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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Garaffa v General Medical Council [2021] EWHC 539 (Admin) (09 March 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/539.html Cite as: [2021] EWHC 539 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
MR GIULIO GARAFFA |
Appellant |
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- and - |
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THE GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Alexis Hearnden (instructed by GMC Legal) for the Respondent
Hearing dates: 23 24 February 2021
____________________
Crown Copyright ©
Mr Justice Johnson:
Factual background
(1) A laparoscopic total abdominal hysterectomy with bilateral salpingo-oophorectomy ("TAHBSO"): This involves the removal of the uterus, cervix, fallopian tubes and ovaries. It was carried out by laparoscope. This procedure (about which no complaint is made) was carried out by Miss Kokka, a consultant gynaecologist, and the Appellant was not directly involved. Miss Kokka was not involved in (2) and (3) below.
(2) A metoidioplasty: This involves the formation of a new penis using the tissue of the clitoris. The labia are sutured together to form a neo-urethra that reaches the tip of the penis so that the patient can void urine in a standing position via the tip of the neo-penis. This procedure (about which no complaint is made) was carried out by the Appellant.
(3) A vaginectomy: This involves ablating the vaginal wall with high energy diathermy followed by its obliteration. The procedure lasts 20-30 minutes. It is irreversible. In the context of gender reassignment surgery, a vaginectomy is an elective procedure. It can be performed at any time, either alongside a metoidioplasty or separately. Complications are less likely if a vaginectomy is performed at the same time as a metoidioplasty (as opposed to subsequently) and the majority of patients who undergo metoidioplasty choose to have a vaginectomy. This procedure was carried out by the Appellant.
Evidence and MPT findings
The time at which, and the circumstances in which, the consent form was amended
(1) Miss Kokka, the consultant gynaecologist (who was not involved in the metoidioplasty or vaginectomy) said that she would have "expected" this to have been noticed, but not by her ("I would not expect me to notice that to be honest").
(2) Dr Ahmed, the anaesthetist, was certain that "vaginectomy" had been said, but this was on the basis that nobody had raised a concern, rather than a positive recollection of what was in fact said. His evidence was that this was not within his remit, and he did not suggest that he would have noticed the discrepancy.
(3) Dr Chiriaco had no recollection of the matter and said he "never checked the [check]list, it was done by someone else."
(4) Mr Rich said he would have ensured that the Appellant was present when the checklist was completed. So far as Mr Rich was concerned, however, he would not have registered the absence of "vaginectomy" from the consent form because he was under the misapprehension that a metoidioplasty necessarily included a vaginectomy.
(5) Nurse Stevenson (who was responsible for signing the checklist to show it had been completed) did not know whether a metoidioplasty included a vaginectomy, and did not suggest that she would have noted the absence of the word "vaginectomy" from the consent form.
(6) A prosthetics coordinator did not suggest that she would have noticed she said she was not focussed on the consent procedure.
Misconduct
(1) The Appellant failed to review the consent form and medical notes so as to ensure that informed consent had been properly obtained;
(2) The Appellant failed to (a) conduct a face-to-face meeting with Patient A, (b) review Patient A's medical records, (c) confirm Patient A's medical history, (d) review and confirm the contents of Patient A's consent form, (e) confirm that the decisions arrived at by Patient A still applied;
(3) The Appellant performed a vaginectomy which Patient A (a) did not want, and (b) had not consented to;
(4) The Appellant performed the vaginectomy despite (a) entries in Patient A's records stating that he did not want the vaginectomy, and (b) there being no properly completed form recording Patient A's consent to the vaginectomy.
Impairment
Sanction
Legal framework
"32. However, there are some cases where a doctor's failings are irremediable. This is because they are so serious or persistent that, despite steps subsequently taken, action is needed to maintain public confidence. This might include where a doctor knew, or ought to have known, they were casing harm to patients and should have taken steps earlier to prevent this.
33. In such serious cases, the tribunal must fully and clearly explain:
a. the extent to which the issues can be remediated
b. the steps the doctor has taken
c. how the seriousness of the findings including the doctor's failure to take steps earlier justifies the tribunal taking action, notwithstanding the steps subsequently taken."
"92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).
93 Suspension may be appropriate, for example, where there may have been acknowledgement of fault and where the tribunal is satisfied that the behaviour or incident is unlikely to be repeated. The tribunal may wish to see evidence that the doctor has taken steps to mitigate their actions..."
The appeal
Factual findings: grounds 1-3
Misconduct: grounds 4, 7 and 8
"Since Dr Garaffa did not meet personally with Patient A at any time prior to undertaking major surgery, and since the circumstances did not justify the delegation of the obtaining of written consent to a colleague, in my opinion he performed a vaginectomy without Patient A's consent. In my opinion to operate upon Patient A without consent falls seriously below the standard expected of a reasonably competent consultant performing vaginectomy surgery.
I have concluded that this falls seriously below the standard expected since to treat the patient without consent is in breach of paragraph 17 of Good Medical Practice and could reasonably be characterised as an assault. The consequences to Patient A of undergoing a vaginectomy without consent are permanent and life-changing in that he has been deprived of any possibility of vaginal function.
In my opinion, the failure of Dr Garaffa to personally assess Patient A, the failure to adequately review the medical records, as well as the inappropriate delegation of [Dr Capece] to seek written consent, led directly to the destruction of Patient A's vagina without consent. Although there is no reason to doubt that the surgical procedure was performed competently, the cumulative effect of the omissions listed above lead me to conclude that the overall standard of care fell seriously below the standard expected of a reasonably competent consultant performing vaginectomy surgery."
"If the consent form that was read out at the WHO surgical time-out did not contain the word vaginectomy, then it was not reasonable for Mr Garaffa to conclude that a vaginectomy was to be performed and to have carried out a vaginectomy was a serious failure."
"In my opinion he did bear responsibility to check that things done in his name, as the consultant surgeon (as a surgical team leader) responsible for the safe running of his operating list, were done.
The ?nal link in the chain was the failure, on the day, for Mr Garaffa to personally check that the correct procedure was undertaken and the checking behaviour failures of the surgical team on the day. As the consultant in charge for the urological aspects of the operating list, in my opinion Mr Garaffa must take responsibility for his failure to check what was done and what was not done on his Operating list."
"Responsibility for seeking a patient's consent
26 If you are the doctor undertaking an investigation or providing treatment, it is your responsibility to discuss it with the patient. If this is not practical, you can delegate the responsibility to someone else, provided you make sure that the person you delegate to:
a is suitably trained and qualified
b has sufficient knowledge of the proposed investigation or treatment, and understands the risks involved
c understands, and agrees to act in accordance with, the guidance in this booklet.
27 If you delegate, you are still responsible for making sure that the patient has been given enough time and information to make an informed decision, and has given their consent, before you start any investigation or treatment."
Impairment: grounds 5-6 and 9-10
Sanction: grounds 11-15
Outcome
(1) Patient A did not consent to the vaginectomy,
(2) the amendment to the consent form to include "vaginectomy" was made after surgery commenced,
(3) the Appellant's failure to ensure he had Patient A's consent for the surgery amounted to misconduct,
(4) the Appellant's fitness to practise was impaired by reason of that misconduct,
(5) the Appellant should be suspended for a period of 5 months.