QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(Sitting in Manchester)
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
|DR RUTH RHONA BRONWYN HILL||Appellant|
|- and -|
|GENERAL MEDICAL COUNCIL||Respondent|
MR NIGEL GRUNDY (instructed by the General Medical Council) appeared on behalf of the Respondent.
Crown Copyright ©
MR JUSTICE KERR:
(1) Dishonesty of any kind is very serious and may well lead to erasure from the register because it threatens public confidence in the profession;
(2) lack of insight, both in cases of dishonesty and poor performance, makes the matter more serious;
(3) this appeal can only be allowed if I am satisfied that the decision below is wrong:
(4) the tribunal's judgment on the credibility of witness who gave oral evidence is virtually unassailable;
(5) appropriate deference is due to the tribunal below in view of its special expertise, especially in cases regarding professional practice;
(6) the court can correct material errors, but its judgment on application of principles to the facts is a secondary one; and
(7) as regards sanction, the court should not conduct a resentencing exercise, substituting its view for the tribunal's.
"Have you ever been removed from the register or have conditions or undertakings been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?"
To that question Dr Hill answered electronically "No".
"(1) Inability to work safely and effectively at an SpR level.
(2) Inability to manage the workload expected of a neonatal SpR and to prioritise appropriately the workload.
(3) Poor communication skills with colleagues; fails to ask for help when required.
(4) Concerns regarding decision making and clinical practice safety.
(5) Concerns regarding her ability to recognise effectively sick neonates from the clinical information and examination findings.
(6) Concerns over her ability to conduct effective hand overs."
The relevant NHS Trust went on to state that they had tried to resolve those concerns informally, without any resulting demonstrable improvement in Dr Hill's performance.
"• Communication and interaction with staff,
• Adherence to local clinical practice guidelines
• Support of junior medical staff."
The Trust went on to note that Dr Hill was recognised to be an experienced, hardworking middle grade doctor with a knowledge base considered to be commensurate with her role.
(1) About 50 case studies where the doctor's notes are looked at and commented on;
(2) some case based discussions or "CBDs" selected from those studies for discussions with the doctor based on pre-notified written questions;
(3) "observed structured clinical examinations" (OSCEs) where the part of ill patients is played by actors;
(4) "third party interviews" or TPIs, which are what the name suggests, interviews with others who have worked with the doctor; and
(5) a knowledge test, in which Dr Hill did brilliantly, scoring 90 per cent."
"To improve the information captured on application forms which require details relating to 'Fitness to practise' we are making some changes to NHS jobs."
"If 'YES', please provide details of any conditions or undertaking which have been applied to your professional registration and the name and address of the regulatory or licensing body concerned.
You are not required to provide details where any right to appeal has been upheld AND where that appeal has resulted in your case being fully exonerated."
"A doctor with restrictions on their practice is required to disclose their publicly-available restrictions to you and their responsible officer. You can also check on the online List of Registered Medical Practitioners if the doctor you are employing has fitness to practise restrictions."
"Conditions or undertakings that are solely concerned with the doctor's health, these are confidential … Suspensions or Conditions imposed by an Interim Orders Tribunal where the case is subsequently closed with no impairment or no warning."
Submissions on behalf or Dr Hill
(1) the only conditions to which Dr Hill had even been subject were past interim conditions; her fitness to practise had never been found impaired. There were no current interim conditions at the time she completed the online form.
(2) Dr Hill had never failed to disclose current interim conditions to which she had been subject for over two and a half years, ending in June 2013.
(3) There was no duty to disclose lapsed interim conditions where there had been a subsequent exoneration.
(4) Nor should there be such a duty, since they do not tell the employer anything about the doctor's fitness to practise. They are not based on findings of fact or any evaluation of the merits of a case against a doctor.
(5) Lapsed interim conditions are not "publicly available" within the meaning of the GMC's policy document of May 2016.
(6) The NHS publication effective from June 2016 referred to "ambiguity" and stated that, where an appeal to the High Court had led to exoneration, no "details" need be provided.
(7) It was "repugnant to common sense" to say that lapsed interim conditions should be "disclosable" but quashed substantive conditions should not be.
(8) The tribunal should have accepted Dr Hill's evidence that she had answered the question honestly. The tribunal was wrong to rely on a "discrepancy" in Dr Hill's account and to its own adverse credibility finding on unrelated matters, such as an issue of attendance on courses about record keeping.
