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
		24/07/2013

Mr Justice Dingemans:

Introduction

1. This is an appeal, pursuant to the provisions of section 40 of the Medical Act 1983, by Dr Khan against the decision of the Fitness to Practice panel ("the panel") dated 1 June 2012. The circumstances which gave rise to these proceedings arose out of the treatment of a patient known as RR, who underwent a procedure known as "BodyTite" on 21 March 2010 while under conscious sedation. "BodyTite" is a fat reduction procedure where fat is heated, coagulates, and is then removed. This procedure is said to be less invasive than liposuction
2. The panel found Dr Khan guilty of misconduct, and held that his current fitness to practice was impaired such as to justify a sanction of imposing conditions on his registration for 12 months. These conditions, which effectively mirrored undertakings which had been offered by Dr Khan, were directed to ensuring that there was a separate person responsible for monitoring and recording vital signs from sedated persons. As was made clear on behalf of Dr Khan, in circumstances where he had offered undertakings effectively identical to the conditions which were imposed on him, this appeal was directed mainly to the preservation of his reputation, and it appears that Dr Khan has many high profile clients. In these circumstances it is fair to record that there was no complaint about the clinical outcome of the "BodyTite" procedure undertaken on RR.
3. Dr Khan challenges: some of the findings of fact made against him; the finding of misconduct; the finding that his fitness to practice was impaired; and the imposition of any sanction on him. The General Medical Council ("GMC") resists the appeal on the basis that: the findings of fact were properly made; the finding of misconduct was right; Dr Khan's fitness to practice was impaired; and the sanction of imposing conditions was a proper sanction.

The parties

4. Dr Khan is a GP. He and his wife are directors and the owners of the shareholding of the Harley Street Skin Clinic Limited ("the Skin Clinic"), a company that operates a cosmetic surgery clinic in Harley Street.
5. At the material time Dr Khan also ran a NHS practice at the Bournville Surgery in Bournville, Birmingham. The NHS practice also had a minor surgery room where some private cosmetic procedures were carried out for the Skin Clinic. Dr Khan was in the process of winding down his involvement in Bournville, and the operation giving rise to these proceedings was the last operation carried out by Dr Khan at the Bournville Surgery.
6. The GMC has a statutory duty to investigate whether a doctor's fitness to practice is impaired, and has a statutory objective to exercise its powers "to protect, promote and maintain the health and safety of the public".

RR's "BodyTite" procedure

7. In 2010 three female friends, RU, KJ and RR, ("the patients") approached the Bournville clinic to have the "BodyTite" procedure carried out on them. It appears that all three were expecting a female chaperone to be present at the operation.
8. In the course of discussions about prices with Mr Gibson, who appears to have been the financial director of the Skin Clinic, although not a Companies Act director, a discount was agreed from original prices which had been quoted. Part of the reason for the discount was because the areas on which the procedure were to be performed was reduced, part of the reason for the discount was because cash was paid up front, and part of the reason for the discount was because all three patients would be treated on one day. It is common ground that offering a group discount is objectionable, as it means that a patient may come under informal group pressure to undergo an elective procedure. The circumstances in which the discount was agreed, and Dr Khan's responsibility for the agreement, are controversial.
9. The surgery was carried out on Sunday 21 March 2010. Dr Khan had driven up from London to carry out the procedure. It had been planned that his nurse, Vicki Hill, would be present. She would have carried out monitoring procedures and would have been the female chaperone to RU, KJ and RR. It appears that at some late stage on Saturday it became clear that Vicki Hill would be unable to attend on Sunday. Dr Khan had then planned that his wife would attend and act as chaperone, but in the event their daughter was unwell. Dr Ismail and Mr Gibson therefore became, in effect, the chaperones.
10. Mr Gibson who was not medically qualified, and Dr Ismail, who was observing the procedures so that he could carry them out in the future, were present at the operations. The exact roles performed by Mr Gibson and Dr Ismail are controversial.
11. RU and KJ had their procedures performed first, but they suffered some discomfort during the procedure. There were very thorough records kept of their procedures.
12. RR went last, and Dr Khan suggested conscious sedation to RR so that she would not suffer, or remember, the same discomfort. An issue arose about whether due consent had been provided for this conscious sedation, but this issue was resolved in favour of Dr Khan at the hearing before the panel. 10 mg of midazolam (intravenously) and 12.5 mg of stemetil (intramuscularly) were administered, and the panel found that the midazolam had been administered over the course of the procedure. This followed premedication of various amounts of pethidine, diazepam, metoclopramide, paracetomol and co-amoxiclav. The procedure for RR lasted some 2.5 hours.
13. RR had reported, in an email dated 9 March 2010, that her husband had asked if he could be present at the procedure. This request had been turned down by Mr Gibson in an email of the same day because of contamination risks and the lack of room in the procedure room.
14. On 21 March RR had texted her husband noting that she had her premedication at 4 pm, and was going to surgery at about 4.50 pm.
15. RR's husband attended the Bournville Surgery. He found the door to the surgery locked and became concerned. He was let in, became worried that his wife had been sedated, and was in a room alone with 3 men unknown to him. He demanded to be present during the procedure, and it appears that his anxiety "was apparent and he regularly stepped in to cover his wife up when towels/covers appeared to fall down". It appears that the atmosphere in the operations room became tense, and it is common ground that no proper records of RR's procedure were made.
16. After the procedure had been carried out RR left with her husband. Another area of controversy related to her post operative care.

