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||Neutral Citation Number:  EWHC 2606 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||19 October 2007
B e f o r e :
MR JUSTICE JACKSON
||THE QUEEN ON THE APPLICATION OF DR MALCOLM NOEL CALHAEM
||THE GENERAL MEDICAL COUNCIL
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Mr Andrew Hockton (instructed by Medical Defence Union) appeared on behalf of the Claimant
Mr Ben Jaffey (instructed by GMC) appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
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- MR JUSTICE JACKSON: This judgment is in eight parts, namely: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the law; part 5, the first ground of appeal - alleged errors of fact; part 6, the second ground of appeal - challenge to decision on impairment; part 7, the third ground of appeal - challenge to decision on sanctions; part 8, conclusion.
Part 1: Introduction
- This is an appeal by a consultant anaesthetist against a determination made by the Fitness to Practise Panel of the General Medical Council. That determination was to the effect that (a) the appellant's fitness to practise was impaired because of misconduct and deficient professional performance and (b) the appellant's registration should be suspended for three months. This appeal is brought pursuant to section 40 of the Medical Act 1983 (as amended). The procedure for such an appeal is governed by paragraph 22.3 of the Practice Direction supplementing Part 52 of the Civil Procedure Rules. In particular, paragraph 22.3(2) provides that the appeal will be by way of re-hearing.
- The appellant in these proceedings is Dr Malcolm Noel Calhaem, to whom I shall refer as "Dr Calhaem". The respondent in these proceedings is the General Medical Council, to which I shall refer as "the GMC". I shall refer to the Fitness to Practise Panel as "the FTP Panel" or "the Panel". In the proceedings before the Panel, the patient whose treatment was under consideration was referred to as "patient A" or "Mrs A". I shall refer to her as "Mrs A". After these introductory remarks, it is now time to turn to the facts.
Part 2: The facts
- Dr Calhaem is an experienced consultant anaesthetist practising in Staffordshire. On 16 November 2004, Mrs A was admitted to the North Staffordshire Nuffield Hospital in Newcastle-under-Lyme for a nasal polypectomy. That is an operation to remove a growth from the nose. The surgeon who carried out that operation was Mr Paul Wilson. The anaesthetist was Dr Calhaem.
- In order to induce anaesthesia, Dr Calhaem administered four drugs to Mrs A by means of a small cannula inserted into a vein. Those four drugs were Midazolam (2mg), Propofol (200mg), Fentanyl (75mcg) and Suxamethonium (75mg). The last of those four drugs, Suxamethonium, was a muscle relaxant. The purpose of this drug was to facilitate the insertion of an endotracheal tube. The anaesthetics took effect. Mrs A became unconscious. The endotracheal tube was inserted. Unfortunately, unknown to any of the medical staff, Mrs A was allergic to Suxamethonium and suffered an adverse reaction. She became cyanosed and tachycardic. Her circulation was inadequate.
- There was a discussion between Mr Wilson and Dr Calhaem. It was decided to proceed with the operation. During the operation, Mrs A was provided with increased oxygen, but her condition did not improve. Dr Calhaem asked Mr Wilson to stop operating, but by that time the operation was complete. At the end of the operation, Mrs A was cold and clammy to the touch. Mrs A was transferred to the recovery room. Dr Calhaem removed the endotracheal tube. Dr Calhaem remained with Mrs A for a period, during which she did not recover consciousness. She received oxygen through a face mask. Dr Calhaem formed the view (correctly as it turned out) that Mrs A had suffered a reaction to Suxamethonium. He administered ephedrine, which was appropriate medication for that condition.
- At around 12 noon, Dr Calhaem left Mrs A and went off to anaesthetise another patient. Another consultant anaesthetist, Dr Coleman noticed Mrs A's condition and was concerned. Dr Coleman increased the oxygen levels which Mrs A was receiving. He then went to Dr Calhaem and offered to help. Dr Calhaem declined that offer. He went back to the recovery room to check on Mrs A himself. At around 2pm, Mrs A still had not regained consciousness. She developed decerebrate movements. Arrangements were made for Mrs A to have an urgent CT scan, x-rays and other tests. Arrangements were also made for her to be transferred to the intensive care unit at another hospital. Subsequently, Mrs A made a full recovery from the adverse effects of the anaesthesia and operation. She was discharged home. Sadly, however, Mrs A died from other unrelated causes.
- Mrs A and her family did not make any complaint about Dr Calhaem's conduct. The management of the Nuffield Hospital, however, were justifiably concerned about what had happened. They referred to the matter to the GMC. The GMC duly investigated. The upshot of that investigation was that proceedings were brought against Dr Calhaem before the FTP Panel.
- There was a substantial amount of common ground between the parties in the FTP proceedings. I shall now read out certain allegations which were made by the GMC and admitted by Dr Calhaem. ]
"Allegation 3: prior to induction of anaesthesia you did not record Patient A's baseline values of,
c. blood pressure
Allegation 10. You allowed the operation to proceed.
Allegation 11.a. In the circumstances, your actions at 10 above were inappropriate."
- Dr Calhaem further admitted that allowing the operation to proceed was a departure from good clinical care and practice, but not a "serious" departure.
"Allegation 12. Before and/or during theatre you did not record (including where appropriate the values of) Patient A's,
a. inspired concentration of gases
b. end tidal concentration of isoflurane
c. grade of laryngoscopy
d. breathing circuit
e. mode of ventilation
Allegation 13. Before induction and every five minutes thereafter you did not record Patient A's vital signs.
Allegation 15. After surgery but before Patient A's removal to the recovery room,
a. her colour continued to deteriorate
b. she was cold and clammy to the touch
Allegation 16. You removed Patient A's endotracheal tube.
Allegation 18. Patient A was taken to the recovery room at about 11.30. On arrival her
a. blood pressure was low
b. oxygen saturations were low
c. skin was blue, mottled and clammy
Allegation 20. You left Patient A to anaesthetise another patient. You failed,
b. In any event to record the results of any such examination you may have carried out.
d. In any event to record the result of any such attempts you may have made to establish any such explanation.
e. To order blood samples.
Allegation 22. By about 14.00 Patient A had,
a. failed to regain consciousness
b. become agitated
c. had a decerebrate movement
Allegation 23. By or at this time you failed to,
b. anaesthetise Patient A again
c. replace the endotracheal tube
d. arrange a CT scan
Allegation 24. Between 12.00 and Patient A's transfer to the multiple injuries unit at 16.20 you failed,
d. Adequately to record in the Notes such assessments, examinations, clinical signs, treatments, attempts to establish a diagnosis and the like as you may have undertaken."
- The hearing before the FTP Panel was conducted over a period of nine days between June and October 2006. The Panel heard evidence from Mr Wilson, Dr Coleman, a number of hospital staff, Dr Calhaem, and two expert witnesses. The expert witness on behalf of the GMC was Dr Simon Mackenzie. The expert witness for Dr Calhaem was Dr Nicholas Davies. Both experts were experienced consultant anaesthetists.
