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
		14/11/2013

Mr Justice Phillips :

1. Mr Hussein is a registered doctor and a consultant orthopaedic surgeon with a special interest in spinal surgery. On 8 November 2012 a Fitness to Practise Panel ("the Panel") of the General Medical Council ("the GMC") directed that Mr Hussein be suspended for three months, finding that he was guilty of misconduct in providing medical care to a person with whom he had a close personal relationship and in the way in which he provided such care, the misconduct being considered sufficiently serious that his fitness to practise was impaired.
2. Mr Hussein appeals to this court pursuant to section 40 of the Medical Act 1983. The principal issue on the appeal is whether the Panel was wrong in its finding that, when a registered doctor introduces a friend or relative to a medical colleague for the purposes of medical advice or treatment, however informally, the doctor (a) is thereby taking responsibility for the medical care of that friend or relative and (b) is to be considered as making a 'referral', requiring the doctor to comply with professional obligations as to the provision of adequate medical information to the receiving doctor and communicating with the patient's general practitioner ("GP").

The facts

3. The essential facts were not in dispute in the appeal and can be summarised as follows.
4. Between 2005 and 2009 Mr Hussein, whilst he was employed at the Princess Alexandra Hospital NHS Trust, was in a close personal relationship with a woman referred to in these proceedings as RJ. On four occasions during that period RJ complained variously of discomfort, stomach pains and vaginal bleeding, all associated with possible pregnancy. On each of those occasions Mr Hussein contacted one of his colleagues, a consultant obstetrician and gynaecologist referred to in these proceedings as AS, and asked AS to see RJ by way of a private consultation. As a result RJ attended consultations with AS on 7 September 2005, 12 September 2006, in late December 2006 and on 9 September 2009.
5. When agreeing to the first consultation, AS suggested to Mr Hussein that it would "speed things up" if RJ had an ultrasound scan prior to the consultation. On 7 September 2005 Mr Hussein himself arranged such a scan at the private hospital where RJ was due to see AS (and where Mr Hussein also conducted a private practice), the scan results being sent to AS and not to Mr Hussein. It was common ground that RJ could have ordered such a scan herself, the approval of a doctor not being essential.
6. At the second consultation AS advised that RJ should have an urgent surgical procedure. The next morning, 13 February 2006, RJ was admitted to the Princess Alexandra Hospital, where AS carried out the procedure. Later that day Mr Hussein, despite being recorded in RJ's hospital notes as her next of kin and as a 'close relation', authorised RJ's discharge from the hospital by writing in her notes "[Patient] would like to go home. She is fit to go".
7. On 27 December 2006, prior to the third consultation, Mr Hussein ordered another ultrasound scan of RJ, again at the suggestion of AS, but this time at the NHS hospital.

The GMC's allegation and the Panel's findings

8. In September 2012 the GMC alleged, by way of a Notice of Hearing, that Mr Hussein had been guilty of misconduct in relation to the above matters, such that his fitness to practise was impaired. Paragraphs 3 and 4 of the allegation related primarily to the discharge of RJ from hospital on 13 February 2006, alleging (in paragraph 3) that Mr Hussein took over the management of RJ's gynaecological condition and (in paragraph 4) that he provided medical care to a patient with whom he had a close personal relationship. On 8 November 2012, at the conclusion of the hearing before the Panel, both of these aspects of the allegation were found proved and those findings are not appealed by Mr Hussein, at least in so far as they relate to his authorisation of RJ's discharge from hospital.
9. Paragraphs 1, 2, 5 and 6 of the allegation each related to one of the four consultations with AS, each alleging that Mr Hussein had referred RJ to AS but, in so doing, did not provide AS with an adequate history or adequate clinical information and did not inform RJ's GP of the referral. Sub-paragraphs 1(c), 5(c) and 6(c) also alleged that, when making the referral in question, Mr Hussein provided medical care to a patient with whom he was in a close personal relationship.
10. Mr Hussein accepted that he did not provide a medical history or clinical information to AS on any of the four occasions and that he did not contact RJ's GP at any stage. Mr Hussein's case was that he was not RJ's doctor (and did not have access to her medical records) and was not making a formal referral as a doctor so as to come under a professional obligation to provide adequate information and to notify RJ's GP. He contended that he was doing no more than making an informal introduction in his personal capacity.
11. In its decision of 8 November 2012 the Panel found that paragraphs 1, 2, 5 and 6 were also proved, deciding that Mr Hussein had indeed referred RJ to AS, engaging professional obligations to share information and to ensure a continuity of care.
12. The Panel determined that the matters it had found to be proved amounted to serious misconduct by Mr Hussein, that his fitness to practise was impaired as a consequence and that he should be suspended for three months.

