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
		06/07/2016

Mr Justice Cranston:

INTRODUCTION

1. This is an appeal under section 40 of the Medical Act 1983 against a direction of a Medical Practitioners Tribunal ("the Tribunal") of the General Medical Council ("GMC") to erase Dr Loutfi from the medical register. Dr Loutfi is a medical practitioner in obstetrics and gynaecology. The Tribunal found that fifty four charges were proved, covering clinical misconduct and misleading/dishonest conduct. The Tribunal then determined that Dr Loutfi's fitness to practise was impaired and that, in the circumstances, the appropriate sanction was that Dr Loutfi be struck off.

BACKGROUND

2. The charges of clinical misconduct related to Dr Loutfi's treatment of three patients, called A, C, and D. In relation to Patient A, the Tribunal found (paragraph 1 of the charges) that on 29 April 2010, Dr Loutfi incorrectly diagnosed her with an incomplete miscarriage, when she had an ectopic pregnancy; planned to discharge her, with the risk of her death; and was dismissive of her when she had told him that Miss B2, a consultant obstetrician, had already seen her and planned to admit her. In addition, the Tribunal found proved paragraph 2 of the charges, that on 1 May 2010 Dr Loutfi incorrectly diagnosed Patient A again, as having an incomplete miscarriage; failed to ensure a timely follow up (he said that she should undergo a further pregnancy test in three weeks, rather than one week); and inappropriately told her to go home and try for another baby, rather than wait until after her next menstrual cycle.
3. In relation to Patient C, paragraph 4 of the charges, the Tribunal found that Dr Loutfi made an inappropriate initial decision to proceed with the delivery of her baby on 30 October 2011 under spinal anaesthesia, instead of advising immediate delivery by Caesarean section under general anaesthesia. It further found that he had misdiagnosed that the patient's cervix was fully dilated.
4. As to Patient D, paragraph 5 of the charges, the Tribunal found that in May 2013 Dr Loutfi had used Kielland forceps to rotate the foetal head of her baby inappropriately to the occipito-posterior position, when rotation to the occipito-anterior position had failed, and had used inappropriate force to deliver the baby.
5. There were also various findings of dishonesty and misleading conduct. The main findings were first, in respect of paragraph 6 of the charges, that in a letter of July 2013 Dr Loutfi dishonestly and misleadingly stated to a Miss E, a consultant in foetal medicine, that he had delivered another patient by Kielland forceps after rotation to occipito-posterior position when anterior rotation was difficult, under direction supervision of Mr F. In fact Mr F had not directly supervised him on that occasion. The Tribunal was satisfied that it was Dr Loutfi's intention to mislead Miss E and to divert criticism from himself, having been told that consultants at the hospital Trust did not agree with his attempting that type of rotation.
6. Next, paragraph 7 of the charges was that Dr Loutfi dishonestly and misleadingly completed an application form on 3 January 2012 for the post of locum consultant obstetrician and gynaecologist at Central Manchester University Hospitals NHS Foundation Trust, in which he failed to disclose that he had been subject to a warning issued by the Investigation Committee of the GMC on 14 December 2010 and that he had been the subject of separate GMC fitness to practice proceedings in 2010, subsequently closed with advice. The Tribunal considered that Dr Loutfi was well aware of his responsibilities when completing the form, indeed he had been told clearly on an earlier occasion to disclose information on application forms.
7. Another charge found proved concerned paragraph 8, that on 25 May 2012, during an appraisal with a Dr G, Dr Loutfi was asked if he was involved in any complaints, critical incidents or legal cases. The Tribunal found that he dishonestly and misleadingly failed to disclose that he was involved in an investigation by the Parliamentary Health Services Ombudsman and that the Ombudsman was proposing to uphold Patient A's complaint. The Tribunal rejected his claim that the Ombudsman investigation had not come to mind.
8. The Tribunal then decided that Dr Loutfi's fitness to practice was impaired by reason of this misconduct. The Tribunal accepted the opinion that the care and treatment of Patients A, C and D fell below the standards of a reasonably competent senior registrar in Obstetrics and Gynaecology, and that it fell seriously below the requisite standard in a number of areas. In the case of Patient A, he had exposed her to the risk of death, but had continued to insist for three years that she had had a miscarriage, despite overwhelming evidence to the contrary. In the cases of Patients C and D, in spite of the findings he had consistently maintained that he did no wrong. The Tribunal found it worrying that such an experienced practitioner could do this and of concern that he had made no attempts to address his failings. He had demonstrated a lack of insight into his clinical deficiencies and had not offered a genuine expression of apology or regret for his failings.
9. With the dishonesty and misconduct findings, the Tribunal considered that Dr Loutfi's actions were serious and occurred over a significant period of time. The Tribunal was satisfied that he had presented a risk to patients, had brought the profession into disrepute, had breached one of the fundamental tenets of the profession, and that his integrity could not be relied upon.
10. In the result the Tribunal decided that Dr Loutfi's name should be erased from the register.

