QUEEN'S BENCH DIVISION
1 Bridge Street West, Manchester
B e f o r e :
| DR RICHARD POOL
|- and -
|GENERAL MEDICAL COUNCIL
Mr Robin Kitching (instructed by GMC Legal) for the Respondent
Hearing dates: 17th October 2014
Crown Copyright ©
Mr Justice Lewis :
"That being registered under the Medical Act 1983, as amended:
1. On the 21st October 2011 you produced an expert psychiatric report (The Expert Report) relating to complainant A, on the instructions of Solicitors acting for the Health Professions Council;
2. Prior to producing that report you did not make clear to those instructing you that:
a. you were not an expert in the field of General Adult Psychiatry,
b. your inclusion on the specialist register was in the speciality of Psychiatry of Learning Disabilities rather than General Adult Psychiatry.
3. In the Expert Report you failed to
a. adequately explain your opinion that complainant A's fitness to practise was
i. wholly impaired,
ii. indefinitely impaired,
b. restrict your opinion to
i. areas in which you had expert knowledge or direct experience,
ii. matters that fell within the limits of your professional competence,
c. state where a particular question fell outside your area of expertise;
4. At a hearing before the HPC committee on the 8th March 2012 you failed to
a. display an adequate understanding of the role and responsibilities of an expert witness,
b. admit that you did not have appropriate expertise in the field of adult psychiatry; "
"My major criticism of Dr Pool is that he is not on the relevant specialist register and had not worked in a relevant setting for the type of patient he was providing an expert opinion on. That he had failed to publish articles and book chapters, had failed to pass the membership examination of the college, had failed to have undertaken higher professional training, and had never been appointed to a substantive NHS consultant post are all in my mind factors that reduce his credibility as an expert, but are not as important as not being a recognised specialist and not working in the appropriate area. Had Dr Pool been on the general adult specialist register and worked at consultant level for 20 years in general adult psychiatry I would have accepted that he might be able to offer expert psychiatric opinion, although he would have been at a disadvantage in comparison to colleagues who had published, had higher training, had membership of the college and held substantive NHS consultant appointments."
"I believe his conduct fell below seriously below that of a reasonably competent consultant psychiatrist in producing an expert opinion when he was not on the Specialist Register nor working at a consultant level in general adult psychiatry when the case clearly involved an individual who would be considered a case appropriate for a general adult psychiatrist."
"18.31  Whether you consider the Registrant's fitness to practise to be currently impaired if so whether that be wholly or partially impaired.
18.32 Clearly the decision upon the Registrant's fitness to practice rests with the Health Committee of the Health Professions Council. It is my expert evidence to that committee that [A's] fitness to professionally practice, on the basis of the psychiatric evidence measured over several years, is currently wholly impaired.
18.33 This is especially so, in my opinion, as she has by reference to the medical records, an entrenched problem solving pattern of reverting to actively planning and expressing plans of suicide when significantly distressed, which has been in recent times, very frequent. Such planning can be covert. There is an example of an inpatient psychiatric respite admission being planned whilst she is working, for the time when she will take leave. Her behaviour has also generated serious concern that others – her children – may be at risk at certain times from her planned or intended actions. The psychological work undertaken by Dr Lilley with a 'contextual reformulation map' also sets out a pattern of decision making and behaviour with 'suicidal, homicidal' and 'self-harm outcomes'.
18.34 Without [A's] sustained constructive engagement in therapy of a type as identified by Dr Lilley, and the records show that she has withdrawn from or declined such offers, I do not anticipate an improvement in [A's] ability to practice professionally being wholly impaired.
18.37  If you consider the Registrants fitness to practise to be currently impaired how long you consider that impairment is likely to last.
18.38 In my opinion, based upon the history and examination of [A] and in particular a review of her psychiatric history, that she would be predicted to remain wholly impaired in her ability to professionally practice for an indefinite period. Her behaviour on the day of my assessment was settled, calm and appropriate. I suspect, but I am not able to comment as I do not know the facts or described facts, that the alleged sexual incident in 2002 has impacted detrimentally upon the previous established patterns of coping with distress that [A] had.
