Campbell, R (on the application of) v Birkin

Jennifer Campbell (“the claimant”) gave birth to a son Michael Boyle on 7 December 1998. Sadly, he suffers from hydrocephalus. In 1999, Michael was a patient of Dr. Nigel Birkin, who is and was a consultant paediatrician employed at Noble’s Hospital, Isle of Man.

A charge of serious professional misconduct was brought by the General Medical Council against Dr. Birkin arising out of his acts and omissions while he was acting as the paediatrician for Michael and another child, Amy Tasker. On 2 October 2003, after a hearing lasting four days the Professional Conduct Committee of the General Medical Council (“the PCC”) dismissed the charge of serious professional misconduct. The claimant seeks to judicially review that decision. Beatson J gave permission to the claimant to pursue this claim, which is opposed by the General Medical Council (“the GMC”) and Dr. Birkin, both of whom have been represented by counsel.

This application relates to the way in which the PCC determined the issue of whether the professional misconduct of Dr. Birkin amounted to “serious professional misconduct” including how the PCC should have dealt with the issue in its decision.

No criticism is made by the claimant concerning the PCC’s fact-finding in relation to the complaints which formed the subject of the charge of serious professional misconduct against Dr. Birkin. The basis of her challenge is that the PCC misdirected itself or acted irrationally in finding that Dr. Birkin was not guilty of “serious professional misconduct”.

Mr. David Wolfe, counsel for the claimant, contends that the decision of the PCC that Dr. Birkin was not guilty of serious professional misconduct should be quashed because the PCC:-

Under section 36 of the Medical Act 1983, it is provided, insofar as is material to the present application, that:-

“(1)

where a fully registered person ..

(b)

is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct .. the Committee may, if they think fit impose certain penalties”.

In this case, Dr. Birkin was a “fully registered person” and thus the PCC had jurisdiction to deal with him. It is common ground that first the claimant has standing to make this application and second that the present challenge can only succeed if the decision of the GMC can be impugned on traditional judicial review grounds.

The task for the PCC was to determine whether Dr. Birkin was guilty of “serious professional misconduct”. It is settled law that:-

The PCC heard evidence relating to the seriousness of the errors of Dr. Birkin from an eminent consultant paediatrician, Dr. Fraser Alexander, who was very critical of Dr. Birkin referring to his “very inadequate referral letter”, his basic omission and his “very dangerous practice”. Evidence was also given to the PCC by Dr. Birkin and others.

The findings of the PCC in respect of Dr. Birkin’s treatment of Michael were that:-

The PCC also found that Dr. Birkin for a period between 6 February 1998 and 14 April 1998 had failed to look after Amy Tasker, who was born on 19 November 1997 in what was a strikingly similar way to the way in which he neglected Michael. The allegations against Dr. Birkin, which the PCC found proved in relation to his treatment of Amy, included allegations that Dr. Birkin (i) did not undertake full examination of Amy when seen by him on 6 February 1998, (ii) omitted to make adequate clinical notes when Amy was seen by him on 6 February 1998 and was responsible for seriously deficient record-keeping and an inaccurate letter to Amy’s general practitioner, (iii) failed to undertake a clinical examination of Amy when he saw her on 20 February 1998 and 16 March 1998 or to make a medical note of his findings, (iv) failed to take weekly head circumference measurements supplemented by ultra sound scans weekly or as necessary and (v) delayed a referral to Alder Hey. The PCC considered Dr. Birkin’s management of Amy’s condition to be “seriously deficient” and concluded that it “fell below an acceptable level”.

The PCC then turned their minds to the issue of whether the charge of serious professional misconduct had been substantiated. It is common ground that in the light of their criticisms of Dr. Birkin’s treatment of Michael and Amy to which I have referred, the PCC must clearly and correctly have regarded Dr. Birkin as guilty of “professional misconduct”. The next and critical issue for the PCC was therefore whether this conduct of Dr. Birkin had reached the threshold of being serious professional misconduct and they decided that it had not for the reasons which I will explain later.

