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
		19th August 2015

Sir Stephen Silber:

Introduction

1. Dr Jayaprakash Gosalakkal ("the appellant") appeals under s. 40 of the Medical Act 1983^[1] ("the Act") from a decision of the Fitness to Practise Panel ("the Panel") given on 25 July 2014 directing that the appellant's registration be suspended for six months. The Respondent ("the GMC") is responsible for decisions of the Panel.
2. The appellant had been employed by University Hospitals of Leicester NHS Trust ("the Trust") as a Consultant Paediatric Neurologist at Leicester Royal Infirmary ("UHL") between January 2002 and October 2011. He was the lead clinician for paediatric neurology and he had played a key role in establishing the Video Telemetry Unit at UHL.
3. The appellant was referred to the GMC by Dr Kevin Harris, the Medical Director of the Trust, on 27 January 2011, as he had identified concerns over the appellant's patient care, communication with other members of his team and his failure to engage with the Trust's attempts to investigate complaints against him. Following a wide-ranging investigation, the GMC referred the appellant to the Panel and a large number of charges were brought against the appellant.

The Panel Hearing

4. The Panel hearing took place over a total of 43 days between 18 November 2013 and 12 December 2013, and between 23 June and 25 July 2014, during which the Panel heard live evidence from a total of 15 witnesses on behalf of the GMC. It also heard evidence over six days from the appellant himself. The Panel acceded to a submission of no case to answer in relation to head of charge 7(a), and it also found a large number of the heads of charge not proven. It is unnecessary to consider those heads any further.
5. The Panel found as a matter of fact the following charges proven, namely that the appellant:

i) in March 2009 did not provide good clinical care to Patient D, in that he (a) failed to recognise that the staffing needed to provide safe telemetry was inadequate (head of charge 5(e) ("The safe telemetry charge"));

ii) failed to keep legible clinical notes and/or provide a typed clinic letter in respect of Patient D (head of charge 5(f));

iii) did not cooperate with investigations undertaken and/or commissioned by the Trust, in that he did not: (a) attend meetings on 29 or 31 March 2010, and 19 or 23 April 2010 that the Trust investigators had invited him to (head of charge 6(a)); (b) attend meetings on 31 January 2011 and 7 February 2011 to which he had been invited by the Trust to discuss the NICHE review (commissioned by the Trust to inquire into the quality of care in the Paediatric Directorate) (head of charge 6(b)); (c) attend a meeting with Dr King of Edgecumbe Health to discuss her report (into relations between clinicians working in the children's hospital and Paediatric Neurology) (head of charge 6(d)); and that he

iv) did not communicate appropriately with the parents of a patient in an email dated 7 February 2011 ("the email"), in which he: (a) asserted that a "group of paediatricians" were carrying out a campaign against him (head of charge 8(a)); (b) asked the parents to write to the Trust requesting to see him (head of charge 8(b)); and (c) asked the parents not to tell the Trust that they had received an e-mail from him (head of charge 8(c)). I will refer to these allegations in charge 8 collectively as "the email charges".

6. After finding those allegations were proven, the Panel proceeded to find that the safe telemetry charge and that the email charges amounted to serious misconduct. It is only these charges which are the subject of the present appeal and I need not, and indeed will not, deal with the other charges.
7. The safe telemetry charge related to the staffing levels at UHL during video telemetry and the need for monitoring. Video telemetry is a process in which a patient is videoed whilst having the electrical activity in their brain monitored by electroencephalography ("EEG"). At UHL, the patient's anti-epilepsy medication was withdrawn to induce seizures, which could then be monitored. Unfortunately, a child, Patient D, had a seizure and died whilst undergoing the drug withdrawal programme, but it is not suggested that the appellant was responsible for Patient D's death. The appellant was the Lead Clinician for Paediatric Neurology at UHL and the co-author of the "Drug withdrawal and admission protocol for paediatric video telemetry" used in the Video Telemetry Unit ("the Protocol"). The Protocol bore the appellant's name and no other name. The case against the appellant on the safe telemetry charge was based on criticism of the Protocol, which stated that:

"Nurses in charge at station are requested to monitor as much as possible."

8. The email charge was based on an email sent by the appellant which states that:

"A group of paediatricians have been carrying out a campaign against me and the trust carried out various investigations most of which beased [sic] on falsehoods. They are now trying to prevent me from working at UHL. I would request you write stating your support to

Malcolm.Lowe-Laurie@uhl-tr.nhs.uk

and Kevin.Harris@uhl-tr.nhs.uk

ASAP

Kindly describe how I have treated your son and ask when you can see me next. Please do not say you got this from me

Dr Jay"

9. It was sent following a telephone call received by the appellant excluding him from the Trust. After determining that the safe telemetry charge and the email charges were proven and amounted to serious misconduct, the Panel then proceeded to conclude that the appellant's fitness to practise was impaired as a result of his misconduct.
10. The Panel then considered what the appropriate sanction was and it applied the GMC's Indicative Sanctions Guidance ("ISG") working up from no sanction and balancing the doctor's interests against those of the public. As I have explained, the Panel determined that the appropriate sanction was to suspend the appellant's registration for a period of six months.
11. The appellant challenges the Panel's determinations on its findings first, of serious misconduct on each of those two charges, second, of impairment of fitness to practice and third in relation to the sanction imposed.

