A nervous disposition
Johnson-Ogbuneke v General Medical Council  EWHC 1474 (Admin)
The appellant, Ms Johnson-Ogbuneke, worked as a locum registrar in trauma and orthopaedics at the University Hospitals Birmingham NHS Trust in 2010. In addition, between 2010 and 2011 she worked in trauma and orthopaedics roles at the South London Healthcare NHS Trust and the University Hospital of North Staffordshire NHS Trust.
A number of allegations were made in relation to these posts, specifically in relation to Ms Johnson-Ogbuneke’s conduct, behaviour and technical skills
Hearing before the Medical Practitioners’ Tribunal Service (MPTS)
The matter was heard over 26 days, from 9 March to 16 April 2015, before a Panel of the MPTS. The Panel found four detailed allegations not to be proved and a much larger number proved. The majority of the allegations found proved by the Panel related to Ms Johnson-Ogbuneke’s conduct, clinical errors and lack of technical skill. In addition the Panel found she had made threats and accusations of racism and dishonesty in respect of a colleague, and that her conduct in some instances had been both misleading and dishonest.
The Panel determined that Ms Johnson-Ogbuneke’s fitness to practise was impaired by reason of her serious misconduct. In coming to this conclusion, the Panel took account of testimonials provided by colleagues of Ms Johnson-Ogbuneke, noting Ms Johnson-Ogbuneke’s misconduct “may have been partially remedied” however this was weighed against the fact that Ms Johnson-Ogbuneke repeatedly attempted to shift blame onto other doctors for her failings, did not appear to show any insight into her conduct or the effects of her conduct on others and had not expressed any contrition or remorse for her actions.
In light of the aforementioned findings and factors, and taking into account the principle of proportionality and the protective, rather than punitive, purpose of fitness to practise proceedings, the Panel satisfied itself that erasure was the only appropriate sanction.
Ms Johnson-Ogbuneke appealed the Panel’s determination, citing bias, prejudice and malice on the part of the surgeons who had raised complaints about her, as well as bias on the part of the Panel.
Mr Justice Irwin in the appellate court noted the lack of clarity in the extensive documents served by Ms Johnson-Ogbuneke, who was self-represented in the appeal. Mr Justice Irwin, anticipating Ms Johnson-Ogbuneke would be unrepresented, endeavoured to identify from her documents contained in her bundle the principal points Ms Johnson-Ogbuneke sought to advance, and then invited her to make oral submissions under those heads. During Ms Johnson-Ogbuneke’s oral submissions Mr Justice Irwin sought to extract a focussed reasoning as to why Ms Johnson-Ogbuneke felt the Panel were wrong to reach its determination, and on a number of occasions asked Ms Johnson-Ogbuneke if there was anything she wished to add to the points she sought to advance.
The main points that were addressed upon appeal were as follows:
Refusal of the Panel to Adjourn the Hearing
Ms Johnson-Ogbuneke had made an application before the Panel to adjourn the hearing for a three month period. This was on the basis that, if the hearing was to proceed, Ms Johnson-Ogbuneke would have to represent herself therefore she sought an adjournment to allow her to obtain funds from Nigeria in order to pay for legal representation. The Panel rejected the application, taking into account the age of the allegations, a lack of documentary evidence supporting Ms Johnson-Ogbuneke’s suggestion she would be able to achieve improved funding, and the fact that Ms Johnson-Ogbuneke had a law degree.
On appeal, Ms Johnson-Ogbuneke criticised this decision of the Panel citing unfairness, as it had meant she did not receive the hearing bundle until the commencement of the hearing on 9 March 2015. However, when probed by the judge she accepted she had in fact received the relevant documents for the hearing some nine months earlier. Mr Justice Irwin determined there was no basis upon which to find that the Panel misdirected themselves in refusing the late application for adjournment.
Evidence of Mr Christopher Rand, deceased.
Mr Rand was a senior consultant orthopaedic surgeon who had provided evidence of the concerns in relation to Ms Johnson-Ogbuneke’s practice, but had died before the Panel hearing. On appeal, Ms Johnson-Ogbuneke argued it was unfair to admit evidence from someone who was dead and whom she would be unable to cross-examine. Mr Justice Irwin rejected any criticism of the decision to admit Mr Rand’s statement as hearsay evidence.
Ms Johnson-Ogbuneke also alleged bias on the part of Mr Rand, which the Panel had rejected on the basis that his written evidence was credible. On appeal, Mr Justice Irwin agreed with the Panel that there was no evidence of bias and further noted that he found Ms Johnson-Ogbuneke’s continued insistence on bias unimpressive.
Evidence of Mr Helm, the General Medical Council’s expert witness
Ms Johnson-Ogbuneke argued that Mr Helm was not qualified to give expert evidence on the basis that he was not a specialist in the relevant field of medicine and had not reviewed the patient notes. Mr Justice Irwin plainly rejected these assertions, noting that when Mr Helm was cross-examined he maintained he did have the requisite expertise and that he had read the notes.
Ms Johnson-Ogbuneke advanced a counter-argument in respect of one of the allegations made against her, namely that she had ordered X-rays for Patient G but had not been provided with access to them. On the evidence presented at appeal, Mr Justice Irwin concluded it was highly probable no X-rays were commissioned by Ms Johnson-Ogbuneke on 7 June and there was certainly no basis for concluding that the Panel’s determinations were wrong by reference to missing X-rays of that date.
Inappropriate evidence and/or bias by other witnesses before the Panel
Ms Johnson-Ogbuneke argued that the Panel had been wrong to admit evidence from Mr Oliver Donaldson on the basis he was a doctor of similar seniority to her, and he had been unfair towards her in his comments. Mr Justice Irwin rejected this criticism, noting Mr Donaldson’s evidence did not depend on his seniority and in any event, it was open to the Panel to make an assessment of his evidence. Mr Justice Irwin also rejected claims from Ms Johnson-Ogbuneke regarding the witness evidence of Professor Sir Keith Porter.
Bias by the Tribunal
In Ms Johnson-Ogbuneke’s submissions on appeal she, on a number of occasions, accused the Panel of bias. She further complained she had been silenced, her evidence had been misread, she had been hurried in her submissions and the Panel had been overly hostile to her. Mr Justice Irwin found no evidence of bias or improper handling of Ms Johnson-Ogbuneke in the lower tribunal.
Overall, Mr Justice Irwin found no substance to any of the points advanced by Ms Johnson-Ogbuneke and nothing to demonstrate that the substantive determinations of the Panel were wrong. In fact, the judge commended the decision of the Panel, noting “the overall value judgments made by the Panel are particularly deserving of respect, in an appeal such as this.” Mr Justice Irwin found no basis for concluding the Panel’s findings as to impairment and/or sanction were in any sense unreasonable or misguided and he therefore dismissed the appeal.
It is clear from Mr Justice Irwin’s decision that allowances were provided liberally to Ms Johnson-Ogbuneke in the course of the appeal proceedings, particularly in light of the fact that Ms Johnson-Ogbuneke was facing the end of her professional career. Notwithstanding the judge’s assistance, Ms Johnson-Ogbuneke’s submissions were still found to be so unfocussed and lacking in substance such that every ground of appeal failed. It is also noteworthy that Mr Justice Irwin expressed concern regarding the appellant’s continued assertions of bias which undoubtedly weighed against her in any consideration of insight.
This case contains most, if not all, of the available ingredients to result in erasure: serious misconduct, dishonesty, lack of insight, attempts to shift blame onto and discredit others and most importantly, concerns for public safety and protection.
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