As a backcloth to his specific challenges to the PCC’s decision, Mr. Wolfe attaches great importance to the purpose of the disciplinary processes relating to doctors. He submits that the principal purpose of such disciplinary proceedings is to protect the public interest and the main aspect of that purpose is to retain public confidence in the medical profession. Mr. Wolfe says that it is not the purpose of disciplinary proceedings to protect the fortunes of individual doctors. He also contends that the protection of the public and enforcement of standards of conduct are important public interest factors, which must be borne in mind at all times

Mr. Wolfe points out that in the words of Lord Bingham MR in Bolton v. The Law Society [1994] 1 WLR 512 at 519E which were adopted by the Privy Council in Gupta v. GMC [2002] Lloyd’s List Reports (Medical) 82 at 86 [10]:-

“The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price”.

In Bolton’s case (supra at page 519 B-D), Lord Bingham had also explained, with my italicisation added, in respect of disciplinary proceedings against solicitors that:-

“Because orders made by the tribunal are not primarily punitive, considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that solicitors appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again. On applying for restoration after striking off, all these points made be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness”.

I agree with Mr. Wolfe first that those principles apply with equal force to disciplinary proceedings before the GMC and secondly that in considering any decision by the GMC it is necessary to bear in mind “the essential issue” as described by Lord Bingham. Indeed, I did not understand Mr. Gerard Clarke, Counsel for the defendant or Mr. Andrew Kennedy, Counsel for Dr. Birkin to challenge these submissions, which constitute the starting point of my consideration of Mr. Wolfe’s complaint and which I will bear in mind when determining this application. It is noteworthy that the Legal Assessor in his oral advice to the PCC stressed the importance of them bearing these matters in mind.

Mr. Wolfe contends that the PCC failed to assess and consider properly the seriousness of the professional misconduct found proved against Dr. Birkin when it came to ascertain if the serious professional misconduct charge had been substantiated. He submits that the PCC also failed to take into account the close similarity between the groups of complaints relating to Dr. Birkin’s treatment of Michael and those concerning Amy, which he contends constituted an aggravating feature. Mr. Wolfe also contends that:-

“Nowhere in the concluding paragraphs of the Committee’s decision is there any indication that the seriousness of Dr. Birkin’s failure in relation to Michael and Amy was weighed in the balance when deciding whether those failures amounted to serious professional misconduct”.

There are four main reasons why I am unable to accept these submissions, even after taking into account the significance of professional conduct proceedings against doctors for the reasons which I have explained in Section V above. First, there was first a clear finding of the PCC that the matters proved against Dr. Birkin in relation to his treatment of Michael and Amy were sufficiently serious to be capable of constituting serious professional misconduct and second the PCC made a number of specific findings relating to Dr. Birkin’s treatment of Michael and Amy. As I have explained, the PCC had initially made findings of professional misconduct against Dr. Birkin in relation to his treatment of Michael and Amy and which I have summarised in paragraphs 10 and 11 above. The PCC had then to:-

“… consider as a separate issue whether this amounted to serious professional misconduct” (Silver v. General Medical Council [2003] UKPC 33 [20] per Sir Philip Otton with my italicisation added).

This is precisely what the PCC did because they then stated in the light of their findings which I have summarised in paragraphs 10 and 11 above that:-

“Having reached these findings on the facts, the Committee then considered whether the facts found admitted and the facts proved would be insufficient to support a finding of serious professional misconduct. The Committee concluded that they would not be insufficient”.

This constitutes a finding that Dr. Birkin’s treatment of Michael and Amy was capable of constituting “serious” professional misconduct. To my mind, that shows clearly that the PCC had considered properly the seriousness of Dr. Birkin’s misconduct in treating Michael and Amy and it had then concluded that this professional misconduct of Dr. Birkin reached the threshold of being “serious professional misconduct” subject to any mitigating evidence and submissions which it then proceeded to hear. Furthermore, the PCC set out detailed criticisms of Dr. Birkin’s treatment of Michael and of Amy. It used phrases such as “inadequate and unprofessional in the circumstances”, “sub-standard” and “not in the best interests of the patient and likely to compromise patient safety” in respect of the treatment of Michael. The PCC was also similarly critical of the treatment of Amy describing it as “seriously deficient” and falling “below an acceptable level”. The similarity of the charges relating to the treatment of Amy and of Michael would have been clear to the PCC and I have no reason to believe that they did not so regard it. As I will explain, there was no reason for the PCC to expressly state this fact as it was implicit on any reading of the passage, which I have quoted in paragraph 19 above.