Relevant statutory provisions governing misconduct proceedings

17. Section 35(C) of the Medical Act 1983 applies where an allegation is made to the GMC against a fully registered person that his fitness to practice is impaired. A person's fitness to practice is regarded as impaired by reason of "misconduct".
18. If the panel find that a person's fitness to practice has been impaired by misconduct the panel may, among other sanctions, direct that registration shall be conditional on compliance with "such requirements so specified as the panel think fit to impose for the protection of members of the public or in his interests".
19. The General Medical Council (Fitness to Practice) Rules 2004 provide, at rule 17, that the panel shall make: findings of fact; then decide whether the practitioner's fitness to practice is impaired; and then decide what, if any, sanction should be imposed.

The proceedings and the decision of the panel

20. After a hearing and findings of fact on the allegations, which took place over 12 days between 17 May 2012 and 1 June 2012, the panel made its determination and announced its decision. The decision was repeated in a letter dated 6 June 2012.

Relevant factual findings

21. There were 10 separate factual allegations which were addressed by the panel.
22. The findings which are challenged on this appeal are the determinations on charges 1, 6, 7 and 10.
23. Allegation 2 (to the effect that Dr Khan did not record relevant document information in the preoperative clinical assessment) and allegation 9 (that Dr Khan did not record relevant information in the operation note) were found proved. Dr Khan had made admissions to this effect, and the findings were not challenged on appeal.
24. Allegation 3 (about obtaining informed consent), allegation 4 (about maintaining the dignity of RR during the procedure), allegation 5 (about failing to provide good clinical care in relation to the chaperone) and allegation 8 (about administering the 10 mg of Midazolam in one bolus) were found not proved.
25. Allegation 1 was to the effect that Dr Khan had failed to provide good clinical care in that "you unreasonably induced patient RR to accept surgery by agreeing to undertake financially discounted cosmetic surgery … if all three patients booked together".
26. The panel accepted that RR, RU and KJ had approached the clinic with set deadlines for the procedures and with a view to obtaining a discount. The panel referred to an email dated 25 February 2010 from Mr Gibson and the medical notes. The panel concluded "As the clinic/managing director you were aware of the costs quoted and the agreement which involved all three patients being seen on the same day. The panel does not accept that Chris Gibson was acting on a `frolic of his own'".
27. Allegation 6 was to the effect that that Dr Khan had failed to provide good clinical care in that "you did not have a suitably trained individual with responsibility for monitoring patient safety and making a written record present throughout patient RR's procedure".
28. The panel recorded the details of experts who had given evidence, and noted that none had direct experience of the procedure being performed by Dr Khan. The panel accepted that "there was a suitably trained person present throughout the procedure: you" but went on to say "However, given the responsibilities already upon you due to the complexity and length of the surgical procedure you were carrying out, there was not another suitably trained individual present, other than yourself, who was solely responsible for the monitoring of the patients safety and making a written record throughout the procedure".
29. Allegation 7 was to the effect that Dr Khan failed to provide good clinical care in that "you did not ensure that the times of administration of patient RR's sedative medicine and vital signs were monitored and recorded".
30. The panel noted that Dr Khan had admitted that there had been a failure to record the timings of the administration of each dose of sedative. The panel accepted that it was not a requirement but recorded "during an invasive procedure such as this, lasting 2.5 hours, it would have provided good clinical care to ensure such recordings were completed despite noting that patient RR maintained full oral communication with you throughout the procedure". The panel recorded that the only monitor of vital signs was by pulse oximetry which was not under constant surveillance, and that RR's vital signs had not been recorded at any time. The panel recorded that Dr Khan did review the reading on the pulse oximetre from time to time and noted that the experts had not criticised that from their own expertise.
31. Allegation 10 was that Dr Khan had failed to provide good clinical care to RR in that "your post-operative clinical care of patient RR was inadequate". The panel found that Dr Khan, partly because of the strained circumstances caused by the presence of RR's husband, had failed to take appropriate physiological monitoring. The panel also noted that patient RR's GP was not contacted about the procedure, even though RR had given consent for this to happen, and this was not noted anywhere on the documentation.

Finding of misconduct

32. The panel recorded it was concerned about Dr Khan's evidence about Mr Gibson and Dr Ismail's involvement. The panel set out guidance set out in paragraph 54 of Good Medical Practice about delegation. This recorded "Delegation involves asking a colleague to provide treatment or care on your behalf. Although you will not be accountable for the decisions and actions of those to whom you delegate, you will still be responsible for the overall management of the patient, and accountable for your decision to delegate".
33. The panel noted that in failing to record relevant documentation information pre-operatively, by failing to monitor and record vitals signs during the procedure, and by failing to uphold an adequate standard of post-operative care, Dr Khan had failed to ensure RR's safety and did not maintain proper standards of conduct and behaviour. The panel accepted that a failing on a single episode was less likely to amount to misconduct but recorded that this involved failings before, during and after the operation. The panel concluded that Dr Khan's part in the inducement, the lack of clinical care before during and after the procedure, and his lack of consideration for the safety of RR were serious and amounted to misconduct.

Finding of impairment

34. The panel reflected on testimonials, Dr Khan's evidence and his current insight. The panel recorded concerns that Dr Khan's intentions for remediation had not translated into direct action, partly because he had been waiting for the outcome of the proceedings. The panel noted that despite attending meetings and courses Dr Khan had not gained any insight into his practice of monitoring patients and his care of them and in one appraisal letter Dr Khan had reported that he had learned that not all patients are "nice". The panel considered that there was an absence of reflective thinking. The panel determined that Dr Khan's fitness to practice was impaired by his misconduct.

The sanction

35. The panel considered that accepting the undertakings offered would not be satisfactory because the panel would not be able to consider matters at a review hearing. Taking no action would not be either sufficient or proportionate. The panel recorded that Dr Khan had not fully addressed areas of practice, and had not fully understood the importance of having someone qualified, apart from Dr Khan, present at procedures requiring sedation or anaesthetics. Conditions were then imposed.

Legal approach to the appeal

36. It was common ground that in hearing this appeal I had to have regard to the following factors: (1) this was a specialist tribunal whose understanding of what the medical profession expects of members deserves respect; (2) the tribunal had the benefit of seeing and hearing witnesses; (3) questions of primary and secondary fact, and the overall value judgment, are effectively jury questions as to which there may be reasonably different answers; see Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462 at paragraph 197 and Bhatt v General Medical Council [2011] EWHC 783 (Admin) at paragraph 9. It is also clear that, in order to give effect to the statutory right of appeal, it is the duty of the Court to intervene in appropriate cases where there are findings which are wrong.

Issues to be decided

37. In the course of the helpful submissions from both Mr Haycroft and Mr Hare, the issues for the appeal were refined. It now appears that the issues for decision are: (1) whether any of the factual findings in respect of allegations 1, 6, 7 and 10 should be set aside; (2) whether the finding of misconduct should be set aside; (3) whether the finding of impairment should be set aside; and (4) whether the sanctions should be set aside.

