Fitness to Practise Determination

Fitness to Practise Determination The following case was heard by a Fitness to Practise Panel. It is presented here to give an example of one possible outcome of breaching a principle in Good Medical Practice. It is not intended to give a clear threshold between acceptable and unacceptable behaviour. Each case which comes before a Fitness to Practise Panel is judged on its own merits and assessed on the particular circumstances of the case. Summary The doctor made recurrent mistakes in consultation with three patients while he was providing out of hours care. In particular, and most significantly, he prescribed medications for each patient which were not clinically indicated, and in three instances the doses were inappropriate. In the most serious of these, the error resulted in the death of a patient and the doctor was convicted of an offence of causing death by negligence. In addition, he repeatedly failed to take an adequate history, to make an adequate physical assessment and to make adequate medical notes of his consultations. He demonstrated a worrying pattern of basic clinical errors and misjudgements in all three consultations. He presented a significant risk to patients, as he failed to recognise and work within the limits of his own competence. It was unacceptable to prescribe and administer a controlled drug, diamorphine, with which he was not familiar. As a clinician, it was his professional responsibility to ensure that he was familiar with the drug that he was prescribing. If he had any doubts, then he should have sought advice from colleagues. Relevant paragraphs of Good Medical Practice The case relates paragraph 1 of GMP on the definition of good doctors and to the Good clinical care section of GMP, specifically paragraphs 2a, 2b, 3a, 3b, 3f, 3i and 3j on providing good clinical care. It also relates to the Maintaining good medical practice section, specifically paragraph 12 on keeping up to date. 1

Determination on impaired fitness to practise The Panel has considered, on the basis of the facts found proved, whether Dr X s fitness to practise is impaired by reason of his (a) misconduct, (b) conviction. In so doing, the Panel has given careful consideration to all the evidence adduced in this case, both oral and documentary, together with your submissions on behalf of the General Medical Council (GMC). You submitted that Dr X s course of conduct over three consultations demonstrated multiple serious failings, together with a gross act of negligence, and that his series of errors and misjudgements amount to misconduct. You further submitted that Dr X s failings were deep-seated, fundamental and repeated and that he has brought the profession into disrepute. You also submitted that Dr X has demonstrated little insight into his failings and that there is no evidence from him that he has attempted to remedy them. You finally submitted that Dr X s fitness to practise is impaired by reason of his misconduct. In relation to Dr X s conviction for an offence of causing death by negligence, you submitted that his fitness to practise is impaired because of the serious nature of that conviction. The Panel has exercised its own professional judgement in considering the matter of impairment. The case is concerned with Dr X s failings during the course of his consultations with three patients, whilst he was providing out of hours care on [date removed]. The Panel accepted the advice of the Legal Assessor that it should first consider whether Dr X s actions amounted to misconduct, and then consider the question of impairment. The Panel first considered whether Dr X s actions amounted to misconduct. In doing so, it has had regard to paragraph 39 of Calhaem v GMC [2007] EWHC 2606 (Admin), where Jackson J stated: (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". The Panel has considered Dr X s conduct on the day in question and notes that he made recurrent mistakes with all three patients. In particular, and most significantly, Dr X prescribed medications for each patient which were not clinically indicated, and in three instances the doses were inappropriate. In the most serious of these, the error resulted in the death of DG. The Panel is of 2

the view that this single negligent act of prescribing and administering a fatal dose of diamorphine was particularly grave. In addition, the Panel has also found that Dr X repeatedly failed to take an adequate history, to make an adequate physical assessment and to make adequate medical notes of his consultations. Dr X demonstrated a worrying pattern of basic clinical errors and misjudgements in all three consultations. In these circumstances, the Panel has concluded that Dr X s actions amount to misconduct. The Panel then considered whether Dr X s fitness to practise is impaired by reason of his misconduct. In so doing, the Panel noted the following paragraphs of relevant case law, to which it was referred: At paragraph 62 of Cohen v GMC [2008] EWHC 581 (Admin), Silber J stated: Any approach to the issue of whether a doctor s fitness to practise should be regarded as impaired must take account of the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour [of doctors and maintaining confidence] of the public in their doctors and that public interest includes amongst other things the protection of patients, [and] maintenance of public confidence in the [profession]. Throughout its deliberations, the Panel has borne in mind that its duty is to consider this public interest. At paragraph 65 of Cohen, Silber J stated: It must be highly relevant in determining if a doctor s fitness to practise 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. The Panel has also taken account of paragraph 29 in the case of Zygmunt v GMC [2008] EWHC 2643 (Admin) and the reference therein to paragraph 25.50 of Smith LJ s fifth Shipman Report, where she identified four recurrent features of cases in which impairment of fitness to practise had been found to exist: (a) that the doctor presented a risk to patients; (b) that the doctor had brought the profession into disrepute; (c) that the doctor had breached one of the fundamental tenets of the profession; (d) that the doctor's integrity could not be relied upon. The Panel accepted the advice of the Legal Assessor that it was entitled to find current impairment on the basis of past conduct, some of it stretching back over some years, as past conduct is relevant to a doctor s fitness to practise today, in terms of suitability to continue practising as a doctor. 3

