is not an appropriate sanction. It would not be sufficient to mark the seriousness of your misconduct, to protect the public interest or ensure the maintenance of public confidence in the profession.

The Panel has therefore concluded that it is both proportionate and necessary in the public interest to direct that your name be erased from the Medical Register."

78. The Appellant submitted that the Panel's determination that he should be erased from the medical register was an excessive and disproportionate sanction, which was "wrong" for the reasons summarised below:

a) In reaching the conclusion that the Appellant's misconduct demonstrated a "blatant disregard" for patient safety, and that it was more by good luck than good management that no patients were harmed, the Panel failed to attach any or any adequate weight to the evidence from the Appellant, his colleagues and the Trust that he was a well-regarded, competent practitioner and there had been no formal or informal complaints about his work with patients, during his 15 years of opioid dependence.

b) The Panel was not justified in finding that his misconduct constituted "a particularly serious departure from the principles set out in Good Medical Practice" and showed "a reckless disregard" for those principles, which are factors listed in the Indicative Sanctions Guidance, paragraph 82, identifying when erasure may be appropriate. In particular, the Panel failed to view his misconduct in its proper context, and failed to give the appropriate weight to the evidence that his misconduct was linked to his ill health, namely, his opioid dependence; the opportunistic nature of his drug taking in 1994 and 1996; and the insight into his misconduct, demonstrated by his admissions and full disclosure to the Panel, and the testimonial evidence.

c) The Panel was wrong to conclude that there was evidence demonstrating deep-seated personality or attitudinal problems, in the light of the expert psychiatric and testimonial evidence, and the submissions of the GMC's counsel.

d) The Panel's finding that the Appellant's honesty and integrity could not be relied upon was wrong in the light of the evidence, and for the reasons set out in paragraph 60 above.

e) The Panel failed adequately to take into account the steps the Appellant has taken to remedy his opioid dependence, namely, his full voluntary disclosure of his addiction history; the development of insight, as confirmed by the expert psychiatric evidence; his abstinence and his continued engagement in a treatment programme.

f) The Panel, in concluding that it was not convinced that the Appellant would not repeat his behaviour given the opportunity, failed to consider the evidence as to his remediation and rehabilitation and the risk of relapse.

g) It was inherent in the decision to erase that the Appellant's misconduct could not be remediated, but this was inconsistent with the Panel's observation in its impairment determination, where it stated that "an insufficient time has passed for your misconduct to have been re-mediated".

h) The Panel failed to consider the public interest in allowing the return of a clinically competent doctor to return to practice.

i) The Panel failed to bear properly in mind the following parts of the Indicative Sanctions Guidance:

i) the purpose of sanctions is not to be punitive but to protect patients and the wider public interest, although they may have a punitive effect (paragraph 20);

ii) in acting proportionately any sanction and the period for which it is imposed must be necessary to protect the public interest (paragraph 22);

iii) erasure is appropriate where it is the only means of protecting patients and the wider public interest, which includes maintaining public trust and confidence in the profession (paragraph 77)

j) No reasonable panel would have concluded that erasure was the appropriate sanction, bearing in mind the advice in the Indicative Sanctions Guidance.

79. The Appellant submitted that suspension was the appropriate sanction in this case, and relied upon the list of factors at paragraph 75 of the "Indicative Sanctions Guidance" which indicate the circumstances in which suspension may be appropriate.
80. In my judgment, the Appellant's grounds of appeal fail to acknowledge or appreciate the seriousness of the Appellant's misconduct.
81. The Panel had found, in its determination on impairment, that all four features of impairment identified in the Shipman Report at paragraph 25.50, existed in this case:

a) the doctor presented a risk to patients;

b) the doctor had brought the profession into disrepute;

c) the doctor had breached one of the fundamental tenets of the profession;

d) the doctor's integrity could not be relied upon.

82. The Panel found that the Appellant's conduct breached the fundamental tenets of the profession as set out in Good Medical Practice, and constituted a serious departure from the standard expected of a registered medical practitioner:

Paragraph 1: "Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy and act with integrity."

