QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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GENERAL MEDICAL COUNCIL |
Appellant |
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- and - |
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PRZEMYSLAW SLEDZIK |
Respondent |
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The Respondent appeared in person
Hearing date: 13 December 2018
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Crown Copyright ©
Mrs Justice Lang:
The legal framework
"(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal—
(a) a decision under section 35D giving—
…
(ii) a direction for conditional registration, including a direction extending a period of conditional registration;
…
(2) A decision to which this section applies is referred to below as a "relevant decision".
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
. . .
(6) On an appeal under this section, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,
and may make such order as to costs . . . as it thinks fit."
"As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.
In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
The Tribunal's findings on the Allegation
"1. Whilst working as a Locum Ophthalmic Medical Practitioner for Boots Opticians between April and October 2015 you:
a. consulted with Patient A and you failed to:
i. dilate his eyes for an examination of the posterior segment including the retina and optic discs; Found proved
ii. countersign the retinal photographs; Found not proved
b. consulted with Patient B and you failed to:
i. obtain an adequate medical history from Patient B's parents in that you did not ascertain:
1. whether it was Patient B's first eye test; Found not proved
2. how long the squint in Patient B had been present for; Found proved
3. which eye tended to turn; Found proved
4. whether there was a squint running in the family; Found proved
5. general health history; Found proved
6. whether there was any restriction to Patient B's eye movements; Found proved
7. whether there was any abnormality of the optic nerves; Found proved
ii. make an adequate medical record of the medical history obtained from Patient B's parents;
Admitted and found proved
iii. undertake an adequate examination of Patient B in that you did not:
1. examine the back of Patient B's eyes; Found proved
2. perform binocular tests on Patient B; Found proved
3. identify fixation preference; Found proved
4. perform a relative afferent pupillary defect test on Patient B; Found proved
iv. make an adequate medical record of the examination; Admitted and found proved
v. record your advice to Patient B's parents;
Admitted and found proved
c. used the incorrect term 'constant esophoria' during Patient B's consultation; Admitted and found proved
d. consulted with Patient C and you failed to:
i. record:
1. your advice to Patient C's parents;
Admitted and found proved
2. the best corrected visual acuity with the strength of the lenses in either eye;
Admitted and found proved
ii. countersign the retinal photographs; Found not proved
iii. undertake an adequate examination in that you did not perform ancillary tests looking for binocular function in line with Boots Policies; Found not proved
e. consulted with Patient D and you failed to:
i. obtain an adequate medical history from Patient D's parents in that you did not ascertain:
1. the strength of glasses that Patient D was wearing; Found proved
2. how long Patient D had worn the glasses;
Found proved
3. family history; Found proved
ii. make an adequate record of the medical history obtained from Patient D's parents; Admitted and found proved
iii. undertake an adequate examination of Patient D in that you did not:
1. perform an external eye examination of the anterior segments; Found proved
2. perform tests to investigate stereopsis;
Found not proved
iv. make an adequate record of the examination;
Admitted and found proved
v. record your advice to Patient D's parents;
Admitted and found proved
vi. arrange a three month review to check visual acuity;
Admitted and found proved
vii. countersign the retinal photographs; Found not proved
f. consulted with Patient E and you failed to:
i. obtain an adequate medical history from Patient E in that you did not ascertain:
1. the period of time Patient E's eyes had been red; Found not proved
2. why Patient E had gritty red eyes; Found proved
3. whether Patient E's vision had been affected; Found not proved
4. whether Patient E was using drops; Found proved
ii. undertake an adequate examination of Patient E in that you did not:
1. carry out a pre-screen; Found proved
2. take the intraocular pressures; Found proved
3. use fluorescein dye to examine for presence or absence of staining of epithelial disruption; Found proved
4. examine for tear film and eyelid issues; Found not proved
iii. make an adequate record of the examination;
Admitted and found proved
iv. provide advice to Patient E regarding his gritty red eyes such as the use of lid hygiene programmes and lubricant use;
Found proved
v. countersign the retinal photographs; Found not proved
g. consulted with Patient F and you failed to:
i. obtain an adequate medical history from Patient F in that you did not take a relevant history in relation to the prescription of lubricant eye drops; Found proved
ii. undertake an adequate examination of Patient in that you did not:
1. perform an adequate ocular movement
examination; Found not proved
2. arrange a visual field test; Found proved
3. identify a need for eye drops; Found proved
