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
		28 March 2012

Mr Justice Eady :

1. Dr Rakesh Aga ("the Claimant") is an experienced consultant gastroenterologist at the Medway NHS Trust. He challenges the decision of the General Medical Council ("GMC") on 10 December 2010 to the effect that his "failure to recognise" hypoglycaemia in a 54 year old patient ("X") should be characterised as misconduct. It was nonetheless decided that his fitness to practise was not impaired and that it was not appropriate to give a warning or impose any other sanction. Accordingly, the Claimant has no right of appeal under s.40 of the Medical Act 1983 and his challenge has to take the form of an application for judicial review. Permission was granted by Lindblom J on 17 May 2011. On that occasion, the Judge's observations included the following passage:

"I consider this claim to be arguable. It raises important issues bearing on the Claimant's standing in his profession. If, as is submitted on behalf of the Defendant in paragraph 22 of its summary grounds, the challenge amounts to no more than an invitation to the court to substitute its own judgment for that of the Panel – which is not a proper exercise for the court to undertake – this will emerge when the case is fully argued … "

2. "Misconduct" is a word in common usage and, in this context, there is no statutory or judicial definition available. Whether to classify a doctor's acts or omissions as misconduct is a matter left to the judgment of those on the relevant Fitness to Practise Panel in the light of their experience. The court pays considerable deference to such decisions generally. On an application of this kind, the essential question is whether it was irrational to apply the term to the relevant conduct, as either proved or admitted.
3. Nevertheless, some judicial guidance is available and the authorities were considered and summarised by Jackson J (as he then was) in Calhaem v GMC [2007] EWHC 2601 [Admin] where, at [39], he identified the following "five principles":

"(1) Mere negligence does not constitute 'misconduct' within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to 'misconduct'.

(2) A single negligent act or omission is less likely to cross the threshold of 'misconduct' than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as 'misconduct'.

(3) 'Deficient professional performance' within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.

(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute 'deficient professional performance'.

(5) It is neither necessary nor appropriate to extend the interpretation of 'deficient professional performance' in order to encompass matters which constitute 'misconduct'."

4. Helpful though this guidance is, it has been recognised on a number of occasions that the concept of misconduct is not capable of precise description or delimitation: see e.g. Roylance v GMC (No 2) [2000] 1 AC 311, at p330 (Lord Clyde), and Meadow v GMC [2007] QB 462, at [200], per Auld LJ.
5. My attention was drawn, in particular, to observations of the Court of Session in Mallon v GMC 2007 SC 426, at [18]:

"In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera."

It was there emphasised that the decision in every case as to whether there has been serious misconduct has to be made by the Panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence before it.

6. In the case of Meadow, Auld LJ observed at [197], albeit in the context of a s.40 appeal, 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 deserves 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.