Panel's finding on allegation 1 correct

38. The essence of Dr Khan's challenge to allegation 1 is that as a matter of general practice he was not involved in the financial side of the business, the giving of discounts was a matter for his wife and Mr Gibson, in this case it was Mr Gibson who made the relevant financial discounts and the objectionable agreement of a group discount by email which had not been seen by Dr Khan, and that there was no personal failing on the part of Dr Khan.
39. It is necessary to set out some detail about the meetings and communications with RR, RU and KJ leading up to the procedures. As a matter of chronology Dr Khan saw RR under her maiden name on 13 January 2010, and her relevant medical history and some findings on examination were recorded by Dr Khan in his notes.
40. On 17 February KJ attended the Bournville Surgery. She completed a medical history questionnaire, and saw Mr Gibson who made notes about her medical history and discussed possible procedures, including BodyTite and Smart Lipo, and prices.
41. On 24 February RR returned, using her married name, with KJ and RU. RR completed a medical history questionnaire. She saw Mr Gibson. Some medical history was set out, and prices were quoted. It was recorded that she wanted the procedure carried out before 3 April, and on the same day as KJ and RU. KJ's notes from the 24 February record that BodyTite was the preferred procedure and that she wanted "a deal". RU's first attendance was on 24 February. She completed a medical history questionnaire and also saw Mr Gibson. He noted areas for the procedure and noted that RU had "asked for discount", and he recorded that he would check.
42. On 25 February 2010 Mr Gibson emailed RR. This was sent from his Skin Clinic email address. He said "I have just confirmed after moving appointments around that we can do all three on Sunday 21 March … I would suggest that you would go last with [RU] first and [KJ] second but I am sure you will all discuss this". It is apparent from the fact that a date, on a Sunday, had been given for all three patients to be the subject to procedures by Dr Khan, that Mr Gibson must have spoken with Dr Khan about arrangements for all 3 patients to attend together. Mr Gibson continued "… I will need all three confirmed to cover the day if the following discounts can be applied …". The email continued "… assuming all three are confirmed I can offer you of 10 per cent …". A further discount, making a total discount of 15 per cent, was offered if advance payment was made in full.
43. On 3 March 2010 on RU's notes it is recorded by Mr Gibson that Dr Khan had confirmed the price of £6,000 (which Mr Gibson had quoted on 24 February) and Mr Gibson also recorded that RU "will transfer £5,100 with 15 % discount if paid next week".
44. On 9 March RR emailed Mr Gibson with her query about the attendance of her husband and questions about what she could eat before the procedure.
45. On 16 March RU was seen by Dr Khan. He noted various physiological readings. He noted scarring from previous procedures and discussed the need for conscious sedation.
46. As recorded above the procedures took place on 21 March. It is common ground that Dr Khan had access to the notes made by Mr Gibson.
47. Dr Khan gave some evidence about what he knew about discounts at the hearing before the panel. He said discounts were left to his wife and Dr Gibson (D5/9E). Dr Khan said that he did not discuss discounts with RR. He was asked whether he had sanctioned any discount for her, and said he was not aware of any discussions being made at that time. Dr Khan said it was not ethical to persuade someone to do surgery because of the price.
48. Dr Khan was questioned about Mr Gibson's email dated 25 February 2010 and the proposed group discount (D5/68C-69G). In the course of that exchange Dr Khan agreed that the email represented an encouragement for all three to have surgery at the same time and accepted "that responsibility in this consent process …? yes" [D5/68E], said that he had not had any discussions with Mr Gibson about costings, recorded that the business had grown and that office procedures had changed since the issue had been highlighted, and when asked whether he would accept responsibility for Mr Gibson said "absolutely … Q. For his actions? A. Absolutely" [D5/69C-D]. Dr Khan said that Mr Gibson had either been unaware of the policies or been working outside them. Mr Gibson had subsequently been disciplined.
49. Mr Haycroft in his submissions for Dr Khan said that the panel should not have relied on Dr Khan's acceptance of responsibility for Mr Gibson's actions. Dr Khan had simply accepted responsibility, which he had as a director and owner of the Skin Clinic, for the actions of Mr Gibson. It was, on a close textual analysis of the answers, nothing to the thing in terms of Dr Khan's professional conduct.
50. I do not accept those submissions. These were proceedings directed solely to the issue of Dr Khan's professional conduct, they were not private law proceedings in tort or for breach of contract. The answer was given on day 5 of the hearing. Dr Khan, a successful professional man, must have known what he was accepting by saying that he accepted responsibility. The acceptance was against a background where Dr Khan was, with his wife, the director and shareholder of the Skin Clinic. He had professional responsibilities for delegation and continuing responsibilities for the overall management of the patient as set out in paragraph 54 of Good Medical Practice (see above). He had seen the medical notes which contained references to deals, all three patients being done together, and a discount to £5,100. In these circumstances it seems to me that, properly analysed, Dr Khan was rightly accepting his professional responsibility for the fact that he had operated on RR who had been offered an inappropriate inducement by Mr Gibson. The fact that the panel, which had heard and seen Dr Khan give evidence, came to the same conclusion (by saying that they did not accept that Mr Gibson was acting on a frolic of his own) fortifies me in this conclusion about his responsibility.
51. I should note, out of fairness to Dr Khan, that the panel appear to have accepted his evidence that he had not seen Mr Gibson's email. The panel did record that Dr Khan was aware of the costs quoted, which is because it was set out in the medical notes. He was also aware of the agreement that all three patients would be seen on the same day, because he was carrying out the procedure. Although Dr Khan did not see the email, this did not absolve him from his professional responsibilities for ensuring that he did not carry out procedures, in a clinic operated by a company which he jointly owned with his wife, on patients who had been offered inappropriate discounts.