The relevant GMC guidelines

13. The GMC publishes guidance, known as Good Medical Practice ("GMP"), as to what is expected of all registered doctors. GMP contains warnings (worded differently in different editions) to the effect that serious or persistent failure to follow the guidance will put a doctor's registration at risk. The editions of GMP relevant to the allegations against Mr Hussein are those published in May 2001 and November 2006. A new edition was published in April 2013, after the Panel's decision in this case.
14. The November 2006 edition of GMP (in force at the time of the third and fourth consultations) expressly warned registered doctors that "wherever possible, you should avoid providing medical care to anyone with whom you have a close personal relationship" (paragraph 5). The edition in force at the time of the first two consultations, the 2001 edition, did not make reference to such a restriction, but the Panel found (based on evidence of the GMC's expert witness, Mr Mosken Iskander, which evidence Mr Hussein did not dispute) that there was nevertheless a general and widely understood consensus, prior to November 2006, that providing medical care to friends or family was wrongful. It follows that there was no dispute before the Panel or on this appeal that, to the extent that Mr Hussein did provide medical care to RJ, whether before or after November 2006, he was guilty of misconduct.
15. As explained above, Mr Hussein no longer disputes that he wrongfully provided medical care to RJ on 13 February 2006 by discharging her from hospital. The principal remaining issue is whether Mr Hussein's actions in arranging the four consultations were 'referrals' so that he is to be regarded as having provided medical care to RJ and to have been obliged to act as a referring doctor.
16. As for the meaning of 'referral' in this context, both the 2001 and 2006 editions of GMP stated as follows (paragraphs 47 and 55 respectively):

"Referral involves transferring some or all of the responsibility for the patient's care, usually temporarily and for a particular purpose, such as an additional investigation, care or treatment, which falls outside your competence"

17. Under the heading "Sharing information with colleagues", the 2001 edition of GMP provided as follows:

"44. When you refer a patient, you should provide all relevant information about the patient's history and current condition.

45. If you provide treatment or advice for a patient, but are not the patient's [GP], you should tell the [GP] the results of the investigation, the treatment provided and any other information necessary for the continuing care of the patient, unless the patient objects. If the patient has not been referred to you by a [GP], you should inform the [GP] before starting treatment, except in emergencies or when it is impracticable to do so …"

18. Those provisions are reproduced in identical terms in paragraphs 51 to 53 of the 2006 edition of GMP, save that the last sentence was revised so as to provide: "If the patient has not been referred to you by a [GP] you should ask for the patient's consent to inform their [GP] before starting treatment …".

The Panel's approach and reasoning

19. The GMC's expert witness, Mr Iskander, a consultant gynaecologist, stated when cross-examined that he did not consider that Mr Hussein was making an official referral from one consultant to another and therefore this was not a case of a referral as described in GMP. Consequently Mr Iskander did not expect that Mr Hussein would have to comply with the standards set out in GMP in relation to an official referral.
20. On the basis of that opinion, Mr Hussein's counsel, Mr Leonard, made an application at the end of the GMC's case under rule 17(2)(g) of the GMC (Fitness to Practise) Rules Order in Council 2004 for a determination that there was insufficient evidence for the hearing to proceed in respect of paragraphs 1, 2, 5 and 6, being those predicated on Mr Hussein having made a referral to AS.
21. The Panel rejected that application on 22 October 2012, dealing with Mr Iskander's evidence as follows:

"The Panel accepted that there is no legal definition of the term 'referral'. It based its decision on its own understanding of the term, whether considering allegations before or after November 2006. The Panel considered that Mr Iskander's understanding of the word 'referral' lacked clarity and understanding; he varied his interpretation between cross examination and answering questions from the Panel. In that regards, the Panel found the guidance in GMP helpful although not definitive".

22. The Panel concluded that there was evidence on which, properly directed, it could find paragraphs 1, 2, 5 and 6 of the allegation proved. The hearing proceeded and Mr Hussein gave evidence.
23. In its final determination on 8 November 2013 the Panel stated as follows:

"Referral is a widely recognised noun in regular use, understood and used by people both in and outside the medical profession. GMP [paragraph 47 2001 edition, paragraph 55 2006 edition] provides useful guidance to assist the medical profession. However, the Panel have concluded that the guidance is not prescriptive or exhaustive. Arranging medical care to be provided by a specialist would in the Panel's view come within the general understanding of referral.