The second reason why I am unable to accept Mr. Wolfe’s submissions is that there was no need for the PCC to assess as a discreet issue the seriousness of the charges found proved against Dr. Birkin because the PCC were not entitled to make a finding of serious professional misconduct against Dr. Birkin unless they had also taken into account not only the nature and the seriousness of Dr. Birkin’s serious errors in treating Michael and Amy, but also all other relevant circumstances including any mitigating factors.

This approach is required of the PCC in the light of the decision of the Judicial Committee in Silver’s case in which Sir Philip Otton giving the judgment of the Judicial Committee referred to a passage in the decision of the PCC in that case in which the PCC had said to Dr. Silver that:-

“The Committee therefore finds you guilty of serious professional misconduct. However, we note that you work in a deprived area where it is difficult to get staff and medical assistance. You have a large list of patients who you have served for 40 years as a sole practitioner. The Committee are aware this is the only complaint recorded against you having read carefully the testimonials submitted on your behalf” [16].

Thus, in Silver’s case, the PCC had made a finding of serious professional misconduct in the light of the deficient treatment accorded by Dr. Silver but without having also considered at that point the doctor’s record as a practitioner. The Judicial Committee did not approve of this approach because it explained that:-

“It is axiomatic that after the findings of fact all the relevant circumstances must be considered before a finding of serious misconduct can be arrived at. The matters set out in the paragraph immediately following the announcement of serious professional misconduct [which are summarised in paragraph 22 above] were, in their Lordships’ view relevant to, and should have been taken into consideration when arriving at, the decision of serious professional misconduct and not merely as a consideration as to the appropriate sanction and conditions the Committee were minded to impose” [17].

It follows that “before a finding of serious misconduct can be determined”, the PCC should first consider “all the relevant circumstances”. Thus, in this case, the PCC were required to take into account all the factors (including mitigating factors) and only then were they to make a global decision on whether Dr. Birkin was guilty of serious professional misconduct. It must not be forgotten that the PCC set out detailed criticisms of Dr. Birkin’s treatment of Michael and of Amy. It used phrases such as “inadequate and unprofessional in the circumstances”, “sub-standard” and “not in the best interests of the patient and likely to compromise patient safety” in respect of the treatment of Michael. The PCC was also similarly critical of the treatment of Amy describing it as “seriously deficient” and falling “below an acceptable level”. In the particular circumstances of this case and in the light of what was said in Silver, the PCC were not obliged to assess in isolation any further than it did in this case, the seriousness of Dr. Birkin’s failures in his treatment, but merely to regard it as a very important factor in determining whether the charge of “serious professional misconduct” has been established.

The third reason why I am unable to agree with Mr. Wolfe’s submissions is that on any reading of the PCC’s reasons, it is clear that they took into account their very serious criticisms of Dr. Birkin. Mr. Wolfe attaches importance to the words used by the PCC which were, with my paragraph numbers and my italicisation added, that:-

1.

“The Committee have had to address the question of whether your actions amounted to serious professional misconduct. In their deliberations the Committee have listened carefully to the submissions made on your behalf in this respect and have taken careful account of the advice of their Legal Assessor on the meaning of serious professional misconduct.

2.

The Committee were referred to the case of Silver v. The General Medical Council (Privy Council Appeal No. 66 of 2002) in which it was stated that all relevant matters must be considered before a finding of serious professional misconduct is reached and not merely in mitigation as to the sanction imposed.

3.

The Committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation. You also ran the neonatal unit single-handedly for 15 years. The Committee consider that the two cases about which it has heard evidence appear to be isolated incidents against a background of otherwise unblemished medical practice of over 30 years.

4.

They have also considered the outstanding testimonials that have been submitted on your behalf, both in person and in writing, by your patients and colleagues, all of whom state that you are a highly committed, caring and professional doctor who cares deeply about your patients.

