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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Azzam v The General Medical Council [2008] EWHC 2711 (Admin) (12 November 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/2711.html Cite as: [2008] EWHC 2711 (Admin), (2009) 105 BMLR 142, [2009] LS Law Medical 28 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
DR. HUSSAM MOHAMMED AZZAM |
Claimant |
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- and - |
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THE GENERAL MEDICAL COUNCIL |
Defendant |
____________________
Miss Catherine CALLAGHAN (instructed by GMC) for the GMC
Hearing dates: 9-10 October 2008
____________________
Crown Copyright ©
Mr Justice McCOMBE:
(A) Introduction
(B) Facts
"She was readmitted at 0700 hours on 01-09-03. It was noted that her contractions were now every 3-4 minutes. Abdominal examination revealed the head to be 2/5 palpable in the abdomen. A CTG was recommenced at 0702. This continued for approximately 15 minutes. It is difficult to interpret it but the base line rate appears to be between 130 and 140 and there is normal variability of the base line with accelerations. There are possibly some very brief decelerations. A vaginal examination performed at 0715 showed her cervix to be 5cm dilated with the head well applied and 1 cm below the ischial spines. The position of the head was undefined and the membranes intact. She was given diamorphine for analegesia. Half hour observations were performed on her. The fetal heart rate was between 130 and 140 and this was recorded both in the notes and on the partogram. The contraction frequency tended to be about 3 every ten minutes. At 1115 a vaginal examination was performed and it was found she was 8 cm dilated. Artificial rupture of the membranes was performed and clear amniotic fluid drained. She then used entenox to supplement the analgesia. Intermittent monitoring continued and the base line heart rate remained the same at between 130 and 140.
At 1315 she had a further reassessment. On abdominal examination the head was noted to be 2/5 palpable. Vaginally the cervix was found to be 9 cm dilated with the head well applied. Clear amniotic fluid drained. The head was felt to be at the level of the ischial spines. The position of the head was not defined. In view of the minimal progress over the previous 2 hours it was discussed with her whether she wanted to have an oxytocin drip. She felt that she needed to have further pain relief. Following discussions with Dr Azzam and Midwife Convery (who was the midwife in charge of the delivery suite for that shift) it was agreed that she should have a further injection of diamorphine and a review after an hour.
At 1415 she wanted to push and a further vaginal examination was performed which suggested that in fact there was no change with the cervix still only 9 cm dilated but well applied to the presenting part which was below the ischial spines. The position was still not defined by Midwife Heron. Following discussions with Dr Azzam it was agreed to commence oxytocin. On the partogram the contractions were recorded as coming 3-4 every ten minutes and fetal heart recordings which were being done every 15 minutes were between 120 and 130. An intravenous infusion was inserted and oxytocin commenced at 1445. At this time continuous fetal monitoring was commenced. The initial CTG shows that the contractions were coming approximately 4 every ten minutes. The basal heart rate was about 120 with normal base line variability and accelerations. There were occasional variable decelerations. The oxytocin was increased every 15 minutes. At its increase in rate at 1530 Midwife Heron had recorded that she was having strong urges to push and that the contractions were 3-4 every ten minutes. On the CTG there is no contraction belt recording present at this stage. The basal fetal heart had increased to between 140 and 150 and there were still accelerations. This rise in heart rate was noted by Midwife Heron on the partogram. At this stage Emma McAthey was wanting to push and it appears that Midwife Heron allowed this to occur. On the summary of labour 1530 is noted to be the commencement of the second stage of labour.
With the onset of pushing the CTG becomes harder to interpret partly because she was initially standing. However by 1600 hours she was back lying in bed and the contraction belt then recorded satisfactorily. The contraction frequency was 6 every ten minutes. The partogram completed by Midwife Heron records the contraction frequency to be 5 in ten. It also shows that the fetal heart rate was approximately 130 at this stage. While between 1530 and 1550 the CTG is difficult to interpret, it does appear that she is getting deep decelerations but because there is a non-recording of the contractions it is difficult to tell whether there these are variable or late decelerations. However from 1552 when the contraction recording starts it is clear that the decelerations are late after the contractions with the base line rate recovering to about 180 just before the next contraction commences. The decelerations are lasting for approximately 1 minute prior to recovery. Midwife Heron has recorded that the base line was rising but that these were early decelerations with satisfactory recovery. Midwife Heron informed Dr Azzam who reviewed her and advised continuing for a further 30 minutes prior to review. He signed the CTG at about 1619 but did not write in the notes.
