Intractable insight: suspension is not enough

Professional Standards Authority for Health and Social Care v General Medical Council and another - [2020] EWHC 3122 (Admin)

On 19 November 2020, the High Court handed down judgment in the Professional Standards Authority for Health and Social Care’s (“PSA”) challenge to a decision of the Medical Practitioners Tribunal (“MPT”) to suspend a doctor from practice. In her judgment, Mrs Justice Farbey emphasises the significance of lack of insight to the question of sanction.

 

Facts

Dr Dighton specialised in cardiology, but also maintained a private practice as a General Practitioner (“GP”).  He had undergone no formal GP training, which he regarded as unnecessary.

In 2011, Dr Dighton was issued with a letter of advice from the General Medical Council (“GMC”) relating to his prescribing.  In 2016, he appeared before the GMC's Investigation Committee and was issued with a warning relating to his prescribing of benzodiazepines.

Between 2011 and 2017, on multiple occasions at the patient’s behest, Dr Dighton prescribed to Patient A a number of powerful and potentially addictive drugs, including: co-proxamol and dihydrocodeine (strong painkillers); mirtazapine (an antidepressant); and diazepam (a tranquiliser).

In June 2017, Patient A was diagnosed with prescription drug dependency by a different GP.  Dr Dighton confirmed that he was aware from the start that Patient A demonstrated the behaviour symptomatic of addiction. 

Dr Dighton appeared before the MPT in relation to allegations which included:

• prescribing excessively a number of different drugs to Patient A;
• failing to adequately  assess or appropriately refer Patient A to mental health services;
• keeping inadequate records;
• failing to inform Patient A's GP that he had issued Patient A with prescriptions; and
• lacking adequate expertise to treat Patient A.

 

MPT decision
 

All allegations (save one immaterial aspect) were admitted or found proved.

 

Misconduct

The MPT determined that Dr Dighton's actions amounted to misconduct and went on to consider whether his fitness to practise was currently impaired by reason of misconduct.

In considering impairment, the MPT expressed significant concerns. Based on the evidence before it, the MPT concluded that:

• there was clear evidence of poor practice over a six-year period despite an advice letter in 2011 and a warning in 2016;
• the misconduct was deliberate;
• Dr Dighton had neither apologised nor sought to undertake any reflective practice, such that the risk of repetition could not be regarded as low; and
• Dr Dighton’s lack of insight was “intractable” such that “he is unlikely to remediate and there is a material risk of repetition.” 

In light of those stark findings, the MPT concluded that Dr Dighton's fitness to practise was impaired. 

 

Sanction

At the sanction stage, the MPT heard evidence that Dr Dighton had stopped work as a GP in 18 December 2018, following a discussion with the Care Quality Commission ("CQC").

Dr Dighton told the MPT that he had been deceived by Patient A, who he described as “clever and manipulative.” For the first time, the High Court noted, he apologised to the GMC. He had not apologised to Patient A, who he said was happy with the treatment. Dr Dighton denied that he posed a risk to patients, and claimed that he had removed “all contentious issues.”   

In reaching its conclusion on sanction, the MPT regarded as mitigating factors that: Dr Dighton had made some admissions to misconduct; that over a long career he had received no complaints from patients; and that Patient A had been complimentary about him. As regards aggravating factors, the MPT emphasised the intractable lack of insight and noted that:

• he had prescribed excessive drugs without informing Patient A's GP over a sustained period of time;
• he knew that Patient A was a vulnerable patient at risk of overdose;
• he blamed Patient A rather than recognising their behaviour as symptomatic of addiction;
• by his own admission, he had prescribed benzodiazepines on a long-term basis to 20 other patients.

Weighing those factors, and considering the relevant guidance, the MPT imposed a sanction of a suspension order.

As the High Court judgment observes:

In reaching its decision to impose a suspension order, the MPT gave decisive weight to the fact that [Dr Dighton] had ceased to practise as a GP.  For this reason, it held that his conduct was not fundamentally incompatible with his inclusion on the medical register.   

 

PSA challenge

The PSA challenged the sanction on three grounds, suggesting that the MPT:

• took an approach to the imposition of sanction which was irrational and wrong – no reasonable MPT could have found that the second respondent's conduct was anything other than fundamentally incompatible with continuing to practise as a doctor;
• failed to have sufficient regard to the relevant guidance on sanctions – the number of the indicators for erasure that were applicable, and their seriousness, ought to have driven the MPT to impose erasure; and
• took an irrational approach to the registrant's insight into his misconduct – given the force of that finding, the MPT could not reasonably conclude that there was any real prospect of remediation. In the absence of any prospect of change, only erasure would protect the public.   

Prior to the appeal being heard, Dr Dighton agreed to voluntary erasure. The PSA's position remained that, even if coupled with voluntary erasure, the sanction imposed would be insufficient to ensure the protection of the public.

 

Judgment

Dr Dighton argued before the High Court that, in light of his agreement in principle to voluntary erasure, the appeal was otiose. Mrs Justice Farbey disagreed.

In her judgment, Farbey J concludes that the MPT was wrong in its determination that Dr Dighton did not need to be erased from the register. The judgment sets out in clear terms that the MPT’s decision “was unreasonable and its reasoning was flawed”.  

The Court found that Dr Dighton's inclination to give up practice as a GP could not “reasonably be regarded as weighing decisively in favour of his suspension and against his erasure,” nor could it “reasonably outweigh the numerous other findings of the MPT which weigh in favour of erasure”. As Counsel for the PSA submitted, Dr Dighton had only decided to give up what he should not have been doing in the first place.

Of Dr Dighton’s conduct, the Court noted that the:

“sustained, excessive prescription of drugs to a vulnerable patient in an area of medicine beyond his expertise placed Patient A at risk of harm including death. 

Conduct which puts patient safety at risk is a breach of an overriding duty of doctors in any branch of medicine […].  It undermines public confidence in the profession.” 

Dr Dighton, the Court considered, had demonstrated a “dangerous lack of respect for accepted clinical practice” which the MPT itself had described unambiguously as amounting to an “intractable” lack of insight.  The Court considered that such a stark conclusion on the level of insight shown was incompatible with any sanction short of erasure:

The MPT recognised the importance of insight to its decision on sanction under the guidance. However, it reached an unreasonable decision: [Dr Dighton’s] intractability is inconsistent with the prospect of remediation in a one-year suspension period or at all. 

In the face of such palpable lack of insight, the Court concluded that nothing short of erasure could serve the public interest. The takeaway from this case is: lack of insight is, as has been made clear, a factor which must weigh heavily in the balancing act of any sanction decision by a disciplinary tribunal.

 

Further information

For more information please do not hesitate to contact a member of the regulatory team.

 

About the author 

James was called to the Bar in 2017. Prior to joining Kingsley Napley as an advocate in the regulatory team, he worked from Carmelite Chambers in independent criminal and regulatory defence practice. 

James is a member of Kingsley Napley’s Regulatory team and has extensive experience of advising on and presenting cases on behalf of regulators, with a particular focus on fitness to practise proceedings before panels of the Health and Care Professions Council.