Legal framework

11. The principles governing an appeal from the Tribunal (previously the Panel) are well-known and have been drawn together in two recent decisions of this court. In Siddiqui v. General Medical Council [2015] 1996 (Admin), Hickinbottom J said that the Tribunal's decision was to be regarded as correct unless and until the contrary was shown, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004 EWCA Civ 56, at [44]. At paragraph [30], Hickinbottom J said:

"30 Of course, the extent of the deference to be given will depend upon the nature of the issue involved, and the circumstances of the case. The greater the advantage of the Panel below, the more reluctant this court should be to interfere. Therefore:

i) If the issue is essentially one of statutory interpretation, the deference due may be limited.

ii) If it is one of disputed primary fact which is dependent upon the assessment of oral testimony, the deference will be great: this appeal court will be slow to impose its own view, and will only do so if the Panel below was plainly wrong.

iii) CPR rule 52.11 expressly enables an appeal court to draw inferences it considers justified on the evidence. Where the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel below, and will only find it to be wrong if there are objective grounds for that conclusion.

iv) Where the issue is essentially one of discretion, the court will only interfere if the Panel was plainly wrong. Case management decisions falls into this category; as does the sanction imposed. Similarly, where any open-textured evaluative judgment has to be made on the primary facts, involving a number of different factors that have to be weighed together. As Laws LJ emphasised in Subesh (at [49]), there are no rigid categories here, but a spectrum of cases, the approach being "a general one, having neither need nor scope for sophisticated refinement"."

12. Then, in Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin), Sir Stephen Silber collected Court of Appeal guidance as to how the High Court should deal with appeals from fact-finding bodies and, in particular, when the Court can interfere with decisions of the Tribunal:

"(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". Meadow 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) "[A]s 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)."

DR LOUTFI'S APPEAL

13. Mr Loutfi appeared before me in person. He challenged the Tribunal's acceptance of an expert, Mr Woods, who appeared before it, but his main attack was on the Tribunal's factual findings and its determination on the basis of those facts.

Mr Woods's evidence

14. Mr Paul Woods, a consultant obstetrician and gynaecologist, gave expert evidence before the Tribunal about the cases of patients A, C and D. At the outset of his evidence he stated that the cases he had been asked to review involved situations which he dealt with on a regular basis. In cross-examining him, Dr Loutfi challenged his experience in relevant areas, and put contrary points to him, on at least one occasion drawing on the relevant literature.
15. Before me, Dr Loutfi returned to Mr Woods's role as expert. As regards Patient D, for example, Dr Loutfi referred to Mr Woods's inexperience with Kielland forceps and submitted that the Tribunal was wrong in law to place so much emphasis and weight on his evidence. Mr Woods had conceded that this was not his area of current speciality. His inexperience with Kielland forceps also meant that he was unaware of the relevant guidelines. Accordingly, Dr Loutfi submitted, the Tribunal's conclusions on this aspect of the case were unreliable and therefore wrong.
16. In my view Dr Loutfi's challenge in this regard goes nowhere. After Dr Loutfi raised Mr Woods's expertise before the Tribunal, Mr Woods prepared a second statement canvassing some of the issues. The Tribunal was correctly addressed by its legal assessor as to the role of expert evidence. The Tribunal correctly recounted that the role of an expert is to assist it on specialist or technical matters that are within that expert's area of expertise. Having considered Mr Woods's curriculum vitae and the manner in which he addressed the issues within his area of apparent expertise, the Tribunal said, there was insufficient force in Dr Loutfi's challenge to undermine Mr Woods qualifying as an expert witness. That approach was open to the Tribunal. Further, as I will explain in a moment, I can find no flaw in the Tribunal's conclusions on specific cases, not least since there was much other evidence, besides Mr Woods's, relating to each of them.