7. It is necessary to turn to the facts. Patient X had advanced liver disease as a complication of diabetes. In due course, Dr Aga recommended him for a liver transplant. This subsequently took place and I was told that he is now doing well. Between 14 August and 17 September 2007, he had been admitted under Dr Aga's care and thereafter he had seen him as an outpatient on four occasions. The last time he was seen prior to the events which are the subject of these proceedings was on 5 November. He was readmitted to the hospital on 14 November, displaying symptoms of his liver disease. Having been initially in the ('Kingfisher') ward under a surgical team, he was later transferred to the care of the on call medical team in the ('Dickens') gastroenterology ward. Until the morning of 19 November, Dr Aga had not been informed of his readmission. It seems that during the intervening five days the patient had recurrent episodes of prolonged hypoglycaemia. This was because of a mismatch between his food intake and the insulin he received. Dr Aga says that this certainly should not have happened in a hospital environment and his insulin schedule should have been changed.
8. Dr Aga usually conducts a ward round on Monday mornings. Accordingly, on the morning of 19 November 2007, he was in the midst of his ward round with a team of trainee doctors when, at 11.30, he was informed for the first time of Patient X's presence in the hospital. He believes that this probably came about because the gastroenterology team coming on duty for that week would have spotted that the patient had previously been under his care and, therefore, asked the nursing staff to arrange a "hand back". Why this had not happened immediately following readmission is unclear and is not directly relevant to the issues I have to determine.
9. As soon as Dr Aga was informed, he broke off his ward round and went with his team to review Patient X's condition. That is because he knew of his background and was concerned to hear that he had been admitted. In the ten minutes between 11.30 and 11.40, he studied the online database containing information about Patient X deriving from laboratory and X-ray investigations. He was also briefed, as is customary, by one of the trainee doctors on the content of the patient's notes. On a strict analysis, therefore, the task of scrutinising the notes, in the limited time available, had been delegated to the trainee in accordance with standard practice.
10. At approximately 11.40 Dr Aga reached the patient's bedside. He found X in a stuporous condition (i.e. with impaired consciousness). It was later established that a nurse had been speaking to him ten minutes before, at about 11.30. Dr Aga told me that in his many years experience he had never seen a patient in this condition in hospital. The insulin/calorific imbalance simply should not have been allowed to happen by those caring for him over the previous five days. He proceeded to carry out the appropriate "drill" on finding a patient unconscious. He referred to the "ABC" routine: that is to say, the checking of airways, breathing and circulation. He then went on to the "DEFG" checks ("Don't Ever Forget Glucose").
11. Unfortunately, Dr Aga had not been informed at that stage of the previous hypoglycaemic episodes following 14 November. No one told him of this history when he was first informed about the patient at 11.30. There was mention of it in the notes, but in the few minutes available the trainee doctor had not picked this up. Dr Aga told me, because he would not have expected a patient in hospital to be suffering from hypoglycaemia, that his thought processes led him to allow for the possibility, at least, of some other cause of unconsciousness. Because of Patient X's liver disease, one such possibility that came to mind was hepatic encephalopathy. In any event, however, he took what he claims were the appropriate steps. He was not led down any false trails. He stopped the regular insulin injections and made an emergency management plan at 11.45, which was immediately put into effect. This specified a blood glucose test by means of what is called a "sliding scale". This enabled a firm diagnosis to be made of hypoglycaemia. Dr Aga points out that the medical notes confirmed that the only test he ordered to be carried out was the sliding scale, to check for hypoglycaemic coma, and that he did not test for any other potential cause of unconsciousness. The patient was then successfully treated with an intravenous glucose solution. Dr Aga says that this prompt action probably saved his life. Timing is of critical importance, since the brain can only use glucose for its energy needs and there would only be a few minutes of reserve supply.
12. Accordingly, it is Dr Aga's submission that there was no act or omission on his part which fell short of good medical practice or was capable of constituting misconduct. How then did the complaint arise which led to his coming before the Panel in 2010? I am only concerned with the charges labelled 8(a) and 8(b).
13. One of the curious features of this case, which is common ground, is that at some point the medical notes relating to Patient X were altered in respect of two timings. It is Dr Aga's case that these were forgeries, which he has tried to have properly investigated, but that is not a matter for me to determine in these proceedings. By the time of the hearing, the GMC was prepared to proceed on the basis of Dr Aga's timings to which I have already referred. He gave evidence on those times and was not challenged. The first alteration is rather obvious and had the effect of changing the timing of Dr Aga's visit to Patient X from 11.30 to 9.30. The second is an insertion at the side of Dr Aga's own note about Patient X's condition when he first saw him, which suggests that this took place at 10.50. If either were to be taken as accurate, of course the effect would be to give the impression that there had been a significant delay before the patient's plight was addressed. What the purpose of these alterations was, or who made them, is not now material to the decision I have to make. Nevertheless, they were mentioned at the hearing before the Panel and the expert called on behalf of the GMC, Dr Heading, stated rather breezily that the timings would have made no difference to his overall assessment.
14. For present purposes, I can proceed on the basis that Dr Aga was first notified of Patient X's presence in the hospital at 11.30, spotted that he was unconscious at 11.40 and put his management plan into execution by 11.45. It is thus clear that I am primarily concerned with the critical period of five minutes between 11.40 and 11.45. It is not suggested that at that stage Dr Aga should have acted in any way differently; nor is it suggested that Patient X in any way suffered as a result of any act or omission on Dr Aga's part. That is the context, however, in which the finding of misconduct came to be made.
15. The relevant charges were labelled as follows:

8. You failed to,

a) recognise hypoglycaemia as the cause of Patient X's impaired consciousness,

b) note the recurrent low blood glucose recorded in the case notes over the preceding day.