However in the alternative, if the Panel is wrong about this and Mr Leonard is correct that the meaning of 'referral' is strictly confined to that provided by GMP [2001 and 2006 editions] then in any event we would find as a matter of fact that when a medically qualified person asks another medically qualified person to see a friend/relative they are applying their medical expertise and judgement in selecting the correct care pathway. They cannot be seen to be acting in any way other than as a doctor where medical matters are concerned. Furthermore, in making a direct introduction of an individual to a medical practitioner without reference to their GP you are taking responsibility for their medical care. In taking on this responsibility you are obliged to comply with the guidance of GMP regarding referring patients.

24. Applying the above analysis to Mr Hussein's actions, the Panel found that "by arranging consultations [Mr Hussein] had assumed responsibility for medical care of RJ and [was] transferring this to another professional. As such these were formal 'referrals' and not casual introductions".
25. Having made that finding, the Panel inevitably went on to find that, in arranging each of the four consultations, Mr Hussein had failed to comply with GMP's requirements as to sharing information with colleagues when making a referral.
26. The Panel also found that, in referring RJ to AS, Mr Hussein had assumed responsibility for RJ's medical care by ordering scans before the first and third consultations.

The appeal

27. In his Grounds of Appeal Mr Hussein, contended that the Panel was wrong, both in its determination of the application under rule 17(2)(g) and in its final determination, in finding that Mr Hussein's informal introductions of RJ to AS were capable of being and were referrals which engaged the guidelines set out in GMP.
28. Mr Hussein further contended that, if the Grounds of Appeal were upheld, even though the Panel's findings of misconduct in relation to paragraphs 3 and 4 of the allegation are not challenged, the findings of the Panel as to Mr Hussein's fitness to practice and the sanction imposed could not be sustained.

The approach to section 40 appeals by the High Court

29. An appeal to the High Court under s. 40 of the 1983 Act is by way of rehearing (CPR Part 53, PD 22.3). The court will allow an appeal where the decision of the tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal (CPR Part 52.11).
30. The approach of the court on such appeals was helpfully summarised by Langstaff J. in Bhatt v. GMC [2011] EWHC 783 (Admin), following a review of the authorities, as follows:

".. although the court will correct errors of fact or approach:

i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matter of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matter of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from."

31. The present appeal does not raise a challenge the Panel's findings of primary fact, but rather the Panel's determination of what, as a matter of general principle, the medical profession expects of its members in relation to arranging for family or friends to be seen by medical colleagues and how such general principle applies to Mr Hussein's actions in this case. In considering such matters I adopt the approach of Lloyd Jones J. in Dr. Bhupinder Sacha v General Medical Council [2009] EWHC 302 (Admin) at paragraph 8:

" …. I bear in mind, and I give appropriate weight to, the fact that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect, and that it has had the advantage in this case of hearing the evidence from live witnesses. (See the observations of Auld LJ in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 at paragraphs 125 and 197). I also have in mind the observation of Laws LJ in Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46 at paragraph 20, that on an appeal under section 40: "... the High Court will correct material errors of fact and of course of law and it will exercise a judgement, though distinctly and firmly a secondary judgement, as to the application of the principles to the facts of the case."