The Approach of an Appeal Court to a Decision of the Panel

12. Appeals under s. 40 of the Act are by way of re-hearing (CPR PD52D, paragraph 19). The Court will allow the appeal where the Panel's decision was: (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings before the Panel (CPR 52.11).
13. This Court can allow an appeal where the decision of the panel is wrong (CPR 52.11 (3) (a)). In the light of some of the submissions of the appellant, it is appropriate to set out some of the guidance given by the Court of Appeal as to how this court should deal with appeals from fact-finding bodies and, in particular, when this court can interfere with decisions of the Panel.
14. Those established principles are that:

"(i) The court must have in mind and must give such weight as appropriate in the circumstances to the following factors -

(a) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

(b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and

(c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers". Meadows v. GMC [2007] QB 462 [197], per Auld LJ);

(ii) "The Appeal Court conducting a review of the trial Judge's decision would not conclude the decision was wrong simply because it is not the decision the Appeal Judge would have made had he or she been called on to make it in the court below. Something more is required than personal unease and something less than perversity has to be established… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible". (Assicurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 [197], per Ward LJ);

(iii) "The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow" (ibid);

(iv) "First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon as assessment of the credibility of witnesses are virtually unassailable" (Southall v. GMC [2010] EWCA Civ 407 [47], per Leveson LJ with whom Waller and Dyson LJJ agreed); and

(v) "Since a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession rather than the administration of the retributive justice, particular force is given to the need to accord special respect to the judgment of the profession decision-making body in the shape of the Panel". (Fatnani and Raschid v. GMC [2007] EWCA Civ 46 [19], per Laws LJ)."

15. Mr. Al Mustakim, counsel for the appellant has referred to many other authorities and I have considered them with care, but I have not referred to those which are fact-specific or which do not help to resolve this appeal.

The Grounds of Appeal

16. The appellant's amended grounds of appeal contain separate grounds, but he has entirely abandoned all but two of the seven grounds contained with his original grounds of appeal. He also sought to raise new issues for the first time in a note served and which was to be his written Reply, even though he had not sought or received permission to pursue them. Of course, the purpose of the Reply is to deal with the existing issues, but not to raise new issues.
17. The appellant's grounds of appeal put forward by Mr. Mustakim were in some respects overlapping and that means that I have to refer more than once in different parts of the judgment to the same material. Insofar as I have not dealt with any of Mr. Mustakim's very many points, I have considered them but have not found them of any value. His grounds can be summarised as being that:

i) The interventions by the Chair of the Panel were procedurally improper ("Issue 1: The Improper Interventions Issue");

ii) The appellant was not guilty of misconduct on the safe telemetry charge as (a) it related to "staffing" affecting Patient D and not the different issue of monitoring;(b) the issue of monitoring and the responsibility for the Protocol was the responsibility of the Trust and not of the appellant; and (c) there was no evidence to support the Panel's finding in relation to the safe telemetry charge ("Issue 2: The Safe Telemetry Charge Issue");

iii) The Panel provided inadequate reasons for its findings on the safe telemetry charge ("Issue 3: Inadequate Reasons for the Safe Telemetry Issue");

iv) The Panel erred in law in finding serious misconduct in relation to the safe telemetry charge and holding that the care given to Patient D and the Protocol was the appellant's fault. ("Issue 4: The Safe Telemetry Charge Serious Misconduct Issue");

v) The Panel erred in law in finding misconduct in relation to the email charge ("Issue 5: The Email Misconduct Issue");

vi) The Panel erred in law in finding impairment in relation to the safe telemetry and the email charge ("Issue 6: The Safe Telemetry Charge and Email Charge Impairment Issue"); and that

vii) The sanction imposed was disproportionate ("Issue 7: The Sanctions Issue").

Issue 1: The Improper Intervention Issue

18. A fundamental feature of the case for the appellant is that, during his cross-examination, the Chair of the Panel interjected on many occasions with questions that were leading or accusatory. Mr Mustakim refined his case in his written reply when he explained that this complaint focussed on questioning in which the Chair, in the words of the appellant's written reply:

"appears to be taking over the function of the respondent and is suggesting misconduct which does not form part of the allegation against the appellant (namely that there ought to have been 'continuous' monitoring a term not seen before the Chair introduced this standard at that time)."

It is then contended that this caused unfair prejudice to the appellant, as he was unable to produce a defence at the time, and that he was unaware of the charges against him. I am unable to accept this submission for at least four reasons, which individually and cumulatively show that this complaint must be rejected. First, as I will explain in paragraph [27], for months before the hearing as was apparent from the report of their expert, Dr. Anirban Majumdar, the issue of monitoring had been at the forefront of the GMC's case which was that safe video telemetry required staffing to do monitoring. Second, before the passage of questioning of which Mr. Mustakim complains, the appellant had explained that the nurses were expected to monitor patients constantly and he was well prepared for the questions, which, as I have explained, was foreshadowed in the report of the GMC's expert, Dr. Majumdar. Thirdly, as the transcript shows the appellant was an articulate and intelligent witness who was able to put forward his case and, if something had been suggested by the Chair of the Panel to which the appellant did not agree, he would undoubtedly have said so and explained his position. Fourthly, it is not said by the appellant, either at the time of the hearing or subsequently, that the conduct of the Chair meant the appellant was unable to give in evidence his version of events or to adduce some evidence or to properly and effectively challenge the case against him. Finally, the appellant, who is very articulate, and his representative did not complain at the time that he was unable to give his account

19. Thus the appellant fails to show a serious procedural irregularity, which caused injustice as required by CPR 52.11(3). That in itself would be a good answer to this head of complaint, but there is an additional reason why it must fail and that is because all the interventions from the Chair were relevant as well as being fairly and properly worded. The interventions sought to obtain vital information from the appellant who was a very intelligent witness and who was able to stand up for himself. Many of the instances of allegedly improper intervention related to matters in respect of which the Chair was quite properly seeking to obtain relevant information.
20. In all those circumstances, I must reject this complaint.

Issue 2: The Safe Telemetry Charge Issue

(i) Introduction

21. The background to this charge are some important findings of the Panel which have not been challenged or which have not been shown to be incorrect and they are that:

(i) "It is an established fact that seizures can occur in patients with epilepsy at any time";

(ii) "Equally it is undisputed that patients who are closely monitored are at a lower risk than those who are not".

