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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Newley v General Medical Council [2021] EWHC 1538 (Admin) (08 June 2021) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2021/1538.html Cite as: [2021] EWHC 1538 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
33 Bull Street, Birmingham, B4 6DS |
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B e f o r e :
____________________
| DR KEVIN PETER NEWLEY |
Appellant |
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| - and - |
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| GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Alexis Hearnden (instructed by GMC) for the Respondent
Hearing date: 13 May 2021
____________________
Crown Copyright ©
Mrs Justice Steyn :
The original disciplinary proceedings
"The length of the hearing can be explained by the volume of evidence, the number of witnesses (including expert witnesses on both sides), the number of issues in dispute and the length of the submissions by the legal representatives."
"That being registered under the Medical Act 1983 (as amended):
Patient A
1. Between June 2006 and December 2011, in providing treatment to Patient A you failed to:
(a) on the dates listed in Schedule A:
ii. record an appropriate history of Patient A; [This allegation was found proved in relation to 7 June 2006; not proved in relation to four dates in 2011.]
(b) on 2 July 2010:
i. make an entry in Patient A's medical records of your consultation with Patient A;
Patient B
2. Between March 2014 and August 2014, in providing treatment to Patient B you failed to:
(a) on 27 May 2014:
ii. record an appropriate history of Patient B;
iv. record your advice given to Patient B;
(b) on 8 July 2014:
(i) obtain an appropriate history of Patient B in that you did not question whether:
(2) the pain was constant;
(3) the pain was worsening;
(ii) record an appropriate history of Patient B;
(c) on 17 July 2014:
(i) obtain an appropriate history of Patient B in that you did not question Patient B about:
(1) bladder functions;
(2) bowel functions;
(3) Patient B's perineum for sensory impairment;
(4) whether the pain was constant;
(5) whether the pain was worsening;
(ii) record an appropriate history of Patient B;
(e) on 1 August 2014:
(i) question Patient B about bladder functions;
(ii) question Patient B on bowel functions;
Patient C
3. Between June 2010 and August 2011, in providing treatment to Patient C you failed to:
(b) on 28 June 2010:
(ii) record an appropriate history of Patient C;
(iv) recommend a digital rectal examination for Patient C;
(v) recommend urine dipstick testing for Patient C;
(vi) make an adequate record of your consultation with Patient C in that you did not:
(1) indicate the basis of your diagnosis;
(2) record your intended follow-up plan for Patient C;
(c) on or shortly after 22 September 2010:
(i) contact Patient C following his test results asking for him to attend the surgery in the near future;
(iii) recommend urine dipstick testing for Patient C;
(d) on 18 November 2010:
(i) urgently refer Patient C;
(ii) recommend a digital rectal examination for Patient C;
(g) on 2 August 2011:
(i) obtain an appropriate history of Patient C in that you did not question Patient C about urinary symptoms;
(ii) record an appropriate history of Patient C;
(iv) recommend a digital rectal examination for Patient C;
(vi) make an adequate record of your consultation with Patient C;
(h) on 4 August 2011:
(i) obtain an appropriate history of Patient C in that you did not refer to the presence or absence of clinical symptoms;
(ii) record an appropriate history of Patient C;
(iii) recommend a digital rectal examination for Patient C;
4. In providing treatment to Patient C in 2011, you communicated inappropriately by saying to him:
(i) on 2 August 2011 or another date, 'Well, I'm still not referring you' or words to that effect;
(ii) on 4 August 2011 or another date, 'If it's positive, what are you going to do about your great big prostate? Have it chopped out?' or words to that effect.
Patient D
5. Between January 2008 and April 2012, in providing treatment to Patient D you failed to:
(b) on 15 January 2008:
(ii) record an appropriate history of Patient D;
(iii) recommend a digital rectal examination of Patient D;
(c) on or shortly after 23 November 2010:
(ii) recommend a digital rectal examination of Patient D;
(e) on 2 August 2011:
(i) recommend a digital rectal examination for Patient D;
(f) on or shortly after 22 September 2011:
(ii) recommend digital rectal examination for Patient D;
(g) on 20 April 2012:
(i) obtain an appropriate history of Patient D;
(ii) record an appropriate history of Patient D;
(iii) recommend a digital rectal examination for Patient D;
Patient E
6. Between February 2008 and July 2013 in providing treatment to Patient E, you failed to:
(a) on the dates listed in schedule B, record an appropriate history of Patient E [This allegation was found proved in relation to 10 July 2008, 8 October 2008, 19 January 2009, 28 April 2009, 3 August 2009, 9 November 2009, 28 April 2010, 26 July 2010, 6 April 2011, 11 January 2012, 28 March 2012, 30 May 2012, 29 April 2013 and 10 July 2012, and not proved in respect of various other dates];
(c) on the following dates, recommend digital rectal examination for Patient E:
(i) 8 October 2008;
(ii) 19 January 2009;
(iii) 3 August 2009;
(iv) 28 April 2010;
(vi) 9 November 2010;
(viii) 29 April 2013;
Patient F
7. In July 2013, in providing treatment to Patient F, you failed to:
(a) on the dates listed in schedule C:
(ii) record an appropriate history of Patient F.
Patient G
8. Between February 2012 and March 2014 in providing treatment to Patient G, you failed to:
(a) on 13 February 2012:
(i) obtain an appropriate history of Patient G in that you did not question Patient G about:
(2) neurological symptoms;
(4) sensory symptoms;
(ii) record an appropriate history of Patient G;
(c) on 4 May 2012:
(ii) request for Patient G to undergo:
(1) an ECG;
(2) ambulatory blood pressure monitoring ('ABPM') or home blood pressure monitoring ('HBPM');
(3) chemical reagent strip testing of urine;
(d) on 3 January 2014:
(ii) record an appropriate history of Patient G;
(iv) request for Patient G to undergo:
(1) an ECG;
(2) ABPM or HBPM;
(3) chemical reagent strip testing of the urine;
(v) provide Patient G with follow up advice;
(vi) record any follow up advice given;
(e) on 27 February 2014:
(ii) request for Patient G to undergo:
(1) and ECG;
(2) ABPM or HBPM;
(3) chemical reagent strip testing of the urine;
(iii) provide Patient G with follow up advice;
(iv) record any follow-up advice given;
And that by reason of the matters set above your fitness to practise is impaired because of your misconduct."
"6. Dr Newley produced a document which continued to dispute the accuracy and validity of symptoms which patients related to him from the times of their consultations with him until this hearing, even though the progression of their illnesses was in line with their described symptoms and unwavering testimony.
7. Dr Newley also used his reflections as a means to challenge and criticise the work of his Advanced Nurse Practitioner (ANP), the opinions of the expert witnesses, Dr Burton and Dr Middleton and the findings and determinations of this Tribunal.
8. Dr Newley's Reflections document contains the passage: 'Emails from NICE has confirmed that in the 2005 guidelines 1.8.2, 1.8.3 and 1.8.6 are interrelated and not independent as affirmed by Dr Burton in his report. According to Mr Gilbart, this makes Dr Burton an unreliable witness and all his evidence should be viewed with due caution.' In his oral evidence, Dr Newley explained that he was not suggesting that Mr Gilbart, on behalf of the GMC, had ever disagreed with Dr Burton. He told the Tribunal that the correct reading of the extract, given the Tribunal's prior knowledge of the hearing, was that the criticism of his (Dr Newley's) inconsistencies in specific documentary and oral evidence made by Mr Gilbart, at an earlier stage, applied equally and more so, in his opinion, to Dr Burton.
9. Dr Newley directed the Tribunal's attention to the National Collaborating Centre for Primary Care (NCC-PC) Referral Guidelines for Suspected Cancer in Adults and Children Parts 1 and 2 and, most specifically, to the study of Fowler et al (2000) at page 64 of part 2 and the Urological Cancers Prostate Flowchart at page 110 of Part 1. The aim of the study was 'to determine whether features used to detect prostate cancer are different in black and white American men'. It was noted that: 'the study subjects were 179 black and 357 white men who had undergone prostate biopsy 1992-1999 at one medical centre. The patients had an abnormal DRE, a PSA of less than 4ng/m; and no history of prostate surgery. Cancer was detected in 38 black (21%) and 65 white (18%) men. There was no difference in the overall or PSA stratified cancer detection rate.' Dr Newley was adamant that the study corroborated his opinion and decision not to recommend digital rectal examinations (DREs) for Patients C, D and E.
10. The NCC-PC Referral Guidelines for Suspected Cancer introduced by Dr Newley were dated 2005. The NICE Guidelines were revised in 2007 and 2011; the NCC-PC publication itself has been superseded and the version put in evidence states in red on every page 'OBSOLETE: REPLACED BY NG12'. Dr Newley relied, in particular, on the flowchart for suspected prostate cancer, which he understood as indicating that a DRE was not recommended for asymptomatic patients. Dr Newley was of the further view that this disproved the evidence of the experts and, therefore, invalidated some of the Tribunal's findings.
44. The Tribunal determined that Dr Newley's approach and attitude when giving evidence, even at this stage, demonstrated a marked lack of insight and, despite his evidence to the contrary, a rigid and concerning resistance to the viewpoints, observations and evidence-based conclusions of others where they differed from his own. This was emphasised by his decision to submit tangential and irrelevant material to the Tribunal as part of his mission to prove, even now, that his version of events should be preferred over every other view. In the case of patients' symptoms, he introduced new, speculative and subjective explanations to support his continued contention that patients had been asymptomatic. For example, he suggested the ingestion of beetroot juice to explain away Patient C's report of blood in his urine.
