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Cite as: [2007] CSIH 17, [2007] ScotCS CSIH_17

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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Johnston

Lord Marnoch

[2007] CSIH 17

XA100/05

OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK

in the APPEAL

DR JULIE MARGARET MALLON

Appellant;

against

THE GENERAL MEDICAL COUNCIL

Respondent:

_______

For the appellant: Cullen QC, McGregor; Shepherd & Wedderburn

For the respondent: McAuley QC, Dunlop; Anderson Strathern

9 March 2007

Introduction

[1] This is an appeal under section 40 of the Medical Act 1983, as amended, against a decision of the respondent's Fitness to Practise Panel (Professional Conduct) (the Panel) dated 15 September 2005.

[2 ] The appellant is a general practitioner. Since 1997 she has been in practice at the Central Health Centre, Cumbernauld (the Centre). On 19 August 2002 at about 4.15 pm child A was brought to the Centre by his mother and her sister. He was in the course of an asthmatic attack. The appellant treated him. Immediately before he arrived she knew that he had twice been admitted to Yorkhill Hospital, Glasgow for treatment for asthma and that he had been discharged from there only four days previously. She had read his hospital discharge prescription earlier that day.

[3 ] The appellant had the child nebulised and at about 5 pm she sent him home. By about 6 pm his condition worsened. He was brought back to the Centre. While the appellant was treating him there, he suffered a respiratory arrest. At 6.53 pm he died.

The charge

[4 ] The appellant was charged before the Panel with serious professional misconduct. The charge was of the gravest kind. It alleged that when the appellant first treated the child at the Centre, she failed to diagnose that his asthma attack was acute and potentially life-threatening; that she failed to have him admitted to hospital as an emergency; that this failure resulted in the loss of his life; and that at a Fatal Accident Inquiry (FAI) into the death she gave untruthful evidence about her treatment of him.

[5 ] There were further allegations that the appellant failed to take a sufficiently detailed history from the child's mother; that she failed to carry out a proper examination of him before nebulisation; that she failed to keep proper notes of her examination and that after the nebulisation she failed to give him the steroid prednisolone.

[6 ] There was also a separate but related issue as to the appellant's preparation for the nebulisation of the child. It was alleged that she acted inappropriately towards the child and his mother at the time of her examination by being dismissive of the seriousness of his condition, by being unsympathetic to his distress, by asking them to leave her consulting room because she was busy, and by discussing the cost of masks at a time when the child and his mother were in an obviously distressed state. The question of masks was important because the charge also alleged that the appellant needlessly delayed the nebulisation of the child while his aunt travelled to his home to uplift a mask.

The evidence

[7 ] The appellant insisted that her diagnosis of a mild to moderate attack had been correct. She did not dispute the allegations that when the child was brought to the Centre she did not take a detailed history of his recent use of his inhaler, that she did not take a peak flow reading before nebulisation and that she did not record the child's respiratory rate at the time of her initial examination. There was evidence that these were appropriate clinical steps. The appellant also admitted that she did not give the child prednisolone after nebulisation. She relied on guidance notes in the British National Formulary, and issued by the journal Thorax, which, she maintained, suggested that the giving of prednisolone was an option only; but both of the expert witnesses on this point, Dr Richard Harker for the respondent and Dr Guy Norfolk for the appellant, were of the opinion that in the circumstances she ought to have given it.

[8 ] In light of the findings of the Panel, we need consider the allegations regarding the appellant's preparation for nebulisation only in relation to the question of the mask. The appellant admitted that she delayed the nebulisation procedure until the child's aunt had gone to his home and returned with the necessary mask. There was a conflict of evidence between the appellant and the child's mother as to why this happened.

[9 ] The child's mother said that when she asked the appellant "Can't you just give him some nebuliser," the appellant said "Well, have you got a mask?" and "Well, they cost between £20 and £30. Can't nebulise without one. Do you have one?" The mother said that there was one at home. The appellant said "Well, can you go and fetch it?" The mother could not drive and was not prepared to go for the mask. Her sister then drove to the house for it. Her round trip took just over ten minutes.

[10 ] The appellant's account was to the effect that she asked the child's mother if she had her nebuliser mask with her. According to the appellant,

"Mum said 'I haven't got it on me but it's at home', and I replied 'Well, you can't leave. You can't leave and take [the child] away from here', and her reply was along the lines 'Oh, it's fine, my sister's here'. So I said 'Well, where is it?', 'It's just two minutes down the road'. I says 'Well fine. You know, apparently they cost £20, £25. If you can get it, fine. If you can't fine', and she went off to get it - she went off to get her sister."

[11 ] The appellant's account was in essence that this exchange was light-hearted. In the following passage of her evidence in chief, she suggested that she saw some advantage in the delay.

