Abu-Romia v General Medical Council

Dr. Mostafa Mahdy Mohamed Abu-Romia (the Appellant) appeals pursuant to section 40 of the Medical Act 1983 (as amended by section 30 of the National Health Service and Health Care Professions Act 2002) against the decision of the Professional Conduct Committee (the Committee) of the General Medical Council (GMC) made on 5 June 2003 that the Appellant had been guilty of serious professional misconduct and that his registration should be suspended for a period of nine months.

Before the Committee, the Appellant was represented by counsel, Mr. G Hugh-Jones. Before me he appeared in person. The GMC was represented both before the Committee and before me by Mr. Richard Pearce of counsel.

It was not in dispute that between 23^rd February 2001 and 7^th November 2001, the Appellant had worked for an organisation known as the Image Clinic. This was a slimming clinic in Warrington. During that period, two patients in particular attended the clinic. At the hearing before the Committee, their names were withheld, and they were described as “Ms A” and “Ms B” respectively). Ms A attended on 11 June 2001. She was not in fact a patient at all, but a Trading Standards Officer employed by the Warrington Borough Council. Ms B attended on 13 August 2001 and on 26 August 2001.

The Appellant prescribed to both Ms A and Ms B a drug called Diethylpropion Hydrochloride (“Diethylpropion”). This is a centrally acting anorectic agent. The drug was prescribed as an appetite suppressant. The GMC’s case was that the prescription of the drug was contrary to appropriate guidelines for those managing overweight patients. In particular, the GMC relied on the report of the Royal College of Physicians of London dated December 1998 entitled “Clinical management of overweight and obese patients” and guidance from the GMC itself entitled “The use of drugs in the treatment of obesity” given in May 1999 and published in the winter of 1999.

The GMC’s case was that the Appellant did not take an adequate history from either patient, and that he also failed to undertake a period of non-pharmacological management of both patients before prescribing drugs. Furthermore, the GMC asserted that Diethylpropion did not have a product licence at the material time, and that its prescription was inappropriate. It also alleged that the Appellant did not give either Ms A or Ms B sufficient information as to the nature of the medication being prescribed to them. In the case of Ms B, the GMC alleged that the Appellant failed to inform her general practitioner that she had been prescribed Diethylpropion notwithstanding the recognised importance of so doing.

The Committee found in both cases that the GMC’s case had been made out and that the drug had in each case been prescribed “inappropriately and irresponsibly”. The Committee determined that the Appellant’s behaviour amounted to serious professional misconduct. Its reasons for reaching that conclusion were expressed as follows: -

The Committee then turned to the question of disciplinary action against the Appellant. It expressed itself in the following way: -

The Committee then stated that it would resume consideration of the Appellant’s case at a meeting to be held before the end of the 9 month period. It strongly advised the Appellant to seek the advice of the Postgraduate Dean to identify a suitable adviser or mentor with whom the Appellant should discuss his educational needs, and it recommended that, during the period of suspension, the Appellant undertake education in a number of specified areas. It also informed him that at the meeting referred to he would be expected to provide evidence that during the period of his suspension he had kept up to date with medical practice and that he was fit to resume practice having regard to his specific failing as disclosed by the case.

In what is clearly a notice of appeal settled by the Applicant himself, he raises six grounds of appeal. These are: -

At the hearing of the appeal, the Appellant produced a statement in which he expanded upon the grounds contained in the notice of appeal and addressed the specific findings of the Committee. I propose, accordingly, to work from that document. However, before addressing the Appellant’s statement, I need to make some observations about the numbered grounds of appeal.

Ground one goes to the penalty imposed on the Appellant, with which I will deal later in this judgment. Ground two is plainly irrelevant. The Committee was properly constituted, and had the advice of an expert in the field of obesity, who made a statement, gave evidence and was cross-examined on the Appellant’s behalf. The Committee was plainly competent to hear and adjudicate on the GMC’s complaint against the Appellant, and that fact that its two medical members came from different disciplines is irrelevant.

