Brownlie v Four Seasons Group
The High Court considers what doctors may and may not do whilst suspended from the medical register.
A doctor (D) appealed under section 40 of the Medical Act 1983 (the Act) against a decision of the Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) ordering his immediate suspension from the medical register for 12 months upon findings of misconduct and impairment of his fitness to practise.
Background and Chronology
On 18 September 2009, D appeared before the Interim Orders Panel (IOP) of the GMC, charged with misconduct involving the presentation of monthly requisitions to pharmacists for ampoules of morphine, diamorphine and pethidine. There was evidence that D had self-injected pethidine whilst at work. At that stage, there was an on-going investigation by the Police and NHS Counter Fraud. D had been suspended from the Performer’s List by his Primary Care Trust. The IOP took the decision to suspend D’s registration for 18 months. There was no challenge made by D to that decision.
D operated a cosmetic surgery business together with his wife who was a nurse. On 2 September 2009, prior to his interim suspension, D had seen Patient AS in consultation with a view to providing her breast augmentation surgery. He was then, as we know, suspended.
Despite that suspension being imposed on 18 September 2009, D nevertheless saw AS again on 26 September 2009, at a joint consultation with another doctor (A). Further, on 30 January 2010 D was present when A performed AS’s breast operation. Prior to the operation, Patient AS signed a consent form which named D as a ‘responsible health professional’ and the notes indicated that the post-operative review would be carried out by D after a week. On both 2 March and 10 March 2010, Patient AS attended the Clinic with post-operative problems and was seen by D. She was referred on by D to A.
On 14 March 2010 the IOP carried out a six month review and decided to lift D’s suspension.
On 8 May 2010, D re-operated on AS removing the original implants and re-inserting different implants under local anaesthetic. The stiches split and on 10 May 2010 D inserted a drain. On the advice of a surgeon whose opinion D sought, D removed the drain and the left implant in on 19 May 2010. In December 2010, AS had to undergo reconstructive surgery to both breasts and complained to the GMC about her treatment by D and A.
D was charged by the GMC on 9 May 2012 with 11 disciplinary offences relating to the treatment and care of AS. Charge 1 was that he had, whilst suspended by the IOP, between 18 September 2009 and 15 March 2010, ‘provided clinical care and treatment to patient AS’ which was ‘in breach of your IOP’ and ‘not in the best interests of AS’.
After a 9 day hearing, at which D was represented by Counsel, the Panel found almost all charges proved, including Charge 1. The Panel found his fitness to practice to be impaired and suspended his registration for 12 months.
D appealed the Panel’s decision and sanction on the grounds that the Panel’s findings in relation to Charge 1 were ‘infected’ by errors of law and should be set aside and further, that 12 months suspension was ‘disproportionate’ in any event.
It was argued on D’s behalf that;
a) it is not unlawful to provide ‘clinical care or treatment’ even without medical registration;
b) the only types of ‘clinical care or treatment’ which are exclusively the purview of registered medical practitioners are those laid down in the Act, namely writing prescriptions, handling controlled drugs etc;
c) D’s interactions with AS did not involve any activity for which as a matter of law medical registration was necessary;
d) section 47 of the Act did not apply to D’s work at the private clinic and;
e) D was found guilty of something for which he was not charged, namely holding himself out as a registered practitioner.
Further it was argued that in holding that D’s encounters with AS were not in her ‘best interests’, the Panel had approached the term ‘best interests’ too narrowly and that it was in her interests as he was a competent doctor and there was no-one else available at the time.
Decision of the Court
The submission that D did nothing in relation to AS which he was not entitled to do under the Act was found to be ‘unmeritorious’; ‘it is clear that [D] was doing the one thing he was not supposed to do under the Medical Act 1983, namely continuing to practise whilst suspended’. [32-33]
Whilst there is no blanket restriction in the UK on the ability of one individual to provide medical care to another (unlike with dental or veterinary treatment), the privileges conferred by the Act are no longer available to doctors once they are suspended. It follows that it is not open to a doctor who is suspended from the register to provide ‘clinical care and treatment’ to a patient in his capacity as a registered medical practitioner. This was exactly was D did – he treated AS whilst giving the impression that he was still registered and licensed to practise. ‘It would be a rare case that a doctor’s non-disclosure of his or her suspension to a patient will be sufficient to satisfy the principles of autonomy and informed consent’. 
Further, it was held that ‘the Panel in fact approached the question of ‘best interest’ under charge 1(b) broadly, and correctly, as including both AS’s medical and general welfare. The latter includes her understandable anger and distress as being treated by a doctor whom she was unaware was suspended’. 
The second argument, that D was not specifically charged with holding himself out as a medical practitioner, was also rejected. It was held that ‘the charge was broadly framed and its gravamen clear, namely, continuing to practise while suspended’. 
Lastly, the Panel’s decision on sanction was held to be ‘unimpeachable’.
This case is a demonstration of the triumph of common sense over the technical. The prospect of a suspended doctor providing medical care such as that provided in this case, to a patient who is unaware of their suspension, cuts to the very heart of the fitness to practise process. Where the mischief is clearly pleaded, semantics is not going to defeat an unambiguous and sensible charge.
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