Garaffa v General Medical Council

Dr Capece accepted that he made the change to the consent form to add “+ vaginectomy”. He said that he had noticed the discrepancy between the booking form (which referred to a vaginectomy) and the consent form (which did not), and that he clarified this with Patient A on 29 October, in advance of the surgery, and amended the consent form accordingly. His case, therefore, was that Patient A had been properly and positively consented for a vaginectomy. The Appellant supported Dr Capece’s account (albeit he had not directly witnessed the change to the form). He says that he had asked Dr Capece to double check with Patient A that he wished to undergo both a metoidioplasty and vaginectomy and that Dr Capece (after checking) confirmed that this was correct. The MPT also heard evidence from Patient A who was adamant that he had not wanted to have a vaginectomy and that he had not provided the consent that was recorded by Dr Capece.

The MPT heard evidence from those who had been present during the surgical checklist procedures. The Appellant and Dr Capece maintained that the consent form did include “vaginectomy” at this point. Unsurprisingly, no other witness claimed to have a recollection of precisely what had been read out from the consent form, and in particular whether “+ vaginectomy” was, or was not, read out. The witnesses were therefore giving evidence on the basis of whether they would have noticed if “vaginectomy” had been omitted:

The MPT considered that two issues were central to its resolution of the case, namely whether Patient A had consented to the vaginectomy, and whether, when and in what circumstances “+ vaginectomy” was entered on the consent form.

As to the first of these issues, the MPT found that Patient A did not consent to a vaginectomy. Having heard evidence from Patient A it found that if this had been mentioned to him then he would have made his opposition to the procedure quite clear. It therefore rejected the account that was given by Dr Capece. There is (now) no challenge to that finding. The MPT also rejected the Appellant’s account that he had told Dr Capece to “double check” the position. It found that the Appellant’s account was “vague and unconvincing”, that he did not have any “specific recall” of the events, that there would not, on the Appellant’s account, have been any reason for him to tell Dr Capece to “double check”, and that the Appellant had not given any satisfactory explanation for doing so. Moreover, the Appellant’s account that he had asked for this “double check” was only given some considerable time after Patient A’s initial complaint was made, and only after the discrepancy between the consent forms came to light. The Appellant’s initial response when the complaint was first made did not make any reference to this “double check”. The MPT considered that if there had been a double check then it is likely that the Appellant would have recalled this at the time of the complaint, and that it is unlikely that he would have recalled it for the first time many months thereafter. For the same reasons, the MPT considered that the Appellant could not have reviewed Patient A’s notes as he had claimed to have done, because he then would have been alerted to the discrepancy between the notes (which made it clear Patient A did not wish to have a vaginectomy) and the theatre list, and he would have recalled this when the complaint was made.

As to the amendment to the consent form, the MPT was entirely satisfied that this took place after Patient A had been anaesthetised and without Patient A’s knowledge and in circumstances where Dr Capece knew that Patient A had not consented to the procedure. It considered that the amendment was made dishonestly, either because Dr Capece had appreciated that the surgical team had performed a vaginectomy without consent, or because Dr Capece assumed that he had made an error by failing to discuss a vaginectomy with Patient A. The MPT considered that there would have been no reason for Dr Capece to amend the form before the surgery commenced.

It was argued on the Appellant’s behalf that the word “vaginectomy” must have been included on the consent form by the time of the “time out” procedure, because a member of the surgical team would otherwise have been bound to note the discrepancy, and because the addition of the word “laparoscopy” (see paragraph 10 above) showed that the team were engaged in, and attentive to, the “time out” procedure and the detail of what was recorded on the consent form. The MPT rejected this submission. It considered that the balance of the evidence “plainly demonstrates” that the consent form was altered later. It considered that there were “numerous possibilities” for explaining the failure of the surgical team to notice the discrepancy, including that the Appellant had not been present at the “time out” procedure, or that if he was present that he was not paying sufficient attention to the content of the consent form.

The MPT heard expert evidence from Mr Reynard (a consultant urological surgeon, instructed on behalf of the Appellant) and Mr Prendergast (a consultant gynaecologist, instructed by the Respondent). They both considered that the Appellant should have reviewed Patient A’s consent form and medical notes so as to ensure that informed consent had been properly obtained. The MPT accepted that evidence and considered, in any event, that it is “self-evident” that a surgeon performing this procedure should “at the very least” ensure that the consent form corresponds to the medical notes.

The MPT accepted that there had been systemic failures which had contributed to the outcome, but considered that these did not absolve the Appellant of responsibility. It found that his conduct fell so far short of the standards of conduct reasonably to be expected of a doctor as to amount to serious misconduct. In particular, it found the following allegations proved:

It was submitted on behalf of the Appellant that he “had been as much a victim of a flawed system as Patient A.” He had now changed his practice: now, he personally ensures that his patients consent to the operations he performs. Accordingly, so it was said, this isolated failing had been fully remedied such that there was no ongoing impairment of his fitness to practise.

The MPT accepted that the Appellant’s misconduct was “remediable”, that it had been “remedied to an extent” and that the risk of repetition was low. However, it considered that he had shown limited insight and had not taken full responsibility for his error, and that he had appeared to be unwilling and/or unable to recognise his personal fault. It pointed out that during the initial investigation the Appellant had appeared to dismiss the possibility that a mistake may have occurred, even though it was clear (from Patient A’s medical notes and what Patient A said in his complaint) that Patient A had not wanted a vaginectomy. Once the discrepancy in the consent forms came to light, the Appellant continued to maintain that Patient A had given his consent. Again, he did not appear to recognise the contrary possibility. The MPT considered that the Appellant’s misconduct was too serious, and the consequences too grave, to conclude that the Appellant’s fitness to practise was not impaired.

It was submitted on behalf of the Appellant that he did not present a risk to public safety and that suspension would be disproportionate and contrary to the public interest, having regard to the public interest in the Appellant (who was one of only two surgeons who undertook this combination of procedures) being available to a vulnerable cohort of patients who make life changing decisions. The MPT considered that it would be wholly inappropriate to take no action and that would not uphold the over-arching objective of protecting the public. It did not consider that the imposition of conditions on the Appellant’s registration would adequately protect public confidence or uphold proper standards of conduct. It considered that suspension for 5 months was the appropriate and proportionate sanction, and that no lesser sanction would adequately promote and maintain public confidence or maintain proper professional standards.

There is no dispute between the parties as to the applicable framework or the principles that emerge from the authorities. In the light of the helpful and constructive approach taken by both Mr Forde QC for the Appellant, and Ms Hearnden for the Respondent, it is only necessary to provide a brief summary.

The framework is set out in the Medical Act 1983, the General Medical Council (Fitness to Practise) Rules Order of Council 2004, and non-statutory “Sanctions Guidance” published by the Respondent.

The over-arching objective of the Respondent in the exercise of its functions is the protection of the public – s1(1A) Medical Act 1983. The pursuit of that objective involves (amongst other matters) the maintenance and promotion of public confidence in the medical profession and proper professional standards and conduct by members of that profession – s1(1B).

It was for the MPT to determine the facts, make findings on the allegations of misconduct that were advanced, and then to determine whether the Appellant’s fitness to practise was impaired by reason of misconduct, and then to determine what, if any, sanction should be imposed.

Misconduct includes a serious failure to meet the necessary standards of medical practice, such as culpable carelessness in the provision of treatment – Roylance v General Medical Council (No 2) [2000] 1 AC 311 per Lord Clyde at 331B-G (and see, for the interplay between the concepts of negligence, misconduct and deficient professional performance, R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin) per Jackson J at [39] and Preiss v General Dental Council [2001] UKPC 36 [2001] 1 WLR 1926 per Lord Cooke at [28]).

Where a doctor has fully addressed concerns about their knowledge, skills, conduct or behaviour (“remediation”) then it is unlikely that their fitness to practise will be impaired – see paragraph 31 of the Sanctions Guidance. Paragraphs 32 -33 add:

“32.

However, there are some cases where a doctor’s failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were casing harm to patients and should have taken steps earlier to prevent this.

In such serious cases, the tribunal must fully and clearly explain:

Where a tribunal finds a doctor’s fitness to practise is impaired it can take no action, or accept undertakings, or impose conditions on the doctor’s registration, or suspend registration for up to 12 months, or erase the doctor’s name from the register. It should start by considering the least restrictive option and then work upwards to the most appropriate and proportionate sanction – see paragraphs 66 and 67 of the Sanctions Guidance.

Paragraph 92-93 of the Sanctions Guidance states:

“92.

Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).

93 Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions...”

The Appellant has a right of appeal to the High Court against the decision of the MPT that he should be suspended – s40(1)(a) Medical Act 1983. An appeal is by way of rehearing – CPR PD52D paragraph 19. An appeal will be allowed where the decision of the MPT was wrong – CPR 52.21(3)(a). In assessing whether the MPT’s decision is wrong it is necessary to allow for the advantages enjoyed by the MPT, having regard to its specialist expertise, and the fact that it heard and saw the witnesses – see Yassin v General Medical Council [2015] EWHC 2955 (Admin) per Cranston J at [32], Dutta v General Medical Council [2020] EWHC 1974 (Admin) per Warby J at [21].

It is convenient to approach the grounds of appeal (as Ms Hearnden did) by reference to the structure of the MPT’s determinations, and in particular (1) the MPT’s findings of fact (paragraphs 16 - 21 above), (2) the finding of misconduct (paragraphs 22 - 23 above), (3) the finding of impairment (paragraphs 24 - 25 above), and (4) the sanction of a (non-immediate) suspension of 5 months (paragraph 26 above). In adopting that approach, I nonetheless recognise that the Appellant has not categorised the grounds in quite that way, and that some of the grounds straddle more than one of these headings (in particular, there is overlap between his criticisms of the MPT’s findings of misconduct and impairment).

The central challenge is to the MPT’s finding that the consent form was altered after the time out procedure. This is put in various ways. Ground 1 contends the MPT was wrong to consider it possible that the Appellant had not been present at the time out procedure, that it should not have speculated as to the different possibilities, and that it should not have found that the consent form was altered after the time out procedure. Ground 2 contends that there was no evidence on which the panel could have safely concluded that the consent form was not altered prior to the time out procedure. Ground

Mr Forde QC argues that the MPT should have found that Dr Capece altered the consent form before the time out procedure, and that the word “vaginectomy” was therefore read out from the consent form during the “time out” part of the checklist. On the evidence, it would have been noticed by the team if the consent form did not include reference to a vaginectomy: there were a number of clinicians present and it would only have taken one of them to spot the discrepancy. The fact that an amendment was made to make it clear that the hysterectomy was to be carried out by laparoscope shows that the clinicians were focussed and paying close attention to the content of the form. He argues that the MPT should not have speculated as to possible reasons why the discrepancy might not have been noticed, and that it was not open to the MPT to find that it was possible that the Appellant had not been present at the sign in procedure.

Discussion: There is now no challenge to the MPT’s rejection of the evidence given by the Appellant and Dr Capece that Dr Capece had, on the morning of 29 October 2016, consented Patient A for a vaginectomy. The MPT gave clear and cogent reasons for that conclusion which were predominantly (but not exclusively) based on the fact that Patient A would not have given such consent. Having rejected Dr Capece’s account, it did not have any direct factual evidence as to the circumstances in which the amendment was made. It was clear that it was not written before the “sign in” procedure, again because this would have resulted in objection from Patient A. There would have been no reason for Dr Capece to make the amendment in the limited window between “sign in” and “time out”. He knew that he did not have Patient A’s consent. There would have been no motive or other rational reason, in advance of the surgery, for an amendment to be made to the consent form which Dr Capece would have known to be untrue. As the MPT found, “it was improbable that Dr Capece would encourage the surgical team to perform a procedure which he had no reason to believe Patient A wanted.” This reasoning is convincing. It does, however, leave open the question as to whether the discrepancy (ie the absence of vaginectomy from the consent form) could really have been missed at the “time out” procedure. In the absence of clear and reliable positive evidence on that issue, the MPT was entitled to consider the logical possibilities: if, on the evidence, it was not possible for the discrepancy to have been missed then that in itself would show that the amendment had been made before the commencement of the surgery.

