Privy Council Appeal No. 59 of 2002
Anthony Peter Sadler Appellant
The General Medical Council Respondent
THE COMMITTEE ON PROFESSIONAL PERFORMANCE
OF THE GENERAL MEDICAL COUNCIL
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 15th July 2003
Present at the hearing:-
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Philip Otton
[Delivered by Lord Walker of Gestingthorpe]
The regulation of the medical profession is entrusted to the General Medical Council ("the GMC"), a long-established body whose constitution is now to be found in the Medical Act 1983 ("the 1983 Act"). The GMC's regulation of doctors' fitness to practise was until 1997 undertaken mainly by two committees, the Professional Conduct Committee (concerned with allegations of serious professional misconduct and convictions for criminal offences) and the Health Committee (concerned with unfitness to practise caused by physical or mental illness).
"(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified."
However such action by the CPP is a matter of last resort. The Rules contain quite complicated provisions designed to facilitate the rehabilitation of a practitioner whose professional performance has been called into question. If he or she acknowledges that there is a problem and agrees to cooperate in a scheme for mentoring and retraining, any formal adjudication by the CPP may be unnecessary. But where a plan for retraining goes wrong, as unfortunately happened in this case, the CPP may find itself having to adjudicate on complaints which originated a considerable time before.
"on such of the following matters as appear to them to be relevant in any case, that is to say whether –
(a) the standard of the practitioner's professional performance has been seriously deficient;
(b) the standard of the practitioner's professional performance is likely to be improved by remedial action;
(c) the practitioner should limit his professional practice, or cease professional practice;
(d) no further action needs to be taken on the Report
and in each case the Panel's reasons for their opinion."
"(1) In drawing up the statement of requirements the case co-ordinator shall have regard to the findings and opinions in the Report of the Assessment Panel and the statement may include such of the following matters as are appropriate in any case –
(a) the aspects of the practitioner's professional performance which he is required to improve;
(b) the standard of professional performance which the practitioner is required to achieve;
(c) the aspects of the arrangements for the running of his professional practice which the practitioner is required to improve;
(d) the limitations which the practitioner is required to impose on his professional practice.
(2) The statement of requirements shall state the date on which the practitioner is to have fulfilled the requirements set out in the statement of requirements and the period during which the statement of requirements shall have effect and shall include a provision that further assessment is to be carried out after the date on which the practitioner is to have fulfilled those requirements.
(3) The date referred to in paragraph (2) shall be no longer than one year from the date on which the practitioner agrees, under paragraph (4), to comply with the statement of requirements."
If the practitioner agrees to comply with the statement of requirements and consents to appropriate disclosure of that fact, the process of compliance begins. Otherwise the case is referred to the CPP. By rule 19 the case co-ordinator and the practitioner may agree in writing to modify the statement of requirements. If the practitioner declines to agree to modification, the case co-ordinator has the option of referring the case to the CPP or continuing with the original statement.
(1) successful compliance followed by a successful second assessment under rule 20;
(2) a second assessment which is not wholly successful, followed by a second statement of requirements (also regulated by rules 18 and 19) and a third assessment under rules 23 and 24 (which largely incorporate rules 20 and 17 respectively, except that there can be no third statement of requirements);
(3) referral of the case to the CPP by the case co-ordinator under rule 25(1).
Rule 25(1) is of particular importance, because of a jurisdictional point taken on this appeal. It provides as follows:
"Where, at any stage in the consideration of a case after an assessment has been carried out, the case co-ordinator is of the opinion that –
(a) it is necessary for the protection of members of the public or would be in the best interests of the practitioner for a direction for suspension or for conditional registration to be made; or
(b) the practitioner is –
(i) failing to comply with the requirements set out in the state of requirements, or
(ii) failing to benefit from and is unlikely to benefit from any education or training which he is undertaking in accordance with a statement of requirements; or
(c) the practitioner's fitness to practise may be seriously impaired by reason of his physical or mental condition
he shall refer the case to the Committee on Professional Performance together with a statement of his opinion and his reasons for it."
The Krippendorf Case
"'Seriously deficient performance' is a new idea. We have defined it as a 'departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor's registration'. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing - especially if you might be putting patients at risk. This could include failure to follow the guidance in our booklet Good Medical Practice."
The Board saw no reason to criticise this guidance, except for substituting "have been" for "are" in two places in the third sentence (and that change has been made in the GMC's current guidance).
"everything in the Rules suggests that it is the duty of the CPP and the panel to have regard to the track record of the practitioner in the work which he has actually been doing. It is not their function to conduct an examination equivalent to that of a student's examination board. Theoretical questions are relevant only in so far as the answers may throw light on the practitioner's professional performance in the specific areas of work which he has actually been doing."
"Their Lordships do not go so far as to hold that in every case the complaint which triggers an assessment requires investigation by the panel and the CPP. On the facts of the present case, however, the complaints should in their Lordships' opinion have been investigated because nothing related more directly to the standard of the appellant's actual professional performance over the relevant period. The failure of both the panel and the CPP to investigate the complaints reflects their erroneous concentration on her professional competence rather than her actual professional performance."
The CPP had also erred in relying on the practitioner's answers to the portfolio questions. This was unfair since she had been told that it was no part of the assessment. The Board therefore advised that the CPP's determination should be quashed.
"… there is cause for concern that Mr Sadler's operative skills at major surgery may be unsatisfactory. To have two out of ten abdominal hysterectomies returned to theatre for bleeding is clearly a cause for concern. However we accept that because the numbers involved were so small this would not reach statistical significance in a formal test and no definitive conclusion could be drawn. Additional evidence is required. Surgery involves a multidisciplinary team approach, but it appears that Mr Sadler no longer has the confidence of almost all of those who work with him."
The appellant's performance in these respects was therefore considered unacceptable. After considering some deficiencies in his performance during the second phase of the assessment, the report concluded (page 50),
"Taken together with the conclusion that his operative skills are at present unacceptable and in the knowledge that obstetric emergencies may involve major blood loss and/or may require complex major gynaecological surgery the assessors have serious cause for concern about the obstetric practice of Mr Sadler."
"There are so many good aspects of the practice of Mr Sadler, in so many of the categories of good medical practice, that we do not recommend that he should cease medical practise.
However, there are serious deficiencies in his obstetric and gynaecological practice. In particular we believe that during the period leading up to his suspension Mr Sadler was working under difficult circumstances that had led to an erosion of his confidence. In addition he has not now operated for over twelve months. Taking these facts together we cannot recommend that he should return to unrestricted practice.
We believe his practice is likely to be improved by remedial action. We recommend that he should be given the opportunity to undergo targeted retraining and supervision during a temporary period with limited restrictions of his practice."
The report went on to set out some of the recommendations in more detail.
"(1) Mr Sadler is required to take such action as is necessary to be able to demonstrate, at a further assessment of his performance to be conducted as specified below, an acceptable standard of professional performance in relation to the following aspects of his performance:
(a) Major abdominal and vaginal surgery.
(b) His obstetric practice in cases of patients at risk of major blood loss.
(c) Working within the limits of his professional competence.
(2) [This set out restrictions on the appellant's professional practice during the period during which the statement had effect.]
(3) Mr Sadler is required to have fulfilled the requirements set out above in this statement within twelve months of the date on which he agrees to comply with this statement, and to have undergone a further assessment of his performance, to be arranged by the General Medical Council, within a further three months.
(4) This statement shall have effect for a period of 15 months from the date on which Mr Sadler agrees to comply with this statement.
(5) [This related to a further undertaking limited to gynaecological oncology.]"
"I entirely understand the point you have raised regarding the timetable for Mr Sadler's statement of requirements, and I have, in fact, written to him on 10 May, 2000 to explain that we understand that the statement will not be attainable in the original timeframe due to no fault of his own. We will bear in mind your suggestion about allowing an extra 12 months, given the delay to date."
However there was never any written agreement altering the statement of requirements. The GMC had indicated willingness to agree to an alteration, but the point was overtaken by events.
"The GMC has received a report from South Devon Healthcare NHS Trust, indicating that Mr Sadler has been suspended from his remedial re-training by North Bristol NHS Trust. Mr Sadler is therefore no longer being trained in accordance with the Statement of Requirements he agreed to comply with on 24 August, 1999."
The Board delivered its opinion in Krippendorf about three weeks later.
The grounds of appeal.
(1) that the case co-ordinator's referral to the CPP was not authorised by rule 25(1)(b)(i) and that as a result the CPP had no jurisdiction to hear the appellant's case;
(2) that the CPP misinterpreted or misunderstood the evidence in respect of each of the four index cases (designated 1, 2, 5 and A) on which the CPP made adverse findings, or that its findings were unsupported by evidence;
(3) that the CPP erred in reaching a conclusion which was not part of the case advanced by the GMC;
(4) that the CPP erred in reaching those findings to the equivalent of the criminal standard of proof; and
(5) that the composition of the CPP was such as to give rise to a perception of bias.
The first ground of appeal: jurisdiction
"My advice to the Committee is that, following a careful analysis of the statement of requirements and of the rules, the legal position is that no reference should have been made under rule 25(1)(b)(i). That is because, when the statement of requirements is carefully looked at, it becomes clear that on 2 November, 2000, when the reference was made, the time within which compliance had to occur had not yet elapsed. Mr Sadler could not then be said to have failed to comply with the statement of requirements."
If the transcript is correct (and neither side suggested it was incorrect ) it shows that the legal assessor was advising that the appellant would not be in breach of his obligation to comply until 24 November, 2000; whereas the appellant's submission is that his obligation to comply came to an end (at least so far as is now material) three months before.
Assessment and Adjudication on Performance
(1) the panel did not distinguish between competence and past performance;
(2) the panel did not subject the index cases to detailed scrutiny;
(3) the panel took the appellant's 'portfolio' into account to some extent;
(4) the loss of confidence by colleagues in the appellant was not a finding relating to his own professional performance;
(5) the appellant had no opportunity of challenging the third party interviews on which the report relied and there were both procedural and practical objections to the appellant calling the third parties as his own witnesses.
The four index cases
"I have never seen or heard of an ovarian cyst being removed vaginally. There are, of course, accounts of this having been done. My feeling was that, of all the possible ways around – which I will not go through again – dealing with an unsuspected ovarian cyst found in this way, that to attempt this operation is certainly quite complicated, would demand the assistance of at least one or two helpers, registrars, in theatre, and to my mind is actually quite a difficult undertaking performed vaginally."
"The Committee approve of your decision to seek a second opinion but are seriously concerned that you believed that closure of the abdomen might be appropriate when clearly it was not. Furthermore, the Committee are concerned that you did not consider alternative methods of haemostasis, such as packing the pelvis, at a time when blood loss was sufficiently severe to necessitate major blood transfusion."
"So our concerns were – and I am sorry, I hate it when this sounds so harsh – but the reality is we started off with a youngish woman with normal anatomy, anticipating a straightforward procedure, and by later that evening we have someone who has had two laparotomies, a muscle-splitting incision, ligation of the internal iliac artery; and therefore the Panel were concerned that this raised the possibility of an insecure surgical technique."
The CPP had good reason to take index case 2 into account in reaching their final conclusions.
"the Committee do not criticise your decision to perform a subtotal hysterectomy in such circumstances. However, they are seriously concerned that your closure of the cervical stump was unorthodox and inappropriate and did not accord with accepted practice. The Committee take the view that this departure from safe surgical practice put the patient at high risk of post-operative bleeding."
"I think this is what one is looking for, for this pattern of performance, that here is another patient now who has undergone what one would have anticipated being a straightforward operation, no adhesions in the pelvis, no pathology, potential problem with the bladder avoided by not doing the total abdominal hysterectomy, the easier option selected, has had to return to theatre because of major bleeding and has finished up having extensive surgery, including the removal of her ovaries in this particular situation, and admission to ITU. So you are looking for a pattern of performance surgically. She must have bled, because something happened, and the something that happened, I think one has to assume, was related to the surgical technical technique and the performance of the operation."
Their Lordships are satisfied that the CPP were entitled to take index case 5 into account in reaching their final conclusions, and their use of the word "unorthodox", although unfortunate, cannot be taken as an indication that they seriously misunderstood the evidence or failed to take account of all the evidence bearing on the appellant's professional performance.
"The Committee find that in Index Cases 1, 2 and 5, and in Case A, you did not meet the professional standard appropriate to the work you were doing. The Committee are sure that these cases disclosed deficiencies in your surgical practise and that these deficiencies, whether considered individually or cumulatively, were serious. Each of them discloses a worrying reliance upon unsafe surgical techniques which form no part of the normal practise followed at the relevant time by surgeons in this country."
The second and third grounds of appeal: What was the GMC's case, and was it made out?
"But to treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the judge, whose testimony cannot be challenged by cross-examination and perhaps cannot even be fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the judge to consult if the judge requires assistance in understanding the effect and meaning of technical evidence. He may, in proper cases, suggest to the judge questions which the judge himself might put to an expert witness with a view to testing the witness's view or to making plain his meaning. The judge may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or as to the extent of the difference between apparently contradictory conclusions in the expert field … But I cannot agree that [giving evidence] is within the scope of an assessor's legitimate contribution."
"(6) The specialist adviser shall advise the Committee on the medical issues before the Committee and shall do so –
(a) on any question referred to him by the Committee; and
(b) of their own motion if it appears to him that, but for such advice, there is a possibility of a mistake being made (i) in judging the medical significance of any information before the Committee, or (ii) because of an absence of information before the Committee.
(7) The advice of the specialist adviser shall be given in the presence of the practitioner and his representative if they appear at the hearing or, if the advice is given after the Committee have begun to deliberate as to their findings the practitioner shall be informed what advice the specialist adviser has given to the Committee."
"a pattern of seriously deficient performance, exemplified by these cases."
Mr Hendy said that there was nothing other than index cases 1, 2, and 5 and case A from which the CPP could extract a pattern, and that the cases did not display a pattern at all.
The fourth ground of appeal: Standard of proof
"The burden of proving sufficiently deficient performance rests on the Council throughout, as is conceded, and you should not make such a finding unless you are sure on the evidence that such was the case."
Basing himself on this Mr Hendy has submitted that the GMC had to prove its case beyond reasonable doubt, that is to the standard of proof required on the trial of a criminal charge, and that the CPP could not have been satisfied to that stringent standard. It is accepted that Miss Foster opened the case to the CPP on that basis, and the legal assessor advised the CPP (without further elaboration) that they had to be sure that serious and persistent deficiencies on the appellant's part had been proved.
"In charges brought against a doctor where the events giving rise to the charges would also found serious criminal charges it may be appropriate that the onus and standards of proof should be those applicable to a criminal trial. However there will be many cases, where the charges which a doctor has to face before the committee could not be the subject of serious or any criminal charges at all. The committee is composed entirely of medical men and women learned in their profession and to require that every charge of professional misconduct has to be proved to them just as though they were a jury of laymen is, in their Lordships' view, neither necessary nor desirable. What is of prime importance is that the charge and the conduct of the proceedings should be fair to the doctor in question in all respects."
That passage is not wholly apposite to a committee which must now have at least one lay member. But subject to that qualification, the passage applies still more strongly to a hearing before the CPP than to a hearing before the Professional Conduct Committee.
The fifth ground of appeal: Bias
"Such protection requires either that the decision-making body (in this case the committee) constitute an independent and impartial tribunal or, if not, that its processes be subject to control by an appellate body with full jurisdiction to reverse its direction."