Another case, another reminder of the importance of demonstrating insight

Veeravalli v General Medical Council [2022] EWHC 747 (Admin)

At the material time, the Appellant doctor had been working as a Consultant in Obstetrics and Gynaecology at Tameside and Glossop Integrated Care NHS Foundation Trust (‘the Trust’) since December 2010.

Following a hearing before a Panel of Medical Practitioners Tribunal (MPTS) in September 2021, the Appellant’s fitness to practise was found to be impaired. The Panel imposed an order of conditions on the Appellant’s registration for twelve months.

The Appellant’s denial of the charges was found to be a flawed argument in the face of multiple contradictory statements from colleagues. However, it was the Appellant’s failure to demonstrate insight into his actions which concerned the Panel and ultimately led to the order of conditions. 

Background

On 8 March 2017, at 6.50am Patient A was admitted to hospital experiencing strong and regular contractions. When the contractions slowed and it was discovered that the baby (Patient B) was in the breech position, Patient A was given the labour-augmenting drug syntocinon (Oxytocin) at 09.11am. Following a challenging delivery, Patient B was delivered at 10.28am but showed no signs of life and was pronounced dead 30 minutes later.

A number of failings were alleged by the GMC in relation to the Appellant’s care of Patient A. Importantly to note, the GMC did not allege, which is appropriate in fitness to practise proceedings, that the Appellant’s acts or omissions caused Patient B’s death.

After consideration, the allegations that were determined and found proved were that:

1. At all material times the Appellant was the Consultant with overall responsibility for Patient A’s labour and the safe delivery of Patient B;
2. The Appellant recommended the commencement of syntocinon, without a direct clinical review of Patient A;
3. When the Appellant went to review Patient A, he failed to obtain consent for the continuation of syntocinon;
4. When the Appellant went to review Patient A, he did not recognise high risk features, adequately interpret her cardiographic trace (‘CTG’) and follow NICE guidelines which led to failure to identify suspicious baseline heart rate correctly; and
5. The Appellant failed to obtain consent for Patient A’s safe management plan in discussion with Patient A and her partner.

 

Jurisdiction of the appellate court

In her judgment, the Hon. Ms Justice Lang first dealt with the question of the jurisdiction of the High Court, when dealing with an appeal. In an interesting review of the case law, she began by noting that the right of appeal is given through Section 40 Medical Act 1983 and governed by CPR part 52. The question for the court is whether the Tribunal’s decision was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings in the lower court”.

The Hon. Ms Justice Lang debated Meadow v General Medical Council where Auld LJ discussed the wealth of expertise found in the tribunals implying that their judgements “deserve respect”. However the subsequent case of Raschid v General Medical Council followed the guidance in Ghosh v General Medical Council where Laws LJ submitted that the approach commended in case law “does not emasculate the High Court’s role in section 40 appeals”. It was pertinent for Laws LJ that the High Court should not shy away from correcting errors in judgement due to fear of over-stepping their jurisdiction.

The Appellant sought to rely on the more recent case of Sastry v General Medical Council where Nicola Davies LJ noted “The Board’s jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee.” By reviewing possible limitations, the Hon. Ms Justice Lang approved that any dismissal of the Tribunal’s decision was likely within the High Court’s authority.

 

Grounds of appeal: Determination on the Facts

The Appellant’s case relied on denying multiple allegations and disputing his role in the events of the morning. On appeal, he sought to show that the allegations were ‘wrong and irrational’:

1. The Appellant stated that it was not clear he was the Consultant on call at 9.11am when the syntocinon was administered. A colleague, Dr M, was the Consultant cover from 8am to 9am when the Appellant was due to start work at 9am. Following a handover meeting at 9am and finishing at 9.10am, and for several other reasons, it was the Appellant’s case that he only took over as Consultant at 9.15am.
2. Following the denial that he was the on-call Consultant, the Appellant further denied recommending the commencement of syntocinon. However, there was consistent evidence to the contrary from many of the Appellant’s colleagues which the Tribunal had accepted.
3. The Appellant’s case rested on the presumption that he believed the drug had previously been prescribed by Dr M. Therefore he believed that all appropriate patient due diligence had been completed. However the Tribunal found that “it would have been “unreasonable” and “illogical” for the Appellant to assume that the prescription was written up before the handover meeting, as the decision to prescribe had not been made at that stage”. They determined that the duty fell to the Appellant to obtain the patient’s consent, which he had failed to do.
4. The Tribunal found that the Appellant had recognised some high-risk features of the labour, but he had made a substantive error in failing to identify correctly the baseline heart rate at 9.15am which at 170 should have been identified as suspicious. The Appellant argued that his later incorrect recording of the heart rate as 160 had no bearing on the management of Patient A. The Tribunal found this point to be “unarguable” which the Hon. Ms Justice Lang agreed with.
5. In regards to the final allegation, the Appellant argued that these findings were irrational because of the flawed findings in the earlier allegations. However, as the Hon. Ms Justice Lang concurred with the Tribunal’s findings, this argument too failed.

 

Grounds of appeal: Determination on Misconduct

It was noted by the Hon. Ms Justice Lang that the Tribunal undertook “a detailed and careful analysis of the facts, and evaluated them against the legal test of serious misconduct”. They assessed the Appellant’s actions against the GMC’s Consent Guidance and Good Medical Practice. They agreed with the principle that “where there have been serious departures from expected standards of conduct and behaviour, this can constitute misconduct”. Failing to obtain consent from Patient A was a particular point that highlighted poor communication between doctor and patient and substantially contributed to the poor management of Patient A.

 

Grounds of appeal: Determination on Impairment

The Tribunal acknowledged that the Appellant’s denial of the allegations did not preclude him from developing insight into his actions. However further reflections submitted by the Appellant failed to convince the Tribunal, and the appellant court, that he had provided any “sufficient meaningful evidence that he has accepted any personal responsibility.” Indeed, they commented that instead “he had reflected on the failings of the system and the failings of his colleagues.”

 

Sanction

Given the otherwise unblemished career of the Appellant, the Tribunal felt that an order for suspension was disproportionate. However the failure to show insight into any deficiencies which caused the incident and instead to highlight failings elsewhere meant that practising conditions, including a Personal Development Plan, for twelve months were justified.

 

Commentary

Given the backlog in hospitals after the COVID-19 pandemic, it is understandable that hospitals will be short-staffed and that medics will be stretched. Medical professionals will inevitably have to step in, often at short notice, to help out colleagues. This may result in confusion over responsibilities and duties, but at all costs, should not result in poor patient management.

There is strong evidence from this case that taking responsibility for one’s actions is looked on far more favourably than blanket denial of misconduct and apportioning blame elsewhere. 

ABOUT THE AUTHOR

Shannett is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors.