“Lights. Camera. Action!” – Re Motion Picture Capital and standing for minority shareholders to bring unfair prejudice petitions
Fitness to Practice Panel’s decision that actions of senior consultant gastroenterologist amounted to misconduct quashed as irrational.
Dr Aga (A), an experienced gastroenterologist challenged the decision of the Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) that his ‘failure to recognise’ hypoglycaemia in a 54 year old patient (X) should be characterised as misconduct. The Panel had not gone on to find impairment and did not give a warning or impose any sanction, and therefore the challenge was by way of judicial review (there being no right of appeal under s.40 of the Medical Act 1983).
X, who suffered from advanced liver disease as a complication of diabetes, had been admitted under A’s care between 14 August and 17 September 2007 and had been seen by A as an outpatient on four occasions. He was readmitted to hospital on 14 November, and was transferred to the care of the on call medical team in the gastroenterology ward. A had not been informed of X’s readmission until the morning of 19 November. In the intervening period, the patient had had recurrent episodes of prolonged hypoglycaemia as a result of a mismatch between his food intake and the insulin he received.
On the morning of 19 November X was informed, in the middle of his ward round, that A was in the hospital and he duly immediately went to see him, reaching the patient’s bedside at 11.40am. X was not informed at that stage of the previous hypoglycaemic episodes; there was mention of it in the notes but the trainee doctor to whom X delegated responsibility to brief him of their contents missed that detail. A found X to be in a state of impaired consciousness. A stopped the regular insulin injections and made an emergency management plan at 11.45, a blood glucose ‘sliding scale’ test revealing the diagnosis of hypoglycaemia. The patient was then successfully treated with an IV glucose solution and no harm was caused.
A had admitted two charges relating to this at the GMC hearing, namely that he had failed to recognise hypoglycaemia as the cause of X’s impaired consciousness and further failed to note the recurrent low blood glucose recorded in the case notes over the preceding day. Those admissions were of narrow effect, limited as they were to the acknowledgement that he did not immediately recognise hypoglycaemia as the only possible cause of his impaired consciousness. He did say in evidence that he could ‘kick himself’ for not having immediately determined hypoglycaemia as the cause of unconsciousness. The expert he called on his behalf said that it was a ‘significant error’ for a doctor to miss hypoglycaemia but that X had done ‘the right thing for this patient in other respects and actually did retrieve the problem’.
It was argued on behalf of the GMC that X was inviting the court to substitute its own judgement for that of the Panel and that their judgement should not be second guessed, especially where it was ‘borderline’ and deliberation on the issue had taken a long time.
The learned Judge reviewed and summarised the judicial guidance on the meaning of misconduct in a number of authorities, including the words of Jackson J in Calheam v GMC  EWHC 2601 and Auld LJ in Meadow v GMC  QB 462, and recognised that the decision in every case has to be made by the Panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence before it.
The learned Judge was ‘conscious of the need to pay due respect to the judgment and experience of the members of the Panel in coming to decisions about medical practice and professional conduct’. However, he stated that ‘I cannot see how the ‘missing’ of the hypoglycaemic diagnosis can be characterised as anything other than momentary. Nor is there any evidence that Dr Aga’s mental processes in any way harmed the patient’.
A number of factors in the evidence were of importance; X was not drawn to the presence of A until 11.30 on 19 November; he had immediately broke off his ward round to investigate and appeared at his bedside at 11.40; by 11.45 the diagnosis was made, glucose adjusted and no harm was suffered; X had never encountered a patient suffering from hypoglycaemia while in hospital over a period of days as happened here and therefore briefly considered other causes; he applied the ‘don’t ever forget glucose’ routine appropriately and quickly; the patient duly recovered; X should have been informed of X’s presence in the hospital and should have been informed of the recurrent hypoglycaemia; it was unfortunate that the glucose chart was not available to him at the bedside; X was fully entitled to delegate the task of reading the medical notes to a junior doctor.
The court concluded that ‘in light of all this evidence, while it may be possible to criticize him for not having come to a final conclusion as to the cause of unconsciousness a few minutes earlier than he did, no act or omission has been established which in any way adversely affected the patient’. It was borne in mind that this was one isolated episode, not a case of multiple acts or omissions. It was held that ‘in so far as this was an ‘act or omission’ at all, I cannot see how it can be characterised as ‘particularly grave’, so as to attract the attribution of ‘misconduct’.
The learned Judge could find no rational basis for the findings and did not believe that a reasonable onlooker would apply the word ‘misconduct’ to the events in question. The decision was accordingly quashed.
This case provides a useful summary of judicial guidance as to the meaning of misconduct, and demonstrates that although the court must pay due respect to the judgment and experience of the Panel, it will intervene when there is no rational basis for their decision.
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