Appeals Circular A11/13 14 06 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 Jonathan Richard Ashton v GMC [2013] EWHC 943 Admin Background Dr Jonathan Ashton appeared before the Fitness to Practise Panel ( Panel ) in July and November 2012. The Panel found that Dr Ashton s fitness to practise was impaired by reason of misconduct and determined that his name should be suspended from the Medical Register for a period of six months. Further, the Panel imposed an order of immediate suspension. Dr Ashton appealed in relation to the finding of impaired fitness to practise and the sanction imposed. The doctor on the morning of the hearing also issued an application asking the court to deal with the order of immediate suspension. Appeal The appeal was considered by His Honour Mr Justice Stuart-Smith on 18 March 2013. His judgment was given on 19 April 2013. HHJ Stuart-Smith set out the principles applicable to an appeal under section 40 in relation to the substantive sanctioned imposed and an application under section 38 in relation to an appeal against an immediate order (paragraphs 3-8).
The Judge then sets out in some detail the factual background in relation to the matters considered by the Panel and their findings in relation to facts, impairment and sanction (paragraphs 9-27). He thereafter sets out the grounds of appeal (paragraph 28) that the Panel erred in law and was wrong: 1. In determining that the single incident of writing a routine letter of referral when an urgent letter of referral was required was sufficient: (a) to amount to misconduct; or (b) to justify a finding of impairment of fitness to practise in respect of a doctor with a 33 year medical career and no other allegations of misconduct. 2. In determining that it was necessary or proportionate to suspend the doctor s registration for six months when conditions would have been workable and appropriate. 3. In determining that it was necessary or proportionate to impose an immediate order in all the circumstances. Ground 1(a): The finding of misconduct HHJ Stuart-Smith sets out Counsel for the doctor s points in challenging the finding of misconduct (paragraph 29) as follows: i) That the contents of the letter of referral, which Dr Archard [the GMC s expert witness] accepted, were very good. ii) That Patient A s case did not satisfy all the criteria laid down by NICE for cases requiring urgent referral. iii) That the referral was not treated as urgent by the specialist who received it, despite the satisfactory contents of the letter. iv) That the evidence available to the Panel at Stage 2 that Dr Ashton was no longer working in general practice and that evidence had been submitted that he was a competent and valued colleague in the work that he was now carrying out. The Judge sets out the submissions made by Counsel for the doctor in support. He thereafter sets out his discussion of the arguments put forward (paragraphs 33-57). 2
He confirms that what the Panel found to constitute misconduct was not the quality of the contents of the letter of referral but the fact the referral was marked routine and not urgent (paragraph 33). He goes on to say there was no substance in the submission based upon the terms of the NICE guidelines (paragraph 34). He then goes on to confirm that the fact the referral was not upgraded to urgent by hospital specialist was expressly addressed by the Panel, which pointed out that the hospital specialist did not have the benefit of clinically assessing the patient in person and did not know the patient s history: the specialist was merely making a judgment on the basis of Dr Ashton s referral letter and the list of current medication alone (paragraph 35). HHJ Stuart-Smith confirms that the GP s obligation to refer appropriately is free standing and independent of the obligations of the specialist (paragraph 35). He confirms that the Panel did not misunderstand Counsel for the doctor s reference to absolution in that a referral could be re-prioritised by specialists as absolving a referring physician from making the appropriate referral. Further, he confirms that the reference to absolution must been seen in context and the Panels reasons should not be construed with the same rigour as might be applicable when interpreting a statute or a detailed commercial contract. Adopting a fair, and contextual, reading shows that the Panel understood Counsel for the doctor s submission and rejected it. In HHJ Stuart-Smith s judgment they were right to do so. He confirms (paragraph 38): What was under scrutiny was Dr Ashton s conduct, not that of the hospital specialist. The Panel s reasons make clear that it understood (correctly) that the circumstances in which a hospital specialist makes his judgment differ from those applying to a general practitioner making a referral. That being so the Panel was correct to concentrate on the nature of Dr Ashton s conduct alone, and not to be deflected by reference to other non-comparable conduct or other cases decided on different facts. The final point raised by Counsel for the doctor he considered adds little substance to the question of misconduct save that it endorsed what the Panel already knew, namely that this was an isolated incident in a long career (paragraph 39). The Judge notes that the Panel had regard to the submissions made by Counsel for the doctor on the issue of misconduct and it reached its conclusion having expressly applied the correct test and had taken into account the case law to which it had been referred and expressly mentioned Nandi v GMC [2004] EWHC 2317 (Admin) as being particularly useful (paragraph 40). 3
