The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 71 of 1997

 

Dr. Brian Joseph Hendley Appellant

v.

The General Medical Council Respondent

 

FROM

 

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

 

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 5th May 1998

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Present at the hearing:-

Lord Lloyd of Berwick

Lord Hope of Craighead

Lord Clyde

  ·[Delivered by Lord Lloyd of Berwick]

 

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1. Dr. Brian Hendley, a qualified anaesthetist, appeals against a determination of the Professional Conduct Committee of the General Medical Council that he was guilty of serious professional misconduct in relation to an operation performed on Mrs. Linda Spence at the Freeman Hospital, Newcastle on 3rd January 1996.  The Committee directed that his registration should be conditional for a period of 18 months.  The conditions are:-

"(1)You shall not undertake locum anaesthetic posts.

(2)You shall seek and follow the advice of a regional postgraduate dean in pursuing a structured programme of training in anaesthetics to remedy the deficiencies revealed during the course of these proceedings.

(3)You shall undertake training in communications and interpersonal skills in accordance with advice from the regional postgraduate dean.

 

(4)You shall produce objective evidence of your progress on the training programmes identified in requirements 2 and 3 above."

 

2. For convenience their Lordships set out the heads of charge:-

"That, being registered under the Medical Act,

 

1.On 3rd January 1996, you were responsible for the anaesthetic care of Mrs. Linda Spence during a surgical procedure carried out under general anaesthetic by Mr. M.J. Gibson;

 

2.As the patient was about to be transferred into the operating theatre, you noticed that the patient's right hand and fingers had turned mottled blue;

 

3.On three subsequent occasions, Staff Nurse Hart reported to you discolouration of the patient's right mid-arm to wrist;

 

4.The discolouration of the patient's arm should have alerted you to the possibility of a circulatory difficulty;

 

5.Until the patient was transferred to the Recovery Room you took no adequate steps in response to the possibility of circulatory difficulties;

 

6.You did not complete the anaesthetic chart accurately or adequately;

 

7.The patient subsequently underwent amputation of the thumb and fingers on the right hand;"

 

3. At the outset of the hearing on 12th November 1997 counsel on behalf of Dr. Hendley admitted heads 1, 2, 6 and 7.  After a hearing which lasted three days the Committee found that heads 4 and 5 had been proved but not head 3.  On the basis of those admissions and findings the Committee made the determination to which their Lordships have already referred.

 

4. The admission in respect of head 2 is important.  The admission was not made without due deliberation.  For in a Letter of Explanation dated 2nd December 1996 Messrs. Le Brasseur J. Tickle wrote:-

 

"2.As the patient was about to be transferred from the anaesthetic room to the operating theatre, Dr. Hendley noticed that both the right hand and fingers had turned mottled blue (not just the fingers).  As Staff Nurse Hart confirms, the discolouration also extended up the forearms ...

 

3.It is Dr. Hendley's recollection that it was he who first commented on the mottling to Staff Nurse Hart, while they were still in the anaesthetic room.  He told her he thought it was caused by venous congestion ..."

 

5. Moreover in the course of his examination-in-chief Dr. Hendley was asked:-

"Q.I move to the time when you were about to go into theatre.  Did you notice anything about Mrs. Spence's condition?

 

6. A.Before the doors were opened I looked down and saw her hand.  I was quite surprised to see that she had a blue hand.  I worked my way up.  Also, her forearm was blue as well."

 

7. He made a similar admission in cross-examination.  So the question which the Committee had to determine was whether, in the light of those admissions, Dr. Hendley ought to have been alerted to a possible circulatory difficulty (head 4), and if so whether he took adequate steps in response to that possibility (head 5).

 

8. Evidence for the prosecution was given by Mr. Michael Gibson, the Consultant Orthopaedic Surgeon who carried out the operation.  He said that he was not made aware of any problem with the patient's right hand, or of any apparent circulatory difficulties before the operation.  Had he been made aware of any such difficulties, he would not have started the operation.