(1) the previous finding in 2013 that her fitness to practise was not impaired should have counted in her favour, but the tribunal ignored it. It gave her good reason to be defensive during the proceedings.
(2) Specifically, the tribunal should have taken into account in her favour the assessment materials from 2013, which contained much material favourable to her that underpinned the finding in her favour in the 2013 proceedings.
(3) In the 2015 performance assessment, the tribunal overlooked the point that Dr Hill was assessed as an experienced specialist registrar working at a level 3 neonatal unit when, in fact, she was only there to gain the necessary six months' experience to enable her to apply for a Certificate of Eligibility as a Specialist Registrar (CESR), i.e. to become a consultant.
(4) The two assessors themselves lacked the expertise to conduct the assessment, and one of them, Dr Scott, had been involved in the previous assessment in 2013. No witnesses of fact were called by the GMC.
(5) The assessors did not observe Dr Hill's practice, arguing that she was in a different job at the time of the assessment. That undermined the validity of the assessment. Previous observations of her work had led to positive comments.
(6) The assessment report did not mention that there had been no complaint or incident involving any threat or alleged threat to the safety of a patient.
(7) Dr Hill's score of 90 per cent in the knowledge test probably compared favourably with that scored by the assessors themselves, whose scores were not disclosed despite them being asked.
(8) The tribunal's treatment of the evidence was unbalanced and lacked even handedness. There was an unfair emphasis on evidence adverse to Dr Hill. There were several aspects to this.
(9) One was that the tribunal took no account of the Bolam principle that respectable medical practice does not involve only one response or treatment decision where a doctor is faced with a patient in a particular condition or with a particular diagnosis.
(10) Further, the tribunal failed to weigh in the scales in Dr Hill's favour the many instances of withdrawn criticism. If, say, half the criticisms are withdrawn during the hearing, the tribunal's task is to weigh in the doctor's favour the cases where criticism is withdrawn as instances of good practice against the other half of the cases where criticism remains as instances of alleged bad practice. The tribunal failed to do this.
(11) The tribunal's approach to the evidence of performance was unfairly selective, with a pattern of reliance only on adverse findings and ignoring evidence of good performance.
(12) In support of this argument, Mr Hockton took me through the detail of several individual case studies as examples, he said, of cases where the tribunal had unfairly adopted an unbalanced approach to the weighing of the evidence. Although I do not here go through the detail, for the record those cases were, using the numbering adopted by Dr Hill in her witness statement, as follows: cases 43, 32, 34, 46, 49, 47, 15, 6, 13, 16, 5 and 4.
(13) The tribunal placed undue reliance on the TPIs (third party interviews), where the interviewee was not called and Dr Hill was not able to cross-examine them. Reliance on them was unsafe and unfair, despite a standard "hearsay and weight" direction given by the legal assessor. It was wrong to prefer unsubstantiated third party evidence to that of Dr Hill; in particular, on the subject of poor "cannulation" and "intubation"; "failings" the tribunal said were "particularly serious" (see paragraph 127 of the determination on the facts).
(14) Dr Milligan's expertise was greater than that of either assessor, and he conducted a far more extensive review than did the assessors.
(15) Dr Milligan's evidence in support of Dr Hill was not given the respect it deserved; in particular, on the issue of Dr Hill's record keeping, which Dr Milligan regarded as satisfactory. No reason was given for rejecting that evidence and it had not been identified by University College Hospital London as a particular concern.
(16) The tribunal persistently relied on the evidence of Dr Gabbie and unjustifiably preferred it to Dr Milligan's view, and sometimes that of Dr Scott too, in cases where Dr Gabbie maintained her criticism, even though she had been constrained on many occasions in cross-examination to withdraw criticisms. The tribunal paid no heed to the significance of the "alarming regularity" (in Mr Hockton's phrase) with which Dr Gabbie withdrew criticisms that had been building blocks in the case against Dr Hill.
(1) if the findings on dishonesty and deficient performance were flawed, the finding of impairment would obviously likewise be flawed. But, even if the findings of fact should stand, the finding of impairment was not justified.
(2) The tribunal gave negligible weight to the positive written and oral evidence from the doctors at Newham University Hospital with whom Dr Hill was actually working. The only aspect of their evidence on which the tribunal unfairly siezed was the negative point they made concerning the two incidents where there had been poor communication.
(3) The tribunal should have accorded greater respect to Dr Hill's colleagues, the point that they had no concerns about her integrity and none about her fitness to practise either. The tribunal had misunderstood the concept of "close supervision" which does not necessarily mean the supervisor is in the room whenever the supervised doctor is working.