It is not a ground of appeal that counsel for the GMC accused the Appellant of lying (Ground 3). The Appellant’s belief that it is arises from his misunderstanding of the nature of the adversarial process, and the duty of counsel to put the GMC’s case to the Appellant. Since there were conflicts of fact between the evidence of the Appellant and the evidence of Ms A and Ms B, counsel for the GMC was duty bound to put those conflicts to the Appellant in cross-examination, and suggest that the evidence of Ms A and Ms B was correct and that of the Appellant incorrect. Equally, if it was the GMC’s case that the Appellant was not telling the truth on a particular point, it was the duty of counsel to put that to the Appellant, so that he could answer it.

A good example occurs on Day 2 at page 48B to F of the transcript. Counsel is exploring an apparent discrepancy in the Appellant’ evidence. He had previously said that he did not recall his interview with the patient (Ms A). He told the Committee that he did recall it. Counsel was not only entitled, but duty bound to test the Appellant's evidence and to suggest to him that he was not telling the truth. It was then for the Committee to decide what evidence it accepted and what it rejected.

It is clear from the transcript that the Appellant did not find giving evidence a very comfortable experience. Very few people do. But the point of it is to test credibility and enable the Tribunal (in the case the Committee) to form a view on the veracity of the two patients and the Appellant. There was nothing improper in the behaviour of counsel for the GMC.

The fact that the Appellant qualified from Egypt in 1969 seems to me equally irrelevant, and formed no part of the Committee’s decision in relation to the Appellant’s professional conduct. It is equally irrelevant that counsel for the GMC was not medically qualified. Counsel for the GMC was there to put a case, namely the charges formulated by the GMC against the Appellant. It was counsel’s professional duty to put those charges to the Appellant. Ground 3 does not raise any arguable point on this appeal.

Ground 4 is equally immaterial. The fact that Ms A was a Trading Standards Officer employed by the local authority is irrelevant. There was no question of entrapment. Ms A did not try to trick the Appellant into behaving in a professionally improper way. The Appellant’s duty was to treat her properly and in accordance with best practice for the complaint with which she presented.

Grounds 5 and 6 I will discuss in conjunction with the points made by the Appellant in his statement, which I will set out in the order in which they there appear.

The first point which the Appellant addresses in his statement is the finding by the Committee that the medical history of the two patients was not obtained. He disputes this. He produces copies of the patients’ medical cards, which each patient had to fill in before seeing a doctor in the clinic. He says that it is his general approach with patients that he always goes through the medical card history verbally with the patient. If there is anything in the patient’s medical history that he is not happy about, he refers the patient to their GP. He refers me to the cards, and to passages in Ms A’s cross-examination.

The cards contain a number of questions about the patient with boxes for the answers which she has to tick either yes or no. Some questions require particulars if the answer is “yes” – for example in Ms A’s case the question: “Have you ever been prescribed Tranquillisers or anti-depressants?” which Ms A answered “yes” goes on to ask: “If yes, which? Ms A has written: “anti-depressants – 10 years ago”.

The Appellant relies in particular on an exchange between his counsel and Ms A at pages 16G to 17H of the transcript of the first day of the hearing. Ms A was asked; “Did (the Appellant) go through the list with you?” She had answered: “Yes”. Later in the passage, she said she did not recall any discussion about lifestyle, diet and exercise, and added that she was really going in as a Trading Standards Officer, and was probably not paying that much attention.

For the GMC, Mr. Pearce identified in his skeleton argument all the places in the transcript where the question of taking a history from the patient was discussed. These included not only the evidence of Ms A and Ms B, but also the evidence of Dr. Wilding and of the Appellant. He pointed out that in addition to the direct evidence from Ms A and Ms B as to the history taking by the Appellant, the GMC relied upon evidence as to the length of the consultations with Ms A and Ms B as being inconsistent with a proper history having being taken. Ms A’s case was that the consultation lasted approximately 10 minutes (Day 1 pages 10E and 15F - 16C). Ms B’s evidence was that the consultation with the GMC lasted “a couple of minutes” (Day 1 at page 32C) or “2 to 3 minutes” (Day 1 at page 38B).

Mr. Pearce also pointed out that the evidence of Dr Wilding was that, in his experience, a full history-taking and physical examination would take a minimum of 30 minutes (Day 1 page 65C). The GMC had also relied upon a letter from Radcliffes Le Brasseur, solicitors then acting for the Appellant, to the General Medical Council dated 12 November 2002, in which it was stated that the Appellant worked sessions of up to 3½ hours (or as long as was required to consult with patients) at the Image Clinic and there might be up to 60 or 70 patients attending the session. That appeared to suggest that a consultation might take no longer than 3 minutes. In cross-examination, the Appellant responded to this by stating that he would not have seen many of the patients who attended (see for example, Day 2 page 32B-C).

