The Judicial Committee of the Privy Council Decisions

Mateu-Lopez v. General Medical Council (GMC) [2003] UKPC 44 (16 June 2003)

ADVANCE COPY



Privy Council Appeal No. 96 of 2002

Dr. Enrique Mateu-Lopez 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 16th June 2003

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Present at the hearing:-



Lord Hutton

Sir Anthony Evans

Sir Philip Otton

[Delivered by Sir Philip Otton]

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1. The appellant, Enrique Mateu-Lopez appeals from a decision of the Professional Conduct Committee of the respondent Council ("the Committee") on 14 November 2002 giving a direction that the appellant's name should be erased from the Medical Register, following a finding by the Committee that the appellant was guilty of serious professional misconduct.
2. In 1961 the appellant qualified in medicine in Spain. After coming to the United Kingdom he obtained the additional qualifications of Diploma in Psychological Medicine, England, 1966, Diploma in Medical Jurisprudence (DMJ) Society of Apothecaries London 1970 and Member of the Royal College of Psychiatrists (MRCP) 1972. In the same year he was appointed Consultant Psychiatrist at St George's Hospital, Stafford. Initially practising in general and forensic psychiatry he developed an interest in the field of addiction. In September 1989, while retaining his responsibilities in general and forensic psychiatry, he was put in charge of the Addiction Unit at the hospital. He remained in that post until April 2000. He has also been a visiting Consultant Forensic Psychiatrist for the Home Office (Shrewsbury and Stoke Heath Prisons) and a Medical Visitor for the Court of Protection. He is now 66 years of age.
3. The Committee enquired into the following charge against the appellant (relevant parts):

"1. At the material time you were a Consultant Psychiatrist employed by the Foundation NHS Trust in Staffordshire and working in the fields of alcohol and drug addiction.

2. a. On divers dates in the second half of 1999, you provided a Senior Clinical Nurse Specialist with signed but uncompleted prescription forms.

b. This action was

i. inappropriate,

ii. irresponsible,

iii. an abuse of your professional position.

3. a. On or about the 26 January 2000, you provided a Senior Clinical Nurse Specialist with a quantity of signed but uncompleted prescription forms.

b. This action was,

i. inappropriate

ii. irresponsible,

iii. an abuse of your professional position.

4. a. You purported to hold a Home Office Handwriting Exemption throughout your employment with the Foundation NHS Trust.

b. Following expiry of the Handwriting Exemption in 1993, you failed to apply for its renewal at any time thereafter,

c. Your failure in this regard was irresponsible.

5. In 1998, 1999 and 2000 you were in charge of an addictions clinic at the St George's Hospital in Stafford (Coton House), with associated clinics at the Stafford District General Hospital, Cannock and Wombourne ('The Clinics')

6. a. You,

i. failed adequately to supervise the running of the Clinics,

ii. delegated responsibility to nursing staff for the issue of prescriptions for controlled drugs,

iii. allowed nursing staff to initiate prescriptions for controlled drugs,

iv. failed to ensure that patients were adequately medically examined or assessed prior to the issue of prescriptions,

b. in your management of the clinics therefore, you acted in a way which was,

i. inappropriate,

ii. irresponsible,

iii. not in the best interest of the patients;

And that in relation to the facts alleged you have been guilty of Serious Professional Misconduct."