More than one witness suggested that the discrepancy would have been noticed. However, on analysis of the evidence of each individual clinician (see paragraph 17 above) it is clear that, with the exception of the Appellant and Mr Capece, each individual witness readily accepted that they may well not have noted the absence of the word “vaginectomy”. So far as the Appellant and Mr Capece are concerned, the MPT was entitled to find, for the reasons it gave, that their evidence was not reliable. No doubt, if the Appellant had been present and fully focussed on what was being said, he would have noted the discrepancy. He was well aware that a metoidioplasty did not necessarily include a vaginectomy. He was also well aware that consent for the former was not sufficient consent for the latter. The MPT was, however, entitled to conclude that it had not been demonstrated on the evidence that the Appellant was present and playing close attention. It was, on the evidence, a possibility that he had not been present, or that he had been present but paying insufficiently close attention. Mr Rich had given evidence that he would have ensured that the Appellant was present, and Ms Kokka said that the “whole team” would have been present, but that evidence of their respective expectations falls short of infallible definitive testimony that he was in fact present throughout the process. The MPT was entitled to note the logical possibility that, for whatever reason, the Appellant had not been present (and there was positive evidence that he did, at one point, leave for a period of time to attend to other duties, albeit his case was that this was after the “time out” checklist had been completed). The MPT was likewise entitled to note the contrary possibility – that he had been present but had not noticed that the consent form did not include reference to a vaginectomy. The Appellant was, on his account, fully expecting to perform a vaginectomy. That was what the theatre list recorded. In the vast majority of cases a vaginectomy is performed at the same time as the second stage of a metoidioplasty. The reliability of the Appellant’s evidence and attention to detail had already been impugned (because of the rejection of his account that he had asked for a “double check”). Mr Reynard’s evidence was that his experience of the “time out” procedure is that the group “not infrequently are on auto-pilot and as such do not fully concentrate on the process.” Of course, this reflects Mr Reynard’s general experience rather than the approach that the Appellant, in particular, takes, but it does demonstrate that not every surgeon invariably pays meticulous attention to every detail of the “time out” process. On the totality of the evidence, it was entirely open to the MPT to countenance the possibility that the Appellant had not paid sufficient attention to notice the omission.

For these reasons I dismiss the first three grounds of appeal. The MPT was not wrong to find that the amendment was made after the “time out” procedure.

The Appellant correctly points out that the MPT accepted that the Appellant believed that Patient A had consented to a vaginectomy. That belief was based, in part, on a combination of communication failings and systemic failings. In those circumstances the Appellant contends it was irrational to find serious misconduct based on a single

Discussion: There had certainly been significant failings for which the Appellant was not responsible. These included the compilation of the booking form and the theatre list, both of which wrongly referred to a vaginectomy, and neither of which were the responsibility of the Appellant. The MPT rightly recognised these as significant errors. Mr Forde QC is also right to observe that the WHO checklist could be designed in a different way so as more clearly to rule out the possibility for errors in the consenting process.

These grounds of appeal do not, however, fully accommodate and engage with the MPT’s factual findings. The Appellant’s erroneous belief in Patient A’s consent was not wholly due to the booking form or the theatre list. It was also due to the fact that he did not see Patient A before the surgery, did not read Patient A’s notes with sufficient care, and did not adequately check that Patient A had consented to a vaginectomy. The characterisation of this as a “single failure” risks understatement. In any event, there is no rule of law that a single failing in respect of a single patient cannot amount to serious misconduct. A single failure may be less likely to meet the threshold of seriousness and culpability than multiple failings, but whether or not it does so is an assessment to be made on the evidence of a particular case.

The MPT heard evidence from two expert witnesses who were both (in the event that, as the MPT found, the amendment to the consent form was made after “time out”) highly critical of the Appellant’s conduct. Mr Prendergast said:

“Since Dr Garaffa did not meet personally with Patient A at any time prior to undertaking major surgery, and since the circumstances did not justify the delegation of the obtaining of written consent to a colleague, in my opinion he performed a vaginectomy without Patient A’s consent. In my opinion to operate upon Patient A without consent falls seriously below the standard expected of a reasonably competent consultant performing vaginectomy surgery.

I have concluded that this falls seriously below the standard expected since to treat the patient without consent is in breach of paragraph 17 of Good Medical Practice and could reasonably be characterised as an assault. The consequences to Patient A of undergoing a vaginectomy without consent are permanent and life-changing in that he has been deprived of any possibility of vaginal function.

…

In my opinion, the failure of Dr Garaffa to personally assess Patient A, the failure to adequately review the medical records, as well as the inappropriate delegation of [Dr Capece] to seek written consent, led directly to the destruction of Patient A’s vagina without consent. Although there is no reason to doubt that the surgical procedure was performed competently, the cumulative effect of the omissions listed above lead me to conclude that the overall standard of care fell seriously below the standard expected of a reasonably competent consultant performing vaginectomy surgery.”