18.39 The diagnosis is in my opinion of a personality disorder rather than a post traumatic stress disorder. The origins of this personality disorder are generated within the emotional traumatic experiences [A] has had, as a child, in my opinion. The treatment model I would advance rests with the treatment of personality disorder rather than post-traumatic stress disorder.
18.40 In my opinion, it is the history of psychiatric contact, over time, which generates the concern as to [A's] future ability to function effectively from the perspective of behaviour [whilst at work and not at work] compatible with ongoing professional registration at this time.
18.41 Reassessment of this opinion may be indicated in future such as with [A's] consistent and active constructive engagement in psychological therapy and/or where psychiatric stability without reference to self-harm, or behaviour which would be predicted to generate concern within others, perhaps as to her safety, is evident for a period measured in at least two and probably several years."
"I also do not consider that he adequately addresses the issue of why he considers her fitness to practice to be currently impaired and what part of her practices are impaired and how long they are impaired for."
"The key evidence in this case is that of the experts, Drs Baggaley and Bradley. The panel finds that both these witnesses gave their evidence in a fair and balanced way. The panel could not, however, accept the views of Dr Bradley that your written report met the required standard or that your medical experience equipped you to be an expert witness in this case. The panel preferred the evidence of Dr Baggaley in this regard. It has also accepted Dr Baggaley's view that the terms 'General Psychiatry' and 'General Adult Psychiatry' are synonymous."
"17. The panel has heard from Dr Krishnan and Dr Harris that you are a good clinician when seeing your patients on a day-to-day basis and that you are an able medical practitioner. It has borne in mind that your clinical practice is in the care of offenders, and others with similar needs, in secure units and, in the course of your work, you liase with fellow psychiatrists, psychiatric nurses and community mental health teams. The panel accepts that you have considerable experience in the treatment of women with personality disorders. However this is not in community settings and is not focussed on their occupational functioning."
"18. The panel had regard to the oral evidence of Dr Baggaley that an expert "stands out from his peers" and is "deferred to by his peers", but he acknowledged that there is a hierarchy ranging from world-acknowledged experts to suitably qualified and trained practitioners. In this context he said that you have neither completed any higher professional training nor attained the MRCPsych examination. His major criticism, however, is that you are not on the Specialist Register in the category of General Psychiatry and have not worked in a relevant setting for the type of patient you were providing an expert opinion on. Consequently, in his opinion, you fell so far below what would be expected of an expert witness, you could not be considered to be within any such expert hierarchy. In your evidence, you said that you had worked in such settings but the panel noted that this was when you were an SHO and it was some time ago. The panel accepts Dr Baggaley's evidence in this respect."
"19. The panel considers that to put oneself forward as an expert witness requires more than clinical experience and knowledge. It also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner. This panel finds that your written report fell short of what is required and that your evidence at the HPC hearing regarding your experience and expert status was confusing and unclear. This panel does not consider that you conducted yourself at the HPC hearing as an expert witness should when giving evidence. In your evidence to this panel, you were also very unclear and often gave long, rambling, answers that did not address the question you had been asked. This panel concludes that, whilst you had some experience in General Psychiatry, you cannot be considered to be an expert."
" b. restrict your opinion to
i. areas in which you had expert knowledge or direct experience
"23. The panel has already found that you could not be considered an expert in General Adult Psychiatry for the purposes of giving evidence at a tribunal hearing. You do not treat patients within the community, as your practice is confined to working in a secure setting, and you do not have any recent experience of General Adult Psychiatry within the community at Consultant level. You have no direct experience of working with patients with personality disorders in the context of fitness to practise proceedings. You had been instructed by a firm of solicitors to give an expert opinion as to whether there was impairment of Ms A's fitness to practise. The panel accepts that, although some of your skills and experience in the Psychiatry of Learning Disability could be transferrable to other areas of psychiatry, these are not such that you could be regarded as an expert in this case. It follows, therefore, that the opinions you expressed in your report are not restricted to areas in which you had expert knowledge or direct experience."