Paragraph 56: "Probity means being honest and trustworthy and acting with integrity: this is at the heart of medical professionalism."

Paragraph 57: "You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession."

Paragraph 79: "…if your judgment or performance could be affected by a condition or its treatment, you must consult a suitably qualified colleague. You must ask for and follow their advice about investigations, treatment and changes to your practice that they consider necessary. You must not rely on your assessment of the risk you pose to patients."

83. The Panel found that the Appellant was:

"devious in your actions in concealing your addiction from your colleagues. Your conduct was calculated, demonstrated a pattern of behaviour which was protracted over 18 months, involved theft of a substantial quantity of drugs and constituted a serious breach of trust."

84. The Panel expressly acknowledged that the Appellant's misconduct and conviction were linked to his opioid addiction, and that the Appellant had made genuine efforts to abstain from drugs since August 2009. However, it did not consider that this fully explained or mitigated his behaviour. The Panel considered that he was guilty of a "persistent" and "serious breach of trust" and that he was dishonest, calculating and deceitful.
85. I agree with the Panel's conclusions. Furthermore, as I have already found, in paragraphs 61-64 above, the Appellant's sustained lying about the extent of his history of his drug abuse, to the Trust, the police and to the GMC, even after he was no longer using drugs, demonstrated a propensity to dishonesty and a lack of integrity which cannot be explained or excused on the basis of his addiction. Although he seeks credit for making full disclosure to the Panel, he was found by the Panel to have lied when he denied using intravenous drugs in the hospital buildings. Panel members had the opportunity to hear his evidence, and to assess his honesty.
86. I consider that the Panel was justified in taking into account the Appellant's "cavalier experimentation" when he irresponsibly stole from his employers as a young doctor in order to experiment with opioids, thus sowing the seeds of his own addiction.
87. In my judgment, the Panel's finding that the Appellant did not have sufficient insight into his misconduct, and that he had some deep-seated personality or attitudinal problems, was justified on the evidence before it. The Appellant's record of deceit and lies was exceptional by any standards. As well as his persistent dishonesty, the Panel was troubled by his decision to "reward" himself by stealing and using drugs on the very first day of his return from a period of suspension from work and a formal warning in 2000, after he had been found in possession of an ampoule of morphine, and when his wife had given him an ultimatum about his conduct.
88. It is correct, as the Appellant submitted, that the GMC's medical examiners and Dr Gilvarry did not find evidence of a 'personality disorder'. In my view, the Panel was not using the terms "personality or attitudinal problems" in the way that a psychiatrist might do, to denote a psychiatric condition, such as a personality disorder. I assume they took the phrase from the Indicative Sanctions Guidance, paragraph 75. In her evidence, Dr Gilvarry said:

"of course there are moral issues here and whatever, but in terms of a deep-seated attitudinal problem, I do not see Dr Cornish as having any sort of a personality disorder or any sort of psychopathic personality disorder."

The Panel was considering what Dr Gilvarry inaptly labelled "the moral issues" i.e. the Appellant's lack of integrity, his untrustworthiness, his deliberate flouting of the rules and his unprofessional behaviour.

89. I have concluded that, on the evidence before it, the Panel was entitled to find that the Appellant's misconduct demonstrated a 'blatant disregard for patient safety' and that it was more by good luck than good management that no patients were harmed. The Panel was particularly concerned by the Appellant's evidence:

"you would self-administer drugs prior to attending work and during the course of the day before undertaking anaesthetic lists. You admitted that you recognised the potential risk to patients but persisted with this course of action. You attributed this to your opioid addiction."

