QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Dr Devinder Luthra
- and -
General Medical Council
David Pievsky (instructed by GMC Legal) for the Respondent
Hearing date: 8 February 2013
Crown Copyright ©
Mr Justice Mostyn :
"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"
i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings (CPR 52.11(3))
ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19).
iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18).
iv) The High Court will correct material errors of fact and 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 (para 20).
v) Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22).
"the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past."
Thus, the exercise is proleptic but the best prophet of the future is the past. (But we should also surely give ourselves the warning that appears on every financial product for sale that past performance is no guarantee of future returns.) By the same token, as Sir Thomas Bingham MR explained in Bolton v Law Society  1 WLR 512, there should be a full understanding by me of the reason why the FTPP makes an order which might otherwise seem harsh. The sanction may have consequences for the individual and his family which are deeply unfortunate and unintended. But that does not make the sanction the wrong order if it is otherwise right: "The reputation of the professions is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price." The reason that the reputation of the profession is so important is not a reflection of a collective amour propre. It is an aspect of the need to protect the public. The public must be able to approach doctors, lawyers and other professionals with complete faith that they are both honest and competent. Without that faith the problems that would arise are too obvious to state.
"That being registered under the Medical Act 1983, as amended,
1. You underwent a General Medical Council ("GMC") assessment of the standard of your professional performance ("First Assessment") on,
a. 24 to 26 January 2007 (peer review), and
b. 16 February 2007 (tests of competence)
2. In the peer review phase of the first assessment your professional performance was unacceptable in the following areas of Good Medical Practice:
a. Assessment of patients' condition,
b. Providing or arranging treatment, and
c. Record keeping;
3. In the peer review phase of the first assessment your professional performance was a cause for concern in the following areas of Good Medical Practice:
a. Providing or arranging investigations,
b. Arranging cover, delegation and referral,
c. Constructive participation in audit, assessment and appraisal, and
d. Paying due regard to efficacy and use of resources
4. In the tests of competence phase of the First Assessment, you undertook,
a. A knowledge test in which you scored 67%, which was below the minimum score of 68.68%,
b. A simulated surgery in which,
i. Your overall score was 45% which was below the minimum score of 50%, and
ii. Your performance was unacceptable in several stations
c. An Observed Structured Clinical Examination in which your overall score was 57% which was below the minimum score of 70%;
5. You underwent a further GMC assessment of the standard of your professional performance on 27 August 2009 ("Second Assessment");
6. In the Second Assessment, you undertook,
a. A knowledge test in which,
i. You scored 61.66% which was below the minimum acceptable score of 64.69%, and,
ii. Your level of knowledge was unacceptable
b. A simulated surgery in which,
i. Your overall score was 28.96%, which was below the minimum score of 50%, and
ii. Your performance was unacceptable, and
c. An Objective Structured Clinical Examination in which your performance was unacceptable.
And that by reason of the matters set out above, your fitness to practice is impaired because of your deficient professional performance."
"there was evidence of repeated or persistent failure to comply with the professional standards appropriate to the work being done by the doctor, particularly where this places patients or members of the public in jeopardy. This grade was entered when the assessors felt that there was evidence that the criteria for an acceptable level of performance were regularly not being met, or if negative criteria were being met."
" doesn't appear to have read notes - re previous breast cancer. Says shadowing in lung - this could be infection despite report - effectively lied to patient. Hints at the possibility of cancer but falsely reassures. Lots of jargon".
"Dr Luthra's performance [was] unacceptable in several stations. We have particular concerns around his inability to produce a coherent management plan on several occasions. We also noted that his explanation to patients was poor, particularly in breast cancer, diabetes and chest pain patients."
i) We recommend that Dr Luthra should not work as an independent general practitioner, as a locum, or for an out of hours service until such time as he can satisfy the GMC that he has reached the required standard.
ii) We recommend that Dr Luthra be given the opportunity to undertake further training in the form of an assessment and training period in an approved training practice. The practice would engage in supervised consulting sessions and tutorials based on the findings of this report.
iii) If the practice felt that sufficient progress had been made during this period then the period could be extended so that Dr Luthra would be working as a GP registrar for a further period of 3 to 9 months.
iv) We recommend further review by the GMC at the conclusion of this period.
i) the standard of the appellant's professional performance had been deficient;
ii) the appellant was not fit to practise at all; and
iii) the appellant should cease professional practice.
i) no action;
ii) the imposition of conditions on the doctors registration for a period of up to 3 years;
iii) suspension for up to 12 months;
iv) erasure (although this sanction is not available in a case that relates solely to a doctor's health).
The panel is required, for obvious reasons, to work its way up the ladder starting at the bottom.
"Dr Luthra has been given numerous opportunities which he has not, or has not been capable, of taking advantage. This cannot go on for ever. The performance assessments took the view that he is not fit to practice at all. He might ask for another chance to prove himself, but ... there is simply no realistic prospect of this doctor being remediated to a sufficient standard within a reasonable period of time to enable him to practise without restriction. ... His insight into his level of competence and his capability, or potential, to improve is lacking, such that the prospect of successful retraining is negligible and, therefore ... conditions or suspension would not be sufficient to maintain public safety or public confidence in the profession".
" this is not a doctor whose position is hopeless, who could never pass these exams, who has little insight into the difficulties or the insufficiencies of his performance, but somebody who is worthy of further consideration and opportunity with a sanction less than erasure to at least try again to see whether he can rescue the situation in terms of his education and his training".