Discussion

(a) The meaning of 'referral' – whether the GMP definition should be applied

32. The Panel's primary position was that, in considering whether Mr Hussein had made referrals within the meaning of the allegation, the term 'referral' should be given its ordinary meaning as understood by people both in and outside the medical profession. The Panel considered that the term was not to be limited to the meaning ascribed to it in GMP, concluding that "arranging medical care to be provided by a specialist would … come within the general understanding of a referral". That is an extremely broad definition, which would encompass even the most informal or casual introduction where it was plain to all concerned that the doctor making the introduction was not acting in a professional capacity nor intending to assume any professional obligations.
33. However, the context in which the concept of a 'referral' fell to be considered by the Panel was an allegation that a doctor had misconducted himself by reference to standards set out in GMP. The use of the term 'referred' in the allegation can only be understood as a reference to referrals which engage those standards. In my judgment, the logical starting point (at the very least) for determining the meaning of 'referral' must be the definition of that very term to be found in GMP, adjacent to the guidance as to what should be done when make a referral and clearly intended to indicate when that guidance should be followed. At the core of the GMP definition of 'referral' is the concept of transferring responsibility for a patient's care, from which it is clear that the guidance relates to a situation where a doctor with existing professional responsibility for a patient arranges for the patient to see another doctor.
34. It would, no doubt, have been open to the Panel to consider whether it was generally accepted within the medical profession that the guidance in GMP as to referrals applied to introductions which were not strictly referrals within the GMP definition of that term. But this was not a question which the Panel asked itself. Further, the only expert witness, Mr Iskander, took the view that the informal introductions effected by Mr Hussein did not engage the guidance in GMP. Whilst the Panel was critical of that evidence, the Panel's reasoning in that regard (set out in paragraph 21 above) suggests a degree of confusion. The issue in respect of which there was a potential distinction between the position before and after November 2006 was the restriction on registered doctors providing medical care to friends or family: there was no such issue in relation to the meaning of the term 'referral'. Further, the questions the Panel asked Mr Iskander did not relate to his interpretation of the word referral, but went to the question of whether Mr Hussein's actions in writing in RJ's hospital notes and in ordering scans in private and NHS hospitals constituted providing medical care to her.
35. Counsel for the GMC, Mr Pievsky, submitted that the Panel was correct in taking the view that its first task was to consider the allegation against Mr Hussein purely as a matter of fact, in which context it was obliged and entitled to consider whether there had been a referral as a matter of fact (not as a matter of GMP), the question of whether the factual findings amounted to misconduct being a further and separate question. However, in my judgment the question of whether a 'referral' has been made cannot be described as a pure issue of fact where the meaning of that term is in dispute: the Panel had to decide the meaning of the term before deciding whether the allegation was proved a matter of fact. But even if it was possible for the Panel to decide on a preliminary basis whether there had been a referral purely as a matter of fact, it would then, logically, have had to reconsider the meaning of 'referral' in the context of deciding whether the facts amounted to misconduct. The Panel did not, of course, conduct such a separate exercise, but proceeded on the basis that a referral, as defined by the Panel, engaged the guidance set out in GMP.
36. It follows that I am satisfied the Panel was wrong in its primary finding that it is not necessary for a doctor to be transferring existing professional responsibility for a patient in order for there to be a referral to which the guidance in GMP applies.
37. Further, I accept Mr Leonard's submission that, in determining the case on the basis of an understanding of the meaning of 'referral' which was outside the definition of that term in GMP (but not having revealed its approach in dismissing the rule 17(2)(g) application), the Panel did so without giving Mr Hussein proper warning of that approach and a corresponding opportunity to call his own expert evidence. The Panel's finding in that regard was therefore unjust by reason of a serious procedural irregularity.

(b) Whether Mr Hussein assumed responsibility for RJ's medical care so as to be a referring doctor

38. The Panel's alternative reasoning was that, if GMP guidance on referrals is strictly limited to cases falling within the definition of referral in GMP, requiring that the doctor is transferring existing responsibility for the medical care of the patient, that guidance was still engaged because "whenever a medically qualified person asks another medically qualified person to see a friend/relative they are applying their medical expertise and judgement in selecting the correct care pathway. They cannot be seen as acting in any other way than as a doctor where medical matters are concerned."
39. Mr Pievsky accepted that the Panel's formulation of the principle as set out in paragraph 38 above is too wide as it would, on its face, apply to a doctor taking his child to see his GP, which could not conceivably be considered to be a referral. He suggested, and I accept, that the Panel must have intended to limit the proposition to introductions to specialists.
40. Mr Pievsky further submitted, and I accept, that the interpretation of GMP and the relevant standards was something which was properly within the Panel's area of judgment. But even so, in my judgment the Panel's reasoning was flawed for the following reasons.

(1) The GMP definition of 'referral' is firmly based on the concept of one doctor transferring some or all of his existing professional responsibility for the medical care of a patient to another. The GMP provisions as to referrals are designed to ensure that, on effecting such transfer, a doctor is obliged to ensure a continuity of care by sharing the information he holds in that professional capacity.

(2) If, as the Panel has found, such responsibility arises automatically on any introduction to a specialist, the GMP definition would be rendered redundant and replaced by the much broader everyday meaning preferred by the Panel, namely, that any introduction by a doctor to a specialist, however casual, is a referral.

(3) The effect of such a rewriting of the definition would be dramatic. Without any express provision in GMP or other clear professional guidance, a doctor would nevertheless automatically be guilty of misconduct by making any casual introduction to a specialist (both because they would be considered to be providing medial care to a friend/relative and because they would not be in a position to share medical records and information).

(4) If the GMC had intended to make such a broad provision, effectively making it improper for a doctor to introduce a friend or relative to a specialist, it could plainly have done so. But, in my judgment, it is simply not possible to interpret the definition of 'referral' in GMP as introducing such a wide prohibition.

