BMJ 2018; 362 doi: https://doi.org/10.1136/bmj.k3970 (Published 19 September 2018) Cite this as: BMJ 2018;362:k3970

1. Clare Dyer

https://www.bmj.com/content/362/bmj.k3970

Three Court of Appeal judges have overturned a High Court judge’s ruling that a doctor acted dishonestly and have urged the General Medical Council (GMC) to show restraint in appealing against findings of fact in favour of doctors in regulatory cases.1

A medical practitioners tribunal decided in February 2017 that Hemmay Raychaudhuri, a locum paediatric registrar, had not been dishonest and that his fitness to practise was not impaired. It gave him a formal written warning.

The GMC appealed, and a High Court judge substituted a finding that he had been dishonest. Backed by the Medical Defence Union, Raychaudhuri appealed against that decision, and the Court of Appeal has now ruled that the tribunal was right in the first place to find no dishonesty.

Lord Justice Bean expressed “regret” that the High Court appeal had been brought and added, “It should require a very strong case for a court to overturn a finding of the medical practitioners tribunal (or any comparable tribunal) that a doctor has not acted dishonestly.”

The judgment represents another loss for the GMC just a few weeks after the Court of Appeal ruled in the case of the trainee paediatrician Hadiza Bawa-Garba that a tribunal had been right not to strike her off the medical register.2

Raychaudhuri was a locum paediatric registrar working at the Royal Berkshire Hospital in 2014 when a 5 month old baby with Dandy-Walker syndrome was brought to the emergency department. Before he had seen the patient he used a letter from the baby’s GP and medical records to begin filling in the examination section of the paediatric initial assessment form. He was called away to see another patient and explained that he had intended to use the form as a prompt or memory aid, confirming or amending the entries after the examination.

The tribunal found that, in a later telephone conversation discussing the incident with the on-call consultant, Raychaudhuri had made misleading statements but had not been dishonest. At the High Court Mr Justice Sweeney ruled that the decision had been “wrong” and that the registrar’s fitness to practise was impaired.

At the Court of Appeal Lord Justice Sales said that the tribunal’s assessment was that Raychaudhuri had intended to examine the baby and that, although his actions were wrong, the form had been taken from his desk by others through an unfortunate set of circumstances. He had been open and honest with colleagues about what he had done, and his evasive answers to the consultant “were not part of a truly dishonest effort to cover up what he had done.”

Lord Justice Bean said that the tribunal had given “anxious consideration” as to whether Raychaudhuri’s conduct could be regarded as dishonest, having heard witnesses over several days. He said, “They were well placed to make an evaluative judgment of the nuances of how the various individuals had interacted and that judgment should have been accorded great weight, not only by the court but by the GMC in deciding whether to bring an appeal at all.”

In the wake of an outcry by doctors over the GMC’s decision to appeal in Bawa-Garba’s case, the government has announced that the regulator will lose its right to appeal against tribunal findings. But the GMC has stated that it intends to continue using its appeal powers in the meantime.

A GMC spokesperson said, “We will reflect on the decision and the judges’ full comments, as we do in all cases.”

Caroline Fryar, the Medical Defence Union’s head of advisory services, said, “Doctors are profoundly affected by fitness to practise proceedings and, understandably, considerably relieved to learn the tribunal has made a finding in their favour.

“Most doctors don’t understand they are still in peril of having this finding appealed and many think this is unfair. This case addressed an important point of principle, as well as vindicating our member, and we are pleased the appeal was successful.”

1. ↵Dr Hemmay Raychaudhuri v General Medical Council. [2018] EWCA Civ 2027. www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2018/2027.html&query=(title:(+raychaudhuri+)).
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   1. Dyer C
   2. . Hadiza Bawa-Garba wins right to practise again. BMJ2018;362:k3510. doi:10.1136/bmj.k3510 pmid:30108043FREE Full TextGoogle ScholarWhat's something exciting your business offers? Say it here.

BMJ. 2005 Oct 22; 331(7522): 924.PMCID: PMC1261219

Clare Dyer 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1261219/

A "uniquely talented" plastic surgeon who was erased from the medical register by the General Medical Council earlier this year for having a sexual relationship with a patient won a High Court ruling last week. The court quashed the decision and substituted a suspension of 12 months.

The judgment in the case of Henk Giele spells out that the correct approach in such cases is not to consider erasure the rule, in the absence of exceptional circumstances.

Mr Justice Collins said that the advice given to the GMC panel by its legal assessor had been erroneous. The assessor had advised the panel that sexual misconduct tended to attract erasure but that "if you feel there are exceptional circumstances you may reduce that to suspension." Mr Justice Collins said that the panel had to start with the least severe sanction and work its way up.

The judge said that the panel, in deciding whether the maintenance of public confidence required erasure, could take into account "the existence of a public interest in not ending the career of a competent doctor." Furthermore, the views of patients and colleagues who knew of the misconduct but who felt that erasure was not needed could carry some weight in the decision.

Mr Giele, 40, an Australian, moved to Britain in 1995 as an overseas fellow in plastic surgery at the Radcliffe Infirmary in Oxford and has been employed since 1997 there and at the Nuffield Orthopaedic Centre as a consultant plastic, reconstructive, and hand surgeon.

