Case Update: R (on the application of El-Baroudy v General Medical Council [2013] EWHC 2894 (Admin)

4 October 2013

Should regulators be routinely pleading causation in fitness to practise cases?

Judgement date: 5 August 2013

Background

The appellant Doctor (D) worked from 2003 until 14 March 2013 in various middle-grade posts in obstetrics and gynaecology, but between 2006 and 2009 he also worked part-time as a forensic medical examiner (FME). It was in the course of this later role that the relevant allegation arose, namely serious failings in the delivery of care to a homeless man, AR.

AR was seen lying on his back on the pavement by a concerned passer-by and an ambulance was called. One of the ambulance crew tried to move him but AR was volatile and attempted to strike him. AR sought to assault a number of police officers who attended and he was forced to the ground, in doing so hitting his head on the pavement. His head was bandaged by the paramedic, he was arrested and taken to Chelsea police station. He was found to be in custody of unidentified medication, a wrapper of brown powder and smelt strongly of alcohol. On inspection, the custody record also disclosed that he suffered from epilepsy and schizophrenia. The custody sergeant called D, as the on-duty FME, who attended at approximately 11pm.  D entered the cell and was in attendance for approximately one minute, after which he informed the police that AR was fit to be detained and did not need to be transferred to hospital.

There was a failure by D to make even the most basic of assessments of AR’s condition, which resulted in D failing to realise that AR was in fact unconscious rather than asleep and needed to be immediately transferred to hospital.   Such was the lack of care that Dr Callaghan, an expert in forensic medicine, characterised it as ‘dangerous and tantamount to non-existent’. Within 3 hours, AR was found dead in his cell.

The hearing

The General Medical Council (GMC) brought various charges against D that in essence amounted to a failure to provide good clinical care of AR, including failing to make adequate efforts to rouse him, failing to assess his respiratory rate, pupils, pulse, blood pressure , and the failure to take a Coma score. Further, it was alleged that D failed to recognise that AR’s condition represented a medical emergency, failed to arrange for him to be taken to hospital and failed to made adequate records of his examination. 

There was no allegation that D’s actions, or inactions, caused the death of AR, or even caused AR to lose a substantial or significant or real chance of survival.

The Appeal

The Court rehearsed the caselaw containing the basis legal proposition that the charge against a person should be precisely framed and that evidence should be confined to the particulars given in the charge.

It was held that;

‘‘there was no allegation that the misconduct either caused death or caused the loss of any realistic chance of survival. Had the GMC wished to pursue those allegations, which would have been highly material, then in my judgement they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgement as to whether the fitness to practise was impaired or as to sanction on any question of causation, causation being defined as causing death or indeed causing the loss of any real chance of survival’ [14]

In the present case, such evidence was led as to the issue of causation, by a Dr Cary, Consultant Forensic Pathologist who made various statements as to the effect of the failures. Having considered the wording of the Panel’s decision it was held that the Panel did allow such considerations to creep into their decisions.

It was said that ‘it is obviously a matter of substantial importance in considering the gravity of the case to consider outcomes. If the GMC had wanted to allege such an outcome, it should have been alleged specifically. Not being so, the evidence should not have been led’. [30]

The Court held that;

‘I am persuaded in this case that the allowing of evidence of causation to be given and the taking into account of evidence of causation in the way I am satisfied it was, both in relation to impairment and in relation to sanction, amounted to a serious procedural irregularity that renders the result on impairment and on sanction unjust.’ [33].

The findings on impairment and sanction were duly quashed and are to be considered by a fresh panel. 

An interesting decision which will encourage healthcare regulators to think carefully about whether to plead the actual causative effect of the failures that they allege. If a regulator wishes a panel to consider the outcome of any particular failure, they must specifically plead, and then prove, causation. If they chose not to do so, then no evidence about that issue should be led. Given that certain outcomes, particularly if fatal, would affect the public perception of the failures considered, and therefore be relevant at the impairment and sanction stage, it is certainly an important consideration.

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