(iii) "The Panel considered that the written Protocol that [the appellant] co-authored would have been relied upon by fellow professionals" and that

(iv) The Protocol merely states that "Nurses in charge at station are requested to monitor as much as possible" and it does not contain a requirement of constant or of close monitoring.

22. The complaints of the appellant are that:

i) The safe telemetry charge relates to "staffing" and not to the different issue of monitoring, as the charge does not refer to monitoring, but instead it alleges that "the appellant did not provide good clinical care to Patient D in that [the appellant] failed to (e) recognise that the staffing needed to provide safe telemetry was inadequate". ("The staffing/monitoring Patient D sub-issue");

ii) The issue of monitoring and the responsibility for the Protocol was the responsibility of the Trust and not of the appellant. ("The Trust responsibility sub-issue"); and that

iii) The Panel had no evidence – not merely insufficient evidence, but in fact no evidence – to justify the finding that the appellant "in March 2009 did not provide good clinical care to patient D in that [the appellant] failed to: (e) recognise the staffing needed to provide safe telemetry was inadequate." ..."The no evidence subject issue").

(ii) The staffing/monitoring Patient D sub-issue

23. The case for the appellant is that the issue of monitoring does not form part of the allegations against the appellant as the charge refers to "staffing" and not to "monitoring". The submission of Mr. Mustakim is that "monitoring" was not referred to until Day 35 when first raised by the Chair, but, as I will explain in [27], it was in fact referred to in the expert report of Dr. Majumdar produced months before the hearing.
24. The thrust of this charge was that the appellant had been responsible for a Protocol, which stated that "nurses in charge at station are required to monitor as much as possible". The Panel concluded that this Protocol was not fit for purpose because it demonstrated that the appellant "failed to ensure that the staffing was adequate to provide safe video telemetry". This is not surprising as this Protocol did not state the minimum amount of monitoring required or what would or should happen if there was no monitoring available.
25. The issue of continuous monitoring was at the forefront of the GMC's case, which was that safe video telemetry required staffing to do monitoring. The case for the GMC was based on an expert report from Dr Anirban Majumdar, Head of Paediatric Neuroscientist at Bristol's Children Hospital and Frenchay Hospital, and he also gave oral evidence. In his written report, which was prepared for the hearing before the Panel, and dated 1 July 2013, he explained (with emphasis added) that:

"(i) In my opinion providing a EEG-Telemetry Service which entails drug reduction, without the appropriate nursing back up and monitoring facilities to be a serious breach of the Trust's Duty of Care;

(ii) The overall standard of care provided by the appellant from January 2009 was "substandard" because of;

(iii) "Failing to recognise that the staffing needed to provide safe telemetry was inadequate. That is a joint failure with the Trust" and also that;

(iv) "In my opinion, I consider [inter alia paragraph (iii) quoted above] to be in serious breach of the standard of a reasonably competent Consultant in Paedetric Neurology. This showed that the staff was needed to provide safe telemetry for monitoring patients subject to telemetry."

26. The appellant had explained and accepted that the nurses were "continuously supposed to monitor" patients and to monitor constantly ["patients"], who were wrongly described in the transcript as "parents" . This was also the GMC's case and not surprisingly it was evidence which the Panel accepted. It was accepted that the reference to the staffing needed to provide safe telemetry was for the purpose of continuous monitoring and this formed the basis of this charge. There was no other reason for this evidence to be adduced and it was so understood by the appellant.
27. The purpose of having adequate staffing was so that they could provide continuous monitoring and it was never suggested or assumed that this was not the position and the case progressed on this basis. This was clearly understood by the appellant and his adviser because he was questioned about constant monitoring and he gave evidence about the need for it without any complaint being made by the appellant or his representative. The appellant in his evidence recognised that regular monitoring is not the same as continuous monitoring. Furthermore, the appellant's daughter, Dr. Jayaprakash, who acted for him for part of the hearing before the Panel, submitted in her closing submissions (with emphasis added) that the appellant:

"had shown insight into the inadequacies of the drug reduction protocol employed in the course of the video telemetry, in that [the appellant] accepted that the instructions could have been more explicit about the requirement for continuous monitoring of the video feed by nursing staff overnight".

28. The need for staffing being available for continuous, or indeed any, monitoring was not stated in the Protocol, as it merely imposed an obligation that "Nurses in charge at station are requested to monitor as much as possible". So the only obligation on those in charge of telemetry was to make the request of the nurses in charge at station. It is striking that the Protocol did not require continuous monitoring or indeed any monitoring. Nor did it state what would happen if the "Nurses in charge at station" did not comply with the request to monitor. There was no provision, which stated if there was no continuous or any monitoring available, then the telemetring would not or should not have been permitted to take place. This showed a serious deficiency in the provision in the Protocol.
29. It formed the basis of the finding that the Protocol was not fit for purpose and that the appellant "failed to ensure that the staffing was adequate to provide safe video telemetry".
30. I have also considered, and rejected, the contention of Mr. Mustakim that there had to be evidence that the inadequacy of staffing affected the care of Patient D. The allegation in the charge is that Patient D did not receive good clinical care because of the inadequate staffing. Significantly, the allegation and the charge against the appellant was not that Patient D was in any way affected by the inadequacy of the staffing. So there was no need to show that he was adversely affected by the staffing. What was important was that Dr. Majumdar explained that, in the case of Patient D, nobody was monitoring him. The critical findings of the Panel were that:

a) "Video EEG telemetry was appropriate [for Patient D]^[2]" (see Reasons for finding Charge 5a not proved) ;

b) It agreed with the opinion of Dr. Y that "providing a EEG –Telemetry Service which entails drug reduction without the appropriate nursing back up and monitoring facilities to be a serious breach of trust of the Trust^[3]'

