QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| AHMED ABBAS HUSSEIN
|- and -
|THE GENERAL MEDICAL COUNCIL
David Pievsky (instructed by GMC Legal) for the Respondent
Hearing date: 22 October 2013
Crown Copyright ©
Mr Justice Phillips :
The GMC's allegation and the Panel's findings
The relevant GMC guidelines
"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"
"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 …"
The Panel's approach and reasoning
"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".
"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.
The approach to section 40 appeals by the High Court
".. 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."
" …. 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  QB 462,  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  1 WLR 1460,  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."
(a) The meaning of 'referral' – whether the GMP definition should be applied
(b) Whether Mr Hussein assumed responsibility for RJ's medical care so as to be a referring doctor
(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.
(c) The finding in relation to ordering ultrasound scans