(4) It was wrong to hold against Dr Hill her denial of a problem about her record keeping when, according to the doctors at Newham University Hospital, there was no such problem.
(5) The sanction of suspension for 12 months was, therefore, wrong and excessive.
Submissions of the GMC
(1) Dr Hill's arguments are a repeat of the arguments made to the tribunal, which it rejected and was entitled to reject.
(2) When she completed the online application form in March 2015, Dr Hill knew that she had in the past been subject to interim conditions on her registration, which she decided, on her own admission, not to reveal to her employer.
(3) The question asked drew no distinction between past conditions and present conditions, nor between interim conditions and conditions imposed as a sanction. There was no ambiguity in the question.
(4) Dr Hill had claimed in evidence, without documentary support, that, if the answer "yes" is given, a drop down menu asks the further question, "Please specify the conditions to which your registration is now subject." The tribunal was not bound to accept that evidence and was entitled to be sceptical about her credibility generally.
(5) Even if her evidence about the drop down menu were correct, she should still have answered "yes" to the question and then gone on to explain that her registration had been subject to conditions in the past, but that was no longer so. Her omission to do so made her answers misleading and false.
(6) The appellate court should not interfere with the tribunal's assessment of her answer to the question and whether it was dishonest since that was very much a "value judgment" for the tribunal to make.
(7) The account in Dr Hill's witness statement that she interpreted the question in the "present tense" was designed to obfuscate and not elucidate the issue. The question was not phrased in the present tense and clearly referred to past conditions.
(1) the outcome of the 2013 proceedings had been that Dr Hill's performance had been found deficient, but her fitness to practise had been found not to have been thereby impaired. That was not a finding in her favour.
(2) The issue was not how she had performed in 2013, but in the 2015 assessment. Mr Grundy accepted that the assessment had to be fair and that that meant balancing the positive findings, including those where criticism had been withdrawn, against the negative findings, where criticism had not been.
(3) There was no lack of balance in the tribunal's approach to the evidence. It was for the tribunal to assess and weigh the evidence of all four doctors who gave evidence; the two assessors, Dr Hill herself and Dr Milligan. The tribunal was best placed to carry out the assessment of that evidence, having heard it over many days and weeks.
(4) It was not correct that the tribunal had uncritically accepted the evidence of Dr Gabbie where it was adverse to Dr Hill and taken no account of the incidence of her backing down and withdrawing criticisms. There were instances where the tribunal had not accepted Dr Gabbie's evidence and had accepted Dr Hill's explanation.
(5) Furthermore, the tribunal was faced with a widely differing variety of evidential assessments in the cases and discussions, and other material that had formed the assessment.
(6) Thus, there were cases where Dr Hill herself had not agreed with Dr Milligan's assessment (in one case, referring to a comment from him as "ludicrous"). There were others where Dr Milligan had agreed with the assessors or one of them. There was no unfair "cherry picking" by the tribunal of evidence adverse to Dr Hill.
(7) Dr Milligan agreed with the assessors in some cases and Dr Hill did not agree with Dr Milligan in those cases. This had nothing to do with the Bolam approach to diagnosis and treatment.
(1) in considering the issue of impairment, the tribunal was entitled to take into account its finding that Dr Hill had been less than truthful and that she lacked insight. The finding that there was a likelihood of repetition of misconduct was open to the tribunal and not wrong.
(2) The 2013 Fitness to Practise panel had found that Dr Hill's performance had been deficient, but that her fitness to practise was not thereby impaired. That panel had been influenced by positive testimonials from medical colleagues which had persuaded it that the likelihood of a repetition of deficient performance was small.
(3) That had turned out to be a false hope. Mr Grundy accepted that the evidence from medical colleagues at Newham was positive, but so had been the evidence in 2013.
(4) The tribunal was justified in reasoning that the finding of absence of likely repetition in 2013 had been shown by history repeating itself to have been wrong with hindsight. The tribunal was not bound to make the same finding again with the benefit of that hindsight.
(5) There was clear evidence of two incidents of further communication problems even after Dr Hill had started working at Newham University Hospital. It was not unfair singling out of negative evidence to focus on those as supporting the finding of impairment.
(6) The sanction was plainly not disproportionate or excessive. It was well within the margin open to the tribunal, and the court should accord the appropriate degree of deference to the tribunal's decision on sanction. The tribunal was not bound to find that this was a case for conditions rather than suspension.
Reasoning and conclusions
Findings of fact: