Chauhan v General Medical Council [2010] EWHC 2093 (Admin)
The appellant worked as a consultant
orthopaedic and trauma surgeon, employed by Southend University NHS
Trust. This was the appellant's first position as a consultant
following completion of his Specialist Registrar training. The
allegations related to his application for that post, and his time
within the post itself.
It was alleged (amongst other matters) that
the appellant had provided misleading information and had acted
dishonestly in having claimed, as part of his application for the
post, that he had broad experience in revision surgery and hip
resurfacing; and, in having implied that he had sufficient
experience to carry out a technique known as Birmingham Hip
Resurfacing (BHR) himself. It was further alleged that the
appellant did not have sufficient experience to carry out the BHR
as sole or lead surgeon (the evidence relied on in this respect
related solely to the nature and extent of the appellant's training
in BHR), and that he had provided, in effect, inconsistent
information as to the amount of procedures in which he had taken
part.
In his written application the appellant had
stated that he had "a broad surgical ability in lower limb
arthroplasty and revision arthroplasty and this extends to hip
resurfacing…" This was repeated in his CV together with reference
to him having "amassed experience in lower limb surgery" including
experience in "primary and revision arthroplasty of the hip and
knee…further extended to hip resurfacing" (among other areas
mentioned). Prior to his appointment, the appellant was interviewed
by six people including Mr Packer, Clinical Director of the
department and a specialist in upper limb surgery, and Mr Sudlow,
consultant orthopaedic surgeon and representative of the Royal
College of Surgeons and a representative of the Deanery.
No evidence was adduced from either the
Deanery or the Special Advisory Committee representative as to the
meaning, if any, attached to the words "broad surgical ability" as
referred to in the appellant's application and CV. Mr Packer stated
that he understood that to mean that an individual would be able to
take part in those procedures at an unsupervised level so as to
operate independently. In respect of BHR, the evidence was that
there was no specific mention of that procedure during the course
of the interview process, other than a question regarding the NICE
guidelines regarding the procedure.
It was common ground before the Committee that
the appellant's training in respect of BHR did not involve him
undertaking the procedure as a principal or single-handed surgeon.
The nature of such training could not be said to be insufficient to
enable the appellant to undertake the procedure as a single handed
consultant. The appellant had undertaken a number of standard and
revision hip and knee replacements as principal surgeon. Evidence
before the Committee suggested that the appellant was considered to
be a very safe competent surgeon.
Once appointed to the role the appellant had
expressed an interest in undertaking the BHR procedure. Whilst
there was some question of whether he had been advised by Mr Packer
to first establish himself within the department on routine
procedures prior to carrying out the BHR, from 2003 the appellant
began performing the procedure on patients referred to him by his
colleagues. There were two cases which resulted in the referral to
the GMC, the first of which occurred in November 2004 involving the
BHR procedure as part of an autologous cartilage transplantation
(ACT), and the second of which occurred in June 2005 involving the
BHR procedure in the treatment of a trauma case.
During the course of the internal
investigation, the appellant was suspended both at a local level
and also by the GMC on an interim basis. The Trust arranged for the
appellant to undertake a programme of re-training and remediation
in orthopaedics and trauma surgery with a view to re-integrate the
appellant into practice. The evidence at the substantive GMC
hearing was that the appellant had undertaken a substantial portion
of the training and had been signed off as competent in orthopaedic
surgery.
The internal investigation found that the
appellant had not engaged in any conduct justifying disciplinary
action and it dismissed the allegation that the appellant had acted
dishonestly in claiming to be appropriately trained in BHR. It
concluded that the appellant's performance of the procedure was
commensurate with that of a surgeon at his stage on the learning
curve. A report from the independent Inquiry into the actions of
the appellant, which became available during the fact finding stage
of the GMC hearing, recommended that no disciplinary action should
be taken against the appellant and that he should be permitted to
undertake a period of re-training and observation so as to address
the period during which he had been suspended.
The ftp Committee found that during the
application and interview process, the appellant dishonestly
exaggerated his experience thereby deliberately misleading his
employers. In so finding, the Committee stated:
"…the panel considers that you exaggerated
the extent of your experience by claiming in your CV to have 'broad
surgical ability in lower limb arthroplasty and revision
arthroplasty and this extends to hip resurfacing'. The panel has
reached a commonsense conclusion that this meant to anyone reading
your CV, that you had experience of performing the procedures as
sole or lead surgeon".
In respect of whether the appellant had
implied that he had sufficient experience to carry out BHR himself,
and whether he had sufficient experience to carry out the procedure
as sole or lead surgeon, the panel found that whilst the
appellant's training had been sufficient for him to undertake BHR
procedures in a supportive environment, it was insufficient for the
purposes of carrying out the procedure at Southend.
In respect of the fact finding stage of the
GMC proceedings, the appellant appealed on the following
grounds:
- the Committee failed to confine itself to the
proper ambit of the charges
- the findings were not supported by the
evidence and inadequate reasons
- bias, as a result of the manner in which
issues were raised and dealt with by Committee members, and a one
sided evaluation of the evidence
In considering the appeal the Court confirmed
that at stage one of the ftp proceedings, the Committee is required
to make material findings of fact and in doing so are confined to
the heads of charges. Material findings of facts, which in
themselves could have been the subject of a charge, but which were
not so pleaded, could not stand. Furthermore, it is well
established that the charges should be precisely framed and that
the evidence should be confined to the particulars in the
charges.
The Court rejected the arguments alleging bias
and overall unfairness of the proceedings. However, it did allow
the appeal in so far as the Committee failed to confine itself to
the proper ambit of the charges, and reached findings which were
not supported by the evidence.
The court found that the Committee's findings
focused upon charges which were never part of the Notice of
Hearing. The appellant was not charged with having misled his
employers in relation to his experience in lower limb surgery and
on the evidence it would have been difficult to sustain such a
charge. The Committee also focused on the assertion of broad
surgical ability; however, this was not within the express terms of
the assertion complained of in the charge, nor did the charges
allege that he had held himself out as someone who could perform
the procedures as a "sole or lead surgeon". Furthermore, the
Committee did not have sufficient expertise to reach a "commonsense
" conclusion, in the face of expert evidence to the contrary.
The Committee also stated in their findings
that the appellant had falsely implied that he had been trained by
a particular person in respect of the BHR procedure. The Court
found that as this related to comments which the appellant had made
after having taken up his post, it could not be used to inform a
decision in respect of what had occurred prior to that, during the
application process. In addition, the Court found that if the
Council wished to proceed with such a matter, it ought to have been
specifically pleaded.
In respect of whether the appellant had
implied that he had sufficient experience to carry out BHR himself,
the Court found that once again the Committee had re-interpreted
the charges in finding that the appellant had commenced BHR
procedures contrary to the advice of his Clinical Director, which
was a specific failing that had not been alleged and therefore it
was not open to the Committee to make such a finding.
In respect of the appellant having
insufficient experience to carry out BHR as sole or lead surgeon,
the Court found that the Committee had modified the charge, in the
reasons, by way of referring to the particular requirements of
Southend Hospital, an element of the case which had not been
pleaded. Furthermore, in referring to the appellant's experience
being sufficient if working with a "supportive environment" (when
compared with the environment at Southend) the Court found that it
was unclear as to what the Committee were referring in respect of a
"supportive environment".
Whilst the Court found in favour of the
appellant in respect of the Committee's findings in relation to the
BHR charges, it found against him in respect of the charges
relating to the ACT procedure on the basis that: the reasons given
by the Committee were sufficient, taking into account the case of
Gupta; there was adequate evidential foundation for the charges
found proved; and the Committee was entitled to reject the
appellant's evidence in respect there of.
In respect of impairment, the appellant argued
that the panel had unjustifiably decided to exclude from its
consideration the detailed findings of the Inquiry Panel. The Court
found that the Committee were justified in the approach they
adopted regarding the Inquiry report. Although there were some
areas of commonality between the Inquiry and the Committee, there
were matters considered by the Inquiry which were not before the
Committee. Furthermore the Court took into account that the
Committee had provided the appellant, at the time of the hearing,
with an opportunity to highlight those parts of the report he
claimed were relevant and which he wished the Committee to take
into account in determining impairment. However, the appellant had
chosen not to provide the information requested.
The Court noted that notwithstanding its
rejection of the argument that the Committee were wrong to exclude
from its consideration, the Inquiry report, the finding of
impairment could not stand, as a result of the Court having set
aside those factual findings relating to dishonesty on the part of
the appellant. In the circumstances the Court reserved judgement in
respect of whether the case should be remitted for consideration of
impairment, and whether extracts of the Inquiry report were
relevant to such a consideration, subject to further
representations from both parties.
Similarly in respect of sanction, whilst it
was argued that the sanction was wholly disproportionate and
excessive, the Court reserved judgement subject to further
representations from both parties in light of the Courts findings
in respect of the fact finding stage of the Committee's
decision.