The Panel proceeded on the basis of Dr Aga's admissions in relation to each of these allegations. It will be noted, in the light of the case advanced by Dr Aga before me, that these admissions were of limited effect (and no doubt he would now regret having made them on an unqualified basis). He claims that the intended extent of the admissions he made was simply to acknowledge that he did not immediately on his arrival at Patient X's bedside "recognise hypoglycaemia" as the only possible cause of his impaired consciousness. He thought it so unlikely in the case of a hospital inpatient that he felt the need to canvass, mentally, other possible causes. It did not affect his conduct, however, and hypoglycaemia was determined within minutes when the blood glucose levels were checked. There is no allegation of a mis-diagnosis.

16. Secondly, it was the trainee doctor who did not immediately pick up the low blood glucose recorded in the case notes. In accordance with principle, Dr Aga submits that he should not be regarded as responsible for that failure, over the brief spell of time involved, since he had delegated the task in accordance with standard practice to his junior colleague.
17. Thus far, the case appears straightforward. As was pointed out by Mr Jaffey for the GMC, however, the presentation of his case before me appeared to differ somewhat from that advanced before the Panel. On that occasion, Dr Aga accepted that he could "kick himself" for not having immediately determined hypoglycaemia as the cause of the patient's unconsciousness. He sought to emphasise, however, in the course of his submissions, that the admission he was making and the regret he apparently expressed related purely to his mental processes. Had someone told him about the earlier hypoglycaemic episodes, either on the basis of personal observation or the content of the notes, he would have come to the conclusion even more speedily. For some reason, the blood sugar chart was not available at the bedside, along with the other charts, as would normally be the case. Had it been there, it would have immediately given him the relevant data. He also stressed that his admission did not in any way relate to his conduct (whether by act or omission). In so far as there was a failure to "recognise hypoglycaemia", it was short-lived and, in any event, had no impact upon the patient's wellbeing.
18. What Dr Aga said in his own evidence in chief before the Panel was this:

"When I heard that [Patient X had hypoglycaemia] I thought, how could I not think of that? I heard it with dismay because you really do kick yourself."

Furthermore, in cross-examination Dr Aga accepted that he had made "a glaring error". He also accepted that, as Dr Heading had put it, most consultants would have been horrified to have missed the diagnosis of hypoglycaemia. (Obviously, had he had direct access to the notes or the chart in time, he would not have done so.) It was also acknowledged on his behalf that he did not pick up the recurrent low blood glucose recorded in the case notes – having delegated the scrutiny of the notes to a trainee doctor while he himself was checking the online data.

19. What is more, Dr Aga's own expert, Dr Miller, had stated that it was a "significant error" for a doctor to miss hypoglycaemia. He also, rather curiously, stated that the fact that hypoglycaemia was picked up in the "sliding scale" (which, after all, Dr Aga himself had ordered) was "a serendipitous element". By this he meant, I take it, that it was no thanks to Dr Aga. What he actually said was this:

"What I am saying is that the diagnosis of hypoglycaemia was not thought about at the time by Dr Aga or his team, and that is regrettable but conceded was an error. But, nevertheless, he showed good physician skills, if you like, in other respects. Because he did the right thing for this patient in other respects that actually did retrieve the problem, but I do not think he is saying and I do not think I am saying that he said 'Put the patient on a sliding scale because I think the patient has hypoglycaemia'. He was saying, 'This patient is unconscious. We need to make sure their blood sugar is all right and therefore you have to measure it and adjust the insulin dose accordingly' and, in doing that, he made the diagnosis."

20. Dr Aga raises the query, rhetorically, how the expert(s) could possibly know what was going through his head at the time, but I leave that to one side. What is more significant is perhaps Dr Miller's acknowledgment that it was fortunate that the sliding scale was implemented "very quickly". That is consistent with paragraph 4(d) in his report (in the context of whether the timings might have been altered), where he said:

"I gather that it is likely that Dr Aga actually saw the patient around 11.35 and that the hypoglycaemia was in fact diagnosed very quickly once the patient became unconscious."

