How can vulnerable individuals be protected financially when getting married and is a pre-nuptial agreement the answer?
Joseph Onwude –v- General Medical Council (GMC)  EWHC 601 (Admin)
The Appellant is a gynaecologist. Aside from his practice in gynaecology he maintained an interest in other areas of medicine. The concerns in this case related to patients known as A and B who were husband and wife. Patients A and B were friends of the Appellant and they were also connected with him by way of a business venture. The three parties entered into a venture to complete the building of a hospital in which the Appellant would be the main doctor. Unfortunately the venture was not successful and the friendship between the Appellant and Patients A and B broke down.
Aside from the business venture, the Appellant prescribed medication for, and treated the patients. Patient A had an ulcerated leg which was treated by the Appellant. He also treated Patient B on various occasions, mainly by way of the provision of prescriptions.
When the Appellant was initially treating Patients A and B it was on the basis that he would not charge them for treatment. When the relationship broke down, it became necessary for the parties to reach some arrangement in relation to the hospital building, and at that stage the Appellant issued invoices to Patients A and B for the treatment he had provided to them. The Appellant’s case was that at the point he issued the invoices to Patients A and B the parties were in discussion about the arrangements on who should pay what, and in what amounts, for the business venture which had broken down. The Appellant stated that Patient B had done some work for him which otherwise he would have had to pay for, but he had equally given treatment to both Patients A and B which they otherwise would have had to pay for, and so there was a degree of quid pro quo. The Appellant’s case was that he did not at any time intend the invoices that he issued to Patients A and B to cause any distress or in fact to be paid, and at the hearing before the MPT it was accepted that he did not intend to pursue the invoices.
In any event, it was these invoices and the conduct surrounding them that led to the complaint by Patients A and B to the GMC.
The charges considered by the MPT can be summarised as follows:
The MPT accepted the GMC’s assertion that not honest amounts to dishonest. The MPT was mindful of the tests to be applied when determining dishonesty. In short, it considered whether the act or omission would on the balance of probabilities be considered dishonest by ordinary standards of reasonable and honest people, and if so, whether on the balance of probabilities the Appellant himself realised at the time of his actions or omissions that they were dishonest by those same standards. This principally related to the matter of the treatment and the invoices for such. The MPT found that the Appellant’s actions contravened paragraph 72 of Good Medical Practice (GMP) which states:
“You must be honest and open in any financial arrangements with patients. In particular;
(a) You must inform patients about your fees and charges, wherever possible before asking for their consent to treatment.”
The MPT found that the Appellant had:
The MPT found these matters amounted to serious professional misconduct and current impairment. The sanction was one of erasure.
This matter came before Mr Justice Collins on 8 March 2017. In relation to the discussion and charges for medical treatment, Mr Justice Collins opined that given that it was accepted that the Appellant had decided that he was not going to charge and both patients knew that they were not going to be charged for their treatment, the MPT’s decision that he should have provided information about his fees and charges seemed “somewhat absurd”. Even though it was not explicitly set out, this information was clearly given to the patients and understood by them. The position was that the Appellant would not charge for the treatment he gave and therefore the finding by the MPT that even if he was not intending to charge he should have made that clear, and that in failing to do so he lacked openness, was circular. Mr Justice Collins opined that whilst maintaining the utmost respect to the MPT, the finding was not one which was reasonable having regard to the common ground between the parties - which was that payment would not be made in any regard. At paragraph 14 of the judgment Mr Justice Collins stated as follows;
“That, I regret to say, is a finding which no reasonable tribunal could conceivably have reached. The most adverse finding against what the Appellant had done was namely having agreed originally not to charge, later when relationships broke down that he sent in invoices having changed his mind. That is not dishonesty. It may be an unpleasant thing to have done. It may be and clearly would be on the face of it possibly a breach of contract and it may equally be that in civil proceedings the patients would have had a cast iron defence if the demand had continued to be made. The fact is, of course, it was not…..”
As to the MPT’s decision that the Appellant had intended to cause Patient A and B distress, whilst giving evidence at the final hearing, the Appellant had accepted that receipt of the invoice by the patients could cause distress, but it would of course depend on what they knew about the basis of the invoice, and in this case they understood that payment would not actually be made. Further, his evidence had been that he certainly did not intend to cause distress. In finding this matter proven the MPT had stated that they were satisfied that the Appellant did intend to cause distress but gave no cogent reasons beyond this. In this regard, Mr Justice Collins found that there was no basis upon which the MPT’s decision in this regard could stand.
In relation to the business arrangement, when giving evidence, Patient B sought not to answer questions on the basis of the existence of a confidentiality agreement. The Appellant maintained that this was a crucial part of his case, because the issue of the invoices to the patients was part of the agreement to end their business relationship. The matter of the confidentiality agreement was considered by the legal assessor who saw a copy of it noting that it contained a relatively standard clause that disclosure to, among other bodies, regulatory bodies, conducting fitness to practise investigations was permitted. Notwithstanding, the legal assessor advised that Patient B could properly rely upon the confidentiality agreement not to answer any questions about the business. On appeal, Counsel for the GMC accepted that this was an entirely wrong decision by the legal assessor. The confidentiality agreement ought to have been admitted into evidence, and even then, Patient B may still have refused to answer questions, but this would have gone to his credibility and the extent to which the MPT relied upon his evidence.