c) "[The appellant] told the Panel that nurses were expected to continuously monitor the video feed of Patient D via a monitor on their desk, during the night^[4]" (see Reasons for finding Charge 5e proved);

d) " The Panel accepted your evidence that safe telemetry should have involved continuous monitoring by medical staff^[5]" (see Reasons for finding Charge 5e proved);

e) "However, the written drug reduction protocol for the video telemetry unit merely states ' Nurses in charge at station are requested to monitor as much as possible^[6]'" (see Reasons for finding Charge 5e proved);

f) "as Lead Clinician for Paediatric Neurology at UHL and the driving force behind the implementation of the Video Telemetry Unit, the Panel determined that it was incumbent on you to ensure that the process was safe^[7]"

g) "The Panel determined that the Protocol which [the appellant ] co-authored was not fit for purpose. It demonstrated that the appellant ] failed to ensure that the staffing was adequate to provide safe video telemetry^[8]" (see Reasons for finding Charge 5e proved); and that

h) "the written instructions [in the Protocol] put Patient D at risk and the Panel concluded that this amounted to misconduct which was serious"^[9]

31. I reject this complaint of the appellant as the issue of constant monitoring formed part of the case against him and it did affect the care of Patient D.

(iii) The Trust Responsibility Sub-Issue

32. The appellant contends that the Trust was "wholly accountable for the issue of monitoring" and so he, that is the appellant, is not liable. This submission ignores the fact that the appellant was the Lead Clinician for Paediatric Neurology at UHL and "the driving force behind the implementation of the Video Telemetry Unit". In that capacity he was the author of the Protocol and this was shown by his name appearing at the bottom of the Protocol. Dr. Majumdar, the expert called by the GMC, explained not surprisingly that the signature of the consultant at the bottom of the Protocol meant that he or she accepted responsibility for the Protocol.
33. So the consequence was that, as the Panel decided in relation to the Protocol "it was incumbent on [the appellant] to ensure that the process was safe", because it would be used and therefore relied upon by his co-professionals.
34. In other words, the Protocol represented the directions given by the appellant to the staff. If those directions were defective or incorrect, it is difficult to see why the advice or direction of the appellant should be less culpable if given in the Protocol, than if, for example, they had been given orally when he was in charge of a patient who was the subject of video telemetry.
35. So I reject the suggestion that only the Trust can be accountable for the failures in the monitoring requirement. Indeed if this was not the case, doctors could not be disciplined for giving directions in writing which put the lives of patients at risk and that would be a disturbing and surprising state of affairs.

(iv) The No Evidence Sub- Issue

36. It is said that the Panel had no evidence – not merely insufficient evidence, but in fact no evidence – to justify the finding that the appellant "in March 2009 did not provide good clinical care to patient D in that "[the appellant] failed to: (e) recognise the staffing needed to provide safe telemetry was inadequate."
37. This must be rejected because, as I have explained,:

a) The appellant had explained that the nurses were expected to monitor patients constantly when he said that "safe telemetry should have involved continuous monitoring by medical staff".

b) The expert report from Dr Anirban Majumdar, Head of Paediatric Neuroscientist stated that:

(i) "In my opinion providing a EEG-Telemetry Service which entails drug reduction, without the appropriate nursing back up and monitoring facilities to be a serious breach of the Trust's Duty of Care";

(ii) The overall standard of care provided by the appellant from January 2009 was "substandard" because of;

(iii) "Failing to recognise that the staffing needed to provide safe telemetry, was inadequate. That is a joint failure with the Trust"; and that

(iv) "In my opinion, I consider [inter alia paragraph (iii) above] to be in serious breach of the standard of a reasonably competent Consultant in Paedetric Neurology."

c) The Panel said that "It is an established fact that seizures can occur in patients with epilepsy at any time" and "Equally it is undisputed that patients who are closely monitored are at a lower risk than those who are not"; and

d) The concessions made by the appellant's representative, his daughter, in her closing submissions that the appellant:

"had shown insight into the inadequacies of the drug reduction protocol employed in the course of the video telemetry, in that [the appellant] accepted that the instructions could have been more explicit about the requirement for continuous monitoring of the video feed by nursing staff overnight."

38. The Panel having heard the evidence (including that of the appellant) concluded that:

(a) "Safe telemetry should have involved continuous monitoring by medical staff";

(b) "The protocol, which you co-authored, was not fit for purpose";

(c) "It demonstrated that that you failed to ensure that the staffing was adequate to provide safe video telemetry"; and that

(d) "The written instructions put Patient D at risk".

39. In reaching that conclusion, I have not overlooked submissions made on behalf of the appellant, who had the difficult task of proving a negative by showing that there was "no evidence" to justify a finding that the appellant failed to recognise that staffing for safe telemetry was adequate.
40. Mr Mustakim seeks to satisfy that requirement by submitting that the GMC did not provide any evidence to suggest that nursing ratios were inappropriate or the availability of video telemetry monitoring system was inadequate. He referred to a document entitled "UK Video Telemetry Units – Are they safe?", which purports to address the issue of the adequacy of staffing for video telemetry on a national scale and which found that there was no consensus and no standard of nurse distribution in video telemetry units in the United Kingdom. The report noted that over half of UK video telemetry video units perceive nursing supervision to be inadequate with a nurse to patient ratio of 1:4 – 1:5. He made the point that the nurse to patient ratio at hospital during the time the appellant was employed there was 1:4. There is a fundamental difference between staff ratios, which deal with the numbers of staff and monitoring, which deals with the disposition of the staff. The issue under consideration relates to the latter matter and not to the former.
41. Mr Mustakim also relies on various statements contained in a document entitled "Review of EEG Video Telemetry following incident on 26 March 2009". The purpose of that internal meeting was to discuss and review the death of patient D. At that meeting, the appellant and two other paediatric neurologists were present as was a Consultant Paediatrician, the Service Manager, the Head of Nursing, the Clinical Team Leader and the Clinical Governance Manager. The minutes of the meeting noted that:

"the neurologists… stated that they did not believe that other centres approached video telemetry in a significantly different way. Other centres have also had children die by undergoing video telemetry."