(5) There is also no obvious reason to interpret the definition of 'referral' so broadly as to include informal introductions. The Panel emphasised the importance of continuity of care by a GP, but that continuity is recognised and provided for in the case of an informal introduction by the obligations imposed on the doctor to whom the referral is made: if a patient is not referred by a GP, the receiving doctor is obliged (with the patient's consent see the 2006 edition of GMP paragraph 53) to inform the GP before starting treatment and to report the results to the GP, or otherwise retain responsibility for the Patient's after-care.

(6) The Panel concluded that, by arranging the consultations, Mr Hussein had assumed responsibility for RJ's medical care so that he had made formal 'referrals' and not casual introductions. However, the Panel's reasoning effectively removes any scope for a casual introduction which does not amount to a referral within the Panel's understanding of GMP. The fact that the Panel did apparently see the continuing possibility of a doctor making a casual introduction not engaging professional responsibilities calls into question its reasoning and/or whether it intended the consequences of that reasoning.

41. Giving all due weight to the Panel's specialist understanding of what the medical profession expects of its members, I am nevertheless satisfied for the reasons set out above that the Panel's interpretation of the definition of 'referral' in GMP was wrong. In my judgment, in order for there to be a referral by a doctor within the definition in GMP, it is necessary to establish that the doctor has already assumed professional responsibility for a patient's medical care at the time he makes the relevant introduction to a specialist. The mere fact of the introduction cannot of itself, without more, give rise to such responsibility.
42. I should make it clear that I do not mean to suggest that the fact that a doctor has made introductions of a patient to a specialist cannot, in appropriate cases, indicate, perhaps strongly, that a doctor has accepted responsibility for a patient's care. But the fact that an introduction to a specialist may be evidence that a doctor is acting in a professional capacity does not entail that all such introductions necessarily give rise to that result.
43. In the present case it was open to the Panel to consider whether Mr Hussein's overall actions in relation to RJ's care, including ordering scans, discharging her from hospital and arranging a number of consultations over a number of years, demonstrated that he was acting as her doctor more generally. It appears that the Panel did have such an approach in mind at the time of its determination of the rule 17(2)(g) application, where it concluded "Furthermore, the referrals accumulated over time and this strengthens the Panel's view that Mr Hussein was possibly acting in his professional role rather than as a friend/relative." However, in its final ruling the Panel did not find that Mr Hussein was acting as RJ's doctor more generally, but based its finding squarely on the broad principle that any introduction to a specialist is in itself an assumption of medical responsibility and so constitutes a referral. As such I do not consider that the finding can stand.

(c) The finding in relation to ordering ultrasound scans

44. The Panel found that Mr Hussein wrongfully provided medical care to RJ when ordering scans prior to the first and third consultations. In my judgment this was a finding which was plainly open to the Panel and there is no basis on which I could interfere with that assessment. Although it was agreed that scans could, in theory, be ordered by a patient (at least in the private hospital), if they were ordered by a doctor who worked in the hospital in question, and who signed the relevant paperwork in such capacity, it is more than fair to conclude that he was acting in his professional capacity.
45. Mr Leonard challenged the finding on the basis that it was phrased as providing medical care to RJ "when making the referral [to AS]". On the basis (which I have found to be correct) that there was no referral, Mr Leonard submitted that the finding could not stand.
46. Whilst Mr Leonard is correct as to the way in which the allegation was formulated and the finding expressed, it is clear that the issue of the propriety of ordering the scans was considered separately both in evidence and argument before the Panel and that the Panel reached discrete findings in relation to Mr Hussein's role in ordering each scan when determining sub-paragraphs 1(c) and 5(c) of the allegation. I am therefore satisfied that the findings in relation to the scans should stand.

Conclusion

47. The result of the above discussion is that the appeal is allowed in relation to the Panel's findings in relation to paragraphs 1, 2, 5 and 6 of the allegation, except for the findings in relation to the ordering of scans in relation to sub-paragraphs 1(c) and 5(c).
48. Unless either party wishes to argue for a different form of order, I will remit the case to a different fitness to practise panel for consideration of the question of Mr Hussein's fitness to practise and the appropriate sanction. That consideration should be on the basis of the Panel's findings only in relation to Mr Hussein's actions in ordering scans under sub-paragraphs 1(c) and 5(c) and in discharging RJ from hospital under paragraphs 3 and 4 of the allegation. For the avoidance of doubt, the finding in respect of paragraph 4 should be considered as being limited to the actions of Mr Hussein in discharging RJ from hospital and any reference to the making of a referral should be left out of account.
49. I should add that I express no view as to what effect the removal from consideration of certain of the Panel's findings as a result of this appeal will have on the issue of fitness to practise or sanction. That will be a matter for the judgment of the new fitness to practise panel.