Lasting Powers of Attorney: recent key developments
The High Court considers the appropriate sanction for a registrant acting as an expert who does not possess sufficient expertise.
Pool v General Medical Council  EWHC 3791 (Admin)
Judgement date: 13 November 2014
In August 2011 Dr Pool (the Appellant) was instructed to act as an expert witness in the field of psychiatry at a hearing in relation to a paramedic’s (A) fitness to practise before a panel at the then Health Professions Council . A had been diagnosed as having personality and post-traumatic stress disorders.
A objected to the Appellant’s evidence on the basis that he was not an expert. The HPC Panel determined that the Appellant did not have sufficient expertise in the field of personality disorders, and as such excluded his evidence.
A referred the Appellant to the General Medical Council (GMC).
Criticism of the Appellant
Key criticisms the Appellant faced were that he had insufficient expertise in the area of personality disorders and that he had not held a substantive post in the NHS. At the relevant time the Appellant was included on the GMC’s Specialist Register in the category of Psychiatry in Learning Disability, but not in the category of General Adult Psychiatry. A argued that he had gained sufficient expertise in this area as a result of:
i. Working as a senior houseman between 1994 and 1999; and
ii. Working with female patients who had suffered sexual abuse and had been diagnosed with personality and post-traumatic stress disorders in secure hospitals.
The GMC’s Decision
The GMC Panel rejected A’s arguments in this regard. At paragraph 17 of their decision, the Panel stated as follows:
‘The panel accepts that you have considerable experience in the treatment of women with personality disorders. However this is not in community settings and is not focussed on their occupational functioning’.
In relation to his report, the Panel received evidence which criticised the Appellant’s consideration of the reasons why he stated A’s fitness to practise was currently impaired, what aspects of her practise he considered were impaired, and how long that impairment may last.
In relation to the last point, the Panel found the Appellant’s opinion that A’s fitness to practise may remain wholly impaired for a period of at least two to several years to be of particular concern, as it had the potential to devastate her career as a paramedic.
The Panel stated as follows at paragraph 19:
‘The panel considers that to put oneself forward as an expert witness requires more than clinical experience and knowledge. It also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner. This panel finds that your written report fell short of what is required and that your evidence at the HPC hearing regarding your experience and expert status was confusing and unclear. This panel does not consider that you conducted yourself at the HPC hearing as an expert witness should when giving evidence.’
In short, the Panel rejected the Appellant’s arguments that he could be considered as an expert in the field of General Adult Psychiatry, and therefore he had failed to restrict his opinions to matters upon which he was suitably qualified to comment on and/or had direct experience of.
The Panel found that the Appellant’s fitness to practise was impaired by reason of misconduct and imposed a three month suspension.
The Appellant’s application pursuant to section 40 of the Medical Act 1983 (the Act) against the decision of the Panel was submitted on the following grounds:
i. The Panel’s decision that he was not an expert in the field of General Adult Psychiatry was incorrect or they failed to provide sufficient reasoning for this decision;
ii. The Panel’s finding that he failed to restrict his opinion to matters on which he was suitably qualified and/or had direct experience to comment on was incorrect, or they failed to provide sufficient reasoning for this decision; and
iii. The finding that his report was inadequate, in that he failed to provide sufficient reasoning for his opinions, was incorrect.
The Court confirmed that the test on appeal is whether the decision of a Panel can be said to be wrong.
In relation to the adequacy of reasons for a decision, the Court cited the Court of Appeal’s decision in the case of Flannery v Halifax Estate Agencies Ltd  1 W.L.R 377.
As to the first ground that the Appellant was not an expert in General Adult Psychiatry, the Court opined that the Panel had suitably considered the Appellant’s experience. Further, it was held that the Panel was not wrong in the conclusions they reached that the Appellant was not on the Specialist Register in the category of General Adult Psychiatry and he had not completed any higher professional training. In short, neither the Appellant’s qualification, training or clinical experience equipped him to classify himself as an expert. At paragraph 33 the Court stated:
‘The question was whether he could, legitimately, describe himself as an “expert” in the field of assessment of the fitness to practise of an individual carrying out a particular role in the workplace. The Appellant was, simply, not an expert in that area’.
The Court commented that whilst the Panel’s reasoning could have been fuller, the essential questions as to why it reached the decision it did were sufficient.
In relation to the Appellant’s failure to provide sufficient reasoning for his opinions in his report, the Court held that the Panel’s findings were ones that they were entitled to make.
As to sanction, the Court commented that the Panel found the Appellant’s misconduct to be serious in that there is a ‘strong public interest in ensuring that doctors do not act outside their competence’ (paragraph 47). As such, the Panel was entitled to find that taking no further action was inappropriate. This aside, the Panel’s decision that conditions were not workable, and therefore suspension of the Appellant’s registration was necessary, was flawed on two counts:
i. The Panel found that the Appellant lacked insight, but that his misconduct could be remediated by the development of insight. The Panel commented that a three month suspension would allow the Appellant sufficient time to develop that insight. The Court held that these statements were contradictory, as the Panel determined that that they could not formulate conditions due to the Appellant’s lack of insight, but considered that the Appellant could remediate this deficiency during a three month suspension. The Panel did not explain why a condition prohibiting the Appellant from acting as an expert at fitness to practise hearings for three months would not be appropriate; and
ii. The suspension for three months was disproportionate given that the sole concern was that the Appellant had, on a single occasion held himself out as an expert in relation to an assessment of a healthcare professional’s fitness to practise. There was no criticism of any other aspect of the Appellant’s work as an expert in the field in which he did have expertise or of his clinical practice. The sanction imposed restricted him from working as a clinician, and therefore was disproportionate to the misconduct found proven.
The Court determined that the Panel’s decision be replaced with an order of conditions, specifically that the Appellant must not accept expert instructions to act as a witness for three months.
This case reminds us that Panels must give due attention to the matter of sanction. Any decision on sanction must be reasoned so as to show a clear correlation between the sanction imposed and the misconduct found proven. Proportionality is a key consideration at the sanction stage which cannot be overlooked.
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