Pool v General Medical Council

This is an appeal brought pursuant to section 40 of the Medical Act 1983 (“the Act”) against a decision of 13 June 2014 of a Fitness to Practise Panel (“the Panel”) constituted by the Respondent, the General Medical Council (“the GMC”). By that decision, the Panel found certain allegations against the Appellant, Dr Pool, proved and decided that they amounted to misconduct and resulted in an impairment of the Appellant’s fitness to practise. The Panel imposed a sanction suspending the Appellant’s registration as a doctor for a period of 3 months.

In brief, the Appellant was instructed to appear as an expert witness in a fitness to practise panel of another individual, “A”, who was a paramedic. He prepared a psychiatric report on whether A’s psychiatric problems were of sufficient severity to impair her fitness to practise. Objection was taken to the ability of the Appellant to act as an expert in this field and that objection was upheld. The Appellant was, himself, subsequently the subject of allegations of misconduct.

The Panel found that the Appellant was not an expert in the field of general adult psychiatry and that he had failed to restrict his opinion to areas of which he had expert knowledge or direct experience and gave evidence on matters outside his professional competence. The Appellant contends that these findings are wrong or that the Panel failed to give adequate reasons for the findings. The Appellant also challenges the finding that his report was inadequate in that he failed to explain the reasons for his opinion that A’s fitness to practise was wholly and indefinitely impaired. The Appellant also challenges the sanction imposed of three months’ suspension.

The Appellant is a psychiatrist. At the material time, he was employed as a consultant psychiatrist in the private sector working in a secure hospital. In August 2011, he accepted instructions from a firm of solicitors, Kingsley Napley, as an expert witnesses in proceedings before the Health Professions Council (“the HPC”). That case involved consideration of the fitness to practise of a paramedic, A, who had been diagnosed as having a personality disorder and post traumatic stress disorder, in part as the result of abuse suffered during childhood. The Appellant prepared a report on A and the question of her fitness to practice. A objected to the evidence being received on the grounds that the Appellant was not an expert. That objection was eventually dealt with at a hearing in March 2012. The HPC concluded that the Appellant did not have sufficient expertise in the field of personality disorders to qualify him as an expert and decided not to admit the Appellant’s evidence. A subsequently referred the Appellant to the GMC.

The Panel held a fitness to practise hearing over 10 days. Six allegations were made against the Appellant. The first four, as amended, were:

“That being registered under the Medical Act 1983, as amended:

1.

On the 21^st October 2011 you produced an expert psychiatric report (The Expert Report) relating to complainant A, on the instructions of Solicitors acting for the Health Professions Council;

2.

Prior to producing that report you did not make clear to those instructing you that:

a.

you were not an expert in the field of General Adult Psychiatry,

b.

your inclusion on the specialist register was in the speciality of Psychiatry of Learning Disabilities rather than General Adult Psychiatry.

3.

In the Expert Report you failed to

a.

adequately explain your opinion that complainant A’s fitness to practise was

i.

wholly impaired,

ii.

indefinitely impaired,

b.

restrict your opinion to

i.

areas in which you had expert knowledge or direct experience,

ii.

matters that fell within the limits of your professional competence,

c.

state where a particular question fell outside your area of expertise;

4.

At a hearing before the HPC committee on the 8^th March 2012 you failed to

a.

display an adequate understanding of the role and responsibilities of an expert witness,

b.

admit that you did not have appropriate expertise in the field of adult psychiatry; ”

The fifth and six allegations were not proven and are not material for present purposes.

The Panel received a great deal of evidence. They had evidence of the Appellant’s curriculum vitae, and a witness statement from the Appellant. The GMC maintains a Specialist Register and a person may be entered as a specialist in a particular speciality: see sections 30 and 34 of the Act. The Appellant’s name is entered on the Specialist Register in the category of Psychiatry in Learning Disability. His name is not entered on the Specialist Register in the category of Adult Psychiatry. He explained in his witness statement to the Panel that he had initial experience of treating patients with general adult psychiatric issues as a senior houseman between 1994 and 1999. Thereafter he had worked in the field of personality disorders, including female patients who has suffered sexual abuse and had been diagnosed as having personality disorders and post traumatic stress disorder. That work had been carried out in a variety of secure hospitals. The essential argument put on behalf of the Appellant was that he had obtained sufficient expertise from his experience in his work to enable him to be regarded as an expert in the present case.

The evidence included an expert report from a Dr Martin Baggaley dated 13 December 2012 and a supplementary report dated 18 March 2014. He also gave oral evidence to the Panel. His principal criticism of the Appellant was that he purported to give an expert opinion in the case of an individual who was appropriate for treatment by a general adult psychiatrist when the Appellant was not on the Specialist Register in the category of general adult psychiatry, but was on the Register in the category of Psychiatry of Learning Disability. He was also critical of the fact that the Appellant did not have membership or Fellowship of the Royal College of Psychiatrists. The Appellant had not had any higher professional training in psychiatry and had not held a substantive post in the National Health Service. He had not published in any peer-reviewed journals. In his supplementary report, Dr Baggaley expressed his opinion in the following terms:

“My major criticism of Dr Pool is that he is not on the relevant specialist register and had not worked in a relevant setting for the type of patient he was providing an expert opinion on. That he had failed to publish articles and book chapters, had failed to pass the membership examination of the college, had failed to have undertaken higher professional training, and had never been appointed to a substantive NHS consultant post are all in my mind factors that reduce his credibility as an expert, but are not as important as not being a recognised specialist and not working in the appropriate area. Had Dr Pool been on the general adult specialist register and worked at consultant level for 20 years in general adult psychiatry I would have accepted that he might be able to offer expert psychiatric opinion, although he would have been at a disadvantage in comparison to colleagues who had published, had higher training, had membership of the college and held substantive NHS consultant appointments.”

and later

“I believe his conduct fell below seriously below that of a reasonably competent consultant psychiatrist in producing an expert opinion when he was not on the Specialist Register nor working at a consultant level in general adult psychiatry when the case clearly involved an individual who would be considered a case appropriate for a general adult psychiatrist.”