Between 1615 and 1645 the CTG continues to show a similar picture. The contraction frequency was 6 in ten and there were deep late decelerations with recovery to a base line of between 180 and 190. At 1645 Midwife Heron has recorded that the base line heart rate was 150. The is no comment from her about asking for a further opinion from Dr Azzam or the delivery unit midwife coordinator. At 1700 hours Midwife Heron has recorded that the vertex was advancing slowly and was visible with the contraction. She recorded that the base line heart rate was 130-140 with good variability and accelerations. However examination of the CTG at this stage shows an unchanged picture with the heart rate now reaching up to 190 following decelerations. At 1715 the CTG was discontinued as delivery was about to occur."
"…between contractions you will hear the heart rate starting to go up, so you do not need paper, you do not need to look, you can just look at the mother and just listen if the volume is on to diagnose whether there are late decelerations in the second stage of labour [i.e. a sign of fetal distress]. A student midwife can tell that, let alone a registrar or an experienced midwife."
(I have not, however, been shown any evidence from the experienced midwife who was in attendance at the time that she noticed these signs or alerted Dr Azzam to them.)
(C) Allegation 4 i., the Mahoney case
"4. At or soon after this review [i.e. the review at 1615 hours on 1 September 2003] you did not…
[allegations a to h are then set out]…
i. demonstrate that you had learnt from the consequences of not urgently acting upon signs of fetal distress shown on a CTG trace, despite the events that had occurred on 21 and 22 June 2002 when you were employed by Royal Bolton Hospitals NHS Trust…".
(It seems that this allegation was correctly taken to mean that the failure that was being alleged covered the period from June 2002 until September 2003, notwithstanding the way in which the allegation was simply added to the other allegations concerning the period after the review at 1615 on 1 September 2003.)
(D) The Panel's findings
"Since you believed that you were wrong in the Mahoney case, you could not have demonstrated by September 2003 that you had learnt from the consequences of not urgently acting upon signs of fetal distress shown on a CTG trace."
"…Believing you had been wrong about the CTG trace, it is your evidence that you did not take steps to learn from this. The Panel considers that you should have done so."
(Nothing is said as to what Dr Azzam should have learnt. This is perhaps not surprising as no particulars were ever given of such matters by the GMC.)
"…the Panel will now invite Mr Grundy [who appeared for the GMC] to adduce further evidence and to make any further submissions as to whether, on the basis of the facts found proved your [Dr Azzam's] fitness to practise is impaired. Mr. De Bono [who appeared for Dr Azzam] will then be given an opportunity to respond on your behalf ." [Emphasis added]
No provision was made for the leading of further evidence by Dr Azzam.
"The Panel does not accept the argument that impairment of fitness to practise cannot come from a single incident with one patient. In its judgement, the question of impairment depends on the nature and seriousness of the misconduct and, in this case, the need to uphold the standards of the profession and maintenance of public confidence in the profession. Neither does it accept that it can be mitigated by the fact that the case has taken a long time to come to a hearing and that a doctor's learning and skills have developed since. The Panel has borne in mind the testimonial evidence but gave it little weight at this stage since the facts found proved represent such a departure from the acceptable standard of care that these issues do not affect the Panel's decision.
The Panel has found two areas of your misconduct to be irresponsible, a term which includes a degree of recklessness. These two areas are firstly your overall review of Ms McAthey at 1615, including your misrepresentation of her CTG trace and the consequential lack of action. Secondly, even if you had assessed the CTG trace as only being suspicious your handover to Dr Ibrahim did not ensure that he understood the seriousness of the situation. In addition, your note keeping has been proved to be below the standards which could reasonably be expected of a competent obstetrician. Taken together these three separate serious failings mean, in the Panel's professional judgement, that your fitness to practise is impaired.