90. As one would expect, the Appellant's heavy drug use had adverse effects on him, both physically and mentally. He described to the Panel how Cyclizine gave him a tremor, sedated him and made him woozy, while Fentanyl, which he took at the same time, made him unco-ordinated, euphoric and manic. There was an occasion in the first half of 2009 when Mr Barry observed the Appellant in the anaesthetic room appearing very uncoordinated, with trembling hands, and unsteady on his feet while carrying out a theatre list. The Appellant also suffered withdrawal symptoms in the later years, which he described as "a feeling of anxiety and some sweating" when he needed his next dose of opioid. His addiction was so advanced that he had to administer intravenously whilst at work in the hospital. He described his life as "chaotic" and "falling apart". He abused drugs to such an extent that it made him gravely ill, and caused him to collapse. He acknowledged that his state of mind and judgment were "impaired". In my view, the Appellant properly accepted in evidence to the Panel that there was a potential risk to patients caused by his addiction, and the Panel was entitled so to find.
91. The Panel took into account the testimonials in support of the Appellant, praising both his character and his clinical work, but rightly concluded that those testimonials had to be weighed against the evidence in this case. As Lord Bingham said in Bolton v The Law Society [1994] 1 WLR 512, a professional person "can often adduce a wealth of glowing tributes from his professional brethren" but erasure can nonetheless be the right sanction to impose, in the public interest.
92. The Appellant conceded that the Panel was correct to decide that conditional registration was not appropriate, despite the evidence from the psychiatrists that he would be fit to practise, if appropriate monitoring and supervision was put in place. In the light of the expert evidence about the risk of relapse, his own history and the length of time he had been addicted, the Panel was justified in concluding that it was not convinced that he would not repeat his behaviour given the opportunity. Moreover, as the Panel explained, the psychiatrists focused on the health issues, and prognosis in relation to his misconduct, rather than the seriousness of his misconduct and his subsequent conviction.
93. The Panel appreciated that it had a "wider brief" and it had to take into consideration the public interest, which includes both the protection of patients and the maintenance of confidence in the profession. In doing so, it expressly took into account the principle of proportionality. The Panel had regard to the Indicative Sanctions Guidance and the cases of Gupta v General Medical Council [2002] 1 WLR 1691 and Bolton v The Law Society, and correctly applied the guidance on sanctions.
94. In my judgment, the Panel was right to conclude that the Appellant's misconduct constituted "a particularly serious departure" from, and "a reckless disregard" of, the principles set out in Good Medical Practice. The misconduct and the conviction was likely to undermine public confidence in the profession and bring the standing of the profession into disrepute. This was a case which came well within the scope of paragraphs 77, 78, 79, 81 and 82 of the Indicative Sanctions Guidance, which give guidance on the circumstances in which erasure is an appropriate sanction. It follows that I do not accept the Appellant's submission that the sanction of erasure was excessive or punitive or disproportionate. Nor do I accept the Appellant's submission that the sanction of erasure was inconsistent with the Panel's earlier determination on impairment where it expressed the view that "an insufficient period of time has passed for your misconduct to have been fully remediated". In my view, the Panel was there addressing the Appellant's addiction, as can be seen from the following two sentences in that paragraph.
95. The Appellant submitted that suspension was appropriate because some of the factors which are listed in paragraph 75 of the Indicative Sanctions Guidance applied in his case. However, the Panel's findings do not support this submission, since the Panel concluded:

a) the misconduct was fundamentally incompatible with continued registration; and

b) there was evidence of deep-seated personality or attitudinal problems;

c) the Appellant did not have sufficient insight into his misconduct;

d) it was not convinced that the Appellant would not abuse drugs again, given the opportunity.

96. In my judgment, the Panel correctly concluded that suspension would not "be sufficient to mark the seriousness of your misconduct, to protect the public interest or to ensure the maintenance of public confidence in the profession."
97. In conclusion, the Panel correctly directed itself on the relevant law and guidance, fairly assessed the evidence, and reached conclusions which were justified on the evidence before it. In my own evaluation of the evidence and the submissions, I have reached the same conclusions as the Panel, and therefore the degree of deference due to the Panel is not in issue.
98. For these reasons, I dismiss the Appellant's appeal.

Note 1   At the Panel hearing, Counsel for the Appellant explained that the correct word was ‘parenteral’.     [Back]