ii. matters that fell within the limits of your professional competence
"24. You told the panel that you had not previously been instructed to provide a psychiatric report for use in fitness to practise proceedings. The panel accepts that there has to be a first time for everyone but finds that, in your case, you did not have the relevant knowledge or experience to assess fitness to practise. You did not take appropriate steps to ensure that you understood what was required and assess whether you were competent to undertake this assignment. In expressing your opinion that Ms A's fitness to practise was impaired, the panel considers that you went beyond the limits of your professional competence."
c. state where a particular question fell outside your area of expertise
"25. The panel considers that its findings in respect of paragraph 3(b)(1) and (ii) above are also relevant to this paragraph. It has concluded that you did not have the necessary expertise to act as an expert witness in the case of Ms A and it is clear from the evidence that you did not, at any time, state that a particular question fell outside your area of your expertise. The panel considers that this was a significant omission on your part."
In the Expert Report you failed to
a. adequately explain your opinion that complainant A's fitness to practise was
i. wholly impaired
"21. In your report, at paragraph 18.32, you stated that Ms A's "fitness to professionally practise is currently wholly impaired". In the next paragraph (18.33) you seek to explain the reasons for this conclusion. Dr Baggaley said that this explanatory paragraph was not clear, not sufficiently logically argued and was disjointed. He said that it was not linked to your description of Ms A's symptoms and behaviour earlier in the report. He said that he would have expected some explanation of why her symptoms and behaviour prevented her from carrying out the duties of a paramedic. Dr Bradley, the defence expert, said that he would not criticise paragraph 18.33 because he would expect a tribunal panel to clarify what you meant through its questions. This panel cannot accept Dr Bradley's evidence in this regard and prefers the evidence of Dr Baggaley."
ii. indefinitely impaired
22. In your report, at paragraph 18.38, you stated that, based on her psychiatric history, Ms A "would be predicted to remain wholly impaired in her ability to professionally practise for an indefinite period". In your conclusion you stated that this could be for a period "measured in at least two and probably several years." This was a significant finding because it could have ended Ms A's career as a paramedic. Despite this, you did not give a detailed explanation other than to comment in relation to Ms A's alleged lack of engagement in psychological therapy. In the panel's view this was a serious omission. You had been specifically instructed to give an expert opinion on Ms A's current medical condition and to assess whether she was fit to work. The panel concluded that your report was inadequate in this regard."
"At the HPC hearing you were asked to give your understanding of the role of an expert, in particular, in respect of an expert at a tribunal hearing. You gave rambling and unclear answers which were interrupted by the Chair of the HPC panel and the Legal Assessor who required clarification. You continued to stress that you were an expert and attempted to justify your status as such. In your oral evidence to this panel, you said that you had been shocked to be asked such a question and that you felt "disorientated" by the continual and harsh questioning of the Legal Assessor at the HPC hearing. In this panel's view you were asked a reasonable question at the outset of the HPC hearing. You had been given prior notice that your status as an expert would be challenged and you should have anticipated that you would be required to explain your role. An expert witness must expect to be questioned closely and be subject to robust examination. As an expert at a tribunal hearing, you had a duty to explain your role and your inability to do so was a significant failure on your part."
"11. The panel has found that you acted outside your medical competence when you accepted instructions on behalf of the HPC to assess Ms A's fitness to practise. In doing so you breached a fundamental tenet of the profession as clearly set out in GMP and the GMC's guidance "Acting as an expert witness". In your report you gave opinions that were not appropriately reasoned and your explanation of the role of an expert before the HPC was unclear and confused. There is clearly a strong public interest in ensuring that doctors do not act outside their competence and do not put themselves forward as experts in areas in which they do not have adequate knowledge and expertise. In addition, your actions could have had drastic consequences for Ms A in that she could have lost her professional registration and career as a paramedic."
"12. On the basis of these considerations, the panel is satisfied that, even though this case concerns your acceptance of instructions and provision of a report on only one occasion, your actions were sufficiently serious to amount to misconduct."
"12. The panel next considered whether it would be sufficient to place Conditions on your registration. It has borne in mind that any Conditions would need to be appropriate, proportionate, workable and measurable."