Mr. Pearce submitted that the Committee was entitled to conclude form the specific evidence as to history taking, the evidence as to the length of consultations and the evidence as to the readiness with which Ms A and Ms B were prescribed Diethylpropion that the Appellant’s history taking was inadequate.

The Appellant denies that this was the case. He says he explained to every patient the nature of the medication and its side effects. He says he was always open to hear any questions. He also said that every patient received the folder containing all the information regarding medication, diet, exercise, side effects and other relevant information. He exhibits a copy of the folder and the registration card which the patient signed, confirming that the doctor had explained how to take the medication and that the patient understands about possible side effects.

For the GMC, Mr. Pearce accepted that the evidence of Ms A was that she was provided with some information. In cross-examination, however, Ms A had denied receiving a document explaining the nature of the tablets similar to that produced by the Appellant. Ms B’s evidence was that she was given no documentation and was not provided with any other information about Diethylpropion. The Appellant’s evidence was that an information pack was given to patients by the nurse before the patient attended his consultation room and that he had never noticed a patient arrive without the documentation

In his report, Dr Wilding stated that common side effects should be discussed with the patient He also stated that the document produced by the Appellant appeared to relate to Chromium Picolinate, a food supplement that has no relationship to Diethylpropion (Transcript, Day 1 page 60C). The Appellant had agreed in his evidence that the form did not relate to Diethylpropion and should not have been in an information pack provided to a patient who was receiving Diethylpropion (Transcript Day 2 page 19G-H). He stated, however, that he spoke to patients about side effects (Transcript Day 2 page 20A-D).

Mr. Pearce’s submission was that the Committee was entitled to conclude on the available evidence that the Appellant had failed to speak to Ms A and Ms B about side effects and that he had thereby failed to provide them with sufficient information about the medication.

The Appellant insisted that he had always advised patients about exercise, diet and motivation. He also said that the folder given to each patient contained relevant information. He exhibited copies of the folder to his statement.

In response, Mr. Pearce pointed out that the actual terms of charges against the Appellant were that the medication was dispensed or prescribed “without attempting to help (the patient) with non-pharmacological means prior to prescribing Diethylpropion.” In his report, Dr Wilding had stated that “at present drug treatment can be considered in patients who are well motivated, but have not been able to achieve a target weight loss of 10% despite supervised efforts to modify their lifestyle through diet, exercise and behavioural change over a period of three months”. In support of this he referred to the Royal College of Physicians report. In cross-examination, Dr Wilding was clear that if somebody said that they had dieted for three months and that it had not succeeded, that was not sufficient to justify pharmacological therapy.

Ms A stated in evidence that, in the consultation, the Appellant had asked her what she would like to be prescribed to her and she said that she wanted an appetite suppressant (Transcript Day 1 page 10E-F). She did not recall whether there had been a discussion about lifestyle, diet, exercise and motivation (Day 1 page 17E). She did not recollect the Appellant stating that she could “just leave and continue with her diet and exercise as one way of losing weight” (Day 1 page18F).

Ms B stated in her evidence that there was no discussion as to what she should be prescribed on her first visit, but that she was just given the tablets (Transcript Day 1 page 32C-H). In cross-examination she had denied that the Appellant suggested that diet and exercise was a good way of dealing with weight loss in the first instance (Day 1 page39D).

In his evidence the Appellant had accepted that it was not his practice to require patients to have undergone three months dietary management before he prescribed appetite suppressants (Day 2 page 16F – 17B). Mr Pearce submitted that the Appellant’s evidence was consistent with the fact that he was not complying with the Royal College of Physician guidelines, and that the Committee was entitled to reach its decision on the evidence available to it.

The Appellant disputed this. He said that the licence for all appetite suppressants including Diethylpropion was a dispute between the Medical Control Agency, the GMC and the Pharmaceutical companies which made the drug. To the best of his knowledge appetite suppressants including Diethylpropion had been used in the United Kingdom for the last 50 years up to date. When he had prescribed Diethylpropion, the medication was available to prescribe for patients who needed to lose weight. He suggested that all diet clinics in the United Kingdom were using Diethylpropion at the time when he was and that they were continuing to use it now. He referred me to a number of the documents exhibited to his statement.

For the GMC, Mr. Pearce pointed out that Dr Wilding stated that Diethylpropion had been withdrawn between March and April 2000, reinstated following an appeal and then finally withdrawn in May 2001. Dr Wilding referred to a report from the Committee on Safety of Medicines and the Medicines Control Agency in support of this. Mr. Pearce accepted that in cross-examination, Dr Wilding had agreed that the fact that a drug was subject to a special licence did not make it unlawful to prescribe the drug. However, what it did mean was that that the prescription of the drug for the particular patient had to be justified (Transcript Day 1 page 87H –88B). The GMC had furthermore conceded that the Product Licence for Diethylpropion was restored on 24^th December 2002.

Mr. Pearce pointed out that in his evidence, the Appellant had stated that, in June 2001, the Product Licence had been changed to a “Special Licence” (Transcript Day 2 page 53A). Mr. Pearce thus submitted that notwithstanding the argument about the significance of this drug being under a Special Licence rather than a Product Licence, the evidence before the committee clearly justified the conclusion that the Product Licence had indeed been withdrawn at the time at which it was prescribed.

The Appellant denied this. He referred me to a number of the documents exhibited to his statement. These comprised firstly a document from the Obesity Management Association in Glasgow dated 22 May 2003 reporting the decision of the European Court’s rejection of the European Commission’s appeal against the Court’s decision to re-instate the marketing authorisation of anorectics, and the overturning of the Commission’s decision to ban Diethylpropion and Phentermine. The second document was a Doctor’s Manual published by the National Slimming Centre and the third was an extract dealing with body mass as a determinant of fatness.

For the GMC, Mr. Pearce pointed out that the terms of the relevant charges were that the prescription or dispensing was done “inappropriately and/or irresponsibly.” The opinion of Dr Wilding, both from his report and in oral evidence, as supported by the Report of the Royal College of Physicians and the GMC News supported this conclusion.

The evidence of the Appellant was that he had been trained to prescribe in the manner that he followed at the Image Clinic, in so far as he did not require a patient to undertake 3 months’ dietary management (Transcript Day 2 page 16D-E) and in so far as he might prescribe to a patient with a BMI of 27 or higher (Day 2 Page 16E-F). His justification for prescribing the drug Diethylpropion was that he stated that he had been told by a number of bodies (Medical Control Agency, Cambridge Health Care and Essential Nutrition – (Day 2 page 53C; Royal College, General Medical Council and “the pharmaceuticals” – Day 2 page 55B) that he could prescribe the drug. The particular choice of drug had been that of Ms A and Ms B (Day 2 page 71C-H).

The GMC contended that the decision of the Committee was justified by the following:-

The absence of a Product Licence for Diethylpropion

The statement of the Medical Controls Agency and the Committee on Safety of Medicines that Diethylpropion should have been withdrawn from 11 ^th May 2001 ;

The failure of the Appellant to try non-pharmacological means of managing the patients before prescribing Diethylpropion, in breach of the Royal College of Physicians’ guidelines;

The fact that neither Ms A nor Ms B had a Body Mass Index in excess of 30 (or 28 with co-morbidities) such as to justify the consideration of the use of pharmacology to manage their weight;

The absence of any factors peculiar to Ms A or Ms B that justified the use of pharmacology in their cases;

The inference from the evidence of the Appellant (for example at Day 2 pages 87E – 88D) that his practice in prescribing drugs was based upon how he had been taught but that he had not kept himself up to date with current thinking such as that contained in the guidance from the Royal College of Physicians.