The Judge then goes on to consider each of the cases upon which Counsel for the doctor relied as follows: Rao v GMC [2002] UKPC 65 (paragraphs 41-44); Silver v GMC [2003] UKPC 33 (paragraphs 45-49); and Nandi v GMC [2004] EWHC 2317 (Admin) (paragraphs 50-57). In summary, in relation to Rao, the Judge confirms that the success of the appeal stemmed directly from Legal Assessor s direction which was materially defective and therefore the Privy Council had not reached a decision that Dr Rao s conduct was not serious professional misconduct (paragraph 44). In relation to Silver, the Judge notes, that although the Privy Council allowed the appeal, it did not do so on the basis of the doctor s submissions. The Privy Council identified that the Professional Conduct Committee ( PCC ) had made its finding of serious professional misconduct before taking into account matters that were relevant to that finding (paragraph 47). The Judge then goes on to consider the case of Nandi where the finding of serious professional misconduct was challenged on two grounds - firstly that no reasonable tribunal could have made the findings of fact; and, secondly, that taken at their highest, the findings did not disclose serious professional misconduct (paragraph 51). The Judge in that case rejected the first head of challenge but upheld the challenge to the finding of serious professional misconduct as there was ambiguity in the PCC s determination. In the relation to the decision in Nandi HHJ Stuart-Smith notes the following points (paragraph 54) that the Judge, in that case: i) identified two clear errors in the approach of the PCC. ii) engaged in a detailed review of the underlying facts. iii) accepted that the PCC could regard conduct which fell below the standard to be expected and below that required by good medical practice as capable of amounting to misconduct, but he emphasised the need to have regard to what the doctor actually did. iv) his decision related specifically to the facts of the case he was considering. HHJ Stuart-Smith concludes (paragraph 55) that he was unable to agree with Counsel for the doctor s submission that the three cases lead to the conclusion that Dr Ashton was not guilty of misconduct: i) Neither Rao nor Silver held that the PCC in those cases would have been wrong if it had addressed the issue correctly and concluded that the conduct in question had amounted to serious professional misconduct. 4
ii) On a detailed review of the facts of Nandi all that had been shown was a simple failure to comply with guidance and Good Medical Practice. That does not show or even suggest that Dr Ashton s conduct should be characterised in the same way. iii) Having reviewed the evidence and the materials available he was not satisfied that the Panel omitted, misinterpreted or took an erroneous view of the facts of this case. iv) Rao, Silver, and Nandi were decisions on their own facts and he was not persuaded by comparison of the facts of the three decisions with the facts of Dr Ashton s case that an argument could properly be made by analogy that his conduct did not amount to misconduct. He goes on (paragraph 55): What is obvious is that the Panel was referred to the three cases and took them into account; and that the panel was better placed than the Court to judge the gravity of Dr Ashton s conduct because of its expertise and the fact that it had heard the evidence that underpinned its findings. The Panel applied the correct legal test, namely whether Dr Ashton s failure was deplorable or an elementary and grievous failure ; and there was uncontradicted evidence from Dr Archard upon which it was fully entitled to conclude, applying its expertise, that his failure merited those descriptions. In the circumstances the Judge was not persuaded the finding of misconduct was wrong. Although it is not necessary for him to say so, he considered it was clearly right. In the circumstances Ground 1(a) Dr Ashton s challenge failed (paragraph 57). Ground 1(b): Impairment of Fitness to Practise The Judge summarises Counsel for the doctor s submissions and those of Counsel for the GMC (paragraphs 58-59). He thereafter sets out his discussion in relation to the issues (paragraphs 60-66) in respect of the first argument put forward on the use of the word deficiencies at points in the determination of impairment. The Judge considers that the argument was of no substance or merit and was rejected (paragraph 60). HHJ Stuart-Smith notes that the real problem for the Panel (and for the court) was the absence of any evidence or indication that Dr Ashton had any insight into the seriousness of what he had done. He chose not to give, or call, evidence at stage 1 of the enquiry. After the findings of fact were made in July 2012, there was a period of four months before the November hearings when it would have been open to Dr Ashton to submit evidence going to his appreciation of his misconduct and the issue of impairment, but he chose not to do so (paragraph 62). 5
The Judge confirms that even if, in principle, Dr Ashton s fitness to practise might have been easily remediable there was no evidence that it was remediable, in fact, in Dr Ashton s case or that he had made any efforts towards remediation of his proved deficiencies. In the circumstances the Judge considers the Panel was entitled to take this into account as a matter of significant concern and weight in relation to the issue of impairment (paragraph 63). He goes on to confirm that Dr Ashton s failure to acknowledge that his conduct was inadequate went beyond merely not admitting the charge when it was laid against him, since it was persisted in for the months following the determination of facts right up to the Panel s determination and continued to the date of the appeal hearing. He goes on to say (paragraph 64): It would have been open to Dr Ashton to acknowledge that his conduct had been inadequate in respect of the matters alleged at any stage. He could have done so formally through his counsel, or by the submission of a letter or evidence of his own. He could have done so in terms which accepted that his inadequacy justified findings of misconduct and, if he wished, impairment; or he could have done so in terms which, while accepting that he had fallen below proper standards, kept open either or both of those issues. In the event he did nothing. He concludes in relations to this head of challenge (paragraph 65): The criticism of the Panel s reference to Dr Ashton breaching a