Getting it right first time - the importance of preparing the best possible case in fitness to practise proceedings

Background

Dr C worked as a Consultant Paediatrician in the NHS. He was also Managing Director of a company called Meras, which provided private paediatric care.

Dr C was referred to a Medical Practitioners Tribunal (MPT) hearing following complaints made by the parents of three patients he provided private clinical care to at Meras between March and August 2017.

At the factual determination stage of the MPT hearing, the Tribunal found that Dr C failed to provide good clinical care to Patients A, B and C, in particular, by:

• making false diagnoses or strongly suggesting a cancerous condition;
• making those diagnoses without sufficient investigation;
• causing such alarm to each parent that they reported the matter to NHS doctors;
• recommending expensive private tests or treatment;
• not making immediate or appropriate referral to NHS Paediatric Services; and
• acting dishonestly for reasons of financial motivation including recording untrue notes in respect of one patient.

Credibility and reliability

The Tribunal found that Dr C was not candid and became unduly defensive during his oral evidence at the MPT hearing. For example, he was reluctant to provide evidence in relation to the number of private patients he treated, the staff he employed and his financial accounts. 

The Tribunal further found that Dr C made false records in respect of his consultations with Patients A, B and C as it transpired during the hearing that the consultation notes for the patients produced by Dr C were not printouts from the Meras computer system but had in fact been transcribed by Dr C.  The Tribunal had serious concerns regarding the integrity, accuracy and honesty of the transcribed consultation notes. In particular:

• the ‘impression’ section of the note was written in a defensive style;
• the transcribed notes read as an overly detailed retrospective justification of his actions rather than a contemporaneous record of the consultation, and
• the consultation notes differed so markedly from the accounts of the consultations given by Parents A, B and C.  

 

Cross-admissibility

An interesting feature of this case was cross-admissibility. The Tribunal had to determine whether it was fair in the circumstances (and when balanced against Dr C’s evidence that he did not act or advise in the way alleged by the parents), to consider the evidence of Parents A, B and C as supporting the evidence of each other.

Whilst the Tribunal should consider each allegation separately, it is able to consider how likely it is that three parents, independently of each other, would make allegations that were similar but untrue. If the Tribunal concluded that this was unlikely, then one parent’s evidence could be treated as supporting another’s.

The Tribunal found that there were three wholly independent complainants, none of whom knew each other, but who all made very similar allegations of events within a short timescale. The Tribunal found that it was very unlikely that Parent A, B and C could have all been so mistaken about their accounts of what happened during their consultations with Dr C.  The Tribunal therefore determined that the evidence of Parents A, B and C could fairly be treated as supporting the evidence of each other.  

The Tribunal preferred the evidence of Parents A, B and C over that of Dr C and found the majority of the allegations (including dishonesty) proved. The Tribunal found that Dr C’s fitness to practise was impaired by misconduct.

 

Sanction

In the six months between the impairment and sanction stages of the MPT hearing, Dr C changed Counsel. His new Counsel, who had experience of autism,  expressed a view that Dr C may be autistic. Dr C was assessed by a Psychiatrist and an autism diagnosis was made.

At the sanction stage of the MPT hearing, the Tribunal was informed of Dr C’s autism diagnosis. In its’ determination, the Tribunal stated that it found itself in a “constrained and difficult position” in that, due to procedural rules, it was unable to review the decisions it had already made at the factual determination and impairment stages of proceedings in light of Dr C’s recent autism diagnosis.

The Tribunal was unable to determine the relevance of the autism diagnosis (if any), on Dr C’s communication with Parents A, B and C given that it could not go behind its’ findings and rehear any evidence. The Tribunal could only consider the relevance of the autism diagnosis in relation to the issue of remediation and the appropriate sanction to impose.

The Tribunal, weighing up the aggravating and mitigating factors, determined that erasure was the only appropriate sanction. Dr C was struck off the medical register with immediate effect.

 

Appeal

The C appealed to the Court of Session in Scotland, claiming that the Tribunal’s decision to erase him should be quashed and a new Tribunal appointed to re-examine the facts on the basis of his autism diagnosis.

 

The legal test

Parties were in agreement as to the legal test to be applied, namely:

1. It was for Dr C to satisfy the court that there was an acceptable explanation for the evidence (of autism) not having been available at the time of the original MPT proceedings;
2. Dr C must satisfy the court that the fresh evidence would have been relevant and admissible before the original Tribunal; and
3. The court must be satisfied that there is a reasonable prospect that the fresh evidence would have made a material difference to the Tribunal’s decision.

The overall consideration is the interests of justice, in respect of which finality is an important element.

 

The court’s judgment

The court was not satisfied that Dr C had provided a reasonable explanation as to why evidence of his autism diagnosis had not been placed before the Tribunal at the first hearing given that the psychiatric reports were “redolent of characteristics which have been obvious and markedly apparent” to Dr C’s colleagues, family and teachers for a long time. The court was critical of the fact that there was no statement from Dr C confirming that no-one had previously raised the possibility that he might have autism.

Crucially, however, the court concluded that the fundamental flaw in the appeal was the absence of any submission or evidence on behalf of Dr C as to how the diagnosis and features of autism manifested itself in ways which influenced the Tribunal’s determination on the facts and impairment.

The court noted that the psychiatric evidence relied upon by Dr C explained that autism was relevant in the following respects:

1. It explained why Dr C would have difficulty interpreting the parents’ emotional state, thus justifying his assessment that they were overly anxious in terms of seeking a diagnosis, a proposition which the Tribunal rejected.
2. The condition meant that Dr C had a low tolerance to risk or uncertainty so he has to articulate or exclude those risks, hence explaining the discussions about other likely diagnoses.
3. The condition provides a prism through which Dr C’s oral evidence must be seen and understood as affecting assessment of credibility and reliability, in particular, he has difficulties with social interaction, he may come across as abrupt and direct and he may have difficulty understanding the questions or unspoken meaning behind them.
4. It explained why Dr C’s record keeping was overly detailed.

However, the court was critical of the fact that there was no further attempt by (on behalf of) Dr C to link these factors with specific aspects of his evidence at the factual and impairment stages of the MPT hearing or the decisions and assessments made by the Tribunal.

The court concluded that the recital of common features of autism in the appeal was insufficient; Dr C was required to provide evidence which linked the generality of how autism impacted upon him and the way in which he presented to the Tribunal and gave his evidence in such a way to persuade the court that, had the Tribunal heard the evidence, it would have made a material difference to their decision.  The appeal was thus was rejected.

 

Commentary  

This case serves as a useful reminder of the court’s expectations when a doctor appeals a decision of the MPTS on the basis of fresh evidence which was not before the original Tribunal.

Producing the fresh evidence (such as evidence of a medical condition) and listing generic diagnostic criteria for that condition is not sufficient. Doctors need to explain why and in what way the fresh evidence would have made a material difference to the Tribunal’s decision. The focus needs to be on the manner in which features of the condition affect the doctor in specific ways related to the subject matter, conduct and outcome of the MPT proceedings.

This case also shines a spotlight on difficulties that doctors with autism face, particularly when diagnosed later in life. The prevalence of doctors with autism has not yet been established but we know that approximately 15-20% of population has a neurological difference and more than 1 in 100 people are on the autistic spectrum in the UK

Doctors with autism are an overlooked asset to the medical profession. Unfortunately, autism is a very misunderstood condition and there remains a stigma attached to it. This often means that doctors do not receive the support they need in the workplace. In particular, reasonable and person-centred adjustments are not made or are implemented too late in the day, causing the matter to escalate unnecessarily to a fitness to practise concern and referral to the GMC.  Improving our knowledge and understanding of neurodiversity and autism in the workplace will help to tackle such issues. It is also essential that doctors under GMC investigation obtain legal advice at the earliest opportunity. This helps to ensure that their defence is properly prepared and that any relevant personal circumstances are explored at the appropriate time.

 

FURTHER INFORMATION

If you have any questions or concerns about the content covered in this blog, please contact Shannett Thompson or Georgia Rose.

 

ABOUT THE AUTHORS

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations.

Georgia Rose is dual-qualified in Scotland, England and Wales. She specialises in defending doctors in regulatory proceedings before the General Medical Council (GMC). She is also responsible for investigating and presenting fitness to practise cases, primarily on behalf of the Health and Care Professions Council (HCPC). She regularly advises on health, conduct, probity and competence issues.