The Panel notes that you admitted asking Ms McAthey to continue pushing was inappropriate, inadequate, not in the best interests of Ms McAthey or her baby and below the standards which could reasonable [sic] be expected of a competent obstetrician. The Panel has heard no evidence to suggest that this would in fact have been inappropriate even if the CTG trace were pathological. Continuing to push would have been appropriate while you were preparing for an instrumental delivery. The Panel criticises your lack of learning from the Maloney case but does not feel that this error was serious. …"
"The Panel has borne in mind its duty to protect the public, to maintain public confidence in the medical profession, and to uphold proper standards of professional behaviour as set out in the GMC's document "Good Medical Practice". The Panel is conscious that the purpose of sanctions is not to be punitive, but that they may have a punitive effect.
The Panel first considered whether to conclude your case by taking no action, but determined that, in view of the serious findings made against you, this course of action would be insufficient and not in the public interest.
The Panel next considered whether it would be sufficient to conclude your case with a period of conditional registration. In doing so, the Panel has borne in mind the Indicative Sanctions Guidance at S1-13 which sets out when conditions might be appropriate. The Panel was unable to identify any areas of your practice which are in need of assessment or retraining. It has also borne in mind that any conditions must be appropriate, proportionate, workable and measurable. The Panel has concluded that it is not possible in this case to formulate appropriate and workable conditions. Furthermore, due to the seriousness of your misconduct, the public interest would not be served by the imposition of conditions. The Panel observes that it would have reached the same conclusion even if this hearing had taken place several years ago.
The Panel then considered whether it would be sufficient to suspend your registration.
The Panel has borne in mind page S1-6, paragraph 27, of the Indicative Sanctions Guidance which states:
"Suspension can be used to send out a signal to the doctor, the profession and public about what is regarded as unacceptable behaviour."
It has borne in mind page S1-14, which indicates when suspension might be appropriate:
- A serious instance of misconduct but where a lesser sanction is not sufficient
- Conduct which is not fundamentally incompatible with continuing to be a registered doctor
- No evidence of harmful deep-seated personality or attitudinal problems
- No repetition of behaviour since the incident
- The Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour "
The Panel has found that your actions in relation to Ms McAthey were inappropriate, inadequate, irresponsible, not in the best interests of Ms McAthey or her baby and below the standards which could reasonably be expected of a competent obstetrician. However, the Panel accepts that your misconduct is in relation to a single case, involving one patient over a short period of time.
The Panel has been informed that there is no evidence to suggest that your failings have been repeated or that you have been the subject of any further complaint in relation to any other aspect of your clinical practice. You have apologised for your actions and stated that you deeply regret your error and live with it every day of your life. You are well aware of the effect your error has had on Ms McAthey and her partner, Mr Manson.
The Panel has had regard to all the evidence put forward in mitigation including the bundle of supportive testimonials in which you are described as a highly skilled and competent obstetrician, whose management of patients is appropriate, timely and well executed. The Panel has borne in mind the oral evidence of Mr Pitman, Consultant Obstetrician and Gynaecologist, who has been your supervising Consultant for the last twelve months. Mr Pitman commends your clinical skills. He stated that you are an exemplary Specialist Registrar and in his opinion you are in the top ten per cent of Specialist Registrars in the Wessex Deanery area.
The Panel has considered the Educational Supervisors Report for RITA (Record in Training Assessment) and the TO2s (Team Observations Reports) which have been completed during the course of your specialist training. These also support the view that you are a highly skilled and competent obstetrician.
The Panel accepts that the factors as set out in the Indicative Sanctions Guidance on pages S1-14 are met. It has, therefore, determined that it is appropriate and proportionate to impose a period of suspension on your registration. The Panel has concluded that this is necessary in view of your serious misconduct, in order to send out a signal to you, the profession and the public as to what is regarded as unacceptable behaviour. The Panel considers that it is acting in the public interest, to maintain public confidence in the profession and to declare and uphold proper standards of conduct and behaviour.
