Two bites of the apple- limitation in professional negligence cases
High Court gives guidance on the test to be applied to applications of ‘no case to answer’ in regulatory proceedings.
Judgement date: 27 September 2013
The claimant Doctor (D) faced proceedings brought by the General Medical Council (GMC) in respect of his treatment of Patient A, a patient suffering with a dislocated shoulder. D had treated Patient A by undertaking a resetting operation (shoulder reduction) using conscious sedation.
The GMC alleged that, when treating Patient A, as a Specialist Registrar ST7 in emergency medicine and as the senior clinician on duty in the emergency department of Leeds Teaching Hospital (the Hospital), D had failed to follow employer protocol and national guidelines on conscious sedation, in that he undertook the resetting procedure alone. D denied the allegation and stated that Dr Sheppard, a colleague, was present when the procedure was performed; this, it was said, was recorded in Patient A’s medical records.
In respect of this, the GMC further alleged that D had dishonestly or misleadingly recorded Dr Sheppard’s presence in Patient A’s medical records and had subsequently made comments to Dr Sheppard in an attempt to persuade Dr Sheppard to collude in his lie that she had been present during the treatment of Patient A.
This matter came before the Court as a renewed application for judicial review, permission having been refused on the papers by Mr Justice Steward on 23 July 2013. The matter was heard by way of a rolled up hearing, in that issues of permission and full substantive merit were effectively heard and tried together.
In respect of the review the key allegation was that contained at 1(b) of the charge which read as follows:
‘That the applicant, B, recorded in Patient A’s medical records that Dr S, ST3 in emergency medicine
D sought review of the decision of the Fitness to Practise Panel of the Medical Practitioner’s Tribunal Service (the Panel) to reject his submission that insufficient evidence had been adduced to find the allegation in charge 1b, above, and related parts of other charges proven and that these charges should be dismissed.
D’s submission to the Panel was based on evidence that suggested the records contained in the GMC’s hearing bundle did not resemble the records upon which Dr Sheppard based her complaint.
Dr Sheppard’s signed witness statement, which had been served on D by way of advanced disclosure, stated that upon scrutiny of Patient A’s electronic file Dr Sheppard had become concerned that D had placed her name on the record has having performed the shoulder reduction procedure. She was clear in her statement that it was having sight of the electronic records that gave her concerns.
Prior to the case being opened, Dr Sheppard raised with Counsel the fact that the medical records in the GMC hearing bundle, which had been printed off of the Hospital’s information systems, were missing the page that had made her have concerns about what had been recorded in respect of Patient A.
When Dr Sheppard gave evidence she maintained that it was sight of Patient A’s records had caused her to have concerns but now stated she was unsure whether it was the electronic or original paper copy she had seen. As will be evident, Dr Sheppard felt the most important page, that which had given her concerns, was missing from the electronic record. The original paper records had been destroyed prior to the hearing.
In his application for judicial review D submitted that the panel’s rejection of his submission on this point was irrational and one that no reasonable tribunal could have reached. It was further submitted that the effect of the panel’s ruling was to place on D the evidential burden of disproving the existence and content of a version of Patient A’s medical records which had never been produced by the Hospital or GMC.
The Court noted that the Panel had not made any findings of fact and that rather they had simply concluded that there was evidence which was reasonably capable of supporting a finding that on a rational basis the facts were proven.
The Court next turned to the guidance in R v Galbraith  1 WLR 1039 with respect to submissions of no case to answer and had mind to the comments made in R (Dr Alan Tutin) v General Medical Council  EWHC 553 Admin in respect of applying those principles to regulatory proceedings; proceedings where the panel necessarily acts as both judge and jury and the standard of proof is civil rather than criminal. On the basis of the cases referenced above the Court held that the question in respect of regulatory proceedings was whether the evidence presented was sufficient, i.e. whether the evidence was so tenuous as to become unsatisfactory and make it unsafe to prove the allegations.
On this basis the Court ruled that the Panel’s decision could not be said to be outside the range of reasonable responses and as such was not Wednesbury unreasonable or irrational.
The Court went on to explain its decision citing the fact that:
In respect of D’s submission that the evidential burden had been shifted such that he was required to disprove the existence and content of a version of Patient A’s medical records that he had never been provided with, the Court held that this was not the case and that it was open to D to submit in the course of proceedings that the prosecution had not proven the existence of alternative records to the necessary standard.
Finally, the Court cited with approval the judgement in R (on the application of Mahfouz) v General Medical Council  EWHC Civ 233 and held that as a general rule the right moment for challenge is at the conclusion of the disciplinary process, if necessary.
On the basis of the forgoing the Court held that there was no arguable error of law and refused permission.
A useful case providing guidance to practitioners on the test to be applied when making submissions of ‘no case to answer’ in regulatory proceedings and affirming the general position as to when it is appropriate to make an application for judicial review.
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