42. The review also considered the question of "should there be a dedicated nurse in the room 24 hours per day?" The response was that "Consensus was that this would not be feasible and was unlikely to significantly reduce any risk". Mr Mustakim also points out that it became apparent in the evidence of Nurse Rachel Speight that there was no possibility of obtaining a dedicated nurse to monitor the EEG video telemetry. If that was the position and there could not be adequate monitoring at a particular time, then the telemetry should not have been embarked on and that should have been stated in the Protocol.
43. In my view, none of this evidence supports the appellant's case that there was no evidence to justify the finding because, as I have explained, there was clear evidence from the appellant and from Dr Majumdar that the Protocol contained inadequate information because, in the words of the Panel:

"[the appellant] failed to ensure that the staffing was adequate to provide safe video telemetry [and] safe telemetry should have involved continuous monitoring by medical staff."

Thus there was an adequate evidential basis for the Panel's determination and it was entitled to reach the decision which it did,

Issue 3: Inadequate Reasons for the Safe Telemetry Issue

44. The case for the appellant is that the Panel incorrectly merged the issues of video telemetry and drug withdrawal. It is said that the allegation of misconduct was framed in terms of staffing levels while the Panel then made findings on the adequacy of the Protocol and had incorrectly merged the two allegations. Thus they failed to explain how the Protocol demonstrated a failure to ensure adequate staff levels.
45. It is also said that the Panel noted that during the review hearing on 26th March 2009 after Patient D's death, it was concluded that it was not feasible to have a dedicated nurse to monitor the child, and that in any event a dedicated nurse would not have reduced the risk. So it is said that it was left unexplained by the Panel as to how the actions of the appellant could constitute misconduct because the Panel failed to provide adequate reasons explaining how staffing levels at UHL caused the death of patient D. It was said that it was noteworthy that all the expert evidence suggested it was the attempt at drug withdrawal rather than staffing levels which caused the death of patient D.
46. A further complaint is that the Panel failed to give reasons as to how and why the adequacy of staffing issues affected the care of patient D, bearing in mind that the expert evidence before the Panel was that drug withdrawal was not appropriate for patient D, not the inadequacy of staff levels led to any lack of care.
47. To my mind, the Panel was entitled to find that the protocol "was not fit for purpose" for dealing with any patient subject to telemetry, because of the evidence of the appellant and the other matters set out in [39] above. It must not be forgotten that there is a great difference between having a "dedicated nurse in the room at all times" and ensuring continuous monitoring by video EEG. The decision of the Panel, as I have explained, focused on the failure of the appellant when preparing the Protocol to ensure that there was a need for continuous monitoring and so the Protocol which therefore was not fit for purpose. Indeed it also failed to state, as it should have done, that if continuous monitoring was not available, telemetry should not take place.
48. For the purpose of completeness, I add that the appellant's references to the cause of the death of patient D are irrelevant because it was no part of the allegation against the appellant that he was responsible for it. Indeed the Panel properly did not make any finding about it. Thus this complaint has to be rejected.

Issue 4: The Safe Telemetry Serious Conduct Issue

49. The background to this charge and the decision of the Panel are some important findings of the Panel which have not been challenged or shown to be incorrect. They are, as I have explained, that:

(i) "It is an established fact that seizures can occur in patients with epilepsy at any time";

(ii) "Equally it is undisputed that patients who are closely monitored are at a lower risk than those who are not".

(iii) "The Panel considered that the written… Protocol that [the appellant] co-authored would have been relied upon by fellow professionals" and that

(iv) The Protocol merely states that "Nurses in charge at station are requested to monitor as much as possible".

50. The Panel, having heard the evidence (including that of the appellant), accepted and found that:

(i) "safe telemetry should have involved continuous monitoring by medical staff";

(ii) "the protocol, which [the appellant] co-authored, was not fit for purpose"

(iii) "it demonstrated that that [the appellant] failed to ensure that the staffing was adequate to provide safe video telemetry";

(iv) "the written instructions put Patient D at risk" and that

(v) "This amounted to misconduct which was serious".

51. The case for the appellant is that the Panel erred in holding that he was guilty of serious misconduct pursuant to s 35(2) (a) of the 1983 Act in relation to Charge 5. Great weight is attached by the appellant's counsel to the fact that there was no consensus on staffing levels for video telemetry units. So it is said that the conduct of the appellant cannot amount to "misconduct" in the light of the statement by Stanley Burnton J (as he then was) that:

"where there are genuine but conflicting views as to the appropriate ethical medical response to a defined situation, held by responsible bodies of medical men and there is no relevant guidance of the GMC or applicable legal rule, it may be difficult to see the conduct consistent with one view could be serious professional misconduct" (David v. GMC [2004] EWHC 2977 (Admin) [59]).

52. Mr. Mustakim also relies on the comment by Collins J in Nandi v. GMC [2004] EWHC 2317 (Admin) that:

"conduct which does not amount in any way to dishonesty can constitute serious professional misconduct, but the negligence must be to a high degree".

