England and Wales High Court (Administrative Court) Decisions

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

		2 Park Street Cardiff South Wales Wales CF10 1ET
		7th February 2012

1. MR JUSTICE BEAN: This is an appeal by Dr Adeyemi under section 40 of the Medical Act against a determination of a Fitness to Practise Panel of the General Medical Council in August 2011 that her fitness to practise continued to be impaired and that her name should be erased from the Medical Register.
2. She first appeared before a Fitness to Practise Panel, so far as relevant to the present appeal, in a long and intermittent hearing which resulted in a decision in January 2009. By this time she had already been subject to conditions on her registration imposed by the Interim Orders Panel for, I think, a little over three years. They were not severe conditions, as Mr Ivan Hare who appears for the GMC today points out; they were of a kind which are usual in performance cases, requiring the doctor to co-operate with assessments made on her, to inform the GMC of any medical post to which it is proposed she should be appointed and to inform any prospective employer of the conditions imposed on her. Be that as it may, it appears that Dr Adeyemi has not practised since 2006.
3. The panel in January 2009 identified significant deficiencies in Dr Adeyemi's professional performance in six areas. They were: (1) management of anaesthetic induction, including identification of the correct technique to be used; (2) intubation technique; (3) record keeping; (4) recognition of and response to crucial events; (5) proper understanding of the responsibilities of an anaesthetist; (6) communication skills. It will be obvious that of these six, items 1, 2 and 5 are concerned with the specialist skills of an anaesthetist and items 3, 4 and 6 are general skills required of any doctor.
4. At the January 2009 hearing Dr Adeyemi was represented. The suggestion was made at one stage that a performance assessment might be appropriate, but her representative indicated that in his client's view it would not be the right course to pursue. The Fitness to Practise Panel placed conditions on Dr Adeyemi's registration for a period of 12 months.
5. Her case next came before the GMC at another Fitness to Practise Panel hearing, this time a first review, in January 2010. Unfortunately, Dr Adeyemi did not attend, nor was she represented. She contended that she was absent in Nigeria dealing with family matters and that the hearing should not have proceeded in her absence. The panel had evidence before it that she had been notified of the hearing. They refused to adjourn, decided to proceed and found in her absence that her professional performance continued to be impaired. They decided to suspend her from practice for a period of 12 months.
6. The Panel found that although Dr Adeyemi had complied with certain of the conditions imposed in 2009, in particular as to the formulation of a professional development plan in discussion with the relevant deanery, her efforts to do so were, in their words, "half-hearted". They continued:

"The Panel is of the opinion that Dr Adeyemi has not fully grasped the purpose or reason for the imposition of conditions on her registration. The Panel noted that there was no evidence provided of progress towards the objectives in the Personal Development Plan that she formulated. The Panel considers that Dr Adeyemi showed a lack of insight in her PDP as she tended to blame others for her deficiencies. The Panel has noted her absence from these proceedings and believes this was voluntary and wilful, which is further evidence of her attitudinal problems. The Panel was also not satisfied that patients would not be put in danger if a period of conditional registration was imposed. The Panel has therefore determined that it would not be sufficient to extend the existing period of conditional registration."

The Panel then went on to consider whether suspension would be appropriate and proportionate, and after extensive reference to the indicative sanctions guidance, they found:

"While the Panel has considered that Dr Adeyemi has not developed much insight, she has developed a PDP, albeit not a totally satisfactory one."

They noted that the Assistant Post-Graduate Dean found that she was least developing some insight. They continued:

"The Panel are, however, concerned that Dr Adeyemi is a continuing risk to patients."

They considered "on a fine balance" that it would be sufficient to suspend her registration. They said that the next review panel at the end of a period of 12 months would be assisted by receiving evidence:

"... of the efforts she has made to keep her medical knowledge up-to-date, her continuing Professional Development Plan including progress towards the objectives, how she has gained insight in relation to the issues which have resulted in these proceedings, how she has addressed them and her progress in that regard, how she proposes to return to medical practice in whichever field she chooses since she has been absent from work since 2006."

Those two decisions, namely not to adjourn and to impose suspension, were both the subject of an appeal by Dr Adeyemi to this court. She appeared in person at a hearing on 21st September 2010. His Honour Judge Robert Owen QC dismissed her appeal on both counts. He found that the GMC were entitled to find that her absence from the panel hearing had been deliberate and voluntary and described that as the only realistic conclusion. As to the finding of impairment and the sanction of suspension, again he considered that the appeal had no merit.

7. A second review panel heard Dr Adeyemi's case again in 2011. Their determination is the one under appeal. They found, perhaps unsurprisingly, that her professional performance continued to be impaired. As to sanction, they rejected the suggestion that conditional registration might be sufficient and they went on to consider whether suspension would be appropriate and proportionate. Having answered both those questions "no", they held that it followed that Dr Adeyemi's name must be erased from the Medical Register. They said:

"The Panel is deeply concerned that since your last hearing in 2010 you have only made limited efforts to address the issues raised but that you believe you have fully addressed these issues."