Dr Raynard took a slightly different view in respect of the permissibility of delegating the consent procedure to Dr Capece, and suggested that there are many occasions when such delegation does take place. Nevertheless, he agreed with Mr Prendergast that it was a serious failure to perform a vaginectomy where there was no written consent:

“If the consent form that was read out at the WHO surgical timeout did not contain the word vaginectomy, then it was not reasonable for Mr Garaffa to conclude that a vaginectomy was to be performed and to have carried out a vaginectomy was a serious failure.”

Dr Raynard did not consider that the systemic failings absolved the Appellant from responsibility:

“In my opinion he did bear responsibility to check that things done in his name, as the consultant surgeon (as a surgical team leader) responsible for the safe running of his operating list, were done.

…

The final link in the chain was the failure, on the day, for Mr Garaffa to personally check that the correct procedure was undertaken and the checking behaviour failures of the surgical team on the day. As the consultant in charge for the urological aspects of the operating list, in my opinion Mr Garaffa must take responsibility for his failure to check what was done and what was not done on his Operating list.”

This evidence is consistent with the Respondent’s published guidance “Consent:

Although the MPT correctly found that there were systemic failings that contributed to the outcome, it was also right, on the evidence, to find that this did not absolve the Appellant of responsibility. It was right to reject the suggestion that he was just as much a victim of systems failures as Patient A. On the evidence, the Appellant had every opportunity to avoid the outcome that materialised, by doing that which he should have done. He therefore bore a significant degree of responsibility for the outcome. The expert evidence, the published guidance, and the MPT’s own sense, as an expert tribunal, of the standards of professional conduct that are to be expected, all pointed to a finding of misconduct. I do not consider that the MPT’s finding of misconduct can be faulted in any way.

The Appellant contends that the MPT was wrong to find an impairment of the Appellant’s fitness to practise given that the Appellant had changed his approach to ensuring consent and there was no evidence of repetition of the conduct (ground 5), that the MPT was wrong to find that he had only shown limited insight and had not taken full responsibility (ground 6), that the finding of a lack of insight went against the weight of the evidence and testimonials (ground 9), and that the MPT was wrong to find that the need to uphold, promote and maintain public confidence mandated a finding of impairment (ground 10).

Mr Forde QC submitted that it should be rare for a single failure involving a single patient to amount to either serious misconduct or impairment of fitness to practise, that this was a single incident in a distinguished career, that there were numerous, extensive and impressive testimonials (see paragraph 15 above), and that the Appellant had provided detailed evidence about his changes in procedure. He was strongly critical of the MPT’s finding that the Appellant had (only) remediated his conduct “to an extent” and its failure (as he suggested) to spell out what more the Appellant could or should have done. He contended that the Appellant was “entitled to assume” that Patient A had been appropriately and fully consented.

Discussion: I accept the submission as to the Appellant’s career and testimonials, that the misconduct concerned a single patient and that the Appellant had changed his approach.

However, in approaching the question of impairment, the MPT was required to have regard to the over-arching objective of protecting the public, which includes the objective of maintaining public confidence and proper professional standards (s35E(6) of the 1983 Act). An anaesthetised patient is in a paradigm position of vulnerability. The imperative for public confidence in the consent process that is carried out before an anaesthetic is administered is self-evident. For that reason, it is imperative that the medical profession ensures rigorous compliance with the consent requirements, as the expert witnesses both recognised, and as is made clear in published guidance. There was therefore no error in the MPT’s attention to the seriousness and consequences of the Appellant’s conduct when assessing if his fitness to practise was impaired. That is so irrespective of the question of remediation, insight and risk of repetition: the Respondent’s guidance makes it clear that an impairment can be found even where there is no risk of repetition (see paragraph 32 above).

In any event, the MPT was entitled to conclude that the Appellant had not fully remediated his conduct and that he had shown some, but not full, insight into the responsibility he bore for the outcome. The MPT recognised that he had changed his approach to consent and that he now conducted the consent process personally.