Q Did you see any disadvantages in delaying the nebulisation for the time it would take to get the mask from his home, when you knew where it was?

A No.

Q Did you think there might be some advantage in a slight delay before doing that?

A Yes, because of the child's anxiety to be nebulised, I thought waiting a few minutes might help him to accept it a bit easier.

It is significant, however, that the appellant admitted that she raised the topic of the cost of masks and that she had masks available at the Centre.

The decision of the Panel

The findings in fact

[12 ] On 14 September 2005 the Panel announced its findings in fact. It dismissed much of the charge, including the allegations that the appellant's failure to take appropriate action resulted in the loss of the child's life and that the appellant gave untruthful evidence at the FAI. But it found the following allegations to have been proved:

"3 Upon his attending the surgery on that date, at about 1600, you failed to undertake proper enquiries about child A's recent condition in the following respects,

(a) you failed to take a sufficiently detailed history of his condition from his mother by enquiring as to ...

(iii) when he last used his inhaler

(iv) how often throughout the day his inhaler had been used ...

4 You failed to carry out a proper examination of child A in respect that you failed to take a peak flow reading prior to nebulisation ...

6 You failed to keep proper notes in child A's records of your examination in respect that you failed to record his respiratory rate at the time of initial examination ...

7 You acted inappropriately towards child A and his mother ... at the time of the said examination by ...

(d) by discussing the cost of masks at a time when the patient and his mother ... were in an obviously distressed state ...

8 You delayed, without good reason, in commencing nebulisation of child A, whilst his aunt travelled to child A's home to uplift a mask ...

10 In any event, following nebulisation ...

Serious professional misconduct

[13 ] On 15 September 2005 the Panel found that, in respect of all of these findings, the appellant's actions were inappropriate and were not in the best interests of the patient. More seriously, in relation to findings 4, 7(d), 8 and 10(c), the Panel found that her actions were "irresponsible." Having regard to all of these findings, the Panel concluded that the appellant was guilty of serious professional misconduct. These were its reasons.

"The General Medical Council's guidance Good Medical Practice (May 2001) states that 'patients must be able to trust doctors with their lives and well-being,' and that 'good communication between patients and doctors is essential to effective care and relationships of trust.' Good Medical Practice further states 'you must make the care of your patient your first concern.' It also indicates that 'all patients are entitled to good standards of practice and care from their doctors, which must include an adequate assessment of the patient's conditions, based on the history and symptoms and, if necessary, an appropriate examination.' Again, 'doctors must take suitable and prompt action when necessary,' and 'be competent when ... giving or arranging treatment.'

In the light of all the evidence and its findings of fact, the Panel has concluded that your conduct fell seriously short of the standards expected of a general medical practitioner. The Panel has therefore found you guilty of serious professional misconduct."

Penalty

[14 ] The Panel ordered that the appellant should be suspended from the Register for three months. These were its reasons.

"In considering whether to take action in relation to your registration, the Panel has taken into consideration the GMC's Indicative Sanctions Guidance and the issue of proportionality. It has balanced the public interest, which includes the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour, against your own interests. It has noted that there are no previous GMC findings against your registration.

Notwithstanding the submissions of [counsel for the appellant], the Panel has decided that it is necessary to take action against your registration. The Panel's findings against you, taken together, represent a serous breach of the principles of Good Medical Practice, and a falling short of the standard of care that the public is entitled to expect from registered medical practitioners. The Panel has determined that to conclude this case with a reprimand would not adequately preserve public trust in the profession or sufficiently register its disapproval of your conduct. The Panel also determined that conditions would not be appropriate or practicable in this case.

The Panel then went on to consider whether it would be sufficient to direct that your registration be suspended. The Panel recognises that it may direct a period of suspension of up to 12 months. In your work with your mentor, Dr Dobbie, you have shown insight and have undertaken a 'Significant Event Analysis.' The Panel also took note of the strong references and testimonials adduced in your support.

Taking all these factors into account, and the oral, written and expert evidence in this case, the Panel consider that it is appropriate and proportionate to direct the Registrar to suspend your name from the Register for a period of 3 months."