53. It was established that without continuous monitoring there was an increased risk of seizure, but very significantly this was not explained in the Protocol, which set a much lower standard as the "nurses in charge at the station are requested to monitor as much as possible", while nothing was stated about the need for continuous monitoring or whether the video telemetry should go ahead if continuous monitoring could not be provided. The absence of an obligation of continuous monitoring in the Protocol, would lead to a systemic failure which put the lives of patients at risk of seizures. There is a powerful case for finding that in consequence the Protocol "was not fit for purpose" and that this constituted serious misconduct on the part of the appellant as he was responsible for the Protocol. As I have already explained, staffing levels are not in issue as the case relates to the need for continuous monitoring
54. In reaching that conclusion, I have considered but have not found relevant to the present dispute the statement of Stanley Burnton J in David set out in [53] as the need for continuous monitoring is not an issue on which there are "genuine but conflicting views". Similarly, the comment of Collins J in Nandi set out in [54] above does not set out or purport to set out the only basis on which there can be a finding of serious misconduct as otherwise a sexual assault might not be serious misconduct.
55. I am fortified in concluding that the decision of the Panel was not wrong because, as I have explained, Auld LJ in Meadow v. GMC (supra)[197] stated (with emphasis added) that:

"it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect".

Issue 5: The Email Misconduct Issue

(i) Introduction

56. The appellant did not specifically recollect sending this email. The Panel, nevertheless, concluded that the appellant did send the email, as it was sent from his personal email account and it contained information known to him as well as the beliefs and opinions, which he held. I have set out the terms of the email in paragraph [8] above. In it, the appellant complains (with emphasis added) that:

"a group of paediatricians have been carrying out a campaign against me and the trust carried out various investigations most of which beased (sic) on falsehoods…"

57. The Panel concluded that the appellant's fellow professionals would consider the appellant's behaviour to be deplorable and to have brought the reputation of the medical profession into disrepute with the consequence that his action in sending the email was serious misconduct.
58. The appellant challenges this conclusion on the basis that his conduct does not satisfy the requirement of being serious misconduct as first, it occurred "outwith the course of professional practice itself"; second, that this was a one-off course of misconduct and so would fall short of the threshold required to constitute serious misconduct which required persistent conduct; and third, that his conduct in any event fell short of the threshold required for a finding of serious misconduct.

(ii) Was the sending of the email "outwith the course of professional practice itself" and so it could not constitute serious misconduct?

59. It is quite clear that matters arising outwith the course of professional practice can constitute serious misconduct. In Roylance v. GMC [2000] 1AC 311, Lord Clyde giving the judgment of the Privy Council gave guidance of what was meant by professional misconduct. He explained at page 331(with emphasis added) that:

"So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what the link may be and how it may occur is a matter of circumstance…

Certain behaviour may constitute professional misconduct even though it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest private financial gain".

60. In the light of the appellant's case that the sending of the emails did not constitute serious misconduct, it is necessary to explain the circumstances in which Lord Clyde thought that there would be "a link with the profession of medicine". He cited with apparent approval examples of such behaviour which show the width of conduct which reached that threshold, such as was established in the cases of:

(a) Allinson v. General Council of Medical Education and Registration [1894] 1 QB 750, 761, in which it was held that infamous conduct in a professional respect was established where a doctor by public advertisement had warned the public to avoid other practitioners; and of

(b) Marten v. Royal College of Veterinary Surgeons Disciplinary Committee [1966] 1 QB 1 where a farmer, who was also a veterinary surgeon, was found guilty of professional misconduct as a doctor when he had failed in his capacity as a farmer to care adequately for his animals.

61. It is instructive that in the Roylance case, the doctor, who was a radiologist and the chief executive officer of a NHS Trust, was found guilty of serious misconduct on the grounds that he should have investigated concerns about the mortality resulting from operations carried out by two paediatric surgeons.
62. The Privy Council dismissed the appeal of the doctor even though the conduct complained of arose not from the appellant's duties as a doctor, but instead from his separate role and duties as the chief executive officer of the NHS Trust.
63. I therefore conclude that the mere fact that the appellant was acting "outwith the course of professional practice itself" does not prevent him being found guilty of serious misconduct because the sending of the email clearly had in Lord Clyde's words "a link with the profession of medicine" as it related to a dispute between the appellant and paediatricians allegedly aimed at preventing the appellant from working at UHL. Mr. Hare has pointed out that in her closing submissions, the appellant's daughter went so far as to suggest that the email "could have been in relation to on-going care".

(iii) Can conduct committed outside the course of professional practice only constitute serious misconduct if it is repeated?

64. The appellant's case is that conduct committed outside the course of professional practice can only constitute serious misconduct if it is repeated. So a one-off act of misconduct such as was alleged in the present case would not, and could not, reach the threshold for such a finding.
65. The appellant's submission is said to be supported by the statement of Elias LJ, giving the judgment of the Divisional Court in R (Remedy UK Limited) v. GMC [2010] EWHC 1245 (Admin) in paragraph [37], when he explained that:

"(3) Conduct can properly be described as linked to the practice of medicine, even though it involves the exercise of administrative or managerial functions, where they are part of the day to day practice of a professional doctor. These functions include the matters identified in Sadler, such as proper record-keeping, adequate patient communication, proper courtesy shown to patients and so forth. Usually a failure adequately to perform these functions will fall within the scope of deficient performance rather than misconduct, but in a sufficiently grave case, where the negligence is gross, there is no reason in principle why a misconduct charge should not be sustained."

66. Mr. Mustakim contends that the reference by Lord Walker to Sadler [2003] 1 WLR 2259, shows that the misconduct needs to be repeated in order to qualify as "serious". Sadler was a case, which involved seriously deficient performance rather than serious positive misconduct. The relevance of the case in this context is the observation by Lord Walker of Gestingthorpe, giving the judgment of the Judicial Committee, as to the circumstances where seriously deficient performance might occur. He said at paragraph [63], with emphasis added, that:

"Seriously deficient performance… can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients. It does not depend on proof of causation of actionable loss."