Then, after reference to the ISG, they continued:

"Your failure to demonstrate that you have kept your medical skills and clinical knowledge up-to-date amounts to a particularly serious departure from the principles set out in good medical practice. After an absence of some five years from clinical practice this presents a continuing risk of harm to patients. The Panel is concerned by the attitudinal problems that you have shown and your persistent lack of adequate insight into your failures to address the matters of your deficient professional performance. Taken together, the Panel has concluded that your behaviour is fundamentally incompatible with your continuing to practise medicine."

8. Dr Adeyemi, at that stage acting in person, lodged a notice of appeal taking a large number of points. The appeal originally came before Judge Curran in this court. He adjourned it and advised Dr Adeyemi to seek assistance from the Bar Pro Bono Unit. Miss Beverley Cotterill appeared on the instructions of the Bar Pro Bono Unit, and I am extremely grateful, as Dr Adeyemi should be, to her and to the Pro Bono Unit for the quality of the submissions which I have heard on Dr Adeyemi's behalf. It is much to the credit of all concerned that such services can be provided pro bono.
9. Miss Cotterill has concentrated on grounds 6, 7 and 8 of the appellant's original grounds. That was an entirely appropriate course to take because grounds 1-5, on which I have not heard oral argument, seem to me to be quite hopeless.
10. The grounds which she has argued are: that the Panel's final decision in 2011 to erase Dr Adeyemi's name from the Register is unfair and disproportionate to the allegations; that the 2011 Panel did not follow the decision of the 2010 Panel, which dictated Dr Adeyemi's professional development in 2010 to 2011; and that her recent progress and clinical knowledge were ignored in the decision. To some extent these three grounds overlap.
11. The law to be applied is not in dispute. As to the general approach of this court to an appeal against a sanction imposed by the GMC, the leading case is Rashid and Fatnani v GMC [2007] 1 WLR 1460, in which Laws LJ, in the substantive judgment, said that the High Court will correct material errors of fact, and of course of law, and will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case. In paragraph 26 he described two principles as especially important in this jurisdiction: the preservation of public confidence in the profession and the need, in consequence, to give special place to the judgment of the specialist tribunal.
12. I have also been referred to a decision of Blake J in Abrahaem v GMC [2008] EWHC 183 Admin, in which the judge said at paragraph 23, dealing with review hearings before the panel:

"In my judgment, the statutory context for the Rule relating to reviews must mean that the review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Panel's satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments."

Although Blake J refers to impairment through misconduct (which is what was relevant in the case of Dr Abrahaem) the principles he outlines are applicable, in my view, to an original finding of impairment for any reason, and Miss Cotterill did not suggest otherwise.