Clinical misconduct

Patient A

17. In summary, Patient A's evidence was that on 29 April 2010 she was seen by Miss B2 who performed a scan, told her she had a query right sided ectopic pregnancy, and that her plan of care was to be admitted to await the results of a blood test. She was then seen by Dr Loutfi who said that he thought she was having another miscarriage, that the pain she was experiencing was due to a pulled muscle in her arm, and that she was to be discharged home with paracetamol. When on 1 May 2010 she had another blood test, Dr Loutfi informed her that the result meant that she was miscarrying and that he was happy to discharge her home. He refused to re-scan her. On 3 May 2010 the pain was becoming worse, so Patient A went to the hospital, asked to be seen by a different doctor, and was seen by Mr C, a consultant gynaecologist. He thought it was an ectopic pregnancy and performed a scan, which confirmed this. The ectopic pregnancy was removed surgically.
18. Before me, Dr Loutfi rejected the Tribunal's conclusion of two incorrect diagnoses, on 29 April and 1 May. In particular, he referred me to an email of 21 June 2012 from Miss B2, in which she stated that she was not aware that the matter had gone to the GMC and was happy to say that the management plan after the scan was discussed and agreed with her. He also referred me to a joint letter dated 3 October 2013 from Miss B2 and Mr C that his management of the case was appropriate and in keeping with NICE guidance on bleeding in early pregnancy.
19. In fact, Miss B2 did not provide a witness statement to the Tribunal. (Dr Loutfi told me that she could not attend on the day scheduled by the Tribunal, because of professional commitments, but that does not meet the point that there was no statement from her.) In coming to its conclusion the Tribunal referred to the medical records, which contained Dr Loutfi's diagnosis of incomplete miscarriage with a treatment plan of reassurance. Further, Dr Loutfi confirmed in cross-examination that the diagnosis of incomplete miscarriage was his. That the Tribunal was entitled to find that it was an inappropriate diagnosis was supported by Mr Woods's expert evidence and, of course, by the reality: when operated on by Mr C, Patient A had indeed an ectopic pregnancy. Miss B2's email of 21 June 2012 is not inconsistent with this, since she seems to be referring to her own diagnosis, which Dr Loutfi eventually accepted. The letter dated 3 October 2013 was in the form of a reference and was not in any way inconsistent with Patient A's account.
20. As regards the diagnosis of 1 May 2010, the Tribunal was entitled to accept Patient A's evidence, over Dr Loutfi's, that he told her to go home and try for another baby, and equally entitled to accept the evidence of Dr Woods that this was an inappropriate diagnosis.