In October 2001 he began a year long affair with Mrs A, now 41, whom he had been treating for necrotising fasciitis. The judge said Mr Giele had led a major operation on Mrs A that had "undoubtedly saved her life" and performed two further operations.

The surgeon denied the affair, claiming that Mrs A had a psychosis or erotomania. She was required to give evidence during a 29 day GMC hearing at which expert witnesses testified about her state of mind. The GMC panel found that she had depression, not a psychotic illness, and believed her story. Mr Giele was struck off the register in March 2005.

The judge said Mr Giele had no reason to believe that Mrs A had psychiatric problems when the affair started, but he continued the relationship after learning that she was seeing a psychotherapist.

She had "set her cap" at the surgeon, of whom she admitted she was "in awe" after he saved her life. He had used the affair to some extent for his own sexual gratification, but Mrs A’s treatment had not been compromised.

The judge said the testimonials from colleagues and patients used "adjectives such as outstanding, excellent, invaluable, and irreplaceable." The surgeon had been "prepared to undertake surgery which has been beyond the capacity of many others and has often been successful."

Synopses of earlier cases, including sanctions, put before the GMC panel were "entirely unhelpful," said the judge. Before 2000 a doctor who had been erased could apply for reinstatement after 10 months. Now, erasure was for a minimum of five years, which for some doctors, particularly older ones, spelled the end of their career.

He ruled that Mr Giele should be suspended for 12 months, with a hearing at the end of that time to determine whether any further action needed to be taken.

The General Medical Council (GMC) does not usually investigate allegations that are more than five years old but does this rule pose a public safety risk?

https://stephenmccaffreybarrister.com/gmcs-five-year-rule/

The GMC’s fitness to practise rules set out in law.  Rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 state:

“No allegation shall proceed further if, at the time it is first made or first comes to the attention of the General Council, more than five years have elapsed since the most recent events giving rise to the allegation, unless the Registrar considers that it is in the public interest for it to proceed.”

Under what has become known as the “five-year rule”, no allegation against a doctor should proceed further if more than five-years have elapsed since the actual date upon which the most recent events giving rise to the allegation took place.

It is worth saying that the Courts have confirmed that “The date upon which an event or an alleged event took place (as opposed to the event itself) is an objectively verifiable fact.”  It therefore flows that it is also open to the GMC to review a decision under Rule 4(5) – i.e. a decision to consider or discount an allegation.

The Court ruling stems from a case in 2015 where a Dr Chaudhuri allegedly misdiagnosed a patient who he saw on three occasions in 2008.

On 26 July 2013, a relative of Patient A lodged a complaint against the doctor with the GMC. In the complaint letter it was stated that Dr C saw the patient on three occasions in April, June and August 2008.

When the complaint was received by the GMC, it initially concluded that on the allegation dates, the five-year rule was not engaged but this was based on wrong information.  Further information revealed that the last consultation had in fact been on 22 May 2008, which was over five years.  However the GMC refused to reconsider its initial decision despite the error being pointed out to them.

Consequently, Dr Chaudhuri brought a Judicial Review claim against the GMC.  The High Court (and subsequently Court of Appeal) quashed the GMC decision.

Thousands of people in the UK were infected with hepatitis C and HIV in the 1970s and 1980s as a result of receiving contaminated blood products 

Doctors “culpable” in blood scandal THOMAS FREDBERG/SPL 

 Cite this as: BMJ 2017;358:j4121 

The former Labour health secretary for England has told The BMJ that he has seen evidence of individual clinicians’ wrongdoing during his research into the scandal over contaminated blood in the 1970s and 1980s. In an interview with The BMJ Andy Burnham, currently mayor of Greater Manchester, who has been one of the most vociferous advocates for a fresh inquiry into how contaminated blood transfusions infected thousands of people with hepatitis C and HIV, said that he had evidence that could show that doctors and nurses acted unethically when treating patients who had received contaminated blood products. In July this year the UK prime minister, Theresa May, pledged to set up a full inquiry after many years of lobbying by MPs and campaigners. Burnham, who has urged the government to move the new inquiry out of the hands of the Department of Health to ensure it has the backing of affected patients and their relatives, wants its scope to include the role of individual clinicians. “I have many examples of individual malpractice: tests being done without people’s consent; test results being withheld, which in the end lead to secondary infections,” he said. “That is unethical and seems to me to break the code of ethics that all doctors work under. “I have two examples of medical records [having been] amended, [in one case] to suggest that liver damage was self inflicted rather than caused by contaminated blood. There are multiple examples of individual wrongdoing or malpractice or unethical behaviour.” Burnham said that the inquiry should consider whether individual clinicians’ behaviour was in response to “a central instruction of some kind or a professional body giving instructions,” and said a government inquiry was more appropriate than seeking to refer individuals to the police or the General Medical Council. “If you just approach this from examining the individual cases, I don’t think you’ll understand the context of what lay behind this, and clearly there was context at the centre,” he said. “I think it’s only when you put together papers held at local level with what was going on at national level that the full picture will emerge.