67. I am unable to accept the submission that there is a requirement in a case in which the complaint does not relate to the practice of medicine, such as the one concerning the appellant in relation to the email, that persistent or repeated conduct is required for a number of reasons. First, Lord Walker was referring to cases of deficiencies in consideration and in courtesy to patients as being the only cases requiring persistent conduct. Second, this requirement of persistent conduct was not referred to by Lord Clyde in Roylance where he explained that an exhaustive definition of serious misconduct could not be given. Third, there is no theoretical or logical justification for requiring there to be repeated conduct before conduct can be serious misconduct. So I reject the appellant's submission.

(iv) Should the finding of the Panel that the sending of the email was serious misconduct be overturned?

68. I cannot accept the appellant's case that the sending of the email should not have been regarded as serious misconduct by the Panel. It must not be forgotten that the email was an unsolicited email to a parent of a patient referring to a group of paediatricians allegedly carrying out a campaign against him and which significantly was allegedly based on falsehoods.
69. The Panel referred to paragraph 37 of "Good Medical Practice" in relation to maintaining trust in the profession and it states that:

"You must not exploit to your patients your personal beliefs, including political, religious or moral beliefs in ways that express their vulnerability or that are likely to cause them distress".

70. The Panel also considered other paragraphs in "Good Medical Practice", which stress the need for probity. The Panel concluded that the email would have caused the recipient distress and that it had the potential to undermine confidence they had in the appellant's colleagues and in the Trust.
71. The Panel decided that the appellant's conduct in sending the email offended the principles in "Good Medical Practice" to which I have referred and to which the public would be entitled to assume that the appellant as a medical practitioner was bound. Moreover, the Panel would have concluded that the appellant's fellow professionals would have considered the appellant's behaviour to be "deplorable and that it had brought the reputation of the medical profession into disrepute". So it found the appellant guilty of serious misconduct.
72. This was not a surprising decision and indeed a totally understandable decision bearing in mind the nature of the attack, which entailed involving his patients in a dispute between himself and his employers. I do not consider it wrong especially as I have already explained, Auld LJ had observed in Meadows (supra) that the Panel, "is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect".
73. I am also fortified in reaching this conclusion by the fact that the Employment Tribunal considered the conduct by the appellant in sending the email to be "gross misconduct" and it dismissed his claims for unfair dismissal and breach of contract against the Trust.

Issue 6: The Safe Telemetry Charge and Email Charge: Impairment Issue

74. The Panel found that the fitness of the appellant to practise was impaired by reason of the findings on both charges.
75. In respect of the safe telemetry charge, the case for the appellant is that the Panel should not have made this finding as it failed to take into account the appellant's good character, his insight into his error, the fact that the Protocol can be and has been amended and that the error is unlikely to be repeated. He now works elsewhere.
76. It is submitted by the appellant that, in respect of the email charge, the Panel failed to consider first, that the appellant has shown insight into his conduct; second, that this was a one-off incident committed by a person of good character; and third that the appellant has said that he accepts that his thoughts should never have been conveyed to the patient and that they could have caused distress.
77. In respect of both counts, the appellant's case is that the Panel erred by not taking into account and following my statement in Cohen v. GMC [2008] EWHC 581 (Admin) at paragraph [65] that:

"It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so".

78. The Panel approached this issue by holding in respect of the safe telemetry charge, that the appellant had not appreciated the gravity of his failings bearing in mind first, that he had failed to raise the issue of inadequate staffing at various reviews; and second, that he had only belatedly accepted after lengthy questioning by the Panel that the Protocol was not explicit about the need for continuous monitoring. In consequence, the Panel considered that this showed his lack of insight into his personal responsibility for recognising and ensuring that the staffing needed to provide safe telemetry was adequate. It is noteworthy that the Panel who had seen the appellant concluded that he "still did not appreciate the gravity of [his] failings in this regard". He contested this charge throughout and indicated that he would not do anything different now
79. Turning to the email, the Panel noted that although the appellant accepted that the contents of the email might have been distressing to the recipients, he had never apologised for his conduct, but instead he had sought to explain and justify his actions including attempting at the hearing to divert blame away from himself on to a colleague at the Trust, who was copied into the message, who the appellant claimed had breached privacy rules by passing the email on to the GMC. He showed very limited insight into this misconduct in his evidence. The Panel concluded that

"the appellant's actions in trying to explain away his conduct showed a worrying lack of insight into the potential effect which his conduct would have had on the parent of your patient, the reputation of the Trust and most importantly of all, the public's confidence in the profession".

83 It is true that the Panel did not specifically refer to the previous good record of the appellant, but it had acknowledged and had taken note of the references that had previously been supplied, The Panel had stated that it "was satisfied that [the appellant] is a competent clinician who is passionate about the care which [he] provides for [his] patients". The appellant could have adduced further evidence of his good character but did not do so. To my mind, the Panel was entitled to consider what could be gleaned from the appellant's conduct after the matters which gave rise to the complaints in order to determine whether he appreciated the errors of his ways and whether he would not repeat his misconduct.

84. The Panel was entitled to be very concerned first, that the appellant had not apologised for the distress caused by the emails even at the hearing which significantly took place more than three years after the sending of the email, and second, that he had sought to explain and justify his actions as well as trying to deflect blame on to a colleague. It is noteworthy, in the light of the terms of the email in question that in his witness statement, the appellant said that when he was suspended "I did not make any attempt to contact patients canvass support". I am more troubled by the way in which the appellant dealt with questions about the propriety of sending this email at the start of his cross-examination, as he was surprisingly reluctant to appreciate or even to understand the gravity of his misconduct. In addition, he challenged this charge throughout.

85. This clearly showed a lack of insight and the Panel was entitled not to be satisfied that he would not repeat this conduct, which has breached fundamental tenets of the medical profession and had undermined the public's confidence in the profession.