Patient C

21. With Patient C, the Tribunal concluded that Dr Loutfi should have advised immediate delivery of her baby by caesarean section under general anaesthesia, rather than deciding on delivery under spinal anaesthesia. That was Mr Woods's evidence. There was the separate charge that Dr Loutfi had misdiagnosed that the patient's cervix was fully dilated before her transfer to the operating theatre. Mr Woods's view was that this was such a simple error to make.
22. Dr Loutfi took me to Dr X's evidence. He was the anaesthetist on the day. Part of his evidence was that it is the anaesthetist who chooses the anaesthetic, the choice depending on patient safety. Dr X said that he was told right from the outset that it was to be a general anaesthetic. For reasons of patient safety, he said, the trend was to try to use spinal anaesthetics or epidurals. Given that evidence, Dr Loutfi contended that I should reject the Tribunal's findings.
23. However, the Tribunal's findings had nothing to do with these matters. The Tribunal's criticism was twofold, first, that before Dr Loutfi attempted delivery his plan was for Patient C to have a spinal anaesthetic. (That was the evidence of the midwife and the delivery unit co-ordinator, which the Tribunal accepted. Dr Loutfi attacked that evidence but the Tribunal was entitled to prefer it.) The second criticism was that Dr Loutfi did not share with Dr X the urgency of the situation, which made spinal anaesthetic inappropriate. Given the evidence before it, the Tribunal's factual findings on both issues, and the limited nature of the review I am charged to undertake, I see no error in its conclusions as regards Patient C.

Patient D

24. With respect to Patient D, the Tribunal found that he had undertaken an inappropriate rotation of the foetal head of her baby. In my view the Tribunal was entitled to consider that it should not have been done on the evidence before it. As regards Mr Woods, the Tribunal specifically recognised that he was not a current Kielland forceps but was aware of the relevant guidance and of when not to use the instrument. There was also the evidence of Mr Pirie, a consultant in obstetrics and maternal medicine at the same Trust. He was an experienced Kielland forceps practitioner, but his evidence was also that what Dr Loutfi had done was inappropriate. Against that background there is no way that I can regard the Tribunal's finding as flawed.

Dishonest/misleading conduct

Statement re Kielland forceps

25. The Panel was satisfied that when Dr Loutfi said that he had delivered another patient by Kielland forceps after rotation to occipito-posterior position when anterior rotation was difficult, under the direct supervision of Mr F, he knew that it was untrue. The statement was contained in a letter of 25 July 2013 to Miss E, a consultant in Foetal Medicine at Birmingham Women's Hospital, in the context of the incident with another patient where consultants at the hospital did not agree with Dr Loutfi's attempting the rotation in relation to that patient. Miss E had responded that Dr Loutfi had not been supervised directly and that Mr F had not observed his performing a Kielland forceps delivery. Dr Loutfi had written on 22 September 2013, "You are right I was supervised indirectly by Mr F using Keilland [sic] forceps". In his witness statement Dr Loutfi said that he had been supervised directly by Mr F. In his cross-examination by the appellant, Mr F said:

"A … I have not done Keilland's [sic] forceps, or been trained to do so, since I was a junior doctor, like a significant number of my colleagues and, therefore, I do not supervise people doing them. I asked you if you were competent in this and you said that you had been signed off by Mr P as being competent and I believed that that was sufficient. I think the delivery suite was busy and so I popped my head into the delivery suite to see if the baby had been delivered and, of course, I could not supervise from that end because I was in the anaesthetic room. You then told me that you had delivered the baby.

…

Q … The other issue is, if you are in the room and you can immediately interfere if there is any difficulty, I call it a direct supervision and it is different from close supervision when you are scrubbed and doing the procedure with me.

A I was not in the room.

Q You were in the room. You were in the door by the anaesthetic department or the anaesthetic room.

A No, I came to the door and you said that you had delivered the baby.

Q So, you call this direct, indirect or close supervision by definition?

A It is indirect supervision because I was on the department; I was not in the room."

26. Dr Loutfi contended before me that the Tribunal failed to scrutinise the evidence with care, failed to take into account the apparent inconsistencies in the evidence of Mr F and Mr P, and erred in not taking into account that under the guidelines Mr F would still be regarded as being in a supervisory position, albeit not in close supervision.
27. In my view, Mr F was clear in the evidence I have quoted that he had not directly supervised Dr Loutfi. The Tribunal was entitled to consider that Dr Loutfi's claim to have been supervised directly by Mr F was wrong and designed to divert criticism from himself. The Tribunal was entitled to infer dishonesty. It was open to it to consider that the statement to Miss E on 25 July 2013 was dishonest.