- During the course of the evidence, further common ground emerged between the parties which I shall now summarise. During the course of his evidence, Dr Calhaem admitted that it was inappropriate to proceed with the operation in view of Mrs A's condition. Dr Davies, who was the defence expert witness, accepted in his report that the endotracheal tube was removed too soon after the operation. He added, however, that this was a misjudgment which most anaesthetists have made in the course of their careers. Dr Davies also accepted that it would probably have been valuable if Dr Calhaem had accepted Dr Coleman's offer of assistance. In relation to the incident as a whole, Dr Davies' conclusion was as follows:
"I consider that Dr Calhaem's failures, many of which have been admitted, were significant, but not by themselves of sufficient gravity to call into question his registration".
- When Dr Davies gave oral evidence, he confirmed the contents of his report. Towards the end of his evidence a Panel member enquired which particular aspects were of concern. Dr Davies gave the following answer, which appears on the transcript of day 6 at page 47:
"Yes, I think there are deficiencies in the records, there are deficiencies, I think, in some aspects of communication with colleagues. For instance, I think the conversation with Dr Coleman was not one that I would entirely support. I think that the nursing staff, looking back on it, probably needed more in the way of reassurance and communication so that he could put across his view that it was reasonable to do the various things that he did and did not do."
- Thus, it can be seen that a number of breaches of duty by Dr Calhaem to Mrs A were admitted. I would summarise the breaches which were admitted as follows: (1) failing to record baseline values before inducing anaesthesia; (2) allowing the operation to proceed; (3) failing to keep proper records during the operation; (4) removing the endotracheal tube too soon after the operation; (5) failing to keep proper records of his various examinations of Mrs A during the afternoon.
- In relation to these breaches, the issue between the parties was how serious those matters were. In addition, the GMC were alleging numerous further breaches which Dr Calhaem denied. When the Panel announced its decision on the facts, the Panel rejected some of those further alleged breaches, but found others of those further alleged breaches to be proved. I shall now summarise the findings of the Panel in respect of further breaches which were found to be proved:
(1) Dr Calhaem's action in inducing anaesthesia without recording baseline values was irresponsible and a serious departure from good clinical care and practice.
(2) Under anaesthesia but before surgery had commenced Mrs A's condition was unsatisfactory in that her circulation and her oxygenation were inadequate. Dr Calhaem's action in failing to resuscitate, but instead allowing the operation to proceed, was not only inappropriate, but also irresponsible and a serious departure from good clinical care and practice.
(3) Dr Calhaem's actions in failing to record the matters set out in allegations 12 and 13 were (a) inadequate and (b) a serious departure from good clinical care and practice.
(4) The removal of the endotracheal tube was not only inappropriate (as conceded by Dr Davies), but also irresponsible and a serious departure from good clinical care and practice.
(5) At about 12 noon Mrs A was still unresponsive and poorly perfused. Dr Calhaem failed to examine her carefully, or to remain present to supervise cardiovascular and respiratory support. Dr Calhaem's conduct in that regard, and also in failing to record the results of his examination, was irresponsible, unprofessional, compromising his ability to care for his patient, and a serious departure from good clinical care and practice.
(6) Dr Calhaem failed to accept the help offered by another consultant anaesthetist. Between 12 noon and 4.20pm he failed to recognise the severity of the situation or to react appropriately and timeously, and he failed to ensure recannulation at the appropriate time. These failures either individually or collectively were irresponsible, inappropriate, unprofessional and demonstrated a serious departure from good clinical care and practice.
- After these findings had been announced, both counsel made their submissions on impairment. The legal assessor then tendered his advice as to how the Panel should approach that issue. The Panel deliberated and gave its decision on impairment the following day. I shall now read out that decision, but will add paragraph numbers for ease of future reference:
"1. You have admitted to the Panel that prior to induction of anaesthesia you did not record Patient A's baseline values of pulse, oxygen saturation or blood pressure. The Panel does not accept that readings taken two and a half hours earlier on the ward would be acceptable as baseline values, as they could have changed. The Panel also notes the document 'Recommendation for standards of monitoring during Anaesthesia and Recovery' (December 2000) published by the Association of Anaesthetists of Great Britain and Ireland. It recommends that:
(1) 'Monitoring devices must be attached before induction of anaesthesia and their use continued until the patient has recovered from the effects of anaesthesia.
(2) 'All information provided by monitoring devices should be recorded in the patient's notes. Trend display and printing devices are recommended as they allow the anaesthetist to concentrate on managing the patient in emergency situations'.
You did not adhere to this guidance.
2. In these circumstances the Panel has found that your actions were irresponsible and a serious departure from good clinical care and practice.
3. You administered drugs at about 11:00 to induce anaesthesia.
4. Under anaesthesia, but before surgery commenced, Patient A's condition was unsatisfactory in that her circulation was inadequate, including as indicated by her colour. She was tachycardic and her oxygenation was inadequate. You failed to commence resuscitation with oxygen and intravenous fluids. You allowed the operation to proceed. The Panel concurs with Dr Mackenzie, the GMC's expert witness, that it was an error to proceed with the operation given the patient's condition after transfer to theatre. The correct course of action would have been to connect monitors, obtain readings and commence resuscitation with oxygen and intravenous fluids in order to stabilise the patient. As a result of these failings the Panel has found your actions to be inappropriate, irresponsible and a serious departure from good clinical care and practice.
5. You have admitted to the Panel that before and/or during theatre you did not record (including where appropriate the values of) Patient A's, inspired concentration of gases, end tidal concentration of isoflurane, grade of laryngoscopy, breathing circuit and mode of ventilation.
6. Before induction and every five minutes thereafter, you did not record Patient A's vital signs. In evidence, Dr Mackenzie referred to this as poor practice and although the Panel accepts that you were unable to do this during the operation, you should have recorded the vital signs at a later time that day. Your actions were inadequate and a serious departure from good clinical care and practice.
7. After surgery, but before Patient A's removal to the recovery room, her colour continued to deteriorate. She was cold and clammy to the touch. You removed Patient A's endotracheal tube. Both Dr Mackenzie and Dr Davies, your expert witness, agree that the tube should not have been removed. Dr Davies opined that the removal of the tube may have increased the risk to the patient. The Panel finds that the removal of Patient A's endotracheal tube was inappropriate, irresponsible and a serious departure from good clinical care and practice.
8. Patient A was taken to the recovery room at about 11:30. On arrival her blood pressure was low, oxygen saturations were low and skin was blue, mottled and clammy. By about 12:00 Patient A was still unresponsive and poorly perfused. You left Patient A to anaesthetise another patient. The Panel views this decision with great concern given that machine readings covering 11:35 to 12:09 all show that the patient was suffering from low oxygen, low blood pressure and tachycardia. The experts agree that this showed poor perfusion, which you have now also accepted.
9. You failed to examine Patient A carefully. The Panel accepted the evidence of Nurse Whitaker that the usual examination did take place, but given her description of what had occurred it is satisfied that it was not a careful examination. Dr Mackenzie stated that this was an unusual situation and needed more than the usual examination. You further failed to record the results of any such examination you may have carried out. You failed again to record the result of any attempts you may have made to establish any explanation for Patient A's condition. You failed to order blood samples. The Panel is concerned that you did not remain with the patient to supervise cardiovascular and respiratory support.