One of the principal arguments being advanced on behalf of the Appellant was that a person could acquire expert knowledge either from formal training or from experience gained in the course of work. In his oral evidence, Dr Baggaley, whilst recognising that a person could acquire expertise by experience, was asked about his comment, set out above, that the Appellant had not worked in the type of setting for the type of patient on whom he was providing a report. He considered that a person would not acquire expertise in respect of a particular patient unless the person had expertise “in dealing, assessing or treating that patient”. The Appellant did not have the day to day clinical experience of treating or researching such patients. The clinical problems which the Appellant would be dealing with, in the context of patients in secure settings, were different from the clinical problems that arose in this case particularly as the Appellant was being asked to assess the ability of A to function in a job. Dr Baggaley did not consider that that would be an issue that the Appellant would have addressed in the clinical settings in which he worked. Dr Baggaley accepted that some of the skills acquired by the Appellant in his work may be transferable to other settings but the question was not whether it was possible for someone to treat a particular patient but whether it was appropriate for him to act as an expert.

The Appellant also called witnesses. Dr Bradley was called as an expert witness and gave evidence. He was asked about the experience that a person such as the Appellant would have. He accepted that general psychiatric practice necessarily involved clinical contact with patients in community settings. He considered that psychiatrists working in secure units would have the experience to carry out risk assessments on patients, including the risk they may present in the community and would be liasing with local psychiatric services and would be involved in the care of patients leaving secure units. He accepted that the patients that the Appellant was dealing with would be unlikely to be discharged into the community to undertake responsible roles such as a paramedic, and he would not be dealing with such patients or assessing their fitness to practise. He accepted that the Appellant would have no day to day experience of working with patients in situations such as that but he considered that the Appellant should be able to assess possible future risks. The Panel also had witness statements given on behalf of the Appellant and dealing with his experience and work from Dr Badcock, Dr Connell-Jones, Dr Harris and Dr Krishnan. Dr Harris gave oral evidence that it was possible to argue that working in a high secure hospital was different from seeing patients in the community but he considered that the ability to assess patients, diagnose their mental states, look at their levels and competence and whether they are safe was very similar in the two settings. He dismissed the suggestion that a person who worked exclusively in a secure setting was in some way at a handicap in making a risk assessment in relation to working in the community and considered the suggestion was nonsense. He considered that a person would be making a risk assessment and assessing a person’s ability to function not only within the secure environment but their ability to function outside it.

One of the allegations related to the adequacy of the Appellant’s report in respect of his opinion that A’s fitness to practise was wholly or partially impaired. The report should be read as a whole. Section 3, for example, deals with the Appellant’s opinion as to the connection between any medical condition and the behaviour and concerns giving rise to the referral of A to the HPC. Paragraph 18.26, for example, refers to specific incidents in that context. In relation to fitness to practise, the material sections of the report are as follows:

“18.31

[4] Whether you consider the Registrant’s fitness to practise to be currently impaired if so whether that be wholly or partially impaired.

18.32

Clearly the decision upon the Registrant’s fitness to practice rests with the Health Committee of the Health Professions Council. It is my expert evidence to that committee that [A’s] fitness to professionally practice, on the basis of the psychiatric evidence measured over several years, is currently wholly impaired.

18.33

This is especially so, in my opinion, as she has by reference to the medical records, an entrenched problem solving pattern of reverting to actively planning and expressing plans of suicide when significantly distressed, which has been in recent times, very frequent. Such planning can be covert. There is an example of an inpatient psychiatric respite admission being planned whilst she is working, for the time when she will take leave. Her behaviour has also generated serious concern that others – her children – may be at risk at certain times from her planned or intended actions. The psychological work undertaken by Dr Lilley with a ‘contextual reformulation map’ also sets out a pattern of decision making and behaviour with ‘suicidal, homicidal’ and ‘self-harm outcomes’.

18.34

Without [A’s] sustained constructive engagement in therapy of a type as identified by Dr Lilley, and the records show that she has withdrawn from or declined such offers, I do not anticipate an improvement in [A’s] ability to practice professionally being wholly impaired.

…

18.37

[6] If you consider the Registrants fitness to practise to be currently impaired how long you consider that impairment is likely to last.

18.38

In my opinion, based upon the history and examination of [A] and in particular a review of her psychiatric history, that she would be predicted to remain wholly impaired in her ability to professionally practice for an indefinite period. Her behaviour on the day of my assessment was settled, calm and appropriate. I suspect, but I am not able to comment as I do not know the facts or described facts, that the alleged sexual incident in 2002 has impacted detrimentally upon the previous established patterns of coping with distress that [A] had.

18.39

The diagnosis is in my opinion of a personality disorder rather than a post traumatic stress disorder. The origins of this personality disorder are generated within the emotional traumatic experiences [A] has had, as a child, in my opinion. The treatment model I would advance rests with the treatment of personality disorder rather than post-traumatic stress disorder.

18.40

In my opinion, it is the history of psychiatric contact, over time, which generates the concern as to [A’s] future ability to function effectively from the perspective of behaviour [whilst at work and not at work] compatible with ongoing professional registration at this time.

18.41

Reassessment of this opinion may be indicated in future such as with [A’s] consistent and active constructive engagement in psychological therapy and/or where psychiatric stability without reference to self-harm, or behaviour which would be predicted to generate concern within others, perhaps as to her safety, is evident for a period measured in at least two and probably several years.”

Dr Baggaley in his report expresses the view that the report is poorly written and, more seriously, that he did not adequately examine the evidence to reach his conclusions. He said that:

“I also do not consider that he adequately addresses the issue of why he considers her fitness to practice to be currently impaired and what part of her practices are impaired and how long they are impaired for.”

Dr Bradley gave his opinion. He accepted that report had not set out the requirements of the job being done by A. He accepted that the report may be found wanting in some respects and was not the kind of report that he would have given. He considered that it was a report that other experts might give. He said he found the report clear because he was making an assumption that the HPC would include an expert.

The Panel gave its determination in writing. At paragraphs 5 to 9, the Panel records the witnesses who gave evidence, whether in writing or orally. At paragraph 10 and 11, the Panel said this:

“The key evidence in this case is that of the experts, Drs Baggaley and Bradley. The panel finds that both these witnesses gave their evidence in a fair and balanced way. The panel could not, however, accept the views of Dr Bradley that your written report met the required standard or that your medical experience equipped you to be an expert witness in this case. The panel preferred the evidence of Dr Baggaley in this regard. It has also accepted Dr Baggaley’s view that the terms ‘General Psychiatry’ and ‘General Adult Psychiatry’ are synonymous.”

The Panel said this in relation to allegation 2 and whether the Appellant was an expert in the field of General Adult Psychiatry:

“17.

The panel has heard from Dr Krishnan and Dr Harris that you are a good clinician when seeing your patients on a day-to-day basis and that you are an able medical practitioner. It has borne in mind that your clinical practice is in the care of offenders, and others with similar needs, in secure units and, in the course of your work, you liase with fellow psychiatrists, psychiatric nurses and community mental health teams. The panel accepts that you have considerable experience in the treatment of women with personality disorders. However this is not in community settings and is not focussed on their occupational functioning.”

“18.

The panel had regard to the oral evidence of Dr Baggaley that an expert “stands out from his peers” and is “deferred to by his peers”, but he acknowledged that there is a hierarchy ranging from world-acknowledged experts to suitably qualified and trained practitioners. In this context he said that you have neither completed any higher professional training nor attained the MRCPsych examination. His major criticism, however, is that you are not on the Specialist Register in the category of General Psychiatry and have not worked in a relevant setting for the type of patient you were providing an expert opinion on. Consequently, in his opinion, you fell so far below what would be expected of an expert witness, you could not be considered to be within any such expert hierarchy. In your evidence, you said that you had worked in such settings but the panel noted that this was when you were an SHO and it was some time ago. The panel accepts Dr Baggaley’s evidence in this respect.”

“19.

The panel considers that to put oneself forward as an expert witness requires more than clinical experience and knowledge. It also requires the ability to produce an adequate report and to give oral evidence in an authoritative and convincing manner. This panel finds that your written report fell short of what is required and that your evidence at the HPC hearing regarding your experience and expert status was confusing and unclear. This panel does not consider that you conducted yourself at the HPC hearing as an expert witness should when giving evidence. In your evidence to this panel, you were also very unclear and often gave long, rambling, answers that did not address the question you had been asked. This panel concludes that, whilst you had some experience in General Psychiatry, you cannot be considered to be an expert.”

Paragraph 3(b) of the allegations dealt with the alleged failure of the Appellant in his report to restrict his opinion to areas in which he had expert knowledge or direct experience and to matters within the limits of his provisional competence and to state where a particular question fell outside his expertise.. The Panel dealt with each part at paragraphs 23 to 25 respectively, where the Panel said this:

“ b. restrict your opinion to

i.

areas in which you had expert knowledge or direct experience

Found proved

“23.

The panel has already found that you could not be considered an expert in General Adult Psychiatry for the purposes of giving evidence at a tribunal hearing. You do not treat patients within the community, as your practice is confined to working in a secure setting, and you do not have any recent experience of General Adult Psychiatry within the community at Consultant level. You have no direct experience of working with patients with personality disorders in the context of fitness to practise proceedings. You had been instructed by a firm of solicitors to give an expert opinion as to whether there was impairment of Ms A’s fitness to practise. The panel accepts that, although some of your skills and experience in the Psychiatry of Learning Disability could be transferrable to other areas of psychiatry, these are not such that you could be regarded as an expert in this case. It follows, therefore, that the opinions you expressed in your report are not restricted to areas in which you had expert knowledge or direct experience.”

ii.

matters that fell within the limits of your professional competence

Found proved

“24.

You told the panel that you had not previously been instructed to provide a psychiatric report for use in fitness to practise proceedings. The panel accepts that there has to be a first time for everyone but finds that, in your case, you did not have the relevant knowledge or experience to assess fitness to practise. You did not take appropriate steps to ensure that you understood what was required and assess whether you were competent to undertake this assignment. In expressing your opinion that Ms A’s fitness to practise was impaired, the panel considers that you went beyond the limits of your professional competence.”

c.

state where a particular question fell outside your area of expertise

Found proved

“25.

The panel considers that its findings in respect of paragraph 3(b)(1) and (ii) above are also relevant to this paragraph. It has concluded that you did not have the necessary expertise to act as an expert witness in the case of Ms A and it is clear from the evidence that you did not, at any time, state that a particular question fell outside your area of your expertise. The panel considers that this was a significant omission on your part.”

Paragraph 3(a) had two allegations relating to the failure of the Appellant to explain adequately in his report why he considered A’s fitness to practise wholly and indefinitely impaired. The Panel said this:

“Paragraph 3

In the Expert Report you failed to

a.

adequately explain your opinion that complainant A’s fitness to practise was

i.

wholly impaired

Found proved

“21.

In your report, at paragraph 18.32, you stated that Ms A’s “fitness to professionally practise is currently wholly impaired”. In the next paragraph (18.33) you seek to explain the reasons for this conclusion. Dr Baggaley said that this explanatory paragraph was not clear, not sufficiently logically argued and was disjointed. He said that it was not linked to your description of Ms A’s symptoms and behaviour earlier in the report. He said that he would have expected some explanation of why her symptoms and behaviour prevented her from carrying out the duties of a paramedic. Dr Bradley, the defence expert, said that he would not criticise paragraph 18.33 because he would expect a tribunal panel to clarify what you meant through its questions. This panel cannot accept Dr Bradley’s evidence in this regard and prefers the evidence of Dr Baggaley.”

ii.

indefinitely impaired

Found proved

22.

In your report, at paragraph 18.38, you stated that, based on her psychiatric history, Ms A “would be predicted to remain wholly impaired in her ability to professionally practise for an indefinite period”. In your conclusion you stated that this could be for a period “measured in at least two and probably several years.” This was a significant finding because it could have ended Ms A’s career as a paramedic. Despite this, you did not give a detailed explanation other than to comment in relation to Ms A’s alleged lack of engagement in psychological therapy. In the panel’s view this was a serious omission. You had been specifically instructed to give an expert opinion on Ms A’s current medical condition and to assess whether she was fit to work. The panel concluded that your report was inadequate in this regard.”

Paragraph 4 was the allegation that the Appellant failed to display an adequate understanding of the role and responsibilities of an expert witness at the hearing before the HPC on 8 March 2012. The Panel said this:

“At the HPC hearing you were asked to give your understanding of the role of an expert, in particular, in respect of an expert at a tribunal hearing. You gave rambling and unclear answers which were interrupted by the Chair of the HPC panel and the Legal Assessor who required clarification. You continued to stress that you were an expert and attempted to justify your status as such. In your oral evidence to this panel, you said that you had been shocked to be asked such a question and that you felt “disorientated” by the continual and harsh questioning of the Legal Assessor at the HPC hearing. In this panel’s view you were asked a reasonable question at the outset of the HPC hearing. You had been given prior notice that your status as an expert would be challenged and you should have anticipated that you would be required to explain your role. An expert witness must expect to be questioned closely and be subject to robust examination. As an expert at a tribunal hearing, you had a duty to explain your role and your inability to do so was a significant failure on your part.”

Having found the four allegations proven, the Panel then gave a second determination where it found that the allegations did amount to misconduct. The Panel said this:

“11.

The panel has found that you acted outside your medical competence when you accepted instructions on behalf of the HPC to assess Ms A’s fitness to practise. In doing so you breached a fundamental tenet of the profession as clearly set out in GMP and the GMC’s guidance “Acting as an expert witness”. In your report you gave opinions that were not appropriately reasoned and your explanation of the role of an expert before the HPC was unclear and confused. There is clearly a strong public interest in ensuring that doctors do not act outside their competence and do not put themselves forward as experts in areas in which they do not have adequate knowledge and expertise. In addition, your actions could have had drastic consequences for Ms A in that she could have lost her professional registration and career as a paramedic.”

“12.

On the basis of these considerations, the panel is satisfied that, even though this case concerns your acceptance of instructions and provision of a report on only one occasion, your actions were sufficiently serious to amount to misconduct.”

The Panel determined that the misconduct resulted in an impairment of the Appellant’s fitness to practise. The Panel then had to determine the appropriate sanction. It began with consideration of the least serious sanction (no action), and proceeded to consider whether more serious sanctions were required, namely the imposition of conditions upon registration or suspension. The Panel took into account the public interest in the protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct. The Panel also said that it had sought to apply the principle of proportionality weighing the Appellant’s interests against the public interest. It recognised that the purpose of sanctions was not to be punitive, although they might have a punitive effect but to protect patients and the wider public interest.

The Panel first decided that it was not appropriate to take no action in respect of the Appellant’s registration. The Panel next considered the possibility of imposing conditions upon his registration but decided this was not appropriate for the following reasons:

“Conditions

“12.

The panel next considered whether it would be sufficient to place Conditions on your registration. It has borne in mind that any Conditions would need to be appropriate, proportionate, workable and measurable.”

“13.

The panel has taken into account paragraph 57 of the ISG which states:

“Conditions might be most appropriate in cases involving the doctor’s health, performance or following a single clinical incident or where there is evidence of shortcomings in a specific area or areas of the doctor’s practice. Panels will need to be satisfied that the doctor has displayed insight into his/her problems, and that there is potential for the doctor to respond positively to remediation/retraining and to supervision of his/her work.”

“14.

In its determination on impairment the panel made clear that it is not satisfied that you have adequate insight into your misconduct.”

“15.

The panel was concerned by the content of the email, dated 20 March 2014, provided to it today and referred to in paragraph 7, between you and a firm or solicitors who request expert reports from you from time to time. In your email you stated:

“I have had a complaint made about me which the GMC is investigating in the normal way”

“16.

You must have known when you sent this email that your case had gone beyond the investigation stage and had been referred for determination by a Fitness to Practice panel yet you did not disclose this fact to the solicitors. Furthermore, in the main body of this email, the panel was disturbed by your denigration of the complainant, Ms A, although not named, and the unnecessary disclosure by you of confidential medical matters concerning her. The panel considers this to be a further demonstration of your lack of insight.