The Manchester application

28. The panel found that on 3 January 2012, when Dr Loutfi completed an application form for the post of locum consultant in obstetrics and gynaecology at Central Manchester University Hospital NHS Foundation Trust, he failed to disclose that he was the subject of warning issued by the Investigation Committee of the General Medical Council on 14 December 2010.
29. On the first page of the application form there were these questions: "Have you been or are you currently subject to any fitness to practice proceedings by an appropriate licensing or regulatory body in the UK or in any other country?" It went on: "If yes, please provide details of the nature of the proceedings undertaken, or contemplated, including approximate date and address of the licensing or regulatory body concerned". Dr Loutfi left the box blank.
30. However, the GMC's Investigation Committee had issued Dr Loutfi with a formal warning on 14 December 2010 to remain on his record for five years. The warning arose when he had assaulted a consultant colleague at the Royal Oldham Hospital. In his witness statement, Dr Loutfi drew a distinction between investigative and fitness to practice hearings, and in oral evidence suggested that the proceedings did not cross his mind when filling out the form. The Panel found that explanation incredible.
31. Dr Loutfi submitted to me that the question was not clear in asking an applicant to disclose a warning. In any event, his omission on its own was an insufficient basis to suggest that he acted dishonestly. Moreover, the warning was disclosed before the application was submitted and the application form was submitted when he had already being appointed. There was no question of his employers being misled because the warning was in the public domain and would have been readily accessible.
32. In 2010 there were separate proceedings and in a letter in November that year the GMC had written to Dr Loutfi that he should always ensure that when asked about his fitness to practice history he was truthful and not misleading. In those circumstances the Tribunal was entitled to reject his explanation of his failure to disclose the proceedings culminating in the warning as incredible and that he was well aware that he should also have disclosed the separate proceedings. That Dr Loutfi's prospective employer could have discovered the warning because it was in the public domain in no way undermines the Tribunal's assessment: there was a positive duty to disclose and for that reason the Tribunal was entitled to find that Dr Loutfi's failure to make the disclosures was dishonest.

The appraisal

33. This concerned Dr Loutfi's appraisal with Dr G on 25 May 2012, a consultant in Obstetrics and Gynaecology and the college tutor for Obstetrics and Gynaecology. On the form the person being appraised had to list any complaints, critical incidents or any pending legal cases. Dr Loutfi had answered: "Not involved with any complaints / critical incidents / legal cases". In fact Dr Loutfi had been involved in an investigation by the Parliamentary Health Services Ombudsman arising out of a complaint made by Patient A, and in two high level incident investigations into serious untoward incidents which had occurred at the Trust in October 2011 and February 2012. Dr Loutfi did not refer to either in the appraisal discussion.
34. Before me, Dr Loutfi submitted that the appraisal was to monitor his performance and plan his future, and these matters had no relevance to that. The ombudsman investigation was wide ranging, covering his colleagues and procedures in the hospital generally. Moreover, his involvement with the high level incidents was momentary. In sum, he simply did not conceive that these matters were relevant to his appraisal.
35. In my view, the Tribunal was entitled to reject such explanations. The ombudsman's investigation was regarding Patient A's complaint, so focused on Dr Loutfi's own behaviour, and was recent. Indeed, he had received the draft report. There is nothing wrong with the Tribunal finding that Dr Loutfi's explanations were masking his dishonesty. In relation to the incidents, it was open to the Tribunal to consider that it was his responsibility to raise them with his appraiser in the context of demonstrating adequate reflective learning.

Other matters

36. Dr Loutfi briefly attacked other findings of the Tribunal as to his dishonesty in failing to make disclosure in application forms and otherwise. However, his criticisms were very much along the same lines as with the earlier findings and did not improve in the retelling. I reject the appellant's criticisms.

CONCLUSION

37. For the reasons I have given I reject this appeal against the Tribunal's findings.