10. This conduct, apart from the failure to take blood samples which would not have been of immediate assistance, put the patient at risk. It was irresponsible, unprofessional, compromised your ability to care for your patient, and was a serious departure from good clinical care and practice.
11. The Panel has heard that by about 14:00 Patient A had failed to regain consciousness, became agitated and had decerebrate movements. By, or at this time, you failed to accept the help offered by another consultant anaesthetist, Dr Coleman. The Panel heard evidence that the offer of such assistance would have been unusual and demonstrated his concern. You also failed to anaesthetise Patient A again, replace the endotracheal tube, arrange a CT scan, or arrange for Patient A's transfer to intensive care. As the leader of a team, you should have ensured that all of these actions had been undertaken.
12. Between 12:00 and Patient A's transfer to the Multiple Injuries Unit at 16:20, you failed to recognise the severity of the situation, to act appropriately or timeously to the severity of the situation or to ensure recannulation at the appropriate time. The Panel is most concerned that you left Patient A at 13:45 to start to anaesthetise your fifth patient that day, thus severely compromising your ability to treat a patient who had been unconscious for several hours. Dr Davies opined that this was a risk he would not have taken. You admit to failing adequately to record in the notes such assessments, examinations, clinical signs, treatment and attempts to establish a diagnosis you may have undertaken.
13. The Panel has found that these failures, either individually or collectively were irresponsible, inappropriate and unprofessional and demonstrated a serious departure from good clinical care and practice.
14. The Panel is satisfied that your care of Patient A on16 September 2004, fell below the standards expected of a registered medical practitioner. There were clear departures from the guidelines in the GMC's publication 'Good Medical Practice' (2001). That publication makes it clear that 'serious or persistent failure to meet the standards in this booklet may put your registration at risk'.
15. Specifically this publication states that 'good clinical care must include:
• an adequate assessment of the patient's conditions, based on the history and symptoms and, if necessary, an appropriate examination;
• Providing or arranging investigations or treatment where necessary;
• Taking suitable or prompt action when necessary;'.
16. It states that in 'providing care you must keep clear, accurate, legible and contemporaneous patient records which report the relevant clinical findings, the decisions made, the information given to patients and any drugs or other treatment prescribed'.
17. You failed to adhere to this guidance. Your assessment of the patient's condition was inadequate and you failed adequately to record in the notes such assessments, examinations, clinical signs, treatment and attempts to establish a diagnosis as you may have undertaken.
18. The Panel has also had regard to the joint guidance of the Royal College of Anaesthetists and the Association of Anaesthetists of Great Britain and Ireland, 'A Guide for Departments of Anaesthesia, Critical Care and Pain Management'. (Second Edition 2002). It states that: 'although it is not a legal requirement to keep an anaesthetic record, if this standard of record keeping is not maintained and professional requirements are not being met, patients are put at risk'. It goes on to state that: 'the record must be such that if another doctor were required to take over the case, this record would allow systematic and ready access to all the information required'. On a number of occasions you failed to keep adequate records.
19. The Panel has also had regard to the 'Indicative Sanctions Guidance' (2005) and in particular paragraphs 11, and 53 to 58. Notwithstanding your Counsel's submission that the errors in treatment of patient A were a single incident on one day, the Panel has formed the view that your failings were a succession of serious errors in different areas of anaesthetic practice which put your patient at risk.
20. The Panel therefore finds that your fitness to practise is impaired because of your misconduct, and your deficient professional performance."
- There was a 30-minute break after that determination had been delivered. Counsel then made their submissions on sanctions. The legal assessor tendered his advice on this aspect. Dr Calhaem offered certain undertakings. The Panel deliberated and then delivered its final determination. This was to the effect that (a) Dr Calhaem's name should be suspended from the register for three months; and (b) before the end of that suspension, Dr Calhaem's case should be reviewed so as to reassure the Panel that he was fit to resume practise.
- Dr Calhaem was aggrieved by the various decisions which the Panel had reached. Accordingly, he commenced the present proceedings.
Part 3: The present proceedings
- By an appellant's notice dated 7 November 2006, Dr Calhaem appealed to the Administrative Court against the decision of the FTP Panel. Three grounds of appeal were set out in the notice of appeal, which I would summarise as follows:
1. The Panel made seven errors in its finding of fact.
2. The Panel was wrong to find impairment on the basis of misconduct or performance for a number of separate reasons.
3. The sanction of three months' suspension was wrong in principle, excessive and disproportionate.
- The relief which Dr Calhaem seeks in these proceedings is that the finding of impairment and the order for three months' suspension be quashed. The evidence which has been lodged for the purposes of this appeal comprises the evidence which was before the Panel, together with the transcript of the nine-day hearing before the Panel.
- Somewhat optimistically, the parties gave an estimate of one day for the hearing of this appeal. In the event, counsel's submissions occupied most of yesterday and all of the preceding day.
- Before I address the various issues which have been argued, I must first outline the relevant law.
Part 4: The law
- Section 35C of the Medical Act 1983 (as amended) provides:
"(1) This section applies where an allegation is made to the General Council against—
(a) a fully registered person ... that his fitness to practise is impaired.
(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—
(b) deficient professional performance..."
- Section 35C(4) provides for preliminary investigation by the Investigation Committee of the GMC. Section 35C(5) provides for the reference of cases to the FTP Panel at the behest of the Investigation Committee. Section 35D of the Medical Act 1983 (as amended) provides:
"(1) Where an allegation against a person is referred under section 35C above to a Fitness to Practise Panel, subsections (2) and (3) below shall apply.
(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit—
(a) except in a health case, direct that the person's name shall be erased from the register;
(b) direct 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
(c) direct 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 Panel think fit to impose for the protection of members of the public or in his interests."
- Section 40 of the Medical Act 1983 (as amended) provides a right of appeal from the FTP Panel. Such appeals used to lie to the Privy Council. Now, however, appeal lies to the Administrative Court. The rules governing proceedings of the FTP Panel are now contained in the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004/2608). Those rules contain detailed provisions for the assessment of medical practitioners in cases where deficient professional performance is suspected. Rule 17 sets out the procedure to be followed in proceedings before the FTP Panel. Those proceedings fall into three parts. First, the Panel makes findings of fact; next, the Panel determines whether the practitioner's fitness to practise is impaired; finally, the Panel considers the question of sanctions. At each stage of the process, the parties are entitled to call evidence and make submissions relevant to the issues under consideration.
- When one looks at judicial guidance in this field it is necessary to bear in mind that, until recently, allegations of misconduct were dealt with by the Professional Conduct Committee of the GMC. Allegations of deficient professional performance were dealt with by the Committee on Professional Performance of the GMC. Despite the recent changes in the statutory regime, the earlier authorities are still relevant. The word "misconduct" in section 35C(2)(a) does not mean any breach of the duty owed by a doctor to his patient; it connotes a serious breach which indicates that the doctor's fitness to practise is impaired. The phrase "deficient professional performance" does not mean any instance of sub-standard work; it connotes a level of professional performance which indicates that the doctor's fitness to practise is impaired.