The submissions for the appellant

[15] Counsel for the appellant submitted that the Panel had acquitted her of the gravamen of the charge. It found not proved the allegation that the asthma attack was severe. It therefore found that the appellant's diagnosis of a mild to moderate attack and her decision to send the child home after nebulisation were correct. The Panel found that she was culpable in only three respects. Her failures to obtain a sufficiently detailed history of the child's recent use of the inhaler, to take a peak flow reading and to record the respiratory rate before nebulisation (heads 3(a)(iii) and (iv), 4 and 6) had to be seen in the context of her correct diagnosis. There was no evidence that the delay in nebulising the child (heads 7(d) and 8) caused any deterioration in his condition. The appellant's decision not to administer prednisolone (head 10(c)) was in accordance with the recognised guidance notes. The allegations found proved fell short of serious professional misconduct. The penalty was inappropriate and unnecessary. There was no evidence that the appellant's actions had caused direct or indirect harm to the child. The Panel acknowledged that she had shown insight into her failings. It was an isolated incident. There had been no repetition of it. The appellant had a previous good history. She had taken rehabilitative steps. There were numerous testimonials in her support. In these circumstances, and in view of the passage of time and the damaging publicity that she had suffered, a suspension was unjustified. In view of the factors set out in the respondent's Indicative Sanctions Guidance (May 2004), a reprimand would have been sufficient.

The submissions for the respondent

[16 ] Counsel for the respondent submitted that the finding of serious professional misconduct was open to the Panel on the basis of its findings of fact and its assessment of those findings. The Panel as a specialist body was best qualified to decide the question (Marinovitch v GMC, 24 June 2002, at para 28, referred to in Fatnani and Rashid v GMC [2007] EWCA 46, Laws LJ at para 18)). The Panel had had reached its conclusion on the question of serious professional misconduct on "all the evidence and its findings of fact" (Decision of 15 September 2005, p 3). It had taken a discriminating approach. It had regarded certain actions as inappropriate and others as irresponsible, all in the context of good medical practice. The dismissal of the most serious charges did not mean that what remained did not constitute serious professional misconduct. The fact that the appellant's diagnosis of a mild to moderate attack was correct did not mean that her individual failures were not serious in light of the possible consequences (Meadow v GMC, [2007] 1 All ER 1, Auld LJ at para [201]). In relation to her failure to take a peak flow reading, her conduct concerning the mask and her failure to give prednisolone, the appellant had been judged to have been irresponsible. It was not disputed that the appellant had been guilty of misconduct. It was for the Panel to judge whether the misconduct was serious. The court should not interfere with such a decision. The Panel's approach to the question of penalty could not be faulted.

Conclusions

Serious professional misconduct

[17] The starting point in this appeal is that the appellant does not dispute the Panel's findings in fact, nor does she dispute that those findings disclose a case of professional misconduct.

[18 ] In a case such as this, "misconduct" denotes a wrongful or inadequate mode of performance of professional duty; or as Lord Clyde described it in Roylance v GMC (No 2) ([2000] 1 AC 311, at p 331 B-C), it is "a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances." The question raised in this appeal is whether the Panel was entitled to hold that the appellant's misconduct was "serious." The statute does not lay down any criterion of seriousness; nor does the case law. Descriptions of serious professional misconduct such as "conduct which would be regarded as deplorable by fellow practitioners" (Nandi v GMC [2004] All ER (D) 25, Collins J at para [31], quoted in Meadow v GMC, supra, Auld LJ at paras [200]-[201]) tend, we think, to obscure rather than assist our understanding. In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera. The decision in every case as to whether the misconduct is serious has to be made by the Panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence (Roylance v GMC, supra, Lord Clyde at p 330f; Preiss v GDC, [2001] 1 WLR 1926, Lord Cooke of Thorndon at para 28). Misconduct that the Panel might otherwise consider to be serious may be held not to be in the special circumstances of the case (R (Campbell) v GMC [2005] 2 All ER 970, Judge LJ at para [19]).

The powers of the appellate court

[19] Counsel agree that we have to apply the test set out in McMahon v Council of the Law Society of Scotland (2002 SC 475, at paras [13]-[16]); that is to say, we should look at the decision of the Panel in the light of the whole circumstances of the case, always having due respect for the expertise of the Panel and giving to its decision such weight as we should think appropriate. However, as the court observed in that case (at para [16]), in following this approach it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist tribunals in appeals of this kind. When invited to disturb a finding of serious professional misconduct, we have to defer to the judgment of the Panel to whatever extent is appropriate in the circumstances (Meadow v GMC, supra, Auld LJ at para [197]). In applying this agreed test we are entitled to substitute our own judgment on the facts for that of the Panel; but whether such interference on our part is justified will often depend, in our view, on the nature of the misconduct. We have to take a similar approach to the question of penalty. As was conceded by the respondent in Ghosh v GMC ([2001] 1 WLR 1915), it is open to the court on that question to consider all the matters raised by the appellant, to decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate, and in the latter case either to substitute some other penalty or to remit the case to the Panel for reconsideration (ibid, at para 34).

[20] The spectrum of serious professional misconduct can range from conduct that is entirely non-clinical, such as defrauding the National Health Service or sexually harassing an employee or colleague, to conduct in the course of clinical practice, such as the carrying out of a reckless surgical procedure. In a case of the former kind, a court might conclude that there was little to inhibit it from substituting its own judgment for that of the Panel if it should have cause to differ from it. In a case of the latter kind, which involves a technical question of medical malpractice, the court is, we think, at a serious disadvantage to the Panel whose decision is impugned.

The decision of the Panel

[21 ] In the present case, each head of the charge that was found to be proved proceeded on a decision of an expert Panel who saw and heard the witnesses; who had questions of credibility to resolve, not least in relation to the appellant; and who had considered the expert evidence led by both sides. The judgments that the Panel made on its findings of primary fact reflect its conclusions on the expert evidence led before it and the application of its own expertise. The Panel has held that all of those parts of the charge that it found proved constituted behaviour that was inappropriate and was not in the best interests of the child. That in itself is a serious judgment. But more serious still is its conclusion in respect of heads 4, 7(d), 8 and 10(c) that the appellant behaved irresponsibly.

[22 ] The Panel then had to assess its findings in fact and its conclusions upon them in the round and decide whether overall they amounted to serious professional misconduct. That was the decision that it reached.

[23 ] Counsel for the appellant submitted that in respect of those specific findings the conclusion that there was serious professional misconduct was unjustified. One of his principal arguments was that the charge in its original form was of the utmost gravity; that all of the graver allegations were dismissed; that those that were held proved were much less serious, and therefore that the finding of serious professional misconduct could not be sustained. In our opinion, this argument is flawed. To the extent that it was found proved, the charge was certainly less serious than it was in its original form. But it does not follow that what remained of it did not constitute serious professional misconduct.

[24 ] The main difficulty for the appellant is the fact that in four specific respects the Panel found that she acted irresponsibly. In relation to the pre-nebulisation checks, while the appellant's diagnosis was in the event found to be correct, the Panel was nonetheless entitled to hold that her failures constituted irresponsibility per se.

[25 ] The finding under head 7(c) that the appellant engaged in an inappropriate discussion with the child's mother about the cost of masks has to been seen along with the finding under head 8 that the appellant delayed nebulisation "without good reason." By that finding the Panel impliedly rejected the appellant's excuse for having done so. The Panel therefore decided that, while the child was in the course of the asthmatic attack, and in the context of an entirely inopportune remark about cost, the appellant needlessly delayed giving him the relief that nebulisation would bring, by requiring that his mask be brought from his home, despite the fact that she had masks to hand.

[26 ] In our opinion, the Panel was entitled to hold that for the appellant to postpone the treatment that would relieve the child's suffering, thereby prolonging his suffering and adding to the distress of his mother, constituted irresponsibility, whether or not in the event it prejudiced the health of the child.

[27 ] Lastly, in relation to the failure to administer prednisolone after nebulisation, while the guidance notes did not suggest that the giving of prednisolone was essential after nebulisation in the case of a mild to moderate attack, both parties' expert witnesses agreed that, in the circumstances of this case, the appellant should have given it. The appellant's witness, Dr Norfolk, gave as his reasons the child's recent hospital admission and the severity of his attack in April of that year. On that evidence the Panel was entitled to conclude that the appellant's failure to administer prednisolone was irresponsible.

[28 ] Our impression, for what it is worth, is that the finding of serious professional misconduct was amply justified, not least in respect of the findings of irresponsibility. But it is sufficient to say that the Panel was best placed to make that judgment since the critical findings in fact related to technical questions of the practice of medicine. On such questions the issue of serious professional misconduct was pre-eminently a question for the Panel. The Panel had to bring to bear its expertise in matters of medical practice on the judgment that it had to make. In our view, it was open to it to conclude that, even after the graver elements were taken out of the charge, what remained nonetheless constituted serious professional misconduct.

Penalty

[29 ] The primary considerations on the question of penalty are the maintenance of professional standards and the public interest, which includes not only the protection of the public but also the preservation of public confidence in the medical profession (Ghosh v GMC [2000] 1 WLR 1915, Lord Millett at para 34; Fatnani and Rashid v GMC, supra, Laws LJ at para 26). It is not disputed that the Panel set itself the correct test in its approach to penalty. If the appellant had been found guilty as charged, the Panel would have had to consider the question of striking off; but in the light of its findings in fact, it is obvious that a lesser penalty was appropriate. The Panel had the power to suspend the appellant for up to 12 months; but, having taken into account her work with her mentor, the references and testimonials produced on her behalf, and the oral, written and expert evidence in the case, it considered that it was appropriate and proportionate to impose a suspension for three months.

[30 ] That decision too was pre-eminently a matter for the Panel's expertise and judgment. We are unable to say that the sentence of the Panel was unreasonable in nature or excessive in extent. In our opinion, we have no reason to interfere with it.

Disposal

[31 ] We refuse the appeal.