In all the circumstances, Mr Justice Collins opined that the findings of dishonesty should never have been made by the MPT. As to the provision of treatment to Patient A and B, considering paragraph 5 of GMP which states “wherever possible you should avoid providing medical care to anyone with whom you have a close personal relationship”, Mr Justice Collins noted the specific reference to family members in the 2013 guidance. Reliance was placed by the GMC on the decision in Hussein –v- The General Medical Council  EWHC 3535 (Admin), which was a case in which the relationship a doctor had with his female friend was so clearly a close personal relationship that with reference to the guidance in force in 2006 there was a general consensus that providing medical care to friends or family was wrongful. In relation to this aspect of the case, Mr Justice Collins stated as follows at paragraph 25:
“Certainly there has to be considerable care taken if a doctor is to treat someone who was a close friend and the reason behind that is that it is essential always that the medical practitioner remains objectivity in his dealing with his patient and should not be influenced to do something because of the friendship or indeed because the individual is a member of family. There is an obvious risk in some cases that that might be the position but to say that providing medical care to friends was wrongful puts the matter far too high…the question of course is, where does one draw the line? It is not suggested in this case that the treatment given to either of the patients was in any way wrong treatment or treatment which put them at risk or treatment in respect of which friendship might have clouded views in relation to objectively I recognise that the fact that nothing went wrong and the treatment was successful and proper does not of itself mean that it was right to administer it because the question is whether something might have gone wrong and that always has to be taken into account…all will depend on the circumstances and I am bound to say that in my view in the circumstances of this case even though I entirely accept the close personal friendship goes beyond family and can include close relationships, to suggest that in this case it was serious misconduct is simply not made out and accordingly I do not think that the conclusion reached by the Tribunal in that respect can be upheld.”
In respect of the charges that the Appellant had acted outside his scope of competence by prescribing as a GP would, Mr Justice Collins noted that the MPT had had the benefit of hearing from an expert. The Appellant’s case in this regard was that whilst practising as a GP does require an individual to be on the GP’s register, he was not practising as a GP in prescribing for Patient A and B. In this regard, Mr Justice Collins stated that whilst it “may well be that technically he was in breach of that obligation but it is very technical in the circumstances of this case and it really does not seem to me that it should have led to anything other than perhaps an indication that he should not do it again without being on the GP register, if that is what he wished to do.”
As to the matter of contemporaneous records, Mr Justice Collins concluded that the MPT was entitled to decide that there were no sufficient records of the treatment and medications prescribed. As to Appellant’s failure to inform Patient A and B’s NHS/private GP’s of his treatment, Mr Justice Collins stated that this matter should not have been found proven against the Appellant because whilst the patients were registered with a NHS GP which is the “gateway to NHS treatment”, both patients were well able to look after themselves privately and had chosen to do so. Patient B’s private GP was called to give evidence and was asked whether he had ever given information as to what he was doing and what treatment he was providing to Patient B’s NHS practitioner, and he said that he had not, and further that he did not think it was necessary to do so. Mr Justice Collins noted that if the Appellant had completed proper records it may well have been that the provision by him of information to the GPs would have been less important, but as there were no proper records the provision of information to the private GP became somewhat more important. In this respect, Mr Justice Collins concluded that the MPT was not wrong for finding this element of the case proven, but whether it amounted to serious professional misconduct to an extent which justified any action was another matter.
Given his concerns with the decision of the MPT Mr Justice Collins allowed the appeal. As to the issue of indemnity cover, Mr Justice Collins stated that this was an issue about which the Appellant did not appear to have put the evidence which he may have wanted to, as he disengaged with the proceedings, but since the matter was going back for consideration on the points of appeal which had been successful, it would be for the Appellant to produce the necessary information in respect of this aspect of the case. Mr Justice Collins remitted the case to the MPT to consider whether the findings that had been upheld amounted to serious professional misconduct and, if they do, what sanction should be imposed. Mr Justice Collins noted that for his part the most serious of the charges seemed to be the indemnity issue, but this was a matter for the Tribunal to consider.
This case deals with some important issues. Healthcare practitioners are often called upon by family members and close friends, and there will be circumstances where providing medical advice/treatment will simply not be appropriate. Mr Justice Collins’ judgment clearly indicates that each case must be decided on its merits. It cannot be the case that there is a ‘blanket ban’ on treating anyone who is personally connected. Of course, on a practical level, healthcare practitioners may be best placed to avoid treating connected persons, but where they do, ensure that there are clear and contemporaneous records to evidence all which has taken place. As to the Panel’s finding that the doctor in this case had been dishonest, Mr Justice Collins was critical. Whilst on the face of it issuing an invoice to the patients was not ‘particularly friendly/nice’, on the facts in the case, that invoice was part of winding up the business agreement between the parties. It was quite clear that the patients did not expect to pay the invoice, and as such, dishonesty could not be made out on the basis that the doctor had failed to be honest and open in the course of financial arrangements, specifically that he had failed to inform the patients about his fees and charges prior to seeking their consent to treatment. In all, finding as a fact that a close personal relationship existed between the parties and that the doctor had treated Patients A and B was insufficient to find serious professional misconduct.
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