The MPT did make brief reference in its factual determination to the testimonial letters in support of the Appellant. Mr Forde QC fairly and accurately points out that it did not address them in any detail, and it did not separately explicitly reference them in the context of its determination as to impairment. Nevertheless, it clearly had them in mind. They portray a different picture (see paragraph 15 above) from the impression that might be gained from the facts of this single case viewed in isolation. However, the MPT took a holistic and balanced view of the case. I am satisfied that although it did not reference the detail of the testimonials, it fully took them into account (see, further, ground 12 below), as well as the submissions that were advanced by reference to them on the Appellant’s behalf. There is nothing in its reasoning or conclusion that can be said to be wrong.

The Appellant contends that the MPT failed to give sufficient weight to the finding that the Appellant had made an “honest mistake” (ground 11), failed to attach sufficient weight to the testimonial evidence (ground 12), failed to give sufficient weight to the

Mr Forde QC is critical of a submission that was advanced by the Respondent before the MPT (not by Ms Hearnden) to the effect that the Appellant had been dishonest in his evidence to the MPT. He argues that “at worst” the Appellant’s evidence comprised an honest but mistaken recollection of events. Moreover, there could be no suggestion that the Appellant was complicit in, or responsible for, Dr Capece’s dishonest amendment of the consent form.

Discussion: The MPT explicitly had regard to the Respondent’s published guidance on indicative sanctions. It took account of the aggravating and mitigating features. As to the former, it identified the serious and avoidable nature of the incident which itself involved numerous failings amounting to a relinquishment of the Appellant’s responsibility to ensure that consent had been obtained, the serious and irreversible consequences for Patient A, and the Appellant’s limited insight. The MPT was entitled to regard each of these as aggravating features. In mitigation it took into account that only one patient was involved (and “to this extent” it was a single / isolated incident), that it was a genuine mistake, that there was a degree of remediation in that the Appellant had changed his practice so that he now consented his patients himself, that he had accepted personal responsibility, was remorseful and genuinely regretted the incident, that there had been a lapse of time since the incident with no repetition, and that the risk of repetition was low.

Insofar as the MPT took a different view of remediation and insight from that which has been advanced by Mr Forde QC it was entitled to do so for the reasons given above (see paragraph 54). Aside from the question of testimonials, it has not been suggested that there is any other factor that the MPT did not take into account in mitigation. As to testimonials, it is right that their content is not explicitly mentioned as a mitigating factor. However, the MPT recorded that it took into account “the documentary evidence adduced” (which included the testimonials) and its recognition that this was an “isolated incident” (in the sense it described), and its later reference to an “otherwise unblemished career” is entirely consistent with the glowing content of the testimonials. It took into account the fact that the Appellant worked “in a very specialised field” and that there was “a public interest in his returning to safe practice.”

To the extent that the GMC had submitted that the Appellant had given dishonest evidence, it is clear that the MPT did not accept that submission. It did not make any finding of dishonesty against the Appellant, and its findings on sanction were entirely consistent with its finding that this had been an “honest mistake.” The MPT adopted the approach that is prescribed by the Respondent’s published guidance on the imposition of sanctions. It considered the lowest possible sanction first, only moving up the sanctions ladder once that was rejected. The sanction imposed, 5 months suspension, fell short of the ultimate sanction that could have been imposed (erasure from the register). It also fell short of the maximum period of suspension that could have been ordered, which was 12 months. It was also not imposed with immediate effect.

The MPT was not just entitled, but required, to have regard to patient safety and patient confidence. By doing so it was not adopting a “device” to circumvent such insight and remediation as had been demonstrated. Rather, it considered the evidence of insight and remediation in the context of its statutory obligation to assess the appropriate sanction with regard to the objectives of protecting the public, including promoting and maintaining public confidence, and proper professional standards. That was the correct approach.

It was faintly suggested that the Appellant’s sanction did not bear comparison with the sanction imposed on Dr Capece (a 12 month suspension) given that the latter had acted dishonestly. However, the latter sanction was significantly more stringent – the length of suspension being 140% greater than that imposed on the Appellant, the Appellant was the more senior doctor, and it was the Appellant who bore ultimate responsibility for ensuring that Patient A had consented. Whether or not Dr Capece was fortunate not to face a sanction of erasure from the register, the decision in Dr Capece’s case does not indicate that the decision in the Appellant’s case was wrong.

I am therefore satisfied that there was no error in the MPT’s finding on sanction. Outcome

There is no error in the MPT’s conclusions that:

The appeal is therefore dismissed.