80. Similarly, the appellant only appreciated the need for continuous monitoring after lengthy questioning by the Panel, who were quite entitled to conclude that this showed the appellant's lack of insight into his personal responsibility for ensuring that the staffing needed to provide safe telemetry was adequate. So it was not surprising that that the Panel concluded that the appellant "still did not appreciate the gravity of [his] failings in this regard" as this was a conclusion open to them.
81. So I accept that the Panel did not err in concluding that it could not be satisfied that the appellant recognises or has remedied his wrongdoings and will not repeat them so that his fitness to practice was impaired. That was a judgment which in the words of Auld LJ in Meadow (supra), which I have quoted in paragraph 6 above, was given by "specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect". That reinforces my conclusion that the decision of the Panel on this issue cannot be quashed.

Issue 7: The Sanctions Issue

82. The approach of the Panel was that sanctions should not be punitive and should be the minimum necessary to protect the public interest. Thus it would consider the least punitive sanction first, and then only move to the next least punitive sanction when the lesser sanction was deemed insufficient to protect the public interest.
83. The Panel considered, but rejected, the option of taking no action because it was not considered appropriate in the absence of insight on the appellant's part and the absence of exceptional circumstances. Thus it would not meet the requirements of the public interest.
84. When considering the next least punitive sanction, the Panel had to consider whether the imposition of proportionate, workable and measurable conditions would be sufficient to protect the public interest of upholding proper standards in the medical profession. It applied paragraph [57] of the ISG, which explained that the Panel had to be satisfied that:

"the doctor had 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."

85. The Panel explained why, even at the time of the hearing, the appellant had not developed sufficient insight into his failings with regard to the need for adequate staffing in order to provide safe video EEG telemetry. In addition, it found that the appellant still had not developed appropriate insight into his wrongdoing in relation to the email charge. In consequence it concluded that in the light of matters such as the appellant's "little, if any insight into [his] misconduct… conditions would not be sufficient to meet the public interest".
86. So the Panel then had to consider the next least onerous sanction, which was imposing an order suspending the appellant. It was satisfied first, that the appellant was a competent clinician passionate about the care he provides to his patients, and second, that his misconduct was remediable by the development of insight, bearing in mind the public interest in his eventual return to unrestricted practice.
87. It concluded that the appropriate and proportionate sanction was a period of suspension of 6 months taking account of the need to protect individual patients and the collective need to maintain the public confidence in the medical profession. The period of 6 months was selected as being a period, which would give the appellant the time and opportunity to reflect on the way he dealt with matters leading to his referral to the regulator and to enable him to develop insight into his behaviour.
88. I do not consider that this finding to be an error especially as was stated in paragraph 6 above in Fatnani (supra) it was explained that it was necessary to accord "special respect" to the decision of a Panel.

Conclusion

89. In essence, Mr. Mustakim was trying to persuade me to substitute his view of the appellant's practice for that of the Panel which had heard the evidence over 43 days and used its expertise and experience to reach its conclusions. That is not permissible as was explained in, for example, Meadow (supra).None of these submissions or any other matters relied on by the appellant, whether considered individually or cumulatively, constitute valid grounds for allowing the appeal. Thus, notwithstanding the detailed submissions of Mr. Mustakim, this appeal must be dismissed.
90. If either party wishes to obtain any other Order, they should make a written application to the Administrative Court General Office (RCJ room C324) within 14 days of the handing down of this judgment with a copy to their opposing party setting out the basis of the application with full particulars and the opposing party will then have a period of 14 days in which to respond in writing to that address and the matter will then be resolved in writing.
APPENDIX Medical Act 1983 s.40

(1)The following decisions are appealable decisions for the purposes of this section, that is to say—

(a)a decision of a Fitness to Practise Panel under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;

(b)a decision of a Fitness to Practise Panel under section 41(9) below giving a direction that the right to make further applications under that section shall be suspended indefinitely; or

(c)a decision of the General Council under section 45(6) below giving a direction that the right to make further applications under that section shall be suspended indefinitely.

(2)A decision of the General Council under section 39 above giving a direction for erasure is also an appealable decision for the purposes of this section.

(3)In subsection (1) above—

(a)references to a direction for suspension include a reference to a direction extending a period of suspension; and

(b)references to a direction for conditional registration include a reference to a direction extending a period of conditional registration.

(4)A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, or section 41(10) or 45(7) below, appeal against the decision to the relevant court.

(5)In subsection (4) above, "the relevant court"—

(a)in the case of a person whose address in the register is (or if he were registered would be) in Scotland, means the Court of Session;

(b)in the case of a person whose address in the register is (or if he were registered would be) in Northern Ireland, means the High Court of Justice in Northern Ireland; and

(c)in the case of any other person (including one appealing against a decision falling within subsection (1)(c) above), means the High Court of Justice in England and Wales.

(6)A person in respect of whom an appealable decision falling within subsection (2) above has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 39(2) above, appeal against the decision to a county court or, in Scotland, the sheriff in whose sheriffdom the address in the register is situated.

(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 Practise 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 directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.

(8)On an appeal under this section from the General Council, the court (or the sheriff) may—

(a)dismiss the appeal;

(b)allow the appeal and quash the direction appealed against; or

(c)remit the case to the General Council to dispose of the case in accordance with the directions of the court (or the sheriff),

and may make such order as to costs (or, in Scotland, expenses) as it (or he) thinks fit.

(9)On an appeal under this section from a Fitness to Practise Panel, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not.

Note 1    The relevant statutory provisions are set out in the Schedule.    [Back]

Note 2   Page 13 of Determination of the Panel    [Back]

Note 3   Page 20 of Determination of the Panel    [Back]

Note 4   Page 15 of Determination of the Panel    [Back]

Note 5   Page 15 of Determination of the Panel    [Back]

Note 6   Page 15 of Determination of the Panel    [Back]

Note 7   Page 20 of Determination of the Panel    [Back]

Note 8   Page 15 of Determination of the Panel    [Back]

Note 9   Page 20 of Determination of the Panel    [Back]