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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Biswas, R (on the application of) v The General Medical Council [2007] EWHC 1644 (Admin) (18 May 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/1644.html Cite as: [2007] EWHC 1644 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF DR TARUM QUMAR BISWAS | (CLAIMANT) | |
-v- | ||
THE GENERAL MEDICAL COUNCIL | (DEFENDANT) |
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(Official Shorthand Writers to the Court)
MR R ENGLEHART QC (instructed by GMC) appeared on behalf of the DEFENDANT
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Crown Copyright ©
MR JUSTICE GIBBS:
Introduction
The facts
The charges against the appellant and the findings of the panels
"1. At the material time you were working as a locum general practitioner at the Shah Jalal Medical Centre, Hessell Street, London E1."
That fact was common ground.
"2. On 4 September 2003 at about 10am you were consulted by Anu Miah who was suffering from constipation, vomiting and severe abdominal pain."
Finding:
"Head 2 is found proved in its entirety. The Panel accepted that, on the basis of the evidence of Mrs Begum, Anu Miah's pain was severe."
The only aspect of that charge which was denied was the alleged severity of the pain, which the first panel found proved.
"3. During the consultation you failed to obtain an adequate history from:
(a) Anu Miah."
Finding:
"Head 3(a) is found proved. The Panel was satisfied by the evidence of Mrs Begum and Dr Essex, which indicated that your questioning of Anu Miah was minimal and inadequate."
"(b) the family members who had accompanied him".
Finding:
"Head 3(b) is found proved. The Panel was satisfied that you failed to question Mrs Begum sufficiently on the basis that your questioning of Anu Miah was minimal and inadequate."
"(c) the medical records".
Finding:
"Head 3(c) is found proved. The Panel found that you had a duty to inspect the medical records and did not accept your evidence on this matter. There were a number of documents, including various mental health care plans and an entry in the Lloyd George cards which indicated that clozapine had previously been prescribed for Anu Miah."
"(d) Professor Curtis and his team at the East London and the City Mental Health Trust, despite being advised to do so by Dr Hussein."
Finding:
"Head 3(d) is found proved. The Panel found that, as you had not obtained information from any other source as to the medication prescribed for Anu Miah, you should have taken steps to contact Professor Curtis or his team before prescribing for Anu Miah."
"4. During the consultation you failed to adequately examine Mr Miah in that you did not:
(a) check his temperature
(b) check his pulse
(c) check his blood pressure
(d) inspect his hands, tongue and mucous membranes ... "
Heads 4(a) to (d) were found not proved.
"In reaching the above findings the Panel noted that Mrs Begum was outside the consultation room for a short period when she went to the surgery reception to collect her son's medical records. The Panel was unable to be certain, to the criminal standard of proof that is required in order to make such a finding, that you did not check Anu Miah's temperature or pulse or blood pressure or his hands, tongue and mucous membranes during Mrs Begum's absence from the consulting room."
"4. During the consultation you failed adequately to examine Mr Mia in that you did not ...
(e) inspect, palpate, percuss or auscultate his abdomen."
Finding:
"Head 4(e) is found proved with regard to inspection and auscultation only and not proved in respect of palpation and percussion.
The Panel reached this finding taking particular account of the evidence from Mrs Begum and from her description of you touching and feeling Anu Miah's stomach. In the light of that evidence the Panel was unable to determine that there had been no palpation or percussion of the abdomen. However, the Panel preferred and was satisfied by the evidence of Mrs Begum as opposed to your evidence. The Panel found that Anu Miah's abdomen was not exposed and therefore no inspection took place. The Panel found that a stethoscope was not used and that therefore auscultation of the abdomen had not taken place."
"5(a) you failed to place yourself in a position to adequately assess Mr Miah's condition and treatment needs."
This was found proved.
"(b) you made an inappropriate diagnosis of his urinary tract infection."
Finding:
"Head (b) is found proved. No urine test was carried out and the Panel found that insufficient signs and symptoms of urinary tract infection were elicited to justify such a diagnosis."
"(c) you made an inappropriate diagnosis of gastritis."
Finding:
"Head 5(c) is not found proved, as vomiting once, abdominal pain and slight epigastric tenderness could indicate a diagnosis of gastritis."
"6. You failed to give the patient and his family adequate information about his diagnosis, management and treatment."
Finding:
"Head 6 is found proved. The Panel noted your own evidence about the information you provided as well as that given by Mrs Begum and was satisfied that this head of charge is made out."
"7. You failed to refer Mr Miah to hospital immediately."
Finding:
"Head 7 is not found proved. The Panel cannot be certain that, at the time of consultation, the patient's condition required immediate referral. Additionally, it is agreed with Professor Winslet that you could not reasonably have been expected to diagnose Anu Miah's illness or assess its potential severity at that time."
"9. You failed to make any adequate contemporaneous record of the consultation."
I have cited this charge as amended. Finding:
"Head 9, amended so as to read:
'You failed to make any adequate contemporaneous record of the consultation'
is found proved on the grounds that the Panel was satisfied that your record was inadequate because it was inaccurate."
"10. Your conduct as outlined in heads 3 to 9 above:
(a) was inappropriate
(b) failed to provide sufficient respect to the patient and his family
(c) was not in the best interests of the patient."
These three allegations were all found proved, but 10(b) in particular with respect to head of charge number 6.
"12(a) you later altered the medical records."
Finding:
"Head 12(a) is proved in that you altered the medical records after you made them, but the Panel could not be certain when this was done."
"(b) your conduct in this regard was dishonest."
Finding:
"Head 12(b) is not found proved."
"On 4 September 2003 at about 10:00am you were consulted by Mr Anu Miah, a 23 year old, who was suffering from constipation, vomiting and severe abdominal pain. Mr Miah's previous medical history included a duodenal ulcer leading to low haemoglobin, substance abuse and mental illness.
Mr Miah, his mother, his wife and one of his sisters had been driven to the surgery by another sister. He was accompanied into the consulting room by his mother and his wife. His sister remained in the surgery waiting room. On entering the room Mr Miah immediately got onto your examination couch. At some point during the consultation, Mrs Begum left the room for a short time to collect Mr Miah's medical records from the reception.
During the consultation you failed to obtain an adequate history from Mr Miah, the family members who had accompanied him, or from his medical records. You also failed to obtain such a history from Professor Curtis or his team at the East London and City Mental Health Trust, despite being advised to do so by Dr Hussain, your senior colleague at the Shah Jalal Medical Centre.
You also failed adequately to examine Mr Miah. The Panel has accepted that some of the necessary components of an adequate examination may have been carried out. However, you did not expose your patient's abdomen which you therefore did not inspect. You did not use a stethoscope and so you did not auscultate his abdomen. You did not perform a rectal examination or test his urine. Taken together your inadequate history and examination meant that you failed to place yourself in a position to adequately assess Mr Miah's condition and treatment needs.
Despite the fact that no urine test was carried out you made a diagnosis of urinary tract infection. This was inappropriate because there were insufficient signs and symptoms of urinary tract infection to justify such a diagnosis.
Having diagnosed urinary tract infection, gastritis and constipation, you provided Mr Miah with a prescription for Bisacodyl, Ciprofloxacin, Lansoprazole and Co-Magaldrox and advised his family to take him to hospital 'if necessary'. You did not give them a letter to facilitate this visit if it became necessary. You did not give Mr Miah or his family adequate information about the diagnosis, management and treatment of the conditions you had diagnosed. You failed to make an adequate accurate contemporaneous note of the consultation. You later altered the medical records in respect of the consultation in that you made some minor inconsequential adjustments.
Mr Miah's condition deteriorated later that day and he was taken to the accident and emergency department of the Royal London Hospital ... "
The panel then went on to recite the fact and causes of death, to which I have already referred.
"The Panel notes that, in deciding whether Dr Biswas is guilty of serious professional misconduct, it must consider the totality of the facts found proved and must not go behind them. Its task is to make a value judgement on the conduct of Dr Biswas in the consultation with Mr Miah.
The facts found proved are of varied seriousness and consequence. Among the totality, the Panel has identified five failings which it felt were particularly serious. These are fundamental to acceptable medical practice and therefore relevant to the possibility of serious professional misconduct.
Head of charge 3:
Dr Biswas' failure to take an adequate history.
Head of charge 4(e):
Dr Biswas' failure to inspect Mr Miah's abdomen.
Head of charge 5(a):
Dr Biswas' failure to place himself in a position to adequately assess Mr Miah's condition and treatment needs.
Head of charge 6:
Dr Biswas' failure to give Mr Miah adequate information about the diagnosis, management and treatment.
Head of charge 9:
Dr Biswas' failure to make adequate contemporaneous records of the consultation.
The Panel has noted the content of the GMC's publication 'Good Medical Practice'... "
"The Panel notes that serious professional misconduct is not defined in legislation, nor is there an agreed definition of it. However, it has considered the words of Lord Cooke in the case of Preiss v General Dental Council [2001] 1 WLR 1926:
'It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence.'
The Panel notes that serious and persistent failures to meet the standards required of a reasonably competent medical practitioner may lead to a finding of serious professional misconduct, as stated in Good Medical Practice. Though relating to a single consultation, Dr Biswas' actions and omissions in his treatment of Mr Miah exhibited a number of significant failures. The Panel is of the opinion that Dr Biswas' conduct fell short of the standards expected of a reasonably competent general practitioner. It then went on to consider whether these failures were so serious as to amount to serious professional misconduct.
Taking into account all of the facts admitted and found proved, especially the five identified by this Panel as particularly serious, and having regard to the submissions made under Rule 28 of the Procedure Rules, the Panel has concluded that Dr Biswas' conduct amounts to a significant departure from the standards expected from a registered medical practitioner to the extent that Dr Biswas is guilty of serious professional misconduct."
"The Panel recognises that this was an isolated incident involving one patient only. It further notes that Dr Biswas had not been referred to the GMC previously and that there has been no evidence of repetition of this behaviour since this incident. Nevertheless, it has determined that it would not be sufficient to conclude the case by taking no action or by issuing a reprimand. Such would not reflect the seriousness of the misconduct nor adequately protect patients...
The Panel did not consider that appropriate conditions could be formulated in this case given Dr Biswas' age, 79 years, and the fact that he has been out of medical practice for almost three years. The Panel has been provided with no evidence to assure it that Dr Biswas has kept his medical knowledge and skills up to date during this period. It could not be satisfied that conditions could be devised which would adequately protect patients.
The Panel has, after careful consideration, concluded that a period of suspension is a proportionate response and is sufficient to protect the public. It would also maintain public confidence in the profession, uphold proper standards of professional conduct and mark the Panel's concern with regard to the serious nature of Dr Biswas' failings in the care and treatment of his patient, Mr Miah. The Panel has therefore determined that Dr Biswas' registration be suspended for a period of nine months."
The legal framework
"(2) On the conclusion of proceedings under paragraph (1) the Committee shall consider and determine:
(i) which, if any, of the remaining facts alleged in the charge and not admitted by the practitioner have been proved to their satisfaction, and
(ii) whether such facts have been so found proved or admitted would be insufficient to support a finding of serious professional misconduct, and shall record their finding."
That is the provision that gives the panel the opportunity to say that there is no case to answer.
"28. Circumstances, character, history and pleas in mitigation in cases relating to conduct
(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.
(2) The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."
"36. Professional misconduct and criminal offences
(1) Where a fully registered person ...
(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;
the Committee may, if they think fit, direct—
(i) that his name shall be erased from the register;
(ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years
as may be specified in the direction, with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."
Submissions on behalf of the appellant
Constitution of Panel (grounds 8-10)
Challenge to finding of serious misconduct (paragraphs 11(a) and (c) of the grounds)
Challenge to the sanction imposed
Conclusions
Constitution of panel
Challenge to the finding of serious misconduct
"50. Let me now apply the Court of Appeal's exegesis of section 29 to facts of the present case. The erroneous legal advice given by the legal assessor and accepted by the Panel constitutes 'a failure of process.' If that failure of process had not occurred, it is perfectly possible, but not certain, that the Panel would have found Dr Biswas guilty of serious professional misconduct. Therefore, this appeal is properly brought in accordance with section 29(4)(b) of the 2002 Act, and must be allowed.
51. I do not know what the Panel would have decided, if it had received correct legal advice. This is not such a clear case that the Court ought to step in and take the decision for itself. In the circumstances, the proper remedy in respect of this ground of appeal is an order for remission to the Panel pursuant to section 29(8)(d) of the 2002 Act."
Challenge to the sanction
"21. It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517H-519E where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. The Master of the Rolls concluded at p 519E:
'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.'
Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the Committee in this case."
The considerations taking precedence over the individual were the reputation of the profession and the protection of the public, among others.