Case Update: Kumar v General Medical Council [2012] EWHC 2688 (Admin)

“Reckless” consultant psychiatrist appealed against the finding of a Fitness to Practise panel of the GMC suspending him from the register in relation to expert evidence which he gave at a murder trial.

The Claimant, Dr Kumar, a consultant psychiatrist, appealed against the decision of a Fitness to Practise Panel (the Panel) of the GMC suspending him from the register. The Panel found that his fitness to practice (FTP) was impaired by misconduct relating to evidence he gave as an expert witness for the defence in a murder trial in 2009. 

Background

Andrew Day (D), on trial for stabbing his girlfriend to death on 26 May 2008, was represented by Solicitors who, upon the basis of his police interview and instructions, sought to put forward a defence of diminished responsibility, under s2 Homicide Act 1957, and lack of intent. To this end, D’s solicitors approached Dr Kumar’s medico-legal consultancy for an expert report. Dr Kumar accepted their instructions and prepared an initial and supplementary report before giving evidence at the trial where he was seen to demonstrate deficiencies in his expertise, experience, preparation, diagnosis of a disorder (namely Intermittent Explosive Disorder (IED)), obligations for disclosure and understanding of the legal framework for diminished responsibility. D’s defences of lack of intent and diminished responsibility were rejected by the jury and after the verdict; HHJ John Bevan QC referred Dr Kumar to the GMC with a view to his undertaking training on the role of an expert in criminal trials.

Referral to GMC

Upon referral to the GMC, Dr Kumar was charged with misconduct. The charges were particularised to chart Dr Kumar’s conduct from acceptance of instructions, through the preparation and content of his two reports, to giving evidence at trial. The charges ran to 10 paragraphs in total. It was alleged that the acts, as particularised, were reckless, misleading and fell below the standard of a reasonably competent psychiatrist. Dr Kumar was found to have been reckless in his expression of the opinion that D suffered from IED; in not explaining that this diagnosis was controversial; and in persisting in his diagnosis of IED even after his diagnosis had been challenged by the Crown at trial. Further, he had been reckless in not mentioning that he had not read the witness statements and not making clear the provisional nature of his report. The Panel found misconduct and by that reason, his fitness to practise was found to be impaired, the appropriate sanction for which was to suspend Dr Kumar for four months.

Appeal of the Panel’s decision

1. ​Dr Kumar appealed the Panel’s finding of fact in respect of his disclosure of previous experience and his actual experience. On appeal, although acknowledging that the Panel’s reasoning may be open to criticism on this issue, given that Dr Kumar and D’s solicitor gave conflicting evidence, and that the question considered by the Panel was broader than the charge itself, the Panel’s conclusion on recklessness was found to have made the position clear and this charge was, consequently, rightly found proved against Dr Kumar.
2. Dr Kumar was critical of the way in which the GMC developed the meaning of “reckless” late in the day and complained that its questioning of the witnesses was not directed to this test. On appeal, it was found that the GMC had, correctly, expressly applied the subjective test for recklessness derived from R v G and Another [2003] UKHL where a “knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such a risk would be readily accepted as culpable”. Consequently, when accepting instructions, Dr Kumar appreciated that there was “an unacceptable risk” that his expertise would be relied upon by the defence, which was not withdrawn, with the ultimate risk that D could have been wrongly convicted of manslaughter rather than murder. This amounted to recklessness and so the Panel’s finding was correct.
3. Dr Kumar submitted that the Panel had failed to consider the context in which he had prepared his report and given evidence (absence of the need for a medical expert to be expert in criminal procedure, the poverty of the letter of instruction, the failure of the defence to send Dr Kumar the witness statements and the fact that the defence lawyers considered Dr Kumar’s report to be fit for service). This submission was made on the basis of the explanation of how a Panel should consider misconduct, as set out by Auld LJ in GMC v Meadow [2006] EWCA Civ 1390, namely, that the Panel should consider the conduct in the forensic context in which it arose. However, on appeal, it was found that the submissions of Dr Kumar on context only served to highlight further the risk which he created in his reaction to the absence of relevant experience and information. The Panel therefore rightly found that Dr Kumar lacked the basic expertise to do the task upon which he had knowingly embarked.
4. Dr Kumar appealed the Panel’s finding of impairment on the basis that he had been no more than incompetent and inexperienced. On appeal, misconduct and impairment were considered sequentially. 

The “material averments” were correctly found to have been proved. The Panel’s determination on misconduct was quoted in that Dr Kumar “recklessly set aside the norms of [his] your primary obligations to assist the Court, in this case the Jury, in determining the state of mind of a person charged with murder” and consequently, the Panel was satisfied that Dr Kumar’s actions “would be considered deplorable and bring the medical profession into disrepute and amount to misconduct”.

The panel referred to Yeong v GMC [2009] EWHC 1923(Admin) concluding that, in particularly serious cases of misconduct, remediability may be of less significance because of the need to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour. Dr Kumar submitted that Yeong elided the question of impairment with that of sanction, whereas these were two separate and sequential questions. No support was found for Dr Kumar’s submission and in fact, the message in Yeong, was reiterated by Ouseley J stating that such a finding of impairment is necessary “to re-affirm to the public and practitioners the standards of conduct expected of them” and further that “the criminal justice system must have confidence in the expertise and qualities of those members of the medical profession who give evidence in court”.

5. Dr Kumar submitted that the sanction imposed, a suspension for a duration of four months, was disproportionate in that it would have the effect of terminating his consultancy and that conditions reinforced by an undertaking, would have been more appropriate. Reiterating the importance of public confidence in the profession Ouseley J dismissed the appropriateness of conditions on the basis that “the most important part of the sanction is the message it must send to the profession and the public about what are proper standards and how them will be upheld”. He stated that Dr Kumar’s failings were “many, serious and dangerous” and that the sanction was the least which could have been imposed, given the significance of upholding confidence in the criminal justice system.

Dr Kumar’s appeal was accordingly dismissed. Further, Ouseley J took the opportunity to comment on one point raised by Mr Dutton QC, on Dr Kumar’s behalf, to confirm the overriding test for “serious professional misconduct” as was set out in Preiss v General Dental Council [2001] 1 WLR 1926. The comment in Meadow, that rarely, absent bad faith or recklessness, will the giving of honest albeit mistaken expert evidence amount to misconduct, does not mean that misconduct can only arise in cases where recklessness or bad faith are proven. Misconduct can be charged because of the degree and nature of any negligence and the risks created by it, as in this case, where Dr Kumar was found to be reckless in accepting instructions and preparing a report, unaware of his serious limitations as an expert.

This case is a salutary lesson for clinicians engaging in expert witness work, both to know and explain the limits of their practice and experience as well as give a properly reasoned opinion with the caveat of any controversy of diagnosis where relevant, and cited sources/limitations of documentation considered. It also serves as useful guidance for practitioners responsible for drafting charges (and the equivalent) for regulatory bodies in that misconduct can be charged, in the absence of bad faith or recklessness, on the basis of degree and nature of negligence with consequent risks. For those prosecuting and defending regulatory matters, this case also re-affirms the position in Yeong whereby remediability may be outweighed by the need to maintain public confidence in a profession and/or the justice system.

Rowena Rix