4. At the outset of the inquiry the appellant admitted all the heads of charge. He further indicated through his counsel that he accepted that the admitted facts amounted to serious professional misconduct.
5. The Committee then proceeded to hear evidence in order to determine whether the case of serious professional conduct was proved and the appropriate sanction.
6. It is necessary to refer in some detail to the evidence. Alison Callaghan the hospital pharmacist described the procedure for providing in-patient and occasional out-patient prescriptions. Jennifer Maslin provided secretarial services for the unit including Dr Apta and the appellant when he was the consultant. The appellant had responsibility for in and out-patients, domiciliary visits and some general psychiatric patients. Dr Apta dealt with in-patients. In accordance with the Rules of the Royal College of Psychiatrists Dr Quader provided Consultant cover whilst the appellant was away although he never prescribed for the addictions service. Dr Apta described the division of responsibility between him and the appellant and how he handled in-patients and used to hold out-patient clinics when asked to do so by the appellant but had not done so for about 2 years prior to the hearing.
7. Michael Jones was the senior nurse in the unit and had been a nurse for some 30 years. He described how on occasions in 1999 the appellant prior to being away gave the witness prescription forms which had been left blank but signed by the appellant. This was to ensure continuation of patients' programmes. When questioned by the Committee he gave an illuminating insight into the working of the unit. He stated that for the staff the work was stressful and very demanding. There were budget-linked targets to be met. This caused a feeling of rushing from one patient to the next. Representations were made to the authorities with little effect. The appellant was a workaholic and the witness had no criticism with his performance. At a routine clinic 22 to 24 patients would be seen including 5 or 6 new ones and 2 or 3 re-referrals. The clinic would start about 20 minutes before the scheduled start time of 11 o'clock and carry on until the work was finished, usually by about 2 o'clock. The witness stated that he found it difficult to criticise the Appellant who had pushed himself to the limit.
8. Dr Griffin was the former Medical Director of the NHS Trust. He carried out an internal inquiry in the course of which he became aware of the issue surrounding shortage of staff. He noted in his investigation findings that in relation to the provision of blank forms by the appellant, there were mitigating circumstances including the high demand on the addiction service, the close relationship with the experienced nurse in question, lack of any financial benefits, health difficulties and full co-operation on the part of the appellant. In his referral letter it was stated that there was no indication that any patient had come to actual harm as a result of the failings identified. Even so he took the view that use of blank prescription forms amounted to serious misconduct.
9. Dr Joseph Wall, Associate Director Clinical Effectiveness at the Trust, carried out an audit of the clinical records and a sample of patients. The patients were ones who had been seen by Nurse Jones and been issued with prescriptions at times when the appellant was apparently absent. The clinical records of 89 patients were examined and in relation to 38 patients it was found that they had been prescribed controlled drugs in the absence of the appellant.
10. Dr Eilish Gilvarry, an expert in drug addiction and abuse and a Consultant Psychiatrist specialising in addictions examined the records of the 38 patients who had been identified as a result of the audit. In her report to the Committee she summarised her findings and criticisms as follows:

"? Delegation of responsibility to nurses regarding prescription issue with no apparent medical assessment.

? Initiation of prescriptions – for methadone and other controlled drugs, without a patient being seen by a doctor.

? Use of Amitriptyline and Buspirone and Nitrazepam without clear rationale and apparently without the doctor seeing the patient.

? Dosage – often low or potentially high, with long interval to assessment – frequently 2 weeks. The Guidelines of 1999 suggest daily review to stabilise.

? Limited supervised dispensing regimes."

11. The appellant gave evidence. He acknowledged that he had failed to see and assess personally new or re-referred patients before signing their methadone prescriptions. He accepted that there had been an improper delegation of medical function. He had overlooked expiry of his Home Office Handwriting Exemption and had failed to apply for its renewal. He explained that had he not left blank but signed prescription forms while he was away clinics would have had to be cancelled with the consequence that existing patients receiving methadone treatment would have reverted to illegal street heroin and that new patients would have been denied the opportunity to stop heroin abuse. He did not seriously challenge Dr Gilvarry's criticisms, and in particular the inadequacy of his supervision. He described the difficulties of running the unit due to lack of staff, cutting of funds and an increase in the number of patients on the waiting list.
12. Having considered counsels' submissions the Committee concluded:

"Your conduct has fallen seriously short of the standards expected of a medical practitioner and could seriously undermine the trust that the members of the public are entitled to place in the medical profession and its practitioners. You accepted at the outset that you were guilty of serious professional misconduct. The Committee have found you guilty of serious professional misconduct.

In considering what action to take against your registration the Committee have considered the issue of proportionality and the need to balance the interests of patients against your own interests. They have taken into account the full and frank admissions that were made on your behalf at the outset and the insight that you have demonstrated into your failings. They have also noted the testimonials submitted on your behalf and that you had a long and previously unblemished career. Nevertheless, the findings against you reflect such serious breaches of the principles of Good Medical Practice and the standards of conduct which the public are entitled to receive from registered medical practitioners that the Committee are obliged to take action in the interests of patients, the public and in your own interests.

With that in mind the Committee firstly considered whether conditional registration would be sufficient. They noted that any conditions placed on a doctor's registration must be proportionate, workable and measurable. In view of the seriousness of the charges the Committee felt that imposing conditions on your registration would not be appropriate.

Secondly, the Committee considered suspension, but the seriousness of your breaches of the guidance in Good Medical Practice, over a long period of time, led the Committee to the decision that erasure was the only appropriate action.

Accordingly the Committee have determined to erase your name from the Register".

They further determined that appellant's registration should be suspended with immediate effect.