He later added, "The diagnosis was missed and we all miss diagnoses from time to time, regrettably, but other good general medical practice retrieved the situation". It is probably right to record that, at the end of his examination in chief, Dr Miller described Dr Aga as knowledgeable, competent, conscientious (wrongly transcribed as "contentious") and safe.

21. It was submitted on behalf of the GMC that there was "plainly an adequate evidential basis for the Panel's finding". It is said that Dr Aga is effectively inviting the court to substitute its own judgment for that of the Panel and that there is, accordingly, no basis for interfering with its determination by way of judicial review. Especially so, argues Mr Jaffey, in a case in which the Panel regarded the decision as borderline and deliberated on the issue for a long time. In such a case the court should, if anything, be even less inclined to second guess the judgment reached.

I must not, however, lose touch with reality. There is nothing to gainsay the timings I have set out above and, in the light of that, I cannot see how the "missing" of the hypoglycaemia diagnosis can be characterised as anything other than momentary. Nor is there any evidence that Dr Aga's mental processes in any way harmed the patient.

22. Reference was made by Mr Jaffey to the notes of the specialist diabetes nurse, Holly Jessop, compiled shortly afterwards in relation to this specific "clinical incident" on 19 November. She summarised the position in this way:

"The above patient was admitted via A & E to Kingfisher Ward on 14/11/07, a surgically expected admission. On 16/11/07, patient was transferred to Dickens Ward at 23.00. The blood glucose chart shows that for over 5 days, the patient had been experiencing continuous low blood glucose levels and repeated hypoglycaemia. Despite documented nursing notes highlighting this issue to the surgical consulting team, the on-call surgical/medical teams and Dr Aga's team, no reduction to the patient's insulin regime had been made. I was also unable to find documentation from any doctor regarding the care or management of the patient's Diabetes within the patient's medical notes. No referral had been made to the Diabetes Specialist Nurses.

On 19/11/07 at 11.45, whilst I was present on Dickens Ward reviewing another patient, I overhead a CSW reporting that the above patient had a blood glucose reading of 1.1mm ols/L and was unresponsive. Immediate corrective treatment was initiated by myself, Sr Sheenagh, SN Vanessa and Dr Aga's F1 doctor. Dr Aga's registrar was aware but not involved directly with the remedial treatment. Following patient recovery and blood glucose stability, patient became much more able to communicate and respond to command. The general overall attitude of senior doctors towards the patient's Diabetes appeared almost dismissive as the focus of care at that critical time was on the hepatic encephalopathy, not the Diabetic emergency. At that time there was little recognition and minimal documentation in the medical notes of the plan of care for the patient's Diabetes."

In these observations she made critical judgments very freely about various of the medical staff, but it is to be noted that, despite her reference to "Dr Aga's team", the low glucose level had not been drawn to his or their attention until at least 11.30 on the Monday morning. She seemed to be under the misapprehension that Dr Aga had been responsible for treating the patient over some or all of the preceding five days. Yet she did recognise, at least, that "immediate corrective treatment" was given and that the patient recovered once the blood glucose was stabilised. I do not attach much weight to this document, as it is not clear to what extent she had taken the trouble to establish the facts.

23. It seems clear that there was a regrettable lack of attention to the patient's blood glucose levels between 14 November and the morning of 19 November and also a lack of communication over that period – by reason of the fact that no one had drawn Dr Aga's attention to the patient's readmission until 11.30 on 19 November. I see no reason, however, why either of these shortcomings should be laid at the door of Dr Aga. He had to address the situation that suddenly confronted him from 11.30 onwards on the Monday morning.
24. At the heart of the Panel's determination in relation Patient X are the following passages:

"Of greater concern to the Panel was your failure to recognise hypoglycaemia as the cause of Patient X's impaired consciousness and to note the recurrent low blood glucose recorded in the case notes over the preceding day, both of which you admitted at the commencement of these proceedings. The Panel noted paragraph 2 of Good Medical Practice which states:

'Good clinical care must include:

(a) adequately assessing the patient's conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient's views, and where necessary examining the patient.'