5.

In all these circumstance, the Committee have concluded that you are not guilty of serious professional misconduct. That concludes the case”.

It must be stressed that this reasoning follows on immediately after the PCC’s detailed findings of professional misconduct, which I have summarised in paragraphs 10 and 11 above. In my view, it is totally unrealistic to consider that the PCC did not bear those matters in mind, especially as they had shortly before explained first that these matters were capable of supporting a charge of “serious professional misconduct” and second, that they were very blameworthy errors, in which the PCC had just used words such as “sub-standard treatment”, as well as “inadequate and unprofessional supervision” to describe the way in which Dr. Birkin had purported to treat Michael and Amy.

After I had reached my conclusions on all issues in this case, I came across a comment by Hooper J (as he then was), which fortifies this point and explains why the claimant should not succeed on the failure to assess point. After having referred to some comments of Lord Bingham CJ in R v. The Parole Board and Others ex parte Oyston (unreported 1 March 2000 CA), Hooper J said:-

“It is well established that a court when considering reasons given by a decision maker, must be careful not to construe them “in a pedantic and nit-picking spirit”. The court should careful “not to seize on occasional omission and infelicities” as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in para 46 of Oyston)” (R (On the application of M)v. Criminal Injuries Compensation Panel [2001] EWHC Admin 720 [44].

The fourth reason why I do not accept Mr. Wolfe’s submissions is that there was no need for the PCC to give detailed reasons for their decision or to do anything other than to give a general explanation for their decision. It is clear that the PCC are not expected to give detailed reasons as:-

“A general explanation of the basis for their determination on the question of serious professional misconduct … will be sufficient in most cases” (per Lord Hope of Craighead in Selvanathan v. General Medical Council [2001] 1 Lloyds’ Rep. Med. 17).

Subsequently, Newman J explained in Needham v. The Nursing and Midwifery Council [2003] EWHC 1141 (Admin) that the reasons in professional misconduct hearings “need not be elaborate nor be lengthy but should be such as to tell the parties in broad terms why the decision was reached” [11].

More recently, Elias J summarised the position by saying that:-

“If it is plain from the conclusion of the panel, when considered in the light of the transcript of the evidence, what the basis of the decision is, then that suffices as adequate reasons” (R (Sandeep Luthra) v. General Dental Council [2004] EWHC 458 (Admin) [27]).

In this case, a fair reading of the PCC’s reasons shows that it complied with these obligations to give its reasons (i) by finding and stating that Dr. Birkin had committed serious breaches of duty summarised in paragraphs 10, 11 and 18 above, (ii) by stating that these breaches were capable of constituting serious professional misconduct, (iii) by setting out his personal mitigation before (iv) concluding that the charge of serious professional misconduct against Dr. Birkin was not made out. There is no reason why the PCC had to make any more detailed findings on the seriousness of Dr. Birkin’s errors in the light of its need to give a general explanation of the basis of its decision.

In rejecting Mr. Wolfe’s submissions on this issue, I have not overlooked his reliance on the statement of Beatson J, who wrote when granting permission on a paper application in this case that the determination of the PCC “does not address the severity of the matters which if found was substandard, inadequate or unprofessional”. The task of a judge when considering a permission application is to see if there is an arguable case and this is precisely what the learned judge did. I respectfully agree with the learned judge that this was a suitable case in which permission should have been granted as an arguable case had been established, but he clearly was not indicating whether the claimant would or should ultimately succeed on this point.

Mr. Wolfe contends that the PCC were perverse in describing the protracted substandard treatment of Michael and Amy as “isolated incidents”. As I explained in paragraph 25, when the PCC gave its reasons, it said in the paragraph, which I have numbered 3 that:-

“… the two cases about which it has heard evidence appear to be isolated incidents against the background of otherwise unblemished medical practice of over 30 years”.

Mr. Wolfe stresses that the findings of the PCC established numerous culpable acts or omissions committed by Dr. Birkin while treating Michael between 30 March 1999 and 4 May 1999 and while treating Amy between 6 February 1998 and 14 April 1998. Counsel for the GMC and Dr. Birkin submit that the PCC’s wording which Mr. Wolfe criticises and which I have just quoted, is justified because the PCC had received numerous very favourable references and had heard oral evidence extolling the way in which Dr. Birkin had otherwise performed his duties. These very favourable references came from over 50 patients, 19 fellow consultants and 26 management and nursing colleagues. I am unable to accept Mr. Wolfe’s criticisms for three reasons.

First, on any view and after taking into account the purpose of the proceedings which I have explained in Section V above, this supporting evidence for Dr. Birkin shows that his heavily criticised treatment of Michael and Amy was exceptional and it was a sharp contrast with the very professional way in which he had apparently conducted his practice for 30 years of which 20 of these years he had been a consultant. Although it might have been better if the PCC had used the word “exceptional” to describe the seriously regrettable way in which Dr. Birkin had purported to care for Amy and Michael, I do not consider that serious exception can be taken to the use of the word “isolation”.

The New Shorter Oxford English Dictionary explains that the word “isolation” can mean “separation from other things” or “the separation of a person or thing from the normal ..”. In the light of that meaning, the protracted substandard treatment of Michael and Amy could well be described as “isolated incidents” set against the background of 30 years of professional medical treatment and the very many favourable references supplied showing the high professional standards which Dr. Birkin had otherwise attained. The PCC were entitled to describe it in that way and in any event it is not perverse to use the word “isolated” in that way. Dr. Birkin’s misconduct in relation to his treatment of Michael and Amy was not in either case limited to one incident but a series of highly culpable errors as I have explained in paragraphs 10 and 11 above. Thus, the use of the words “isolated incidents” is strange and inept but I remain convinced that the PCC had in mind the totality of Dr. Birkin’s misconduct to which it had just referred in very critical terms and to which I have referred in paragraphs 11 and 12 above.

Second, the PCC were well able to and did actually take account of the effect of their decision on professional confidence. The PCC’s legal assessor explained this fact to the PCC in his advice and the PCC took account of it, even though there was no reason for it to expressly say so. I have no reason to doubt this. Third, the comment of Hooper J to which I have referred in paragraph 27 above constitutes a further reason for rejecting this point.

Mr. Wolfe contends that the decision of the PCC was also perverse in attaching importance to the isolated location of Dr. Birkin’s practice on the Isle of Man, when it said in the paragraph numbered 3 of its decision (which is set out in full in paragraph 25 above) that:-

“The committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation”.

Mr. Wolfe attaches importance to the fact that in Silver, the PCC attached importance to the isolated location of Dr. Silver’s practice, which made it difficult for him to recruit staff and that it was a relevant fact in the light of the allegation that he did not have in place an administrative system which meant that he failed to ensure that a patient was visited as requested.

Dr. Birkin’s position is clearly different from that of Dr. Silver but it must not be forgotten that the Isle of Man is separated from the mainland by a substantial expanse of the North Sea and thus, it was isolated from neighbouring medical services. Dr. Birkin in his evidence also explained the difficulties of transporting seriously ill children to the mainland for treatment. To that extent, Dr. Birkin was isolated from other paediatricians and this might well have meant that he had greater pressures on him than would have been imposed on doctors who did not work “single-handedly” in populous locations. The PCC would have the specialist knowledge to know of the difficulties of single-handedly building up a practice which was separated from other medical practices. I am unable to conclude that there was anything wrong with the PCC’s description of his service in the Isle of Man having “its relative medical isolation”. In any event, it certainly was not perverse that the PCC used the word “isolation”, especially in the light of the definition of it to which I already have referred. Hooper J’s comment quoted in paragraph 27 above is also supportive of my conclusion.

Anybody who has read of Michael’s condition will have great sympathy for him and for the claimant. The claimant genuinely believes that Michael has suffered irreparable damage as a result of Dr. Birkin’s error. As I have indicated, my task is not to decide if I agree with the decision of the PCC, but to consider if it impugnable on public law grounds, but the reasons which I have sought to explain compel me to refuse this application. It might be some consolation for the claimant to know that her case could not have been more effectively pursued than the way it has been actually presented by her legal advisers on this application.