- Accordingly, in applying section 35C of the Medical Act 1983 (as amended), it is helpful to have regard to two groups of cases. The first group comprises cases concerning "serious professional misconduct" within the meaning of section 36 of the Medical Act 1983, as originally enacted. The second group comprises cases concerning "seriously deficient professional performance" within the meaning of section 36A of the Medical Act 1983, as introduced by section 1 of the Medical (Professional Performance) Act 1995.
- Counsel for both parties in the present case have submitted that, although the language used in section 35C(2)(a) and (b) of the Medical Act 1983 in its present form differs from the language used in the old sections 36 and 36A, nevertheless the meaning is the same. I accept that submission and will proceed on that basis. I shall therefore turn to the authorities which give guidance on the application of those provisions.
- In Ghosh v General Medical Council  1 WLR 1915, the Privy Council upheld a decision of the Professional Conduct Committee that the appellant's name be erased from the register. In delivering the judgment of the Privy Council, Lord Millett noted that the Board's jurisdiction was appellate, not supervisory. Accordingly, the Board was entitled to substitute its own opinion for that of the committee. At paragraph 34, Lord Millett said this:
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances."
- In Preiss v General Dental Council  1 WLR 1926, the Privy Council held that a course of treatment provided by a dentist to one patient was so unsatisfactory as to constitute serious professional misconduct. Nevertheless, the Privy Council went on to hold that admonition would be substituted for the sanction of suspension. Lord Cooke of Thorndon, delivering the judgment of the Privy Council, said this at paragraph 28:
"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 that inevitably attaches to the disciplinary offence."
- In Krippendorf v General Medical Council  1 WLR 1054, the Privy Council quashed a finding of seriously deficient professional performance made by the Committee on Professional Performance. The reasoning of the Privy Council proceeded on the basis that the right approach, at least in that case, was to assess the appellant's past performance over a significant period of time.
- In Rao v General Medical Council (9 December 2002), the Privy Council quashed a finding of serious professional misconduct. The legal assessor in that case had advised the Professional Conduct Committee that a single freestanding event could amount to serious professional misconduct, and had then elaborated on that advice in an unsatisfactory matter. Sir Philip Otton, delivering the judgment of the Privy Council, noted that only one instance of clinical failure was alleged. That incident undoubtedly amounted to negligence, but it was only a "borderline case" of serious professional misconduct. Having regard to all the circumstances, the appeal was allowed.
- In Silver v General Medical Council (14 April 2003), the Privy Council quashed a finding of serious professional misconduct. The principal breach in that case was a failure to make a home visit to the patient over a period of nine days. Sir Philip Otton, delivering the judgment of the Board, said this at paragraph 20:
"In the instant case there can be little doubt that there was negligence and that it was open to the Committee to find that this constituted professional misconduct. However the Committee should have gone on to consider as a separate issue whether this amounted to serious professional misconduct. It is by no means self-evident that if this question had been posed it would have been answered in the affirmative. It was relevant to consider that this was an isolated incident relating to one patient (albeit over a number of days) as compared with a number of patients over a longer period of time. It was also relevant to take account of his long period (some 40 years) of unblemished professional conduct and the particular difficulties of conducting a single-handed practice in a deprived area of London."
- The last sentence of that paragraph has subsequently been doubted on the ground that an otherwise unblemished career goes to mitigation rather than liability: see R(on the application of Campbell) v General Medical Council  EWCA Civ 250 at paragraph 20.
- In Sadler v General Medical Council  1 WLR 2259, the Privy Council dealt with a finding of seriously deficient professional misconduct which had been made by the Committee on Professional Performance. The Committee's decision was based upon a detailed assessment of the surgeon's work over a lengthy period. That assessment included a detailed review of six separate operations carried out: four of which were found to be unsatisfactory. Lord Walker delivered the judgment of the Privy Council. Both counsel in the present case have drawn particular attention to paragraphs 62 and 63 of the judgment. I shall therefore read those paragraphs out:
"62. Although in Krippendorf the Board did not criticise the phrase 'repeatedly or persistently' in the GMC's guidance, it is important to bear in mind that that guidance is a generalisation seeking to cover a very wide range of professional performance. The professional demands made on a general practitioner are very different from those made on a consultant surgeon. A continuing failure to organise the efficient management of a general practice may (in a sufficiently bad case) amount to seriously deficient performance, but in the nature of things it must be assessed on very different evidence from that relating to shortcomings of technique in major surgery. It would plainly be contrary to the public interest if a sub-standard surgeon could not be dealt with by the CPP unless and until he had repeatedly made the same error in the course of similar operations. But as a general rule the GMC should not (and their Lordships have no reason to suppose they would) seek to aggregate a number of totally dissimilar incidents and alleged shortcomings in order to make out a case of seriously deficient performance against any practitioner.
63. At some points in his submissions Mr Hendy referred to tortious liability for negligence, suggesting that seriously deficient performance must be at least as serious as negligence. Their Lordships do not consider negligence to be a relevant or useful concept at a performance hearing before the CPP. Negligence is concerned with compensating loss proved to have been caused by a breach of a practitioner's duty of care. Seriously deficient performance is a much wider concept since (as already mentioned) it can extend to such matters as poor record-keeping, poor maintenance of professional obligations of confidentiality, or even deficiencies (if serious and persistent) in consideration and courtesy towards patients. It does not depend on proof of causation of actionable loss. (On the other hand one isolated error of judgment by a surgeon might give rise to liability in negligence but would be unlikely, unless very serious indeed, to amount by itself to seriously deficient performance.)"
- In Meadow v General Medical Council  EWCA Civ 1390;  QB 462, the Court of Appeal held, by a majority, that the FTP Panel had erred in concluding that certain misleading expert evidence given by a paediatrician amounted to serious professional misconduct. Auld LJ, giving the principal judgment on behalf of the majority, said this in the "conclusions" section of his judgment:
"197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
198. As to what constitutes 'serious professional misconduct', there is no need for any elaborate rehearsal by this Court of what, on existing jurisprudence, was capable of justifying such condemnation of a registered medical practitioner under the 1983 Act before its 2003 amendment. And, given the retention in the Act in its present form of section 1(1A), setting out the main objective of the GMC 'to protect, promote and maintain the health and safety of the public', it is inconceivable that 'misconduct' - now one of the categories of impairment of fitness to practise provided by section 35C of the Act - should signify a lower threshold for disciplinary intervention by the GMC.
200. As Lord Clyde noted in Roylance v General Medical Council  1 AC 311, PC, at 330F- 332E, 'serious professional misconduct' is not statutorily defined and is not capable of precise description or delimitation. It may include not only misconduct by a doctor in his clinical practice, but misconduct in the exercise, or professed exercise, of his medical calling in other contexts, such as that here in the giving of expert medical evidence before a court. As Lord Clyde might have encapsulated his discussion of the matter in Roylance v Clyde, it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious. As to seriousness, Collins J, in Nandi v General Medical Council  EWHC (Admin), rightly emphasised, at paragraph 31 of his judgment, the need to give it proper weight, observing that in other contexts it has been referred to as 'conduct which would be regarded as deplorable by fellow practitioners'.