The Panel has also taken into account the interests of your patients, and that aspect of the public interest which makes it desirable to permit an otherwise competent doctor to return to practice at the first reasonable date consistent with marking the seriousness of your misconduct. For all these reasons, the panel has determined to suspend your registration for a period of one month, which it considers is proportionate and appropriate in all the circumstances."
(E) The Appeal
(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
(F) The appeal on the facts
"The Panel has found two areas of your misconduct to be irresponsible, a term which includes a degree of recklessness…".
"Q If you take one definition of "irresponsible", in other words the definition that you act irresponsibly if being the person with ultimate responsibility you do not act as you should, then in the vast majority of cases of clinical negligence, where a doctor acts below the standard of a reasonably competent doctor, on that definition a doctor is acting irresponsibly?
A Yes.
Q On the factual scenario that I am putting to you, you would not be using "irresponsible" in the same way as "reckless"?
A No, I do not think that I would use the word "reckless". I would not use the word "reckless" to describe his actions, no. That implies that he had some knowledge, in my mind, that there was a problem and he did not act despite some knowledge there was a problem."
"In a sense it is how you use your words, is it not? That I guess is for the Panel rather than for me."
(G) Impairment of Fitness to Practise
"A person's fitness to practise shall be regarded as "impaired" for the purposes of this Act by reason only of –
(a) misconduct;
(b) deficient professional performance;
(c) a conviction or caution in the British Isles for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
The parties accepted that this exclusive definition in Section 35C(2) is also applicable by implication to the construction of section 35D(2) concerning Fitness to Practise Panels.
"In short the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FTP first looks forward not back. However, in order to form a view as to the fitness of a person to practise today it is evidence that it will have to take into account of the way in which the person concerned has acted or failed to act in the past."
"It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated."
This decision post-dated the Panel's decision in the instant case and Miss Callaghan initially opposed it being taken into account on this appeal. In argument, however, I think I persuaded her that as this was merely a point of law, it should properly be taken into account by me.
"Mr Hussam (Sam) Azzam has been employed in our department as a Senior Specialist Registrar in the field of Obstetrics and Gynaecology for the last 10 months. I have been his supervising Consultant throughout this time. He had previously been on the Wessex Regional Specialist Registrar rotation programme and had passed his annual appraisals with merit. No concerns had been expressed by his previous employers in this region regarding his care of patients or fitness to practice in this field.
In his time in our Unit Sam's standard of work, diligence and care of patients has, in my view, been exemplary in both Obstetric and Gynaecological disciplines. His level of knowledge and clinical skills, particularly in his area of special interest (Obstetrics and Labour Ward management) are well above the level which we currently see in trainees of his level of seniority. His CTG interpretation ability is now, in my view, significantly better than many of his peers. He now uses these skills to teach junior members of the Obstetric and Midwifery staff. …
… Sam informed me about the impending GMC investigation involving him shortly after commencing work here in Winchester. We have discussed the cases in detail. He has insight into the criticisms of his management, fully accepts that there were significant deficiencies but is deeply upset that this could now involve assessment of his fitness to practice. I have absolutely no concerns about his aptitude and ability to continue practicing in this field. To this end I am currently supporting him in applications to obtain a Consultant post in this speciality. I do this without reservation and believe that he will excel in this role. …"
"De Bono: Do you have any concerns about Dr Azzam's ability as an obstetrician based on what you know about him or your experience of him?
Pitman: I have absolutely no concerns about his willingness, aptitude and ability to make the next step in to the consultant grade. My biggest concern, depending on the decision process of the Panel today, is if a trainee who has passed through a training programme in one of the most highly respected obstetric and gynaecological training regions in this country is found having had four years flawless training in this region to be found now by the GMC in any way as being unfit to practise, that casts a major concern in both my mind and I am sure the entire speciality's mind as to how the GMC would respect and value structured training programmes at specialist registrar level if somebody can pass through without any difficulty and now on the basis of clinical cases that occurred over four years ago can be found to be in any way deficient in his current practice"
(H) Sanction
"Suspension can be used to send out a signal to the doctor, the profession and public what is regarded as unacceptable behaviour."
This seems to have been the Panel's guiding principle on sanction. It is repeated on the next page of the finding.
(I) Allegation 4 i.
(J) Conclusion