iii. record best corrected visual acuity;
Admitted and found proved
iv. identify the reason why both vertical and horizontal prisms were incorporated into glasses; Admitted and found proved
v. formulate a diagnosis for Patient F; Found proved
vi. record any advice given to Patient F about cataracts;
Admitted and found proved
vii. advise Patient F about the use of eye drops;
Found not proved
viii. countersign the retinal photographs; Found not proved
h. consulted with Patient G and you:
i. failed to obtain an adequate medical history from Patient G in that you did not;
1. request any further information about Patient G's current medication; Found proved
2. enquire how long the subconjunctival haemorrhage ('the haemorrhage') had been present in Patient G's right eye; Found proved
3. enquire if the haemorrhage was causing Patient G any discomfort; Found proved
4. arrange an earlier follow up; Found proved
5. countersign the retinal photographs; Found not proved
ii. advised Patient G to have Botox to cure her frown lines and headaches, or words to that effect; Found proved
iii. did not introduce yourself to Patient G;
Admitted and found proved
iv. were dismissive of Patient G; Admitted and found proved
i. consulted with Patient H and you failed to:
i. undertake an adequate examination of Patient H in that you did not:
1. arrange a visual field test; Found proved
2. use eye drops to examine the cornea and tear film; Found proved
3. perform an anterior external eye examination looking for quality of tears; Found not proved
ii. formulate a diagnosis for Patient H; Found proved
iii. adequately advise Patient H about the use of lubricant drops; Found proved
iv. countersign the retinal photographs. Found not proved
2. Whilst working as a Locum Optometrist for Specsavers you consulted with:
a. those patients as set out in Schedule 2 and you failed to carry out a visual field test; Admitted and found proved
b. those patients as set out in Schedule 3 and you failed to review the visual field test; Admitted and found proved
c. those patients as set out in Schedule 4 and you failed to refer them to the eye hospital service; Admitted and found proved
d. Patient K on 5 February 2015 and you failed to:
i. test the intraocular pressure more than once;
Admitted and found proved
ii. advise Patient K that a referral to the hospital eye service was indicated; Found proved
e. Patient L on 16 February 2015 and you failed to:
i. test the intraocular pressure more than once;
Admitted and found proved
ii. advise Patient L that a referral to the hospital eye service was indicated; Found proved
f. Patient M on 10 April 2015 and you failed to undertake an adequate examination of Patient M in that you did not:
i. complete an examination at the back of either eye including optic nerve analysis; Found proved
ii. make an adequate record of the examination; Admitted and found proved
g. Patient N on 10 January 2015 and you failed to undertake an adequate examination of Patient N in that you did not:
i. examine the posterior pole including the discs; Found proved
ii. make an adequate record of the examination; Admitted and found proved
h. Patient O on 8 October 2015 and you failed to inform the hospital eye service about the increased pressure in Patient O's left eye.
Found proved
3. You knowingly made a decision not to refer the patients to the hospital eye service, as listed in Schedule 4, in accordance with the national guidelines.
Admitted and found proved."
The Tribunal's findings on impairment
"His management of the Boots patients illustrates a lack of attention to detail and poor record keeping consistent with a practitioner who is doing the minimum (or below minimum) required. His management of the 2 year old in the Boots group (Patient B) is the most concerning in that serious pathology could have been missed with such a brief 'assessment'. Overall, PS comes over to me as an OMP who rushes patients through and who is happy to ignore national guidelines even if this puts patients at risk. For this reason, in particular, I feel that the overall standard of care offered falls seriously below that to be expected of a reasonably competent OMP."
The Tribunal's determination on sanction
"... could, in the future, be a doctor who practised safely and to an appropriate standard…..remediation would be best achieved by [the Respondent] undergoing a period of supervision and focused retraining, where he could improve his clinical skill and knowledge."
Grounds of appeal
Conclusions
"Throughout its deliberations, the Tribunal bore in mind that the purpose of sanctions is not to be punitive, but to protect the public interest. The public interest includes protecting the health, safety and well-being of the public, maintaining public confidence in the profession, and declaring and upholding proper standards of conduct and behaviour. In making its decision, the Tribunal also had regard to the principle of proportionality, and it weighed Dr Sledzik's interests with those of the public. It also considered and balanced the mitigating and aggravating factors in this case."
"… it was reassured by his developing insight and willingness to work collaboratively with colleagues. It determined that [the Respondent], with the right support, structure and proper reflection, could develop his insight to a satisfactory level." (paragraph 20).
I agree with the GMC's submission that it was not clear why the Tribunal altered its view, as the evidence adduced at sanction stage was limited.