Appeals Circular A 03/13 25 February 2013 To: Fitness to Practise Panel Panellists Legal Assessors Copy: Interim Orders Panel Panellists Investigation Committee Panellists Panel Secretaries Medical Defence Organisations Employer Liaison Advisers Re: Dr Ashish Dutta v GMC [2013] EWHC 132 Admin Background Dr Dutta appeared before a Fitness to Practise Panel ( panel ) which held a nine day hearing between 18 June and 28 September 2012 in relation to charges in respect of his alleged care and treatment of Patient AS. The panel directed that his registration be suspended for a period of 12 months having made findings of misconduct and impairment of his fitness to practise. Dr Dutta appealed against the decision of the panel in relation to its findings in relation to Charge 1, that while suspended by the Interim Orders Panel ( IOP ) between 18 September 2009 and 15 March 2010, he provided clinical care and treatment to Patient AS which was in breach of his IOP order and not in the best interests of the patient. He also appealed the sanction of suspension from the Medical Register for a period of 12 months on the basis that it was disproportionate. Appeal Dr Dutta s appeal was considered by Mr Justice Haddon Cave on 12 December 2012 with judgment being given on 1 February 2013. The Judge sets out the facts in relation to the case (paragraphs 4 17), in particular the charges faced by Dr Dutta (paragraph 12) and the panel s decision and their reasons (paragraphs 15 17).
The Judge sets out the grounds for appeal (paragraph 19), Counsel for Dr Dutta s submissions in relation to Charge 1 in paragraphs 20 21 and her submission in relation to sanction at paragraph 22. He then goes on to set out relevant sections of the Medical Act 1983 (as amended) (paragraphs 24 31). Mr Justice Haddon Cave then sets out his analysis of the issues under three main headings as follows: Charge 1 (a) provided clinical care and treatment to patient AS whilst suspended The Judge notes that Counsel for Dr Dutta s main submissions in relation to Charge 1(a) were: 1) Dr Dutta did nothing in relation to Patient AS that he was not entitled to do under the Medical Act 1983. 2) It was not open to the panel to find Dr Dutta guilty of holding himself out as a registered medical practitioner; the doctor said he was not specifically charged with this offence (paragraph 32). He summarises matters and confirms that Counsel for Dr Dutta was wrong on both counts and moreover that the appeal was thoroughly unmeritorious (paragraph 33). He goes onto say: As to her first argument, it is clear that Dr Dutta was doing the one thing he was not supposed to do under the Medical Act 1983, namely, continuing to practise whilst suspended. As to her second argument, the charge was broadly framed and its gravamen clear, namely, continuing to practise whilst suspended. It plainly covered the Panel s essential finding that Dr Dutta provided clinical care and treatment to Patient AS whilst holding himself out as a registered doctor. There was, moreover, no unfairness to Dr Dutta. He admitted during cross examination that he understood his suspension meant I could not have any patient contact as a doctor to a patient. (Day 6/ 30G). This is, however, precisely what he did. The Judge then goes on with his analysis in detail (paragraphs 34 45) setting out what he considers to be the pertinent points as follows: 1) Contrary to what maybe general perception, there is no blanket restriction in the UK on the ability for one individual to provide medical care to another (paragraph 34). 2
2) It follows that there is nothing to prevent an ordinary lay person, or a non registered medical practitioner, from administering medical treatment to another person, so long as he or she does not engage in activities that are the exclusive preserve of registered medical practitioners (paragraph 35). 3) Suspended medical practitioners are treated under the legislation as no longer registered or licensed (paragraph 36). It therefore follows that the privileges conferred by the Medical Act 1983 as amended are no longer available to suspended doctors. 4) One of the main preserves and privileges of being a registered medical practitioner entered on the Medical Register is being entitled to hold oneself out as a duly registered and licensed medical practitioner under the Medical Act 1983 (paragraph 37). 5) It follows that it is not open to a doctor who is suspended from the register to provide clinical care and treatment to a patient in his capacity as a registered medical practitioner (paragraph 38). 6) There was never any suggestion that Dr Dutta had come clean with Patient AS at any stage (paragraph 39). 7) The only issue at the panel hearing in relation to Charge 1(a) was whether what Dr Dutta actually did when on the several occasions he saw Patient AS during his period of suspension could be said to be de minimis, or whether it amounted to providing clinical care and treatment (paragraph 40). 8) It follows that the panel were right to find that, in providing clinical care and treatment to Patient AS in the circumstances set out in paragraph 40 whilst continuing to assume the mantle of a registered medical practitioner, Dr Dutta was clearly in breach of his IOP suspension order (paragraph 41). 9) The wording of Charge 1(a) is clearly broad enough to cover the panel s findings (paragraph 42). 10) The GMC s letter must also be read against the backdrop of the legislation as a whole. The Medical Act 1983 makes it clear that one of the main privileges of being a registered medical practitioner is being entitled to hold oneself out as a registered medical practitioner. By providing clinical care and treatment to Patient AS whilst suspended, Dr Dutta was clearly holding himself out as a registered and licensed medical practitioner in violation of sections 49 and 49A of the Medical Act 1983. By providing clinical care and treatment to Patient AS Dr Dutta was, therefore, in breach of his IOP order (paragraph 43) 3
In the circumstances Mr Justice Haddon Cave confirmed that Counsel for the doctor s contention in the grounds of appeal (set out in paragraph 19) is wrong. Accordingly, the decision of the panel on Charge 1(a) was correct. Dr Dutta was doing precisely what he admitted he knew he should not do whilst suspended, namely practising as a doctor whilst suspended, in breach of the Medical Act 1983 (paragraph 45). Charge 1(b) not in the best interests of patient AS This is dealt with in paragraphs 46 48. The first point he notes is that the term best interests is to be interpreted broadly. It has been construed by the court as including health and welfare, as well as medical treatment (paragraph 46). Counsel for Dr Dutta suggested that the panel had approached the question of best interests too narrowly. The Judge disagrees. In his judgment the panel had approached the question of best interests broadly and correctly as including both Patient AS medical and general welfare (the latter includes her understandable anger and distress at being treated by a doctor whom she was unaware was suspended) (paragraph 47). The Judge goes onto to say that it could not be suggested that there was no other doctor to whom Patient AS could have been referred and since Dr Dutta was not allowed to treat patients during his suspension he should have employed a locum doctor at his clinic. In summary the decision of the Panel on Charge 1(b) was correct (paragraph 48). Sanction 12 months suspension The Judge notes (paragraph 49) it is a well established principle that the Court will be very slow to interfere with the decisions of professional disciplinary bodies in relation to sanction and sets out details of the relevant case law. He goes on to note that the panel found 8 of the 11 charges faced by Dr Dutta proved and the Counsel for the doctor at the hearing had accepted that the first charge under Charge 1 was a very serious one the Judge goes on to say (paragraph 50): In determining its overall sanction, the Panel had regard to the fact that Dr Dutta took a deliberate decision to provide care whilst suspended and there were other charges to take into account which compounded the seriousness of his actions relating to his failure to act with expedition in the face of Patient AS clearly deteriorating post- operative condition. The charges relating to the inappropriate clinical treatment of Patient AS were also serious, in particular the fact that Dr Dutta conducted an operation that he was not qualified to conduct. The FPP gave very serious consideration to erasure but decided that a 12 month suspension was appropriate. 4
My Justice Haddon Cave concluded that the panel s decision on sanction is unimpeachable (paragraph 51). In the circumstances dismissed the Dr Dutta s appeal in its entirety. Salient Points The Judge provides a useful analysis of the factors to consider when determining whether an activity requires registration (paragraphs 34-43) The Judge confirms that the term best interests includes the health and welfare of patients, as well as their medical treatment (paragraphs 46-47) Panel Development Team 0161 240 7292 pandevteam@mpts-uk.org 5