The Appeal

13. Mr David Morris appeared before the Committee and the Board. Before their Lordships he advanced a helpful and impressive argument. Counsel submitted that in all the circumstances of the case the Appellant's erasure was not necessary either for the protection of the public or for the maintenance of public confidence in the profession. It was excessive and disproportionate. The Committee failed to give adequate weight to the extent and nature of the pressure the appellant was working under, shortage of medical staff, the substantial waiting list, management and financial pressures and the lack of adequate pharmacy dispensing facilities. Counsel further contended that the Committee failed to give due weight to the facts that the appellant's supervision, management and treatment of the more serious and complex addiction patients who were treated as in-patients in the unit were, although carefully scrutinised by the respondent's expert, not the subject of any adverse criticism. Moreover the Trust audit demonstrated that no patient was harmed as a result of any out-patient methadone prescription. The appellant's improper use of Nurse Jones was at all times motivated by an altruistic desire to treat addicts whose treatment was being delayed by the waiting list caused by staff and funding shortages. Finally, it was submitted, that the Committee failed to give sufficient credit to the appellant's full and frank admissions and his insight into his failings, his long and previously unblemished medical career, particularly in general psychiatry (which he had continued to pursue until the hearing of the inquiry) and his strong testimonial support.
14. Ms Heather Norton for the respondent admitted that although the ultimate sanction was imposed, in all the circumstances erasure was neither excessive, disproportionate, inappropriate nor unnecessary in the public interest. Their Lordships should be slow to disturb a determination of erasure and to substitute another sanction in its place.
15. Their Lordships have given anxious consideration to the arguments advanced by counsel for the parties. Dr Gilvarry's report on the 38 patients amounted to a serious indictment of professional misconduct. In their Lordships' view, a finding of serious professional misconduct was inevitable. Although the evidence and the findings of the Committee revealed a grave situation and a persistency in conduct which involved vulnerable patients it was not inevitable that the ultimate sanction of erasure had to be invoked. In the course of argument their Lordships were referred to the decision of the Board in Garfoot v General Medical Council [2002] UKPC 35 where their Lordships upheld a determination of erasure. The circumstances of that case were extremely grave but their Lordships were persuaded that those in the present case were not as serious. The Board also took into account the fact that the Appellant is now 66 years of age and if the determination was to stand he would be leaving the profession with the opprobrium of erasure. All the testimonial evidence, and indeed, the testimony of the witnesses indicated that the appellant had been throughout his career a dedicated doctor who was trying to do the best he could in difficult circumstances. He had an unblemished career, particularly in general psychiatry in which he had practised until his suspension. It was evident from an early stage in the proceedings when Michael Jones was questioned by the Chairman that the appellant had been placed under considerable pressures, he had asked for help, it was not forthcoming and he had pressed on as best he could:

"Q. Mr Thompson asked you whether you had any criticism of Dr Mateu's performance and you said that you had none whatever. I wonder whether you know that Dr Mateu has admitted the charges that have been put to him, one of them in particular being that he failed adequately to supervise the running of the clinics. Given that he has made that admission, I wonder whether there is any contradiction between that and what you told us earlier, namely, that you would make no criticism whatever of his performance.

A. I would find it difficult to criticise someone who was pushing himself to the limit. Given the circumstances, if I may reiterate, in a lot of the situations we were bordering on crisis, and, taking into consideration the amount of pressure primarily on Dr Mateu, although we all felt it, in those circumstances, I can understand why Dr Mateu says that, but I could not say that as a criticism. At the end of the day, I think he was doing the best job possible with the resources available. It is good to look back on things with hindsight. With hindsight, yes, we would have done this or could have done that or done the other, but that was not what was happening then. It was crisis management, going from one situation to another, but by no means is that levelled as a criticism of Dr Mateu – more of an observation that, despite all that, he continued.

Q. Is it fair for me to construe from what you are saying that, while he may have failed adequately to supervise the running of the clinics, there is good reason why that was the case? Is that what you are saying to us?

A. Yes."

16. Although it is rare for this Board to do so it is now well established that it is open to the Board to reach its own conclusion as to the appropriate disposal in a particular case. Their Lordships considered that this was such a case. They were satisfied that the circumstances did not reveal serious incompetence or conduct on a scale which required the ultimate sanction to be imposed. They concluded that in all the circumstances of the case the appellant's erasure was neither necessary for the protection of the public nor for the maintenance of public confidence in the profession. The sanction imposed was excessive and disproportionate.
17. Their Lordships have considered whether it would be appropriate for them to substitute a different sanction by way of suspension or a conditional registration. Their Lordships decline to do so and have no doubt that this would be more appropriately considered and determined by the Committee.

Conclusion

18. Their Lordships would accordingly humbly advise Her Majesty that the appeal should be allowed with costs, the erasure should be set aside and that the case should be remitted to the Committee for consideration of an alternative sanction. In the meantime the order of immediate suspension should remain in place until the further determination by the Committee.