In particular, at paragraph 21 of Cheatle v GMC [2009] EWHC 645 (Admin), Cranston J stated: There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past. As Sir Anthony Clarke MR put it in Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] 1 QB 462: In short, the purpose of [fitness to practise] 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 FPP [Fitness to Practise Panel] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past (para 32). At paragraph 22 of Cheatle, Cranston J stated: In my judgment this means that the context of the doctor s behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor s behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor s misconduct at a particular time may be so egregious that, looking forward, a panel is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor s misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practise Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct. The Panel has borne in mind the principles contained within the GMC s publication Good Medical Practice (November 2006), which highlights that: Patients must be able to trust doctors with their lives and health. To justify that trust you must show respect for human life You are personally accountable for your professional practice and must always be prepared to justify your decisions and actions. In particular, the Panel has noted the following paragraphs under the headings of Good Doctors, Good Clinical Care and Maintaining Good Medical Practice: Paragraph 1 Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date 4

Paragraph 2 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; (b) providing or arranging advice, investigations or treatment where necessary. Paragraph 3 In providing care you must: (a) recognise and work within the limits of your competence; (b) prescribe drugs or treatment, including repeat prescriptions, only when you have adequate knowledge of the patient s health, and are satisfied that the drugs or treatment serve the patient s needs; (f) keep clear, accurate and legible records, reporting the relevant clinical findings, the decisions made, the information given to patients, and any drugs prescribed or other investigation or treatment; (i) consult and take advice from colleagues, when appropriate; (j) make good use of the resources available to you. Paragraph 12 You must keep your knowledge and skills up to date throughout your working life. You should be familiar with relevant guidelines and developments that affect your work. You should regularly take part in educational activities that maintain and further develop your competence and performance. The Panel notes that serious or persistent failure to follow this guidance will put a doctor s registration at risk. In reaching its decision, the Panel has taken into account the context and background circumstances surrounding Dr X s appointment and work as an out of hours GP on that day. Nevertheless, the Panel has grave concerns about Dr X s clinical competence. The Panel has concluded that Dr X s actions on [date removed] presented a significant risk to patients as he failed to recognise and work within the limits of his own competence. It was unacceptable to prescribe and administer a controlled drug, diamorphine, with which he was not familiar. As a clinician, it was Dr X s professional responsibility to ensure that he was familiar with the drug that he was 5

prescribing. If he had any doubts, then he should have sought advice from colleagues. The Panel also concluded that Dr X s actions have brought the profession into disrepute and breached a number of the fundamental tenets of the profession. Dr X made several prescribing errors, both in terms of drugs prescribed and in terms of dosage chosen. He failed to keep his medical knowledge up-to-date and made a number of serious clinical errors. It is clear to the Panel that Dr X persistently breached the basic principles of Good Medical Practice, as set out above. The Panel has concerns about Dr X s insight into his failings. It has considered his correspondence and response dated [date removed] to the allegation. Whilst Dr X accepted his error with the diamorphine and apologised for it, the Panel is of the view that his response failed to demonstrate acceptance of his other failings and little evidence of insight. The Panel has received no evidence from Dr X that he has fully acknowledged his deficiencies or attempted to remedy them. Given Dr X s limited insight, the Panel has formed the view that it is highly unlikely that he has remedied his deficiencies. Furthermore, the Panel is satisfied that there remains a risk of Dr X repeating such actions in the future. In all the circumstances, the Panel has determined that Dr X s fitness to practise is impaired by reason of his misconduct, which the Panel considers to be serious. The Panel next considered whether Dr X s fitness to practise is impaired by reason of his conviction. The Panel regards Dr X s conviction of causing death by negligence to be a grave matter. It is of the view that his conduct demonstrated a failure in the standards which are to be expected of a competent doctor. The error which gave rise to Dr X s conviction is directly related to his practice and as such is particularly serious. Dr X s conviction is likely to bring the profession into disrepute and undermine the public confidence in the profession. In these circumstances, the Panel has determined that Dr X s fitness to practise is impaired by reason of his conviction. 6