Delay in Diagnosis of Bowel Cancer due to NHS Understaffing
Judgment date: 18 February 2013
Practical effects of decision to erase 70 year old doctor unfair, but not wrong
The appellant doctor (L), brought an appeal against a sanction of erasure made by the Fitness to Practise Panel (the Panel) of the General Medical Council (GMC), advanced on the single ground that the sanction was disproportionate.
L is 70 years old. He qualified as a doctor in March 1969 in India and then came to the UK where he was registered in 1970. He held various posts in hospitals and as a (locum) GP. Concerns about his fitness to practise first arose in 2006, when he was referred to the GMC. Numerous procedures to assess his fitness to practise ensued. He was suspended in 2006 and L has not worked as a doctor since then.
L underwent two phases of assessment, the first in January/ February 2007 and the second in August 2009. The first phase comprised of peer review and tests of competence while the second of competence alone. L’s performance was judged to be unacceptable in key fields of assessment of patients’ condition, namely in providing or arranging treatment and in record keeping. In the tests of competence, L failed both a knowledge test and the simulated surgery.
In their report the assessors recommended, inter alia, that L should not work until he could satisfy the GMC that his work was of the required standard. Following the assessment, undertakings were proposed which included for L to work with a Director of General Practice Postgraduate Education in order to formulate a development plan specifically designed to address deficiencies in particular areas of his practice.
L failed the Multiple Choice Question examinations to gain entry on to this scheme three times. The GMC were advised by the Deanery that they could offer no further help to L which led the GMC case examiners to initiate a second assessment into L’s performance. Following a second assessment, which L failed, he was deemed to have an overall level of knowledge that was unacceptable. The assessors concluded that L’s professional performance had been deficient, that he was not fit to practise at all and that he should cease professional practice.
The GMC then brought formal disciplinary proceedings against L, resulting in him being erased from the Register.
At L’s appeal hearing, some two and a half years following the FTPP decision to erase, he argued that the decision was wrong for the following reasons:
The Panel did not appear to have given sufficient weight to the positive aspects of L’s performance given that a number of positives about his practice had been acknowledged following the peer review;
The Panel did not give sufficient weight to the fact that the 2007 assessment had identified training needs which had not been met by the 2009 assessment and therefore the proportionate response would have been to allow L more time to demonstrate an ability to increase his knowledge base;
Undue weight was placed by the panel on a lack of remediation given L’s lack of opportunity to demonstrate remediation, having been out of practice since July 2006;
Consideration had not been given to the ability of L’s insight into his deficiencies to be amenable to improvement in assessing whether erasure was the proportionate response in light of his cooperation with the FTP process;
No consideration appears to have been given by the panel to the personal impact erasure would have had on L; and
The Court was also asked to take into account the time that had elapsed since the original decision to erase L, and the appeal hearing (nearly 2 ½ years). If the sanction were to be upheld, L would face a five year period before he could apply for restoration, at which stage he would be 75 years old.
It was argued on behalf of the GMC that erasure was the only realistic and appropriate outcome given L’s failings in two assessments and the exams for remedial training three times. Furthermore it was argued that it was a matter for the professional judgment of the Panel and that their decision cannot be said to be “clearly inappropriate”.
Mostyn, J held that the Panel’s decision to erase L was ‘not wrong’, finding that their determination had been made correctly, despite L’s positive performance in some aspects of his practice. He approved their reasoning, stating that it was based on the GMC’s submission that patients would be exposed to a risk in the future were a sanction short of erasure to be imposed.
L’s arguments, that he had shown insight into and an ability to repair his deficiencies by engaging with the two assessments and the FTPP proceedings, were not considered to be relevant; the L really had no choice if he wished to avoid erasure. Furthermore, it was held that L had had ample opportunity to demonstrate remediation and insight, however, core deficiencies in his knowledge and competence had hindered him from doing so.
It was acknowledged that in the events that had occurred in this case, the sanction would have the unhappy consequence of amounting to ‘a life sentence’, given L’s age and the length of time he had been suspended pending appeal. However, Mostyn, J cited the sentiments of Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512, holding that “the personal impact of the verdict is subservient to the wider interests of the protection of the public from risk and the reputation of the profession” .
The learned Judge accepted that it was ‘highly unfair that the consequence of the appellant’s decision to appeal has resulted in the effective enlargement of the quarantine period; but stated that ‘that is something about which I can do nothing. Certainly it cannot afford a reason for allowing an appeal that should otherwise be dismissed’. .
This case affirms the well-known sentiments in Bolton v Law Society that the practical effect of a sanction must be ‘subservient’ to the wider interests of the protection of the public and the reputation of the profession. Those sentiments are most frequently referred to in cases of misconduct, but here have been held to apply just as aptly in cases of deficient professional performance.
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