 

9. Expert evidence was given by Dr. Gilbert Park, a distinguished Consultant Anaesthetist at Addenbrookes Hospital, Cambridge.  He said that mottling in the anaesthetic room is a very serious sign.  Dr. Hendley should at least have told the surgeon before the operation started.  In addition Dr. Park was critical of the delay in seeking help after  the  operation  was  over,  by which time it was evident that something very serious was wrong.  For when the drapes were removed at 5.00 p.m., Dr. Hendley noticed that the patient's fingernails were blue and her fingers were white.  (The fingers were subsequently amputated).  Yet it was about an hour before Miss Sarah Jane Mills, a Senior Registrar in Vascular Surgery, was summoned to the recovery room.  Her evidence was that she came immediately on being summoned.  This was about 6.00 p.m.

 

10. Dr. Hendley's evidence was as follows.  He thought at the time that the mottling was due to venous congestion, which would resolve spontaneously.  He should not, he said, be criticised for diagnosing the more common and less serious condition in preference to the rarer but more serious arterial obstruction.  This defence is well spelt out in Dr. Hendley's written case and in the oral submissions which he made at the hearing before the Board.  Miss Mills was not greatly alarmed when she carried out her examination in the recovery room on the evening of 3rd January.  Nor was Dr. Priddie.  Dr. Hendley suggested an angiogram.  But Mr. Chamberlain, when consulted on the telephone, did not think this necessary.  It was not until 1.15 p.m. on the following day, when an angiogram was eventually performed, that ischaemia was diagnosed.  There was no proof of ischaemia until then.  It is easy, said Dr. Hendley, to be wise after the event.  But a doctor should be judged on what was known or suspected at the time, not on the outcome.

 

11. Their Lordships give full weight to Dr. Hendley's submissions, together with certain further observations which he submitted after the hearing.  But the Committee was without doubt entitled to accept Dr. Park's evidence, and to find, on the basis of that evidence, that the prosecution had proved heads 4 and 5 of the charge.  Dr. Hendley criticised the composition of the Committee.  He pointed out that there were no surgeons or anaesthetists on the panel.  They were therefore dependent on Dr. Park's guidance.  Dr. Hendley was also critical of Dr. Park himself.

 

12. But the Committee included a number of distinguished doctors, who were well able to evaluate Dr. Park's evidence.  Apart from Dr. Hendley himself (who did not regard himself as an expert) there was no evidence to contradict that of Dr. Park.  It is impossible for their Lordships to hold that the Committee misunderstood his evidence.  There is no other basis  on  which  they could question the Committee's findings on heads 4 and 5, or interfere with the Committee's decision that Dr. Hendley had been guilty of serious professional misconduct in the respects alleged.

 

13. That leaves only the directions given by the Committee at the conclusion of the hearing.  It was ordered that Dr. Hendley's registration be conditional for a period of 18 months, the main conditions being (i) that he should not undertake any locum posts and (ii) that he should pursue a structured programme of training under the supervision of a regional postgraduate dean.

 

14. Dr. Hendley invited the Board's attention to the many testimonials which he had received, and the favourable reports from many of the consultants with whom he had worked.  He submitted that in the light of these testimonials the Committee's direction was too severe.  But as against that, the Committee was bound to pay close regard to the evidence of Dr. Conacher, the Northern Region Senior Registrar Training Co-Ordinator.  His evidence was such that a further period of training was almost inevitable.  No doubt the Committee would also have been influenced by the impression which Dr. Hendley gave during the hearing.  Dr. Hendley said that it would be difficult to arrange training at Senior Registrar level.  This may be true.  But even so the Board would not interfere with a direction that he undergo a further period of training save in the most exceptional circumstances.

 

15. As for the requirement that Dr. Hendley should not undertake any locum posts for a period of 18 months, the Board can well understand why the Committee felt such a condition to be necessary.  Between June 1995 and December 1996 Dr. Hendley undertook a large number of locums.  Apart from one post lasting 45 days and another lasting 22 days, they were all between 3 and 14 days.  Continuous supervision would obviously be difficult or impossible with such a large number of short locum posts.

 

16. But Dr. Hendley made a strong plea that without the ability to undertake locum posts he would have great difficulty in finding any work at all.  That being so, it seemed desirable to introduce a degree of flexibility into his programme, in case a locum training post should become available.  Miss Foster offered to take instructions.  Their Lordships  were  informed  that  Dr. Hugh Seeley would be willing to supervise Dr. Hendley's training programme.  In those circumstances their Lordships will amend paragraph 1 of the direction by adding the words "except with the consent of Dr. Hugh Seeley".

 

17. Since Dr. Hendley has succeeded to a small extent there will be no order as to costs.  Save to that extent their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed.

 

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