13. The fact that the 2011 Panel decided on erasure when the 2010 Panel, albeit by what they described as a fine balance of judgment, decided not to, does not of itself render the 2011 decision unfair, disproportionate or unreasonable. The 2011 Panel had to consider the progress or otherwise which Dr Adeyemi had made since the earlier review. Their judgment was that she had not satisfied them that she was now fit to practise. They made findings that she had only made limited efforts to address the issues raised in the 2010 hearing.
14. I appreciate of course that, as Miss Cotterill has submitted, a doctor who is suspended from practice is in a difficult position. It is extremely difficult to obtain any sort of work allowing clinical practice, even under supervision, and this creates what some laymen might describe as a "Catch 22" position. Nevertheless it is very difficult for Miss Cotterill to argue that the finding of failure to demonstrate that Dr Adeyemi had kept her medical skills and clinical knowledge up-to-date is a perverse one. That finding, and the conclusion that it amounts to a particularly serious departure from the principles of good medical practice, is not a finding of wickedness or wilful default, it is simply a finding of fact that Dr Adeyemi had come nowhere near demonstrating that she had kept her medical skills and clinical knowledge up-to-date. As Mr Hare points out, she has been out of practice, in both senses of that phrase, since 2006. At the time of the 2011 decision it was five years since she had ceased practice. Her professional development, as set out in the Professional Development Plan of 2010 to 2011, and her document sent to the GMC on 18th July 2011 showed that she had moved in the direction of training in palliative care. This is extremely commendable, and I wish her well with it, but it must be remembered that of the six findings of deficiency made in the 2009 decision, three were of general application. There is not and cannot now be any attack on those findings as such.
15. Dr Adeyemi gave the GMC a list of e-learning courses which she had undertaken, but, as Mr Hare points out, the great bulk of these were undertaken in the course of what is no doubt an intensive week of study from 27th September to 3rd October 2010, added to a couple of certificates relating to attendance at one day events in 2009.
16. In those circumstances the Panel were entitled to find, indeed bound to find, that the past deficiencies had not been fully addressed.
17. Miss Cotterill has drawn my attention to a positive reference by Dr Kumar, a consultant with whom Dr Adeyemi spent three weeks, in effect as an observer, in the summer of 2008. The Panel had that before them, and I have it before me. That is to her credit of course, but it does not bridge the gaps in her professional development on the strength of which the 2011 Panel found against her.
18. Then it is said that the 2011 Panel did not find, as the 2010 Panel had done in Dr Adeyemi's absence, a complete lack of insight into her difficulties: instead they found that she had some developing insight. That does not mean that it was inconsistent to order her erasure. Moreover, in passages from the cross-examination of Dr Adeyemi before the 2011 Panel, to which Mr Hare has drawn my attention, it is apparent that Dr Adeyemi was extremely reluctant to admit any faults in the past or that she accepted the findings of deficiency made in January 2009. The answers to the questions do seem to me to be on these lines (in lawyers' language): "If, which is not admitted, my performance was deficient in any way prior to 2009, then I have been on courses and the like in an attempt to address these alleged deficiencies".
19. I do not think that the 2011 Panel's finding in this respect can be criticised. It was not unreasonable for them to find that the progress which Dr Adeyemi had made in undertaking courses and in beginning to train in palliative care in the period 2010 to 2011 was inadequate to enable them to reach any other decision than erasure.
20. The original performance concerns about Dr Adeyemi were, as Mr Hare has submitted, wide-ranging. She has not come close to addressing them so far. I appreciate the difficulties which are in her way, which are inevitable, but given that the GMC's duty is to protect the public and that their decision must be made on that basis rather than as a means of imposing a penalty, I consider that they were plainly entitled to find that public protection required that Dr Adeyemi's name should, after five years out of practice and with the continuing deficiencies which have been identified, be erased from the Register.
21. As I said, I am very grateful to Miss Cotterill for the points she has argued, but I do not find that there is any error of fact or law in the 2011 Panel's decision which would justify my interfering with it. I therefore dismiss the appeal.
22. I can only say that I wish Dr Adeyemi well in her studies in palliative care. I understand she has recently embarked on a two year MSC and I hope that will bear fruit.
23. MR JUSTICE BEAN: Is there any other matter I should deal with today?
24. MR HARE: My Lord, we do apply for our costs. The matter has been determined obviously within a day. We say it is an appropriate matter for summary assessment. A copy of our schedule of costs should have come to your Lordship along with the skeleton, but I can hand a copy up.
25. MR JUSTICE BEAN: I do not think it has, I am afraid.
26. MR HARE: Perhaps it is easier if I just hand up a copy, my learned friend has one.
27. My Lord, may I make just four points about that. We accept that ordinarily that would be a high sum for a half day hearing in this court, but we say that there are four factors which we would invite the court to have in mind. The first is of course that this matter was all prepared for hearing, and indeed I attended, as did my solicitor, on 17th November and we were before His Honour Judge Curran on that occasion for half a day then where the appellant sought and obtained an adjustment. That is the first point. Obviously, that is included. The second point is that although the GMC is the respondent, as your Lordship will have seen, the GMC put together the bundles which have been used in the appeal, the two bundles that the court has been referred to, so that is a cost that has been borne by the respondent. Thirdly, there was an attempt by the appellant to set aside His Honour Judge Curran's order by way of application notice, which the General Medical Council responded to in writing. Now, of course it could be said the General Medical Council should just have said, "Well, this should have been done by appeal", and that was that. That was not the course that was taken. A reasoned response was put in, in case it was considered appropriate to address the substance, and the cost of that is included. Finally, although Miss Cotterill of course has narrowed the grounds of challenge, the case was originally prepared and my original skeleton drafted, your Lordship had an amended skeleton, on the basis of the original eight grounds which were put forward, which, although hopeless, still had to be addressed.
28. So, my Lord, that is why we say the sum is rather higher than one would normally expect on a half day hearing in this court. We say nonetheless it is proportionate and we would invite your Lordship to assess it in this sum.
29. MR JUSTICE BEAN: Mr Hare I am concerned by the fact that this is a bill for over £20,000. I have another half day case, which may be two and a half or three hours, starting at 2 o'clock [it was by then 1.25 pm], and I do not see how Miss Cotterill can be expected to reply in five minutes or that there is enough time for me to make a decision. So subject to what Miss Cotterill says, I am minded to say that this should be the subject of detailed assessment if not agreed. Miss Cotterill?
30. MS COTTERILL: I would be grateful, your Lordship.
31. MR JUSTICE BEAN: Yes. I think that is the only practical course to pursue, Mr Hare.
32. Thank you very much. I am very grateful to both of you.