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||Neutral Citation Number:  EWHC 778 (Admin)
||Case No: CO/4007/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TURNER
Martin Forde QC (instructed by Weightmans) for the Claimant
Tom Kark QC (instructed by Capsticks) for the Defendant
Hearing dates: 17th to 19th February 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
The Hon Mr Justice Turner:
- The appellant, Dr Radeke, was employed by King's College Hospital as a Consultant in Oral Surgery.
- In 2012, things went disastrously wrong when one of his patients died in the aftermath of his treatment. He was subsequently investigated for alleged misconduct arising out of this and two other cases.
- On 31 July 2014, the Professional Conduct Committee ("the Panel") of the General Dental Council ("GDC") determined that Dr Radeke's name should be erased from the Dental Register. Dr Radeke had admitted some of the charges against him but the Panel found that other allegations relating to clinical failings had been made out and, very seriously, that he had attempted dishonestly to cover up what had really happened during the course of his treatment of the patient who had died.
- Dr Radeke appealed to this court under Section 29 of the Dentists Act, as amended by paragraph 19 of the Dentists Act 1984 (amendment) Order 2005, challenging the factual findings made against him, the conclusion that his fitness to practise was impaired and the sanction of erasure.
- The hearing concerned three patients in whose cases there were said to have been deficiencies in Dr Radeke's clinical assessment. For reasons of confidentiality, they were referred to as Patients X, Y and Z respectively.
- The case of Patient X is of central importance to this appeal. She was the patient who had tragically died after Dr Radeke had treated her. Dr Radeke was heavily criticised for clinical failings in her treatment but, in addition and in her case alone, he faced a serious allegation of dishonesty. In essence, the GDC alleged that he had lied about his assessment of Patient X either (i) to Dr Palmer, an employee of King's College Hospital who had investigated the three clinical cases, or (ii) to the Coroner in the course of his evidence on oath given during the inquest into the death of Patient X on 21 June 2013.
DR RADEKE'S ABSENCE
- Dr Radeke did not give evidence at the disciplinary hearing. The Panel accepted, following disclosure of a letter dated 16 July 2014 from his General Practitioner, that he had found previous legal proceedings extremely distressing and that a further hearing would increase his levels of stress and anxiety and potentially have an adverse effect upon his health. The Panel expressly concluded that no adverse inference was to be drawn from the Doctor's absence.
- During the course of the appeal, I raised the issue as to why Dr Radeke had not, at least, sought to adduce in evidence a formal witness statement dealing with his response to the charges against him. It is very likely that such a statement would have been admitted in evidence under Rule 57 of The General Dental Council (Fitness to Practise) Rules 2006. I could envisage circumstances in which a practitioner unfit to attend a hearing would nevertheless be capable of providing a witness statement. Where such a practitioner fails to produce such a statement, circumstances may arise in which an adverse inference could be drawn in accordance with the approach of the Court of Appeal in Wiszniewski v Central Manchester HA  Lloyd's Rep Med 223. However, in this case, the GDC took no issue on the point and I will approach the appeal on the basis that I, too, should draw no adverse inferences either from Dr Radeke's absence or from the lack of any witness statement from him.
- Furthermore, it must follow that since the panel did not enjoy the usual advantage of being able to see, hear and assess the demeanour of Dr Radeke the level of deference owed by this Court to the Panel's determination on the issue of dishonesty is thereby diminished, albeit not extinguished.
- This appeal was originally presented on the basis that this court would be invited to deal with the allegations both of clinical shortcomings and dishonesty. However, it was subsequently agreed between counsel that I would be asked to resolve the issue of dishonesty alone. If I were to find against Dr Radeke on this issue, his counsel realistically accepted that no complaint could be made about the findings of impairment and the sanction of erasure and that would be the end of the appeal. If, on the other hand, I were to allow the appeal on the dishonesty issue then the remaining clinical issues could safely be remitted for consideration of sanction by a differently constituted panel.
- Accordingly, having heard two days of submissions, I gave a "verdict" on the issue of dishonesty and indicated that a reasoned judgment would follow in due course.
- Patient X was 50 years old and suffering from chronic liver disease caused by alcoholism when she attended Dr Radeke on 20 August 2012. She had been discharged from Croydon University Hospital earlier that month. She had been referred to Dr Radeke by her General Dental Practitioner following her complaints of painful teeth and mouth ulcers. Dr Radeke asked Patient X to find out from her doctor if it was safe to undergo an operation for the extraction of her teeth. She returned on 23 August and Dr Radeke removed five of her teeth under sedation and local anaesthetic. He also lasered the ulcers. After a period of over an hour she was allowed to go home. That night she bled to death. The ability of her blood to clot had been fatally compromised by the physiological consequences of her alcoholism.
- It is not disputed that Dr Radeke was acting out of the best of motives when he decided to go ahead with the extractions. Patient X gave every appearance of being undernourished and was complaining that her painful teeth were preventing her from eating properly. Nevertheless, Dr Radeke ought not to have performed the operation. In particular, if he had made adequate enquires he would have realised just how ill Patient X really was. He ought to have made a much more thorough assessment of his patient's condition. Entrusting her to make her own enquiries of her GP was a serious error. He ought to have carefully reviewed the discharge notes from the hospital and communicated with the hospital directly to find out if it would be safe for him to go ahead with the procedure.
- Dr Radeke had lulled himself into a false sense of security by wrongly assuming that the fact that Patient X had been discharged from hospital was an indication that her condition was at least partly controlled. He also relied upon blood test results which he took to indicate that Patient X's blood clotting function was not so compromised as to contra indicate surgery.
- The investigation into Dr Radeke's treatment of Patient X by the NHS Foundation Trust was led by Mr Palmer, a consultant surgeon. The GDC contends that Dr Radeke told Mr Palmer one thing and later told the coroner something different in circumstances in which the only plausible explanation is that he was deliberately lying to one or to the other.
- On 17 October 2012, a meeting took place between Mr Palmer and Dr Radeke of which notes were taken and thereafter sent to Dr Radeke for perusal and comment.
- During the course of the interview, Dr Radeke agreed that he had assumed that Patient X's condition had stabilised because she had been discharged from hospital and that he had wrongly adopted the departmental policy on surgical management of patients on Warfarin.
- What was to become more controversial, however, was how Patient X had been assessed with reference to her "ASA Status" prior to the procedure. The GDC alleges that Dr Radeke told Mr Palmer during the meeting that he had assessed Patient X as falling into category ASA 2 at the time of carrying out the procedure and only in retrospect did he appreciate that she ought to have been placed in a more serious category. In contrast, when answering questions at the inquest, Dr Radeke appeared to be saying that he had recognised that she fell into a more serious category at the time. It was this alleged discrepancy which formed the foundations upon which the allegations of dishonesty were laid.
WHAT DR RADEKE TOLD MR PALMER
- The notes of the meeting of 17 October record the following:
"GP was asked what ASA category she was:
I said that was a good question. After thought I replied that she was not ASA 1 or ASA 4. If she was stable she was ASA 2, if not, she was ASA 3. I mentioned that I was not a hepatologist and it would have been good if Croydon Hospital had said in her discharge summary that she was in end stage liver failure or similar wording."
Dr Radeke having perused the notes then added:
"I now accept with hindsight and reconsidering, that this patient should not have been categorised as ASA 2 but should have been categorised as ASA 3 or even ASA 4."
The notes went on to record:
"I did discuss the medical history and procedure with Dr Xiao before the procedure. I remember saying that I would not treat a patient with a medical history like this if I thought there was going to be a problem. I confirmed that I did circle that the patient was ASA 2 and bleeding risk as "no".
WHAT DR RADEKE TOLD THE CORONER
- During the inquest, Dr Radeke was questioned by the coroner at length on his assessment of Patient X's ASA status and this led to the following exchange:
"Q. Did you agree that her risk level was ASA 3?
A. 3 or 4 yes.
Q. I had understood that you thought that she was ASA 2, that is not so is it?
A. That is later on the operation sheet itself, a mistake that I did not correct.
Q. So on the operation sheet you wrote that she was 2 did you?
A. It should have been corrected in 3 or 4 sir.
Q. So who wrote it was 2 on the operation sheet?
A. The assisting nurse."
WHAT THE PANEL FOUND
- Charge 4(e) alleged that Dr Radeke had "wrongly categorised the patient as ASA 2".
- Having compared what Dr Radeke had told Mr Palmer with what he later told the Coroner, the panel concluded that Dr Radeke had assessed Patient X as being ASA 2 at the time of the operation.
- Charges 9 to 11 alleged:
"9 During the course of your evidence [to the Coroner] you stated that:
(a) your view prior to operating was that the patient was ASA3 or ASA4;
(b) the entry on the operation record that the patient was ASA2 was a mistake which you did not correct;
(c) the entry showing that the patient was ASA2 was written by an assisting nurse.
10 The Coroner in his determination relied upon your evidence and accepted that the notation of ASA2 was made in error and that your real assessment of this patient was that she was ASA3 and probably better classified as ASA4
11 Your evidence to the Coroner on 21 June 2013 in respect to your assertions set out in each of paragraphs 9(a) to 9(c) was:
(c) in the alternative to 12(c) dishonest in that you knew the account you provided to the Coroner was untrue."
- The alternative referred to in charge 12(c) related to what Dr Radeke had told Mr Palmer.
- The Panel found:
"11 (a) Proved (as amended).
For the reasons set out under 4(e) above, the Committee did not accept that Dr Radeke had, prior to treatment, assessed Patient X as being ASA 3 or 4; his assessment was that "if she was stable she was ASA 2, if not, she was ASA 3.
The Committee accepted the uncontested evidence of Ms Cuzneac that she would not have filled out an ASA score on the Oral Surgery Procedure Notes. In particular, it was her evidence that she was not allowed to fill out that part of the form and would never do so.
The Committee found that it was inaccurate for Dr Radeke to say that the ASA score of two on the Oral Surgery Procedure Notes was an error which he did not correct.
11 (b) Proved.
The Committee found this Head of Charge proved, in the Dr Radeke's assertions were objectively misleading.
11 (c) Proved (as amended).
In considering this Head of Charge, the Committee had well in mind that Dr Radeke is to be regarded as a practitioner of good character and that cogent evidence is necessary to make a finding of dishonesty.
The Committee is not satisfied that Dr Radeke had assessed that Patient X was ASA 3 or 4, as it is unlikely that he would have proceeded to operate on her as an outpatient if he had formed such a view. He had told Mr Palmer that he had assessed Patient X to be fit for surgery, considering that she was stable, having been discharged from Croydon hospital. He noted that it was not apparent to him from the Croydon hospital discharge note how gravely ill Patient X was.
Dr Radeke's account to Mr Palmer was made some two months after treatment had been provided for Patient X. He had been supplied with a written summary of what he had said, which, following reflection, he approved and submitted to Mr Palmer along with a number of additional statements, including:
I now accept, with hindsight and reconsidering, that this patient should have not been categorised as ASA 2 and should have been categorised as ASA 3 or even ASA 4.
Dr Radeke gave evidence to the coroner on oath nearly a year after treatment had been provided for Patient X. He gave a different account of his assessment of Patient X's status, namely that he had not assessed Patient X as ASA 2 but had always assessed her as ASA 3 or 4. This account is consistent with an attempt to deflect criticism by the coroner.
The Committee concluded that there is no reason why the account Dr Radeke initially gave to Mr Palmer would have been inaccurate. It is an account consistent with the pre-operative clinical record, where the ASA score was recorded as two, and is consistent with the decision of Dr Radeke to proceed to operate on Patient X as an outpatient.
The Committee concluded that Dr Radeke had given a deliberately misleading account to the coroner on oath and that he would have understood that such conduct would be regarded as dishonest by the ordinary standards of reasonable and honest people."
THE ASA SCORE
- From the above it will be readily apparent that Dr Radeke's accounts of his assessment and recording of Patient X's ASA Status were regarded by both the GDC and the Panel to be of very considerable clinical significance.
- Having considered the evidence in the case I have come to a different view for the reasons set out below.
What is the ASA score for?
- The form which was filled in and on which was recorded the controversial ASA Status was an "Oral Surgery Procedure Sheet (Intravenous Sedation)". ASA is the abbreviation for the "American Society of Anesthesiologists". As the National Institute for Health and Care Excellence records in its Guideline on preoperative tests: "ASA Grades are a simple scale describing a person's fitness to be given an anaesthetic".
- The primary purpose of the ASA Status assessment was, therefore, to determine Patient X's suitability for intravenous sedation and not the risk of post operative bleeding. Patient X's death was unrelated to her sedation.
The Procedure Sheet
- The recording of the ASA Status on the Procedure Sheet is but one of a number of pre-operative enquiries. Furthermore, the labels used to determine which ASA Status category applies are extremely vague:
I A normal healthy patient.
II A patient with mild systemic disease
III A patient with severe systemic disease partially controlled with medical treatment
IV A patient with severe systemic disease which is a constant threat to life.
- The limitations of these labels are apparent even to the lay observer.
- It is to be noted that the ASA categorisation is restricted to systemic disease and does not therefore cover local, albeit grave, pathology which may have a very considerable bearing on the decision to perform surgery. A person with a fractured skull, by way of example, falls into none of the ASA categories.
- Furthermore, many factors necessarily relevant to the decision to go ahead with the procedure in an outpatient setting are simply not taken into account in the ASA assessment. They include whether the patient is overweight, the patient's age, the nature and severity of the operative procedure, selection of anesthetic techniques, the competency of the surgical team, duration of surgery or anesthesia, availability of equipment, medicine and the level of post-operative care.
- It is, therefore, hardly surprising that some differences of interpretation arose during the course of the disciplinary hearing as to the clinical consequences of any given categorisation with Mr Palmer accepting, for example, that an ASA 3 assessment did not automatically preclude treatment in a outpatient setting.
- It is to be noted that the Procedure Sheet offers no guidance as to the consequences of categorisation of ASA status and no evidence of written guidance concerning the consequences of categorisation were ever put before either the Coroner or the Panel.
- Against this background, I am satisfied that the Coroner and the Panel fell into the trap of treating the ASA Status categorisation on the Procedure Sheet in an overly mechanistic way. The assessment is a tool to assist the practitioner in reaching the ultimate decision as to whether and in what circumstances to operate. A real danger arises if the ASA Status wording is treated as if it were to be interpreted as a statute with bright line divisions between the categories each giving rise to clearly defined consequences.
- The question which the dentist must ask himself is whether it is safe to operate on any given patient taking into account all the relevant features. Dr Radeke did ask himself this question and genuinely, but wrongly, considered on the information available to him that it was, indeed, safe.
Filling out the Procedure Sheet
- The Panel relied on the evidence of Ms Cuzneac, the sedation nurse, to conclude that she did not complete the ASA Status score and, by implication, that Dr Radeke had ticked that particular box as ASA 2.
- Strangely, however, the Panel made no reference whatsoever to the evidence of Mr Xiao who was a junior practitioner working under the supervision of Dr Radeke at the time of Patient X's treatment. Mr Xiao, whilst having no recollection of who ticked the parts of the form, did indicate that the form was most likely to have been filled out by a combination of himself and the nurse He also said that he had gained the firm impression that Dr Radeke's assessment of the ASA status of Patient X was ASA 3.
- Furthermore, the sedation nurse told the Panel that it was Mr Xiao who had ticked the ASA box and when questioned about whether the relevant papers were completed by "a combination of yourself and Mr Xiao?" she gave the answer "Yes".
- Ultimately, however, the issue as to who ticked the box is, as the GDC conceded before the Panel and on this appeal, not particularly important. The ultimate responsibility to make the assessment was that of Dr Radeke regardless of who actually ticked the box.
The bleeding risk
- The risk which eventuated and thus caused Patient X's death was that of bleeding.
- Dr Radeke was entirely consistent in what he said about his assessment of the bleeding risk. He told Mr Palmer:
"With her ongoing liver problems it was reasonable to anticipate coagulation problems. I asked both [Patient X] and her husband whether she had ever suffered any bleeding problems. They both insisted that she had not and that she was regularly monitored by her GP. I explained that I nevertheless wished to arrange further blood testing…
As expected, the blood tests did not show healthy liver function…although her INR was elevated it was well within the range that our departmental protocols and all current literature allow for extractions."
- He gave a consistent account to the Coroner.
- Charge 5(f) was that Dr Radeke had "managed the patient in accordance with the departmental Warfarin protocol which was inappropriate in the circumstances." This charge was admitted. Dr Radeke also admitted failing to contact directly other health professionals to ascertain the appropriateness of the treatment he intended to provide.
- It follows that on the issue of his failings of most direct relevance to the death of Patient X, Dr Radeke had been transparently honest. One is entitled to ask why, therefore, he would be motivated to be dishonest about his assessment of the patient's ASA Status.
- In order to determine just how significant the GDC had considered the ASA Status assessment to have been within the context of its investigation I called for a copy of the original summary of allegations. As expected, the allegations included those relating to managing the patient according to the "Warfarin procedure" and not consulting directly with her GP regarding the suitability of his proposed treatment.
- The detailed factual allegations in this summary, however, contain not a word about the ASA Status assessment.
- Dr Radeke gave evidence at the inquest on 21 June 2013. The Summary of Allegations was dated 19 June 2013 and was enclosed in a letter to Dr Radeke dated 24 June 2013.
- Had the GDC considered that the allegedly flawed ASA 2 assessment was a sufficiently serious free-standing issue then it would have included it within the Summary of Allegations but it did not.
- For my own part, I can well understand why the GDC was not particularly exercised by the ASA assessment. It simply was not considered to be of central importance.
- Mr Palmer was present at the inquest. The Trust was represented by an advocate. Dr Radeke gave his evidence knowing full well that if Mr Palmer considered that Dr Radeke had contradicted anything which he had said to Mr Palmer earlier then he could be subject to challenge and cross-examination. The allegedly dishonest contradiction was thus aired in the plain view and hearing of those in an ideal position to challenge it.
- The Coroner spent a considerable time asking Dr Radeke about his ASA Status assessment. Mr Palmer and the Trust would have had the opportunity to put the notes of Dr Radeke's earlier meeting with Mr Palmer to him had it been thought that there was a blatantly dishonest inconsistency. This was not done.
Opportunity to clarify
- Since the Summary of Allegations contained no criticism of Dr Radeke's ASA Assessment, his solicitor's detailed response thereto dated 25 July 2013 made, unsurprisingly, no reference to the topic.
- At the inquest the ASA issue loomed large but Dr Radeke was never asked to explain any apparent discrepancy in his two accounts and was not therefore give the opportunity to provide clarification.
- The Panel were given no further information by way of witness statement from Dr Radeke (an issue upon which I have already passed comment earlier in this judgment).
- In most cases of alleged dishonesty the motive will be clear. By way of contrast, in this case the motive is, to say the least, elusive. The issue is as to whether Dr Radeke (i) actually but mistakenly thought that Patient X had ASA2 status or (ii) correctly thought that she had an ASA Status of 3 or higher but nevertheless proceeded to carry out the procedure.
- If anything, the second scenario is the more serious. Someone who drives into a road junction mistakenly believing that the traffic lights are in his favour would usually be seen as less blameworthy than a driver who sees that the lights are against him but drives into the junction regardless.
- The absence of a clear motive to lie is consistent with the fact that the case against Dr Radeke was presented in the alternative. Either he had lied to Mr Palmer and told the truth to the Coroner or vice versa. Had the perceived advantages of lying to the Coroner been so clear cut then there would have been no need to invite the Panel to consider the alternative.
- It is indeed the case that what Dr Radeke told the Coroner about his assessment is not entirely consistent with what he told Mr Palmer. However, the inquest took place about ten months after the death of Patient X and about eight months after Dr Radeke had given his account to Mr Palmer. Experience reveals that even the most honest witnesses can be mistaken and give inconsistent accounts over time. It is inherently unlikely that the inconsistency in this case was dishonest. Furthermore, if the Panel were correct in its conclusions of dishonesty then Dr Radeke was not only a liar but a perjurer as well. This factor makes it even more unlikely that he was being deliberately untruthful at the inquest.
- As the House of Lords held in Re: B  UKHL 35, when dealing with inherent improbability (quoting from Lord Nicholls of Birkenhead in Re: H(Minor) Sexual Abuse: Standard of Proof  AC563, 585):
"The balance of probability standard means the Court is satisfied an event occurred if the Court considers that, on the evidence that the occurrence of the event was more likely than not. When assessing the probabilities, the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence the stronger should be the evidence before the Court concluded it is established on a balance of probability… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
- I have come to the firm conclusion on the evidence before me that the Panel was wrong to conclude that Dr Radeke had perjured himself at the inquest. I am also satisfied that the statements he made relating to charges 9(a) and 9(b) were neither inaccurate nor misleading under 11(a) and 11(b). However, the fact that Dr Radeke's assertion that the sedation nurse had ticked the ASA Status box was inaccurate was a conclusion which the Panel were entitled to reach on the evidence. Accordingly, it would be wrong to interfere with charge 11(a) as it relates to 9(c). This piece of evidence, however, formed no part of the Coroner's summing up or verdict and I am satisfied that it was not materially misleading in the particular circumstances of this case. 11(b) as it relates to 9(c) will therefore be quashed.
- Accordingly the sanction of erasure shall be quashed and the matter shall be remitted to a differently constituted panel to consider afresh the question of sanction in light of these findings of the first Panel which remain.
Note 1 See, by way of contrast, the far more detailed Guidance ASA Physical Status Classification System
(for Dental Patient Care) to be found at:
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