"The panel finds that your lack of knowledge and skill amounts to a particularly serious departure from the principles set out in Good Medical Practice. The panel is satisfied that your performance has been shown to be fundamentally incompatible with that of a doctor. You are likely to present a risk to patients if you were to practise medicine. The panel concludes that in the foreseeable future there will be no avenues open to you through which you can retrain, since your level of knowledge is too low for you to gain access to a recognised training programme."
i) The panel failed to bear properly in mind the following parts of the Indicative Sanctions Guidance:
a) The Panel may erase a doctor from the register in any case except one which relates solely to the doctor's health where this is the only means of protecting patients and the wider public interests, which includes maintaining public trust and confidence in the profession (paragraph 77); it is not clear that in the circumstances set out below this was the only means of protecting patients and thus erasure was disproportionate.
b) There is a (non exhaustive) list of circumstance in which erasure may be appropriate (paragraph 82) the only one that can be said to be relevant to Dr Luthra is the first "Particularly serious departure from the principles set out in Good Medical Practice" but in the Panel's impairment decision they do not set out (somewhat unusually) what the specific departures from Good Medical Practice were only stating that Dr Luthra's "performance is deficient and seriously below the standard expected of a medical practitioner as set out in Good Medical Practice" to enable Dr Luthra and members of the public to understand what the departures were;
ii) In assessing whether erasure was the only means available to them, the Panel, in their sanction decision, do not appear to given sufficient weight to the positive aspects of Dr Luthra's performance, particularly in the 2007 GMC Performance Assessment including the fact that Dr Luthra scored, in the peer review, 7 areas that were assessed as 'Acceptable' which critically included working within the limits of his competence against 3 Cause for Concerns and 4 Unacceptables. The Panel recognised 'some positive aspects to your medical practice, such as your caring manner and your ability to maintain good relationships with your colleagues'. However, critically, the Panel did not acknowledge the other positives that were found, which are much broader than a caring manner and included:
a) Respect for Patients, Trust and Confidentiality
b) Communication with Patients
c) Treatment in Emergencies (but based on limited information)
d) Working within limits of Competence
e) Working within Laws and Regulations
iii) A demonstrated ability to work within limits of competence and within laws and regulations must be a relevant consideration in assessing the ability of a doctor to recognise their deficiencies and respond to retraining this aspect is not addressed in the Panel's decision yet is clearly an important factor in assessing whether erasure was the proportionate response. There was no opportunity for these aspects to be re-demonstrated in the 2009 Performance Assessment because there was no peer review component in this assessment and the retraining and supervision recommended in the 2007 assessment had never been realised;
iv) The Panel do not appear to have given sufficient weight to the fact that the 2007 Performance Assessment identified training needs:
"We recommend that Dr Luthra be given the opportunity to undertake further training in the form of an assessment and training period in an approved training practice."
That Dr Luthra never had any further training in an approved training practice and that the issues identified appeared to be a skills gap and training need the proportionate response would have been to allow him more time to demonstrate his ability to increase his knowledge base. In 2007 it was concluded that 'his knowledge base is low but is around the minimum acceptable standard" and there were issues as to inadequate management plans and unfocussed history taking again suggesting the need for remedial training which the 2009 Performance Assessment confirmed Dr Luthra had not had;
v) The Panel, in their sanction decision, appear to place undue weight on lack of remediation in reaching their decision to erase, despite the fact that with being out of practice since July 2006, Dr Luthra had not had the opportunity to demonstrate remediation of any of the deficiencies in any clinical setting; There are inconsistencies between the Panel's determination on impairment and sanction in relation to the courses Dr Luthra had undertaken. In the impairment decision the Panel concluded that they had serious doubts that the deficiencies could be remedied because of the little gain from courses attended. Suggesting the courses were relevant but still resulted in little gain. Whereas, in contrast, at sanction stage, the Panel was "concerned that you appear to have submitted yourself to many courses and lectures with little regard as to whether they are appropriate remedies for your deficiencies" .
vi) The Panel, in their sanction decision, do not appear to have considered the ability of Dr Luthra's insight into his deficiencies to be amenable to improvement in assessing whether erasure was the proportionate response; particularly in light of a) his engagement with the GMC Performance Assessment processes, b) his engagement with the GMC FTPP proceedings, c) the fact that he did not challenge the allegation against him and accepted the findings of the Performance Assessments and d) the fact that Dr Luthra accepted impairment;
vii) The Panel, in their sanction decision, do not appear to give any consideration to the personal component - the impact erasure (where no application can be made for restoration before 5 years have elapsed) would have on an individual at the latter stages of his career (Dr Luthra is currently 70 years old) by depriving him of the only profession he has ever known at a time when he wants to continue in work and continue contributing to society;
viii) The Panel, in their sanction decision, do not appear to have given full consideration to the possibility of suspension as a proportionate sanction, which could have afforded Dr Luthra the opportunity to address issues of remediation and insight at a future review hearing without closing the door on a career that pre 2006 was unblemished and long, particularly given the email referenced in the sanction decision from Dr Julia Whiteman which indicated that with robust evidence of improvement a further fresh attempt to the I&R could be allowed; it would have been proportionate to suspend to afford Dr Luthra this opportunity to increase his knowledge base during any period of suspension, in light of the positive aspects of his practise that were found, particularly during the 2007 Performance Assessment;
ix) Finally, because an appeal under s.40 is by way of rehearing, the court is invited to take into account, as a relevant factor, when assessing proportionality of sanction, the time that has elapsed since the original decision (almost 2½ years), particularly in light of Dr Luthra's age, if this sanction were to be upheld now Dr Luthra would face a 5 year period before he could apply for restoration, at which point he would be at least 75, when he has, already been under an immediate suspension order since the substantive determinations were made against him in August 2010.