17.

For all the above reasons the panel is not satisfied that it is possible to formulate Conditions which are appropriate, workable and measurable. It also did not consider that this sanction would be proportionate to your misconduct and the public interest.”

The Panel then decided to suspend the Appellant’s registration for three months for the following reasons:

“18.

The panel then went on to consider whether a period of Suspension would be an appropriate sanction. It has found that you failed to recognise that you were acting beyond the limits of your competence whereby you breached a fundamental tenet of the profession as clearly set out in GMP. The panel also considered that by providing a report which did not adequately explain your opinion, and failing to display to a disciplinary tribunal an adequate understanding of the role and responsibilities of an expert witness, your misconduct has the potential to undermine the public’s confidence in the medical profession. The panel accepted, however, that you are otherwise a good doctor and is satisfied that your misconduct is not incompatible with continued registration and could be remediated by development of insight. The panel believes that, with proper reflection, you should be able to do this.”

“19.

The panel has therefore concluded that a period of Suspension is the appropriate sanction to mark the severity of your misconduct whilst maintaining public confidence in the profession and the declaring and upholding if proper standards of conduct and behaviour. It has determined that it would be sufficient, appropriate and proportionate to suspend your registration for a period of three months.”

“20.

In deciding on a period of three months, the panel considers that this will give you the time and opportunity to reflect on your misconduct and to develop insight into the matters which brought you before the GMC. It will also give you the opportunity to re-visit GMP and the GMC’s guidance on Acting as an expert witness to ensure that your future will be governed by them.”

Section 2 of the of the Act provides for the maintenance of a register of medical practitioners registered under the Act. Part V of the Act deals with the investigation of allegations that a person’s fitness to practise is impaired by, amongst other reasons, misconduct. There is provision for investigation of the allegation (see section 35C of the Act) and then for adjudication by a fitness to practise panel. Where such a panel find that a registered practitioner’s fitness to practise is impaired, the panel may direct that his name be erased from the register, that his registration may be suspended for a period not exceeding 12 months or that his registration be conditional on his compliance for a period of up to three years with such requirements as the panel think fit to impose for the protection of members of the public or in his interests: see section 35D of the Act.

Section 40 of the Act provides that the registered practitioner may appeal against a decision of a fitness to practise panel made under section 35D to the High Court. Section 40(7) of the Act provides that:

“(7)

On an appeal under this section from a Fitness to Practise Panel, the court may –

(a)

dismiss the appeal;

(b)

allow the appeal and quash the direction or variation appealed against;

(c)

substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practice Panel; or

(d)

remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the direction of the court,

and may make such order as to costs (or in Scotland, expenses) as it thinks fit.”

The principles governing such an appeal are well-established and are not in dispute. The test on appeal is whether the decision of the Panel can be said to be wrong. The principles are conveniently summarised in paragraph 15 of the judgment of Cranston J. in Cheatle v General Medical Council [2009] EWHC 645 (Admin.):

In terms of the adequacy of reasons for a decision by a body such as a Fitness to Practise Panel, the Court of Appeal in Flannery v Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377 at 381G to 382D-F made the following observations:

“We make the following general comments on the duty to give reasons.

(1)

The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

(2)

The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.

(3)

The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.

(4)

This is not to suggest that there is one rule for cases concerning the witnesses truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.”

Against that background, the issues arising as they emerged from the grounds of appeal, the Claimant’s skeleton argument and oral submissions, can be conveniently summarised as follows:

(1)

did the Panel apply the wrong test and was it wrong to decide that the Appellant was not an expert in general psychiatry and had failed to limit his opinion to areas in which he had expert knowledge or direct experience or which fell within his areas of professional competence? Further, was there a proper evidential basis for the Panel’s findings and were their conclusions adequately reasoned?

(2)

was the Panel wrong to find that the Appellant had failed adequately to explain his opinion that A’s fitness to practice was wholly and indefinitely impaired?

(3)

if Panel had been correct to find that the allegations relating to the failure by the Appellant to give adequate reasons for his opinion proven (and not the other allegations relating to whether he was capable of acting as an expert and acted within the scope of his professional competence), could the Panel lawfully have found that the Appellant’s fitness to practise was impaired?

(4)

was the Panel wrong to impose a sanction of a three-months’ suspension from the register or was such a sanction unnecessary and disproportionate?

The first issue concerns the findings that the Appellant was not an expert in general adult psychiatry, and, essentially, failed to restrict his opinion to areas in which he had expert knowledge or direct experience of matters that fell within the limits of his professional competence. The basis of much of the Appellant’s argument in this regard was that it was possible to acquire expertise not simply by formal training and accreditation but by day to experience. Further, the Appellant considers that his work in treating persons with personality disorder and post traumatic stress disorder gave him such experience. He contended that no valid distinction could be drawn between such work when carried out in a secure setting or in the community. The Appellant considered that the Panel had failed to address the question of whether his day to day experience equipped him to be an expert for the purposes of the case with which he was dealing.

Firstly, in my judgment, the Panel was considering whether the Appellant was “an expert” in general adult psychiatry (paragraph 2 of the allegations) or failed to restrict his opinion to areas in which he had “expert” knowledge or “direct experience”. The focus was on whether the Appellant was an expert. The area in which he was putting himself forward as an expert was the assessment of the fitness to practise of a health service professional, in this case a paramedic. That involved assessing the impact of her psychiatric condition on her ability to carry out the requirements of her occupation.

Secondly, the Panel was well aware and accepted that a person might be equipped to act as an expert either by reason of training or by reason of day to day experience. That is why the Panel considered the experience of the Appellant and considered whether that experience was such that he could properly put himself forward as an expert on the basis of such experience. The Panel considered his experience, for example, at paragraphs 17 and 18 (when assessing Dr Baggaley’s evidence that the Appellant had not worked in a relevant setting for the type of expert evidence he had given) and at paragraphs 23 and 24. The real issue, in my judgment, is whether the Panel was wrong in the conclusions that it came to in relation to paragraphs 2 and 3a, b, and c of the allegations.

Thirdly, in my judgment, the Panel was not wrong in the conclusions that they reached. The Appellant was not on the Specialist Register in the category of general psychiatry. He had not completed any higher professional training. They were right to conclude that his qualifications and training did not equip him to be an expert. In terms of experience, the Appellant’s clinical practice was in the care of offenders and others with similar needs in secure units and the Panel accepted that would involve liaison with others including mental health teams in the community. The Panel accepted that the Appellant had considerable experience in the treatment of women with personality disorders. That appears from paragraph 17 of its decision. The question was, however, whether that experience equipped him to act as an expert witness in assessing the fitness to practise of an individual working in the community.

The Panel were right to say that the experience the Appellant had was not in treating patients in community settings (his experience of working in community setting was when he was a senior houseman and was some time ago). It was right to say his experience was not focussed on the occupational functioning of patients – which was the subject matter of the case with which he was dealing with. In that regard, the Panel was entitled to conclude that he was not an “expert” in the field of general adult psychiatry. Similarly, when assessing the allegation in paragraph 3b, the Panel was correct to say that he did not have expert knowledge or “direct experience” in the area in which he was purporting to act as an expert. He was not treating patients in the community and he had no recent experience of general psychiatry within the community at consultant level. As the Panel correctly noted, the Appellant has “no direct experience of working with patients with personality disorders in the context of fitness to practise proceedings” (see paragraph 23 of its determination). Furthermore, in the same paragraph, the Panel says it: “accepts that, although some of your skills and experience in the Psychiatry of Learning Disability could be transferred to other areas of psychiatry, these are not such that you could be regarded as an expert”.

The judgment reached by the Panel was, in my judgment, correct. The question was not whether the Appellant had skills or experience in dealing with particular conditions which would enable him to carry out a risk assessment of a person with those conditions. The question was whether he could, legitimately, describe himself as an “expert” in the field of assessment of the fitness to practise of an individual carrying out a particular role in the workplace. The Appellant was, simply, not an expert in that area.

The Appellant submitted that the Panel had not given adequate reasons for its conclusions on this point, and that it failed to deal with the evidence of Dr Bradley or of Doctor Harris in particular. The Appellant submitted that the Panel failed to give adequate reasons to explain why it did not accept that there was no fundamental difference between carrying out risk assessments on patients with personality disorders and post traumatic stress disorder in secure settings and in the community.

The Panel’s reasons could have been expressed more fully. The essential questions are, however, whether the determination tells the Appellant why the Panel reached the conclusions that it did and, in this context, the particular findings on expertise. In so far as there is a real intellectual dispute, with reasons and analysis advanced on either side, the Panel needed to address that dispute and explain why it preferred one case over the other.

The reasons why the Panel found as it did do appear sufficiently from the determination read fairly and as a whole. The Appellant was not an expert in the area in question, that is assessing the fitness to practise of a person carrying out the role of a health professional. He was not qualified to be an “expert” as he was not on the relevant Specialist Register and had not completed relevant professional training. He was not “an expert” by reason of his day to day experience as that involved assessing patients in a different setting in a different context. The Panel stated that it could not accept Dr Bradley’s view that his medical experience equipped him to be an expert (see paragraph 10) and they preferred the view of Dr Baggaley. The difference between Dr Baggaley and Dr Bradley is clear from reading a transcript of their evidence. Dr Baggaley considered that an expert was a person who provided an expert opinion based on knowledge or skills and that could be acquired by clinical practice. He did not consider that a person who was not on the relevant Specialist Register, and lacked other higher professional training could be regarded as an expert. He did not consider that the Appellant could be said to be an expert in relation to a particular type of patients when he did not in fact have experience in dealing or assessing or treating that type of patient. Dr Bradley accepted that the Appellant’s day to day experience would not involve assessing whether patients discharged into the community would be able to discharge the requirements of their role. His view, however, was that the Appellant’s role did involve risk assessment and he considered that the Appellant, with his overall experience of patients with personality disorders, would have been able to make the assessment that he did. The Panel did address that issue. It considered the experience of the Appellant. It came to the conclusion that although some of his skills and experience in the field in which he practised (the Psychiatry of Learning Disability) were transferable, his experience was not such that he could be regarded as an expert. The issue between the two experts was, therefore, addressed by the Panel and its reasons are sufficiently explained.

The same applies in relation to Dr Harris. His evidence, read as a whole, was to the effect that working in the context of secure settings did, in his view, enable the Appellant to diagnose mental states and assess risk and patient levels of competence. He rejected the argument that a person who worked exclusively in secure settings was handicapped in making a risk assessment of a person in the community. He considered that the person would be assessing the person’s ability to function within a security environment and outside it. However, he did accept that the Appellant did not have direct experience of managing a personality order in the community. He did not consider the fact that the Appellant worked in secure settings made him less competent to diagnose and assess the needs of people with personality disorders. That, in essence, was a similar view to that taken by Dr Bradley. The Panel, however, considered that the Appellant could not be regarded as an expert in assessing fitness to practise and did not have direct experience of such matters. The reasons why the Panel took a different view are, in my judgment, sufficiently clear. Similar reasoning applies to Dr Krishnan. He was more circumspect in his evidence when he was asked whether the Appellant would be able to make an assessment of someone’s fitness to practise who is working in the community. Dr Krishnan said that he could not say with certainty yes or no but he would say that it would not make a difference if the person was just giving an opinion. Further, the Panel made it clear that the key experts were Dr Baggaley and Dr Bradley. They considered that the evidence of the other psychiatrists (which included Dr Harris and Dr Krishnan) was related to the Appellant’s character and clinical experience and their ability to act as an expert was limited.

The reasons why the Panel came to the view that it did in relation to the allegations in paragraph 2 and 3a,b and c, and why it did not accept the views (expressed, in different ways, by Dr Bradley, Dr Harris and Dr Krishnan) are, therefore, adequately expressed.

For completeness, one part of the first ground of appeal also concluded that the Panel took into account the performance at the HPC panel when those alleged failings formed no part of the Respondent’s case and when it was unfair to do so because of the way that the hearing before the HPC was conducted. First, paragraph 4 of the allegations expressly alleged that the Appellant had failed to display an adequate understanding of the role and responsibilities of an expert witness. Secondly, the Panel expressly addressed the complaints of the Appellant about the HPC hearing. They noted that the Appellant said that he felt shocked to be asked a question about his status, and that he felt disorientated by continual and harsh questioning by the legal assessor at the HPC hearing. The Panel considered that the questions were reasonable, and that the Appellant had been given prior notice that his status as an expert would be challenged and that he would be required to explain his role. There is no basis, in my judgment, for criticising the Panel for taking these matters into account. Its conclusions on these matters were ones that are open to them on the evidence before them. They were also entitled to reach the conclusion that they did in relation to paragraph 4 of the allegations. There is no basis for saying that their finding on paragraph 4 was wrong. They were also entitled to take into account the way that the Appellant conducted himself before the HPC Panel as an additional factor in considering whether the Appellant was entitled to put himself forward as an expert.

The second ground concerns the adequacy of the reasons given by the Appellant for his professional opinions. Paragraphs 18.31 to 18.34 were intended to address the question of whether the question of whether A’s fitness to practise was impaired and if so, was it wholly or partially impaired. Mr Counsell for the Appellant submits that the reasoning although brief is adequate. Further Mr Counsell invited the court to have regard to the report as a whole including the earlier sections of the report, and in particular paragraph 18.26 where the Appellant refers to certain specific events in A’s medical records. He also relied upon the evidence of Dr Bradley. Dr Bradley said that it was not the sort of report that he would have given, although he thought some experts would have given it, and that it would have been helpful if there had been a link between the duties of A as a paramedic and the Appellant’s conclusions. He found it was adequate on the assumption that one of the members of the Panel was an expert. He considered that paragraph 18.33, although it did not link A’s condition with the requirements of her role, was adequate given what had been written before. Further, Mr Counsell submitted that the reasoning in the report could be amplified by questions from the HPC Panel.

The Panel set out in paragraph 21 the reasons why it considered the reasoning inadequate. They referred to the reasons why Dr Baggaley considered that the report was inadequate. Those reasons include the fact that the there was no explanation of why A’s symptoms and behaviour prevented her from carrying out the duties of a paramedic. That is correct. There is no such explanation. The earlier sections of the report deal with a different question, namely the opinion of the Appellant on any connection between A’s psychiatric condition and the behaviour and concerns giving rise to the referral. There is no specific link between those earlier paragraphs and the later paragraphs dealing with the assessment of fitness to practise. There is also no adequate explanation in the report as to the link between the Appellant’s opinions on A’s fitness to practise and whether any impairment was indefinite. The assumption of Dr Bradley that there would be an expert on the Panel (which would not necessarily be the case) was wrong. In any event, that would not justify the provision of a report by the Appellant, as an expert, which did not explain his reasons for his professional conclusions. Nor does the fact that the HPC Panel might have asked questions provide a justification. The fact is that the Appellant was asked to provide expert evidence. He was specifically instructed to address particular questions, including whether A’s fitness to practise was impaired and, if so, whether it was wholly or partially impaired and how long it was likely to last. The Appellant did not in his report provide adequate reasoning for his professional opinion that A’s fitness to practise her occupation was wholly impaired nor do his comments at paragraph 18.38 to 18.41 explain why that was likely to be for an indefinite period. The Panel was entitled to reach the conclusions that it did. They gave adequate reasons. They accepted Dr Baggaley’s evidence. They were entitled to do so. Their findings that the Appellant did not give adequate reasons for his professional opinion on A’s fitness to practise was wholly and indefinitely impaired are conclusions they were entitled to make. The Panel was not wrong to conclude that these allegations were proven.

The third ground of appeal concerns the question of whether the Panel could find that the Appellant’s fitness to practise was impaired if only the allegations in paragraph 3a regarding the Appellant’s failure to give adequate reasons for his professional were proven. The Appellant accepts that if the Panel was right to reach all of the factual findings that it did, then a finding of impairment would have been reasonable on the part of the Panel. In the circumstances, the Panel was, in my judgment, entitled to come to all the factual findings that it did. In consequence, this third ground of appeal does not therefore arise.

The fourth ground concerns the sanction imposed by the Panel. The Panel determined that the imposition of conditions upon the Appellant’s registration was not an appropriate sanction and, instead, imposed a more severe sanction, namely suspension from the register for three months. That would have the consequence that the Appellant would not be able to work as a consultant at all for that period.

The principles governing appeals against sanction in this context are well-established and can be derived from authorities such as Bolton v Law Society [1994] 1 W.L.R. 512, Law Society v Salsbury [2009] 1 W.L.R. 1286, and Ghosh v General Medical Council [2001] 1 W.L.R. 1915.

The relevant principles can be summarised as follows. The fundamental purpose underlying the imposition of sanctions is the maintenance of public confidence in, and respect for, the profession. The Panel is an expert and informed body, well placed to determine what sanctions are necessary and appropriate to protect the public and to ensure the maintenance of public confidence in the profession. A court hearing an appeal against sanction will therefore accord considerable respect to the assessment of the Panel as to what sanctions are appropriate and necessary. The court will, however, still need to determine whether there has been any error of law on the part of the Panel in reaching its decision. The court will also consider whether the sanction is excessive and disproportionate.

In the present case, the misconduct giving rise to a finding of impairment arose out of the fact that the Appellant had, on one occasion, acted as an expert in the context of a fitness to practise hearing of a healthcare professional. Furthermore, in reaching its finding of impairment, the Panel expressly recognised that the Appellant was a good clinician and there had never been any concerns raised in relation to his clinical practice. The Appellant had also acted as an expert, and provided many expert reports, in the area in which he was an expert and no criticism was made of his work in those areas.

The Appellant’s misconduct was regarded as serious by the Panel. The Panel found that there was a strong public interest in ensuring that doctors do not act outside their competence and do not put themselves forward as experts in areas in which they do not have adequate knowledge and expertise. That, in my judgment, is a correct statement of principle. Further, the Panel correctly noted that the Appellant’s actions could have had drastic consequences for the healthcare professional in question as she could have lost her professional registration and her career as a paramedic. The Panel was entitled, in my judgment, to regard the misconduct giving rise to impairment as serious. They were entitled to take the view that it was not sufficient to take no action in relation to the misconduct given the seriousness of the misconduct and the need to ensure the maintenance of public confidence.

The decision of the Panel that the imposition of a condition on registration was not sufficient and that suspension of the Appellant’s registration was necessary, is in my judgment, flawed for each of two separate reasons.

First, the Panel considered that the Appellant lacked insight into his misconduct. The Panel considered that it was not possible to formulate appropriate, workable and measurable conditions which could be imposed upon the Appellant and which would remediate the lack of insight. However, when dealing with suspension, the Panel concluded that the Appellant was a good doctor and that his misconduct was not incompatible with his continued registration and, more importantly for present purposes “could be remediated by development of insight”. The Panel stated at paragraph 18 of its determination on sanction that the Appellant should be able to achieve this. They, therefore, suspended the Appellant’s registration for three months on the basis that this would give the Appellant the time and opportunity to reflect on the misconduct and to develop the necessary insight. There is, in my judgment, an element of internal contradiction in these two parts of the Panel’s determination. On the one hand, the Panel considered that it was not possible to formulate conditions aimed at remedying the lack of insight but on the other hand, it considers that the Appellant could remedy this deficiency and could develop insight during a period of a three-month suspension. The Panel does not explain why a condition prohibiting the Appellant from acting as an expert at fitness to practise hearings for three months was not a practicable workable, condition given that that would achieve the same result in practice as suspension for that period.

Secondly, the sanction of suspension for three months was, in the context of this case, disproportionate. The only area of concern was the fact that the Appellant had, on one occasion, held himself out as an expert in relation to assessing the fitness to practice of healthcare professionals. He lacked the qualifications and experience necessary to enable him to give expert opinions in this field. That was, as the Panel recognised, a serious matter as there was a strong public interest in ensuring that doctors did not act outside their areas of professional competence and did not put themselves forward as experts when they did not have adequate knowledge and experience. However, there was no criticism of the Appellant’s work as an expert in the areas in which he did have the necessary professional competence. There was no criticism of his clinical practice. The sanction imposed, suspension, would result in him being unable to work as a clinician or to carry out duties as an expert in fields where he is properly entitled to hold himself out as an expert for the period of suspension. Proportionality requires that there is a reasonable relationship between the penalty imposed and the misconduct giving rise to the impairment. In the present case, the imposition of a sanction which not only addressed the need to ensure that doctors did not act in fields outside their professional competence, but also prevented them from acting in areas within their professional competence and from carrying on their clinical practice was disproportionate.

For each of those separate reasons, the determination of the Panel to direct that the Appellant’s name be suspended from the register for three months is flawed. Exercising the powers conferred by section 40(7) of the Act, I direct that that direction be replaced by a direction that the Appellant’s registration be subject to a condition that the Appellant should not for three months accept instructions to act as an expert witness in fitness to practise proceedings.

The Panel was entitled to find that the Appellant was not an expert in the field of general adult psychiatry and had failed to restrict his opinion to areas in which he had expert knowledge or direct experience and to matters that fell within the limits of his professional competence. The Panel was also entitled to find that he had failed to give adequate reasons for his professional opinions and failed to display an adequate understanding of the role and responsibilities of an expert witness. The Panel’s findings of fact on these matters were not wrong. The Panel were entitled to find that that misconduct resulted, in the circumstances of this case, in an impairment of the Appellant’s fitness to practise. The Panel was also entitled to regard the misconduct as serious when considering the appropriate sanction. However, the direction that the Appellant’s name be suspended from the register for three months was flawed and disproportionate in the circumstances. That direction will, accordingly, be replaced by a direction that the Appellant’s registration be subject to a condition that for three months he should not accept instructions to act as an expert witness in fitness to practise proceedings.