201. It is also common ground that serious professional misconduct for this purpose may take the form, not only of acts of bad faith or other moral turpitude, but also of incompetence or negligence of a high degree."
- In Holton v General Medical Council  EWHC 2960 Admin, Stanley Burnton J dismissed an appeal by a consultant paediatrician against a finding of seriously deficient professional performance. This finding was based upon a review of the appellant's performance over a period of five months. A large volume of material was considered, including 250 sets of medical records. It can be seen that the finding of seriously deficient professional conduct was based upon a thorough and detailed assessment.
- The most recent decision cited by counsel is a timely reminder of the limitations of the functions of this court. In Fatnani and Raschid v General Medical Council  EWCA Civ 46, the Court of Appeal reversed two decisions of this court quashing sanctions which had been imposed by the FTP Panel. Laws LJ gave the principal judgment, with which Chadwick LJ and Sir Peter Gibson agreed. At paragraph 26 Laws LJ said this.
"26. I acknowledge without cavil that Collins J's judgments are careful and humane. But I have to say that they do not in my view remotely offer sufficient recognition of the two principles which are especially important in this jurisdiction: the preservation of public confidence in the profession and the need in consequence to give special place to the judgment of the specialist tribunal. Applying these principles I am driven to conclude that there was not in either of these cases any proper basis established for overturning the sanctions set by the Fitness to Practise Panel."
- From this review of the authorities, I derive five principles which are relevant to the present case:
(1) Mere negligence does not constitute "misconduct" within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to "misconduct".
(2) A single negligent act or omission is less likely to cross the threshold of "misconduct" than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as "misconduct".
(3) "Deficient professional performance" within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.
(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute "deficient professional performance".
(5) It is neither necessary nor appropriate to extend the interpretation of "deficient professional performance" in order to encompass matters which constitute "misconduct".
- With the benefit of this guidance from the authorities, I must now turn to the grounds of appeal in the present case.
Part 5: The first ground of appeal - alleged errors of fact
- Mr Andrew Hockton, who appears for Dr Calhaem, attacks eight separate findings of fact, which I shall refer to as "the targets". It should be noted that the fifth of these eight targets did not feature in the appellant's notice, but quite properly there was no objection taken to that matter being argued.
- The first target is the finding that the failure to record baseline values before inducing anaesthesia was irresponsible and a serious departure from good clinical care and practice. Mr Hockton submits that this was an error on Dr Calhaem's part, but it should not be characterised in such strong terms.
- I have considered all of the evidence and transcript passages upon which Mr Hockton relies, and my conclusion is as follows. Dr Calhaem's failure to record baseline values before inducing anaesthesia cannot be excused by the fact that those values had been recorded on the hospital admission form soon after 8am in the morning. This failure by Dr Calhaem constituted professional negligence. It did not, in isolation, constitute misconduct, but it formed part of a wider picture relevant to misconduct.
- The second target is the finding that it was irresponsible to proceed to surgery. Mr Hockton submits that this decision was inappropriate, but it should not be described as "irresponsible". In support of his submission, Mr Hockton points to a number of steps which Dr Calhaem took during the operation to sustain the patient, such as increasing the oxygen supply by bagging. In my view, these steps are irrelevant to the present issue which concerns the quality of the original erroneous decision.
- More pertinently, Mr Hockton points out that the decision to proceed with the operation was taken jointly by Mr Wilson and Dr Calhaem. I see force in this point. It is difficult to see how, on the evidence, Mr Wilson could avoid bearing some share of responsibility. Nevertheless, the issue under consideration concerned the effects of drugs administered by Dr Calhaem and how those effects should be treated. This was the responsibility of Dr Calhaem. Dr Calhaem must bear principal responsibility for the decision that Mrs A was in a fit state to undergo surgery.
- I take into account all of the other matters urged by Mr Hockton, in particular the fact that the operation was a short one. Nevertheless, the patient had inadequate circulation, inadequate oxygenation, and also tachycardia. She was not in a fit state to undergo the operation. The decision to proceed constituted professional negligence on the part of Dr Calhaem. This decision did not, in isolation, constitute misconduct, but it formed part of a wider picture relevant to misconduct.
- The third target is the finding that it was irresponsible to remove the endotracheal tube shortly after the end of the operation. Mr Hockton accepts that this action was an error or a misjudgment, but submits that it should not be characterised as "irresponsible".
- I accept, on the evidence, that premature removal of the endotracheal tube is an error that many other anaesthetists have made from time to time. Nevertheless, there were two circumstances which made the error particularly serious in this case: (1) Mrs A was a particularly vulnerable patient, who was suffering from lack of oxygen. The advantage of an endotracheal tube is that it guarantees a clear airway. (2) Dr Calhaem suspected (rightly as it turned out) that Mrs A was allergic to Suxamethonium. As Mr Ben Jaffey on behalf of the GMC points out, this allergy might potentially make it more difficult to reinsert an endotracheal tube later. I say "might potentially" because other muscle relaxant drugs might overcome the problem, and indeed this proved to be the case.
- Mr Hockton makes the point that, in the event, we know from the evidence that Mrs A's airway remained unobstructed whilst she was in the recovery room, even though there was no endotracheal tube. Whilst this is correct as a statement of what actually happened, in my view it is clear, on the expert evidence, that it was a serious mistake to remove the endotracheal tube in the present case. In my judgment, this action by Dr Calhaem did not, in isolation, constitute misconduct, but it formed part of a wider picture relevant to misconduct.
- The fourth target is the finding that Dr Calhaem failed to examine Mrs A carefully in the recovery room. Mr Hockton submits, in reliance on the evidence of Nurse Whitaker and Dr Calhaem, that Dr Calhaem did carry out a full examination of Mrs A.
- It is clear from the transcript of Nurse Whitaker's evidence that Dr Calhaem carried out some examination of the patient. The issue is whether that was a careful examination. In the circumstances prevailing after the operation, a particularly full examination of the patient was required. Dr Calhaem's failure to make any record of the examination at the time was not only unprofessional, but also puts him in difficulty on the present issue. Furthermore, the fact that Dr Calhaem removed the endotracheal tube (to the surprise of Miss Whitaker), and that he did not order blood samples, are indications that he was not treating this serious case with appropriate concern.
- I have studied the transcript passages relied upon by Mr Hockton. I see no reason to disturb the Panel's finding that Dr Calhaem failed to make a careful examination of the patient. I do accept, however, that Dr Calhaem made some examination of the patient whilst she was in the recovery room.
- The fifth target is the finding that Dr Calhaem was irresponsible and unprofessional in failing to examine Mrs A carefully, to record the results of such examination, to record his attempts to establish the cause of her condition, and to remain present to supervise cardiovascular and respiratory support. It is a fact that Dr Calhaem failed to do each of these four things. Mr Hockton submits that the Panel failed to have sufficient regard to the fact that Dr Calhaem remained with the patient in the recovery room for a significant time, that he left the patient with an experienced recovery nurse, that he remained nearby and periodically checked the patient: see paragraph 11(v) of Mr Hockton's skeleton argument.
- In oral argument, Mr Hockton stressed that it was normal for an anaesthetist to leave a patient still unconscious with the recovery nurse. He stressed that there were signs of improvement in Mrs A's condition when she was in the recovery room, and this as a statement is correct. Mr Hockton also took me to passages in the transcript where witnesses opined that it would be much worse to leave the hospital altogether than to remain working nearby. That proposition, as I suggested to Mr Hockton in the course of argument, is a proposition which is plainly correct.
- The arguments which Mr Hockton presses are correct as far as they do go, but these arguments are not a complete answer to the criticisms made. Mrs A was by this time a very special case. It was most unusual for any patient to remain unconscious for so long after the end of an operation. Nurse Whitaker was concerned about Mrs A's condition: see the transcript of day 2 at page 6. Dr Coleman, who encountered the patient by chance, was concerned about her condition. On two separate occasions whilst Mrs A lay unconscious in the recovery room, Dr Calhaem went off to anaesthetise another patient. The first occasion was at about 12 noon; the second occasion was at about 1.45pm. On each of those occasions Dr Calhaem severely limited his availability to Mrs A for some time. This was because he undertook responsibility for another patient who was unconscious.
- My conclusion on this issue is that Dr Calhaem was in breach of his duty of care to Mrs A in each of the four respects identified by the Panel. None of these breaches, taken in isolation, amounted to misconduct. Taken together, however, they form part of a wider picture which is relevant to misconduct.
- The sixth target is the finding that Dr Calhaem failed to accept the help offered by another anaesthetist. Mr Hockton points out that Dr Coleman was only available to help between about 12 and 12.30pm. This is true. Nevertheless, help from Dr Coleman during this period would have been particularly valuable since this was a time when Dr Coleman was responsible for two patients in different places, both unconscious. It should also be noted that Dr Davies, the defence expert, referred to the dismissal of Dr Coleman's offer as a matter of concern.
- In my view, it was a clear mistake to reject Dr Coleman's offer of assistance; such assistance could only have inured to the benefit of both of Dr Calhaem's patients. I would hesitate to characterise the rejection of an offer of help as professional negligence; nor, in isolation, did it constitute misconduct. Nevertheless, the rejection of Dr Coleman's assistance at a critical time was most unwise and forms part of a wider picture which is relevant to misconduct.
- The seventh target is the finding that, at about 2pm, Dr Calhaem failed to arrange for Mrs A's transfer to intensive care. Mr Hockton makes the point that the need to transfer Mrs A to intensive care only arose when she developed decerebrate movements. Furthermore, the decision to transfer Mrs A to intensive care was made very soon after that event.
- It can be seen from the evidence of Mrs Parks, the in-patient services manager, that Mrs A's case was identified as a crisis at about 2pm. The alarm had been pressed by one of the Nurses, Mrs Shaw. A number of people came to the recovery room, including all of the theatre staff. Dr Calhaem took part in the general discussion. A joint decision was made to transfer Mrs A to intensive care. As Mrs Parks put it, Dr Calhaem did not stop that decision.
- Mrs Shaw, an agency nurse working at the Nuffield Hospital, and Mr Powell, the theatre manager, also gave evidence about the events occurring around 2pm in the afternoon. Their evidence was broadly consistent with that given by Mrs Parkes. A clear picture emerges that Dr Calhaem, the consultant anaesthetist responsible for Mrs A, was not taking the lead. He administered Midazolam following the decerebrate movements, which was appropriate treatment. Nevertheless, it was others who took the initiative in relation to transferring Mrs A to intensive care, and Dr Calhaem was content with that course. In isolation, this matter did not amount to professional negligence because the right decision was made. Nor does it amount to misconduct. Nevertheless, it forms part of a wider picture which is relevant to misconduct.
- The eighth target is the finding that Dr Calhaem's various omissions between 12 noon and 4.20pm were irresponsible and unprofessional. The omissions referred to in his findings are the following. Failure around 2pm to: (a) accept the help offered by another anaesthetist; (b) anaesthetise the patient again; (c) replace the endotracheal tube; (d) arrange a CT scan; (e) arrange for Patient A's transfer to intensive care. Failure between 12 noon and 4.20pm to: (a) recognise the severity of the situation; (b) act appropriately or timeously to the severity of the situation; (c) ensure recannulation at the appropriate time; (d) adequately record in the notes such assessments, examinations, clinical signs, treatment, attempts to establish a diagnosis and the like as Dr Calhaem may have undertaken.
- Mr Hockton contends in his skeleton argument that these omissions were mere clinical errors or breaches of duty. I accept that each one of those omissions, when taken in isolation, could be so characterised. When taken together, however, they present a more serious picture. In my view, it is perfectly fair to describe this conduct as irresponsible and unprofessional.
- Now let me stand back and look at the eight findings which are under attack. When the Panel uses the terms "irresponsible" and "unprofessional" or "serious departure", I do not think that the Panel is using those terms as synonyms for misconduct. What the Panel is doing is identifying shortcomings or breaches of professional duty. Anaesthetists perform a vital and life-preserving function. An anaesthetist, like a surgeon or an airline pilot, carries the responsibility for other people's lives in his daily work. In my view, the Panel was quite correct to regard the individual breaches in this case as serious matters. In my judgment, this is how the Panel's comments on Dr Calhaem's various breaches should be interpreted.
- Let me now draw the threads together. For the reasons set out above, I reject the first ground of appeal, which is an attack upon the Panel's findings of fact.
Part 6: The second ground of appeal - challenge to decision on impairment
- Mr Hockton challenges both the finding of misconduct and the finding of deficient professional performance.
- Mr Hockton began this part of his appeal by taking me through the Panel's determination on impairment, which is set out in the transcript of day 8 at pages 1 to 4. I have already read this determination out, and added paragraph numbers for ease of cross-reference. Mr Hockton challenges some of the findings contained in paragraphs 1, 4, 6, 7, 9, 11 and 12 of that determination. The arguments which Mr Hockton developed in relation to those paragraphs traversed the same ground as Dr Calhaem's appeal on the facts. For the reasons given in Part 5 above, I reject Mr Hockton's criticisms of those paragraphs.
- Mr Hockton's next submission is that Dr Calhaem's various breaches of duty may constitute the tort of negligence, but they do not amount to misconduct, which is substantially more serious. He relies upon the authorities reviewed in part 4 of this judgment. Mr Hockton developed a number of arguments on this issue, both orally and in writing, which I would summarise as follows.
(1) Dr Calhaem did a number of things which were right, for example bagging in theatre, diagnosing allergic reaction to Suxamethonium, treating that reaction with ephedrine, administering Midazolam after the decerebrate movements, and so forth.
(2 This was an isolated case involving a single patient.
(3) Mrs A received the right treatment and she made a full recovery from the incident.
(4) Neither Mrs A nor her family has complained to the GMC.
- Let me deal with these arguments separately. As to the first argument, Mr Jaffey, for the GMC, accepts that, during the course of the day, Dr Calhaem did a number of things which were right, but he submits that these did do not excuse the various errors. I agree with this analysis. It is impossible to conceive of a situation in which every single step taken by a consultant anaesthetist over a period of some five hours is negligent. Of necessity, this court must focus upon the mistakes which were made.
- As to the second argument, I accept that Dr Calhaem's breaches of duty all concerned one patient. I would hesitate to call any of those breaches "isolated". Over a period of some five hours, Dr Calhaem made a series of serious mistakes which put his patient at risk. It has been seen from the authorities reviewed in part 4 above that, depending upon the circumstances, even one act or omission, if sufficiently serious, can amount to misconduct. In the present case, the series of serious mistakes which were made, when taken together, readily cross the dividing line between (a) mere negligence, and (b) serious professional misconduct or misconduct.
- Mr Hockton does not contend that there was any material error in the legal assessor's advice to the Panel concerning impairment on grounds of misconduct. Having read the legal assessor's advice and the Panel's determination, I am satisfied that the Panel applied the right test in determining whether Dr Calhaem's acts and omissions constituted misconduct. Indeed, I would go one stage further and hold that the Panel came to the only conclusion which was open to it on the basis of its findings of fact.
- So far as Mr Hockton's third and fourth arguments are concerned, I do not think that they assist Dr Calhaem. It was a matter of good fortune that Mrs A made a full recovery from the negligent treatment which she had received. In those circumstances, the fact that neither she nor her family made a complaint is understandable, especially since the hospital was referring the matter to the GMC. In the event, Mrs A's family remained interested in the proceedings. I understand that Mr A attended the GMC proceedings, his wife having died by that time.
- I turn next to the finding of deficient professional performance. Mr Hockton criticises the legal assessor's advice in relation to this issue. I see force in this criticism. Although it is possible for a finding of deficient professional performance to be based upon a single episode of treatment on one day, such a finding will be very rare and will arise from exceptional circumstances: see the review of the authorities set out in part 4 above. In my view, the legal assessor failed in his advice to the Panel properly to explain the respects in which deficient professional performance differed from misconduct.
- I turn now to the Panel's determination on this aspect. The Panel, for understandable reasons, did not take into account the fact that exceptional circumstances are required before a single episode of treatment can found a determination of impairment through deficient professional performance.
- Mr Hockton sought to develop a further argument to the effect that the Panel's approach to deficient professional performance somehow tainted its decision on misconduct. I am not persuaded by this argument. The Panel was correctly advised about the meaning of misconduct. It applied the correct test and came to what I regard as the only possible decision on this matter. The fact that the Panel went astray in relation to the issue of defective professional performance does not undermine its decision on misconduct.
- Let me now draw the threads together. For the reasons set out above, the finding of impairment because of misconduct is upheld. The finding of impairment because of deficient professional performance is quashed.
Part 7: The third ground of appeal - challenge to decision on sanctions
- Mr Hockton contends that the sanction of three months' suspension is excessive and disproportionate. He points out that this was an isolated case in a long and unblemished career. He refers to a bundle of testimonials which are evidence of the excellent professional service which Dr Calhaem usually provides. Mr Hockton also prays in aid many of the submissions which he advanced on the first two grounds of his appeal. Mr Hockton submits that the proper order in this case is "admonishment". He explains that this term is colloquially used to describe a situation where a finding of impairment is made, but the Panel or court makes no further order. The finding of impairment is itself a sufficient sanction because of its effect upon the reputation of the practitioner. Such an order was made in Preiss. In that case the Privy Council upheld a finding of serious professional misconduct, but substituted admonishment for 12 months' suspension.
- I have come to the conclusion that, since this court is quashing the finding of impairment by reason of deficient professional performance, it is necessary to consider the question of sanctions afresh. The finding of impairment now rests upon a more limited basis.
- At the end of his submissions, Mr Jaffey very fairly accepted that if this court upholds the impairment decision on a more limited basis than that propounded by the Panel, then the sanction imposed should be less severe than three months' suspension. In my view, this is the correct approach. The order for three months' suspension cannot stand.
- In the course of counsel's submissions yesterday, there was much discussion about what lesser order this court might substitute. Mr Hockton points out that the Panel's decision has already been devastating for Dr Calhaem. Dr Calhaem's practice consisted entirely of working as consultant anaesthetist in private hospitals. Following the Panel's decision, almost exactly a year ago, Dr Calhaem has been unable to work at all. Even if the period of suspension is quashed, Dr Calhaem will find it difficult to continue in practice. He will only be able to return to work in any private hospital if he is able to satisfy the Medical Advisory Committee of that hospital that, despite the finding of impairment, he can still be entrusted with anaesthetic work.
- In reaching by decision on the question of sanctions, I take into account the fact that the Panel intended Dr Calhaem to make an early return to practice. In giving the Panel's decision on sanctions, the Chairman said this:
"Having regard to all these matters, the Panel has concluded that the proportionate response to your misconduct and deficient professional performance is that your name be suspended from the Register for a period of 3 months. The Panel has decided that this period adequately reflects the degree of seriousness of your conduct. It is also intended to facilitate your return to practice."
- A further factor which I take into account is that Dr Calhaem has now been out of work for a year. That is four times as long as the period of suspension ordered by the Panel. On top of that, Dr Calhaem will only be able to return to work if he can satisfy the various Medical Advisory Committees that he should do so. I have every confidence that those Committees will impose any conditions which they regard as appropriate. One such condition, for example, might be that Dr Calhaem accept a period of mentoring.
- In all the circumstances of this case, I accept Mr Hockton's submission that the order for three months' suspension, together with the accompanying conditions, should be quashed. The finding of impairment by reason of misconduct is a sufficient sanction in all the circumstances of this case: in other words, I am dealing with this case in a similar manner to that in which the Privy Council dealt with the case of Preiss.
Part 8: Conclusion
- For the reasons set out in parts 5, 6 and 7 above, the finding of impairment because of deficient professional performance is quashed. The finding of impairment because of misconduct is upheld. The order for three months' suspension is quashed. I request that counsel liaise this afternoon and before leaving court in order to agree a suitable form of order.
- I express my thanks to both counsel for the excellence and thoroughness of their skeleton arguments and oral submissions.
- Next, may I make comments which I hope will be heeded by the Medical Advisory Committees to whom Dr Calhaem is going to make application. It appears from the testimonials before this court that Dr Calhaem has given excellent service over many years as a consultant anaesthetist. Dr Calhaem's misconduct on 16 September 2004 would seem to be totally out of character. Like the Panel, I consider that this incident should not be the end of his career. Such an outcome would be a loss to the community as well as a bitter blow to Dr Calhaem. I therefore express the hope that, subject to suitable safeguards, the various Medical Advisory Committees will enable Dr Calhaem to return to work. Finally, let me return to the issues in this case.