fundamental tenet is equally semantic and unfounded. It is submitted that the fundamental requirement was for the doctor to make a referral to the correct specialist and to provide the specialist with the necessary information for them to follow up on the referral appropriately. That submission fails to recognise the thrust of what the Panel was saying: in order to discharge the fundamental tenet of the profession which required Dr Ashton to protect the health of Patient A and to provide a good standard of practice and care, Dr Ashton should have referred Patient A urgently. His failure to do so was therefore a breach of the fundamental tenet. That was a breach which the Panel was entitled to conclude was liable to undermine public confidence in the profession if the full facts were known. In the circumstances the Judge determined that Ground 1(b) of Dr Ashton s challenge failed (paragraph 66). Ground 2: Sanction of 6 Months Suspension The Judge sets out briefly the submission of Counsel for the doctor and GMC (paragraphs 67-68) and thereafter sets out his discussion of the issues (paragraphs 69-75). 6
He notes that the Panel concluded that for reasons given in their determination the imposition of a sanction was necessary and in doing so referred to the need to protect the public, declare and uphold proper standards of conduct and behaviour and maintain public confidence in the medical profession. As the authorities cited above show, these were appropriate criteria for the Panel to apply and no error of law was shown (paragraph 70). The Judge then goes on to consider paragraphs from the GMC s Indicative Sanctions Guidance (paragraph 71). He notes that although the guidance indicates that conditions might be most appropriate in cases following a single incident, it does not follow they will be. For the reasons already given, the Panel was not satisfied that Dr Ashton has displayed insight and was justified in taking that view (paragraph 72). He concludes (paragraph 74): Viewed overall, the decision to impose the sanction of suspension was reasoned and has not been shown to be unreasonable so as to justify the Court in substituting a different sanction or no order at all. Comparing the terms of the Panel s determination with the paragraphs of the Guidance to which I have referred shows that the Panel kept that guidance in mind and applied it. In particular, [57] provides no support for Dr Ashton s submission that the order for suspension was unnecessary and disproportionate; nor does Raschid, which highlights that punishment is neither the only nor necessarily the primary driver for the Panel considering sanction. In the circumstances Ground 2 of Dr Ashton s challenge failed (paragraph 75). Ground 3: Immediate order of suspension Whilst Counsel for the doctor acknowledged that the Panel may impose an immediate order she considered that none of the criteria for the imposition of such an order were present. This was disputed by Counsel for the GMC (paragraph 76). The Judge sets out his discussion of the issues (paragraphs 77-83). HHJ Stuart-Smith acknowledges that the Panel stated the correct test and that the core of its reasoning appeared to have been that irrespective of his field of practice, a medical practitioner must be able to assess the clinical needs of his patient and make urgent referral decisions when required to do so. Then noted again Dr Ashton s failure to acknowledge his error and concluded that It therefore cannot be satisfied that his misconduct would not be repeated (paragraph 79). The Judge confirms that even making due allowance for the Panel s expertise he was unable to accept the reasons given by the Panel justified the imposition of an immediate order. Given the finding of misconduct and impairment Dr Ashton was highly unlikely to 7
return to general practice in the interim and it was therefore not possible to identify any rational basis to finding any material risk existed against which it was necessary to protect the public (paragraph 80). The Judge acknowledges the public interest is broader than the need to protect members of the public. The Panel appeared to have regarded the public interest justification to have lain in the maintenance of public confidence in the medical profession and declaring and upholding proper standards of conduct and behaviour. He confirms (paragraph 81): Whilst these are very important purposes that are closely related to the Panel s power to impose sanctions, it is again hard to see why public confidence would be eroded by permitting Dr Ashton to practise in a remote field of medicine during the relatively short appeal period; and the upholding of proper standards of conduct and behaviour may reasonably be said to have been achieved by the Panel s decision to impose the 6 months suspension, without the need for an immediate suspension as well. He concludes (paragraph 82): In my judgment, this Ground of Appeal is finely balanced. On the one hand, the Court should pay due attention to the views of the primary decision maker and should not simply engage in a resentencing exercise. On the other, having examined the reasons given by the Panel, they appear to be very thin and not materially supported by reference either to the terms of s. 38 of the Act or to the terms of [121-126] of the Indicative Sanctions Guidance. Although the matter is finely balanced, when the balance is struck I consider it falls decisively in favour of Dr Ashton and that the Panel s order to impose the immediate suspension was unjustifiable and wrong. In the circumstances Ground 3 of Dr Ashton s challenge succeeds. Salient Points Absent evidence or indication that a doctor has insight into the seriousness of what he/she has done, even if matters are easily remediable and there is no evidence they have been remedied a finding of impairment is inevitable. The imposition of an immediate order after a finding of impairment should be carefully considered and not imposed as an inevitable consequence of the finding. Panel Development Team 0161 240 7292 pandevteam@gmc-uk.org 8