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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Aga v General Medical Council  EWHC 782 (Admin) (28 March 2012)
Cite as:  EWHC 782 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR RAKESH AGA
|- and -
|GENERAL MEDICAL COUNCIL
Ben Jaffey (instructed by GMC Legal) for the Defendant
Hearing date: 14 March 2012
Crown Copyright ©
Mr Justice Eady :
"I consider this claim to be arguable. It raises important issues bearing on the Claimant's standing in his profession. If, as is submitted on behalf of the Defendant in paragraph 22 of its summary grounds, the challenge amounts to no more than an invitation to the court to substitute its own judgment for that of the Panel – which is not a proper exercise for the court to undertake – this will emerge when the case is fully argued … "
"(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'."
"In view of the infinite varieties of professional misconduct, and the infinite range of circumstances in which it can occur, it is better, in our opinion, not to pursue a definitional chimera."
It was there emphasised that the decision in every case as to whether there has been serious misconduct has to be made by the Panel in the exercise of its own skilled judgment on the facts and circumstances and in the light of the evidence before it.
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 deserves 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 overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
8. You failed to,
a) recognise hypoglycaemia as the cause of Patient X's impaired consciousness,
b) note the recurrent low blood glucose recorded in the case notes over the preceding day.
The Panel proceeded on the basis of Dr Aga's admissions in relation to each of these allegations. It will be noted, in the light of the case advanced by Dr Aga before me, that these admissions were of limited effect (and no doubt he would now regret having made them on an unqualified basis). He claims that the intended extent of the admissions he made was simply to acknowledge that he did not immediately on his arrival at Patient X's bedside "recognise hypoglycaemia" as the only possible cause of his impaired consciousness. He thought it so unlikely in the case of a hospital inpatient that he felt the need to canvass, mentally, other possible causes. It did not affect his conduct, however, and hypoglycaemia was determined within minutes when the blood glucose levels were checked. There is no allegation of a mis-diagnosis.
"When I heard that [Patient X had hypoglycaemia] I thought, how could I not think of that? I heard it with dismay because you really do kick yourself."
Furthermore, in cross-examination Dr Aga accepted that he had made "a glaring error". He also accepted that, as Dr Heading had put it, most consultants would have been horrified to have missed the diagnosis of hypoglycaemia. (Obviously, had he had direct access to the notes or the chart in time, he would not have done so.) It was also acknowledged on his behalf that he did not pick up the recurrent low blood glucose recorded in the case notes – having delegated the scrutiny of the notes to a trainee doctor while he himself was checking the online data.
"What I am saying is that the diagnosis of hypoglycaemia was not thought about at the time by Dr Aga or his team, and that is regrettable but conceded was an error. But, nevertheless, he showed good physician skills, if you like, in other respects. Because he did the right thing for this patient in other respects that actually did retrieve the problem, but I do not think he is saying and I do not think I am saying that he said 'Put the patient on a sliding scale because I think the patient has hypoglycaemia'. He was saying, 'This patient is unconscious. We need to make sure their blood sugar is all right and therefore you have to measure it and adjust the insulin dose accordingly' and, in doing that, he made the diagnosis."
"I gather that it is likely that Dr Aga actually saw the patient around 11.35 and that the hypoglycaemia was in fact diagnosed very quickly once the patient became unconscious."
He later added, "The diagnosis was missed and we all miss diagnoses from time to time, regrettably, but other good general medical practice retrieved the situation". It is probably right to record that, at the end of his examination in chief, Dr Miller described Dr Aga as knowledgeable, competent, conscientious (wrongly transcribed as "contentious") and safe.
I must not, however, lose touch with reality. There is nothing to gainsay the timings I have set out above and, in the light of that, I cannot see how the "missing" of the hypoglycaemia diagnosis can be characterised as anything other than momentary. Nor is there any evidence that Dr Aga's mental processes in any way harmed the patient.
"The above patient was admitted via A & E to Kingfisher Ward on 14/11/07, a surgically expected admission. On 16/11/07, patient was transferred to Dickens Ward at 23.00. The blood glucose chart shows that for over 5 days, the patient had been experiencing continuous low blood glucose levels and repeated hypoglycaemia. Despite documented nursing notes highlighting this issue to the surgical consulting team, the on-call surgical/medical teams and Dr Aga's team, no reduction to the patient's insulin regime had been made. I was also unable to find documentation from any doctor regarding the care or management of the patient's Diabetes within the patient's medical notes. No referral had been made to the Diabetes Specialist Nurses.