The Appellant denied that he had refused to inform the patients’ general practitioners of the prescriptions. He said that if the patient wished, her GP was informed with an official letter. Each patient had to sign the registration card where it said that it was to the patient’s advantage to have her GP informed. Also the patient was given the choice of marking the question on the card about whether or not they wished their GP informed. He pointed out that Ms. A wished not to inform her GP, whereas Ms B had signed to the effect that she would undertake to inform her GP of the treatment. He relied on the cards and the report of the Medicines Commission in October 1995

For the GMC, Mr. Pearce pointed out that this allegation was found not to be proved in respect of Ms A and accordingly the case only related to the evidence of Ms B. Ms B’s evidence had been that she signed the document from the Image Slimming Clinic, having read the sentence “I understand that it may be to my advantage to have my GP informed to avoid conflicting treatment or incorrect diagnosis. If I have to visit my GP I undertake to inform him or her of the treatment that I am receiving from the diet centre.”

The evidence of Dr Wilding was that there should be written notification to the patient’s General Practitioner unless the patient did not consent, in which case there was an ethical duty upon the doctor to point out the advantage to the patient of his/her General Practitioner being informed (Transcript Day 1 page 54B-F). This obligation was drawn from the Royal College of Physician Guidelines.

The Appellant’s evidence was that he could not recall whether he had informed Ms B’s General Practitioner of the first appointment (Day 2 page 61B) and that he had not informed Ms B’s General Practitioner of the second visit (Day 2 page68D).

Having regard to the contents of Ms B’s GP notes and the absence of any recollection on the part of the Appellant that he had informed the patient’s GP in respect of the first appointment, Mr. Pearce submitted that the committee was entitled to conclude that the Appellant had not informed Ms B’s General Practitioner in respect of that prescription. Moreover, the evidence was not in dispute in respect of the prescription on the second appointment.

Finally in relation to the Committee’s findings, the Appellant addressed the following: -

The appellant says that is a lie. He would like to ask the Committee how they had got to the conclusion that the nurse made him aware of patient problems with the treatment. He says that he has never been told by the nurse or the patient that she experienced side effects. He says that Ms B herself said during cross-examination that she did not tell the doctor about her problems with the treatment, and that she only complained to the nurse (Transcript, Day 1 page 33). There was no evidence to prove that the nurse made him aware of that.

The Appellant expressed the concern that Ms A and Ms B were sent by someone to complain. He pointed out that Ms A had agreed that she had been a police officer, and had left the force after an allegation that she had committed perjury. He repeated that if he had known about Ms B’s side effects it would have been impossible that he would prescribed a stronger dose of the medication.

On this aspect of the case, Mr. Pearce submitted that he understood the Appellant to be challenging the committee’s finding that the Appellant was aware of the side effects described in Charge 4(c) of the charges, in which it was alleged that Ms B had told the Appellant that she had experienced symptoms of tearfulness, anxiety and restlessness after she had taken the Diethylpropion that the Appellant had previously prescribed. Mr. Pearce pointed out that in fact, Charge 4(c) had been deleted following a submission of no case. He argued, however, that the committee, in coming to its judgement on the appropriateness of the prescription of Diethylpropion to Ms B on 26^th August 2001, clearly had regard to its finding of fact that the Appellant were aware that she had suffered problems with the treatment (Transcript Day 3 page12A).

The evidence of Ms B was that she spoke to a nurse about the fact that she had not felt well since taking the tablets (Day 1 at page 33G). In cross-examination, Ms B had agreed that she had not complained to the Appellant about side effects of disrupted sleep and anxiety (Day 1 at page 43G). The Appellant’s evidence had been that a patient who was returning for a repeat prescription would be seen only by a nurse unless there was some problem (see for example cross-examination at (Day 2 page 33B). At a further point in his cross-examination, the Appellant had stated that he had changed Ms B’s medication because she had felt hungry (Day 2 at page 65A).

Given Ms B’s evidence as to her side effects and the Appellant’s evidence as to the circumstances in which he would see a patient returning for a repeat prescription, Mr. Pearce submitted that the committee was entitled to come to the conclusion which it did do, namely that the Appellant was aware of Ms B’s side effects.

Mr. Pearce then address the Appellant’s statement: “I am afraid Ms A and Ms B were sent by someone to complain?” He submitted that insofar as the Appellant may contend that this is a ground for setting aside the findings of the committee, the GMC contended that it was not. Ms A conceded in cross-examination that she had attended in order to get a sample of the drug that the Appellant was prescribing and that she was “a bogus patient” It was not put to Ms B nor did she state, that she was anything other than a genuine patient seeking assistance with weight problems.