Findings on allegations 6, 7 and 10 upheld

52. Some of the material relevant to the challenges to the findings on allegations 6, 7 and 10 overlap.

Allegation 6

53. The guidelines on "Safe Sedation Practice" include a table setting out a précis of existing guidelines on safe sedation practice. These provide that "a suitably trained individual, present throughout the procedure, must have a defined responsibility for monitoring patient safety and making a written record".
54. This guidance applies to conscious sedation. Dr Khan was the person monitoring RR. He spoke to her, he heard the bleeps from the pulse oximetre, and it seems that he checked the readings every 5 minutes or so. However he did not record the readings, and could hardly do so in circumstances where he was carrying out the procedure. It appears that it was intended that Mr Gibson should record readings from the pulse oximetre recordings read out by Dr Khan. Mr Gibson did not do so, perhaps because of the atmosphere in the minor surgery room given the presence of RR's husband, and perhaps because the evidence indicated that he was not present throughout the whole of the procedure. For whatever reason there was no person responsible for making a written record, and the finding made by the panel was properly made.

Allegation 7

55. The panel concluded that it would have been good clinical care to record the timings of the administration of the sedative medicine and vital signs. It was suggested on behalf of Dr Khan that although this was now recognised as good practice, it was not recognised at the time.
56. This seems to me a finding of fact where medical expertise is pre-eminently engaged. It paid proper regard to the expert evidence. It was noted that the procedure had lasted 2.5 hours. There was talking to the patient RR during the process. However there was no person monitoring the pulse oximetre on a constant basis, as the evidence showed that readings were taken and read out every 5 minutes or so, and the noise (to show proper functioning) was heard. There was a proper basis for the finding.

Allegation 10

57. The panel found that there was inadequate post-operative care, and Dr Khan accepts that the panel was entitled to make this finding because the panel found that Dr Khan had not taken appropriate physiological monitoring of RR after the procedure. Dr Khan challenges only that part of the finding which related to the failure to contact RR's GP. It is clear that there was a failure to contact RR's GP, but Dr Khan says that he could not do so because he did not have consent. It does not appear that the panel made any finding in this respect. The panel simply recorded that RR said that she did consent for this to happen, and also to have noted that it was not provided anywhere on the documentation.
58. In these circumstances it does not seem to me that the panel made a determination about contacting the GP. The panel did decide that the post operative care was inadequate because there had been no physiological monitoring.

Misconduct, impairment and sanctions

59. Mr Haycroft accepted in submissions that if the factual allegations were not set aside there was not much realistic prospect of setting aside the findings of misconduct, impairment and sanctions.
60. It might be noted, in Dr Khan's favour, that there was evidence showing that his care of patients RU and KJ had been good, and the notes exemplary. There were a number of complicating factors which contributed to the failures. These included: the winding down of work at Bournville; the unexpected absence of a female chaperone; the late decision to provide conscious sedation to RR; and the presence of RR's husband in the procedure room.
61. That said the need for proper monitoring and recording in relation to RR was heightened, when compared with KJ and RU, because RR was subject to conscious sedation. The findings of the panel on misconduct, impairment and sanctions were, in my judgment, coherent, reasonable and right.

Conclusion

62. For the detailed reasons given above I dismiss this appeal.