"13. The panel has taken into account paragraph 57 of the ISG which states:
"Conditions might be most appropriate in cases involving the doctor's health, performance or following a single clinical incident or where there is evidence of shortcomings in a specific area or areas of the doctor's practice. Panels will need to be satisfied that the doctor has displayed insight into his/her problems, and that there is potential for the doctor to respond positively to remediation/retraining and to supervision of his/her work."
"14. In its determination on impairment the panel made clear that it is not satisfied that you have adequate insight into your misconduct."
"15. The panel was concerned by the content of the email, dated 20 March 2014, provided to it today and referred to in paragraph 7, between you and a firm or solicitors who request expert reports from you from time to time. In your email you stated:
"I have had a complaint made about me which the GMC is investigating in the normal way"
"16. You must have known when you sent this email that your case had gone beyond the investigation stage and had been referred for determination by a Fitness to Practice panel yet you did not disclose this fact to the solicitors. Furthermore, in the main body of this email, the panel was disturbed by your denigration of the complainant, Ms A, although not named, and the unnecessary disclosure by you of confidential medical matters concerning her. The panel considers this to be a further demonstration of your lack of insight.
17. For all the above reasons the panel is not satisfied that it is possible to formulate Conditions which are appropriate, workable and measurable. It also did not consider that this sanction would be proportionate to your misconduct and the public interest."
"18. The panel then went on to consider whether a period of Suspension would be an appropriate sanction. It has found that you failed to recognise that you were acting beyond the limits of your competence whereby you breached a fundamental tenet of the profession as clearly set out in GMP. The panel also considered that by providing a report which did not adequately explain your opinion, and failing to display to a disciplinary tribunal an adequate understanding of the role and responsibilities of an expert witness, your misconduct has the potential to undermine the public's confidence in the medical profession. The panel accepted, however, that you are otherwise a good doctor and is satisfied that your misconduct is not incompatible with continued registration and could be remediated by development of insight. The panel believes that, with proper reflection, you should be able to do this."
"19. The panel has therefore concluded that a period of Suspension is the appropriate sanction to mark the severity of your misconduct whilst maintaining public confidence in the profession and the declaring and upholding if proper standards of conduct and behaviour. It has determined that it would be sufficient, appropriate and proportionate to suspend your registration for a period of three months."
"20. In deciding on a period of three months, the panel considers that this will give you the time and opportunity to reflect on your misconduct and to develop insight into the matters which brought you before the GMC. It will also give you the opportunity to re-visit GMP and the GMC's guidance on Acting as an expert witness to ensure that your future will be governed by them."
THE LEGAL FRAMEWORK
"(7) On an appeal under this section from a Fitness to Practise Panel, the court may –
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practice Panel; or
(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the direction of the court,
and may make such order as to costs (or in Scotland, expenses) as it thinks fit."
"The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances."
"We make the following general comments on the duty to give reasons.
(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.
(4) This is not to suggest that there is one rule for cases concerning the witnesses truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."
THE GROUNDS OF APPEAL
(1) did the Panel apply the wrong test and was it wrong to decide that the Appellant was not an expert in general psychiatry and had failed to limit his opinion to areas in which he had expert knowledge or direct experience or which fell within his areas of professional competence? Further, was there a proper evidential basis for the Panel's findings and were their conclusions adequately reasoned?
(2) was the Panel wrong to find that the Appellant had failed adequately to explain his opinion that A's fitness to practice was wholly and indefinitely impaired?
(3) if Panel had been correct to find that the allegations relating to the failure by the Appellant to give adequate reasons for his opinion proven (and not the other allegations relating to whether he was capable of acting as an expert and acted within the scope of his professional competence), could the Panel lawfully have found that the Appellant's fitness to practise was impaired?
(4) was the Panel wrong to impose a sanction of a three-months' suspension from the register or was such a sanction unnecessary and disproportionate?
THE FIRST GROUND – THE FINDING THAT THE APPELLANT WAS NOT AN
THE SECOND GROUND – THE ADEQUACY OF THE APPELLANT'S REASONS
THE THIRD GROUND – THE POSITION WHERE ONLY ONE SET OF ALLEGATIONS PROVEN
THE FOURTH GROUND – THE SANCTION