On 19/11/07 at 11.45, whilst I was present on Dickens Ward reviewing another patient, I overhead a CSW reporting that the above patient had a blood glucose reading of 1.1mm ols/L and was unresponsive. Immediate corrective treatment was initiated by myself, Sr Sheenagh, SN Vanessa and Dr Aga's F1 doctor. Dr Aga's registrar was aware but not involved directly with the remedial treatment. Following patient recovery and blood glucose stability, patient became much more able to communicate and respond to command. The general overall attitude of senior doctors towards the patient's Diabetes appeared almost dismissive as the focus of care at that critical time was on the hepatic encephalopathy, not the Diabetic emergency. At that time there was little recognition and minimal documentation in the medical notes of the plan of care for the patient's Diabetes."
In these observations she made critical judgments very freely about various of the medical staff, but it is to be noted that, despite her reference to "Dr Aga's team", the low glucose level had not been drawn to his or their attention until at least 11.30 on the Monday morning. She seemed to be under the misapprehension that Dr Aga had been responsible for treating the patient over some or all of the preceding five days. Yet she did recognise, at least, that "immediate corrective treatment" was given and that the patient recovered once the blood glucose was stabilised. I do not attach much weight to this document, as it is not clear to what extent she had taken the trouble to establish the facts.
"Of greater concern to the Panel was your failure to recognise hypoglycaemia as the cause of Patient X's impaired consciousness and to note the recurrent low blood glucose recorded in the case notes over the preceding day, both of which you admitted at the commencement of these proceedings. The Panel noted paragraph 2 of Good Medical Practice which states:
'Good clinical care must include:
(a) adequately assessing the patient's conditions, taking account of the history (including the symptoms, and psychological and social factors), the patient's views, and where necessary examining the patient.'
Dr Robert Heading and Dr John Miller, experts called on behalf of the GMC and the defence respectively, both agreed that your failure to recognise hypoglycaemia as the cause of Patient X's impaired consciousness was a serious clinical error. The Panel has determined that this failure amounts to misconduct.
The Panel then went on to consider whether your fitness to practise is impaired as a result of that misconduct. In considering this question, the Panel took into account the concepts of insight, remediation and the risk of recurrence in accordance with the advice of the Legal Assessor.
The Panel considered that you had demonstrated insight by acknowledging your error in the case of Patient X throughout these proceedings. It noted that you had taken remedial action immediately following the incident by discussing the case of Patient X with Dr Andrew Gough the next day and, after that, at your team meeting. The Panel accepted the views of both expert witnesses that such an error is not likely to be repeated by you."
I do not see where either of the experts adopted the terminology of "serious clinical error". In any event, in the light of all the circumstances, the Panel came to the conclusion that Dr Aga's fitness to practise was not impaired by reason of the misconduct and the Panel was not minded to issue a warning.
i) The fact that Dr Aga's attention was not drawn to the presence of Patient X in the hospital, despite his readmission five days earlier, until 11.30 on the morning of 19 November.
ii) Thereafter he immediately broke off his ward round to investigate the patient's condition.
iii) After examining the online database between 11.30 and 11.40, and having deputed a junior doctor to examine the recent medical notes, Dr Aga appeared at the patient's bedside at 11.40.
iv) By 11.45 hypoglycaemia was diagnosed and glucose levels adjusted, with the result that the patient regained consciousness shortly thereafter and suffered no harm. The Panel did not suggest otherwise.
v) Dr Aga was surprised to find a patient suffering from hypoglycaemia while in hospital over a period of several days, never having encountered it before, and therefore briefly addressed, in his mind, the possibility of other causes of unconsciousness. This does not seem, however, to have delayed or diverted him from taking appropriate action.
vi) He applied the "Don't ever forget glucose" routine and put in place an emergency management plan which resulted shortly afterwards in a definitive diagnosis of hypoglycaemia.
vii) Within five minutes of his arrival at the patient's bedside, the patient was given the appropriate treatment and duly recovered.
viii) Dr Aga should have been informed that the patient had been readmitted on 14 November as soon as was practically possible, rather than being left in ignorance for nearly five days.
ix) Over that intervening period, his glucose levels should have been competently managed by whatever medical team was taking responsibility for his care.
x) At whatever point Dr Aga was informed of the patient's readmission, he should have been informed also of the recurrent hypoglycaemia.
xi) It was unfortunate that when he reached the patient the glucose chart was not, for whatever reason, available at the bedside.
xii) Although the information as to the hypoglycaemic episodes was contained in the notes, Dr Aga was fully entitled in the short time available to delegate the task of reading and summarising the medical notes to a junior doctor – while he was examining the information available online.