Dr Robert Heading and Dr John Miller, experts called on behalf of the GMC and the defence respectively, both agreed that your failure to recognise hypoglycaemia as the cause of Patient X's impaired consciousness was a serious clinical error. The Panel has determined that this failure amounts to misconduct.

The Panel then went on to consider whether your fitness to practise is impaired as a result of that misconduct. In considering this question, the Panel took into account the concepts of insight, remediation and the risk of recurrence in accordance with the advice of the Legal Assessor.

The Panel considered that you had demonstrated insight by acknowledging your error in the case of Patient X throughout these proceedings. It noted that you had taken remedial action immediately following the incident by discussing the case of Patient X with Dr Andrew Gough the next day and, after that, at your team meeting. The Panel accepted the views of both expert witnesses that such an error is not likely to be repeated by you."

I do not see where either of the experts adopted the terminology of "serious clinical error". In any event, in the light of all the circumstances, the Panel came to the conclusion that Dr Aga's fitness to practise was not impaired by reason of the misconduct and the Panel was not minded to issue a warning.

25. I am very conscious of the need to pay due respect to the judgment and experience of the members of the Panel in coming to decisions about medical practice and professional conduct. Moreover, I should not substitute my judgment for theirs. It is against that background that I have to consider Dr Aga's submission that the conclusion that he was guilty of "misconduct" was irrational.
26. It seems to me that the following factors in the evidence are of particular significance:

i) The fact that Dr Aga's attention was not drawn to the presence of Patient X in the hospital, despite his readmission five days earlier, until 11.30 on the morning of 19 November.

ii) Thereafter he immediately broke off his ward round to investigate the patient's condition.

iii) After examining the online database between 11.30 and 11.40, and having deputed a junior doctor to examine the recent medical notes, Dr Aga appeared at the patient's bedside at 11.40.

iv) By 11.45 hypoglycaemia was diagnosed and glucose levels adjusted, with the result that the patient regained consciousness shortly thereafter and suffered no harm. The Panel did not suggest otherwise.

v) Dr Aga was surprised to find a patient suffering from hypoglycaemia while in hospital over a period of several days, never having encountered it before, and therefore briefly addressed, in his mind, the possibility of other causes of unconsciousness. This does not seem, however, to have delayed or diverted him from taking appropriate action.

vi) He applied the "Don't ever forget glucose" routine and put in place an emergency management plan which resulted shortly afterwards in a definitive diagnosis of hypoglycaemia.

vii) Within five minutes of his arrival at the patient's bedside, the patient was given the appropriate treatment and duly recovered.

viii) Dr Aga should have been informed that the patient had been readmitted on 14 November as soon as was practically possible, rather than being left in ignorance for nearly five days.

ix) Over that intervening period, his glucose levels should have been competently managed by whatever medical team was taking responsibility for his care.

x) At whatever point Dr Aga was informed of the patient's readmission, he should have been informed also of the recurrent hypoglycaemia.

xi) It was unfortunate that when he reached the patient the glucose chart was not, for whatever reason, available at the bedside.

xii) Although the information as to the hypoglycaemic episodes was contained in the notes, Dr Aga was fully entitled in the short time available to delegate the task of reading and summarising the medical notes to a junior doctor – while he was examining the information available online.

27. In the light of all this evidence, while it may be possible to criticise him for not having come to a final conclusion as to the cause of unconsciousness a few minutes earlier than he did, no act or omission has been established which in any way adversely affected the patient. He established the blood glucose levels and had them adjusted.
28. Bearing in mind the helpful summary of the legal principles by Jackson J, I take into account that this was one isolated episode. It is not a case of "multiple acts or omissions". Furthermore, in so far as this was "an act or omission" at all, I cannot see how it can be characterised as "particularly grave", so as to attract the attribution of "misconduct". In fact, Dr Aga may well be right in saying that he saved the patient's life. I am not attempting to substitute my judgment on a matter of medical knowledge, which I am wholly unqualified to do, but I am focussing on the use of ordinary language. The issue is whether it has been used appropriately in the context of what Lindblom J called "important issues bearing on the Claimant's standing in the profession".
29. I cannot see any rational basis for categorising what happened as "misconduct". I do not believe that any reasonable onlooker would apply that word to the events I have outlined. I will therefore quash the decision accordingly.