- Dr Calhaem fails on his first ground of appeal. He succeeds in part on the second ground. He succeeds in full on the third ground. Accordingly, this appeal will be allowed to that extent.
- MR HOCKTON: I am grateful to your Lordship, and particularly grateful for those concluding comments which I know Dr Calhaem will appreciate. My Lord, that brings us to the question of costs. I ask for my costs. I have not succeeded on all fronts, but the appeal has succeeded on a number of bases, specifically on the performance point and in relation to sanction. I accept, of course, that I failed in relation to the issue of misconduct. There is an assessment of costs summary, which I do not know if your Lordship is minded to summarily assess costs, but both parties have --
- MR JUSTICE JACKSON: I have just been passed a little bundle of documents. I think this little bundle is the same as the one you are passing up to me.
- MR HOCKTON: It may be updated, and I apologise, your Lordship, it is somewhat messy in that those instructing me did not appear to have added the figures for the disbursements and solicitors' and counsel's fees. But the total is in handwriting.
- MR JUSTICE JACKSON: Yes. I cannot read the handwriting, I am afraid.
- MR HOCKTON: That is £14,900.50.
- MR JUSTICE JACKSON: £14,900.50?
- MR HOCKTON: Yes.
- MR JUSTICE JACKSON: Thank you. Yes, Mr Jaffey?
- MR JAFFEY: My Lord, I am slightly surprised that my learned friend is making an application for costs. Could I ask your Lordship to test it in this way: if this appeal had been brought solely on the grounds of whether or not the complaint of deficient professional performance could be sustained and any consequential effect on the sanction that it might have, this appeal would have been very short indeed. On all of the matters which required extensive preparation from myself and detailed consideration by your Lordship, and a substantial amount of court time, the GMC's decision has been, in my submission, vindicated. The sanctions decision which your Lordship has made is, as your Lordship says quite rightly, an exercise in re-sentencing, having made a decision on a different basis. The sole ground then on which my learned friend succeeded is on an extremely short legal point, which, if this case had been confined to that, could have been dealt with in very short order indeed. So, my Lord, in my submission, in terms of the use of court time, the proper order is that the GMC should be paid a proportion of its costs, and I submit 50 per cent. If your Lordship is not with me on that, then my submission is the proper order is that there be no order for costs in this case. If your Lordship considers that what has in fact happened is that both parties have succeeded in part, then the proper order in relation to the costs, which are broadly similar, is that the costs should lie where they fall, and I do not know if your Lordship wants to hear me on the specifics of my learned friend's costs schedule.
- MR JUSTICE JACKSON: Not at the moment. I wish to deal with the principle first.
- MR JAFFEY: My Lord, I think that is all I have to say on the principle.
- MR HOCKTON: My Lord, it cannot be right that, but for the issue of misconduct, this would have been a straightforward case. There is an important issue of substance which has been raised on this appeal, namely whether or not a single instance of clinical failure can amount to deficient performance under the Act. Your Lordship will have seen that, in the course not only of the submissions made by the GMC before the Fitness to Practise Panel, but indeed in the skeleton argument pursued on behalf of the GMC in this case, it was argued, we say, wrongly, and in so doing, fortified by your Lordship's judgment in this regard, that a single instance of clinical failure could amount to deficient performance. This is a matter of some importance as it involves the interpretation of the new rules. On any analysis, that issue alone would have required canvassing of the various facts and matters set out in the argument pursued on behalf of the appellant. So, my Lord, it is not accepted that this appeal has only succeeded on a narrow basis. It succeeded, we submit, on an important basis which has consequences for other cases.
- MR JUSTICE JACKSON: You cannot be seeking the whole of your costs. What proportion realistically are you asking for?
- MR HOCKTON: My Lord, a realistic approach might be two thirds.
- MR JAFFEY: My Lord, in my submission, it would be quite extraordinary if my learned friend was able to occupy what is now effectively two days of court time on detailed factual arguments which comprehensively fail in their entirety, and which almost all of the preparation costs in this case were dedicated to, and is then able to recover his costs of that preparation, my Lord, from the GMC. My Lord, in my submission the proper order is that the GMC should be receiving an order for costs in this case. Alternatively, there should be no order.
- MR JUSTICE JACKSON: Yes, I recollect that was your submission.
- The issue of costs has been fought with more vigour and, dare I say it, hostility than any other issue in this important litigation. That is not altogether outside my experience. It is necessary to bring a measure of moderation to this question. I bear in mind the costs provisions of the rules and the discretion which they confer upon this court. I begin from the proposition that the appellant has succeeded on an important issue in this appeal. He has succeeded on the point of law concerning deficient professional performance. As a consequence of that, as Mr Jaffey so aptly puts it, this court had to re-sentence and necessarily was going to impose a less severe order.
- I also take into account the fact that the great majority of this hearing has been devoted to issues which the appellant has lost. On top of that, I bear in mind that a probably even greater proportion of the preparation costs have been devoted to issues which the appellant has lost. A great deal of work has been done in relation to factual issues where, with all respect to Mr Hockton, the appellant has made no headway whatsoever.
- What is the proper order for costs that this court should make in the exercise of its discretion? Mr Jaffey, in his more enthusiastic moments, submits that, despite having lost on one and a half issues on this appeal, the GMC should recover half its costs. Alternatively, and more moderately, he submits that there should be no order as to costs. Mr Hockton, in opening his submissions, sought an order for costs payable to the appellant. In his reply, he moderated that to a request for two thirds of his costs.
- I consider that an award of two thirds of the appellant's costs would be far too generous to the appellant, bearing in mind the areas where the appellant has been unsuccessful. I also consider that since the appeal has succeeded on one and a half of the three grounds, and since parts of the order made by the Fitness to Practise Panel have been quashed, the appellant is in the position of a successful party who should recover some of his costs.
- I have found the assessment of the extent of the appellant's recovery to be unusually difficult in the circumstances of this case. Doing the best that I can, and bearing in mind the history of this litigation which is very fresh in my mind, and bearing in mind the preparatory work which I can see has been done on both sides, my decision is that the GMC shall pay to the appellant one quarter of the appellant's costs.
- I now enquire whether it is the wish of both parties that I should assess one quarter of those costs; whether they wish me to rise for two minutes whilst they agree them; or whether they wish to have this matter sent off for a detailed assessment in order that those issues can be fought with the energy which has now crept into the costs debate.
- MR JAFFEY: My Lord, can I suggest I think a detailed assessment in this case would be entirely appropriate because the costs of that are going to outweigh the sum that your Lordship orders, even if the full amount of this schedule was agreed. Could I have a discussion with my learned friend?
- MR JUSTICE JACKSON: Yes, I will just sit here. Unless you want me to rise, I will sit here. (pause)
- MR JAFFEY: My learned friend has provided me with a value with a VAT inclusive figure, and the figure is £3,725. I have no objection to your Lordship summarily assessing the costs in that figure.
- MR JUSTICE JACKSON: By consent, I summarily assess those costs in the sum of £3,725.
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