Mr. Pearce further submitted that the fact that Ms A attended the clinic as “a bogus patient” was not contended to be, nor is it capable of being, a ground for excluding her evidence. Accordingly, if the Appellant was contending that the fact that she was “a bogus patient” in some way undermined the GMC’s case and the findings of the committee, the GMC contended that this was not in fact so.

I need to begin this part of the judgment by explaining my powers and my function. I did not hear this case: the Committee did. The Committee saw and heard the witnesses. I did not. Issues of credibility are, therefore, for the committee, not for me. My function is quite different. I have to examine the decision of the Committee and decide whether it was one which it was open for it to make on the evidence before it. I have to decide whether it made any error of law, which would include making findings of fact which were not open to it. Mine is, in short, a reviewing function. If the Committee has reached conclusions which were properly open to it, and has reached those conclusions properly and on admissible evidence, I cannot interfere.

A second point flows from the first. The Appellant accused counsel of lying: he asserted that other allegations against him were lies. The exercise of any judicial function at first instance is to find facts and make decisions on the evidence. This will invariably mean preferring the evidence of one witness to that of another. That process does not mean that the witness whose evidence is not accepted was lying. The witness may be genuinely mistaken. The witness may believe what he or she is saying but is wrong about it. It may be that his or her memory is at fault. There may be all sorts of reasons for preferring the evidence of one witness to that of another.

In exercising my reviewing function I have, of course, read all the papers, including the transcripts of the hearing. The questions I have asked myself are essentially twofold. Firstly, has the Appellant demonstrated to me that the Committee reached any conclusion which it was not entitled to reach? Secondly, did the Appellant have a fair hearing in the terms of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms?

The Appellant was represented before the Committee by Counsel who, it seems to me, was able without interruption from the Committee both to examine fully and carefully to challenge all the issues in the case. Cross-examination of the witnesses called by the GMC was thorough and professional. The Appellant was given a full opportunity to give his evidence to the Committee. It is apparent from the transcript that he did not find it easy. Not many people do. But the process of receiving all the evidence, including that of the Appellant, gave the Committee a full and proper opportunity to make a balanced assessment of the Appellant and his conduct.

I have set out Mr. Pearce’s responses to the Appellant’s individual complaints in some detail because I agree with them. The findings of fact which the Committee made were properly open to it on the evidence. For the reasons which the Committee gives, there was, in my view, sufficient evidence upon which it could properly find the Appellant guilty of serious professional misconduct, and his appeal against that finding must, inevitably, be dismissed

Once again, my function is limited. I can only intervene if the penalty imposed on the Appellant is disproportionate to the misconduct of which he has been found guilty. If the Committee has taken all relevant factors into account, and reached a conclusion which is within a reasonable range of penalties, I cannot interfere.

First and foremost, it is for the medical profession to regulate itself. Doctors best know the penalties doctors should suffer for differing degrees of misconduct. Here, the Committee carefully considered the various options, and identified the degree of seriousness. Its reasoning process seems to me perfectly clear and rational. It is equally clear that the Committee took into account the Appellant’s long and unblemished record. It seems to me to have reached a conclusion with which it would be quite impossible for me to interfere

Mr. Pearce produced an authority, McCoan v GMC [1964] 3 All ER 143, a decision of the Privy Council which then heard appeals from the decisions of the Committee. In that case, the Privy Council stated that the court would have to be satisfied that a sentence by a professional body like the Committee was “wrong and unjustified” before it could interfere. I think nowadays we would say “wrong and disproportionate” or “wrong because it is disproportionate”. Whichever way one looks at it, however, I cannot say that a sentence of 9 months suspension from practice is either wrong or disproportionate.

The appeal must therefore me dismissed. The Appellant said to me in argument that he was appealing in order to obtain justice. Whist I understand his distress at the fact that, after an unblemished record of 33 years in practice, he now finds himself suspended for 9 months, I am satisfied that the Committee took this fact into account when deciding on penalty. His length of unblemished service may well have been a factor in the Committee’s decision not to erase his name from the register. Whatever the position, however, the fact remains that, in my judgment, the penalty imposed on the Appellant cannot in any sense be said to be disproportionate.

In my judgment, the Committee did justice, and I cannot interfere. The appeal will, accordingly, be dismissed.