45. The flow chart (CG27 part 1 page 110) is not entirely clear as one of its limbs does not connect with any final action. It has not been put to either of the expert witnesses for their comments. It pre-dates the version of the relevant NICE guidelines in force at the time of the events, to which the expert evidence referred. The Tribunal however accepts that Dr Newley regards the chart as giving support to his present view that a DRE was not recommended in the case of asymptomatic patients.
46. The Tribunal has no power to revisit findings that it has made and announced at an earlier stage of these proceedings. In any event, it does not regard the flowchart as indicating that any of its findings were wrong. That is, among other reasons, because all of the patients in question reported that they were symptomatic. The appropriate management of asymptomatic patients does not therefore affect the evidence in relation to those patients.
47. With regard to the Fowler study (part 2 page 64 of CG27), quite apart from the fact that the purpose of the study was to identify whether there are differences between black and white American patients, so that it may be unwise to draw conclusions from it on a question to which the study was not directed, the study dealt with the incidence of cancer among patients with a normal PSA and no symptoms, but with an abnormal DRE. The study was not put to the expert witnesses for their comment and the Tribunal is not persuaded that this study sheds any light on the desirability of a DRE in patients who had a raised PSA and had symptoms."
"58. The Tribunal determined to direct a review of Dr Newley's case. A review hearing will convene shortly before the end of the period of suspension, unless an early review is sought. The Tribunal wishes to clarify that, at the review hearing, the onus will be on Dr Newley to demonstrate how he has remediated. It considered that a future Tribunal reviewing this matter would be assisted by the following:
- A reflective statement addressing what he has learned in respect of the Tribunal's findings of facts and impairment and demonstrating his level of insight.
- Evidence of meetings and case-based discussions with a mentor.
- Evidence of Dr Newley's appraisal discussions to demonstrate that he has reflected upon his learning and identified any further development needs.
- An indication as to Dr Newley's future plans in respect of the practice of medicine.
- Evidence of Dr Newley's Continuing Professional Development (CPD).
- Evidence that Dr Newley has maintained his clinical skills and medical knowledge.
- Current testimonials as to Dr Newley's character and conduct during the period of his suspension, written in the knowledge of his suspension by this Tribunal and of the Tribunal's reasons."
The review decision
"31. Dr Newley stated that the findings of the 2019 Tribunal were incorrect, as they were based on Dr Burton's expert report. He stated that he does not agree with the expert report and some of the 2019 Tribunal's findings.
35. Dr Newley stated that he wished to go through the list of the 2019 Tribunal's findings with new evidence that he has but he accepted that it was not appropriate for that to be done at this review hearing. Dr Newley stated that his opinion regarding his treatment and management of Patients B, C, D and E remained unchanged. He stated his treatment was correct and that he has provided information from NICE which proves this.
37. Dr Newley referred the Tribunal to the High Court Judgement which concluded that the determinations made by the 2019 Tribunal, based on the evidence before it at that time, was correct. Dr Newley stated that the new evidence he has provided should be taken into account, even if it resulted in a new Fitness to Practise hearing. Dr Newley questioned what recourse he had in this respect. He stated that wishing to adduce the new evidence did not show lack of insight but showed the 'courage of my convictions', which was not a bad thing in his opinion."
"45. The Tribunal noted the practical constraints on Dr Newley in light of his serious health condition. However, it also noted that he has provided limited evidence that he has kept his clinical skills and knowledge up to date. Further, Dr Newley stated that he could not have completed more on-line courses in relation to his Continuing Professional Development in light of his health condition. The Tribunal noted that Dr Newley recognised and accepted that his record keeping was below the standard expected of a reasonably competent General Practitioner, but there is insufficient evidence that he has fully addressed all of the deficiencies identified by the 2019 Tribunal.
46. The Tribunal noted that there is an irreconcilable difference of opinion between Dr Newley and a number of the 2019 Tribunal's factual findings. Because of that, Dr Newley was unwilling to accept a number of failings found proved. Dr Newley stated that he would not be able to demonstrate insight into his failings as he was adamant that a number of the 2019 Tribunal's factual findings were wrong and that he had acted appropriately. This Tribunal found Dr Newley to be resolute and rigid in his view about his own clinical practice. The Tribunal recognises that it is not a requirement that Dr Newley accepts the 2019 Tribunal's findings in order for him to establish that he has developed insight, but the Tribunal is mindful that at this review hearing it cannot go behind the 2019 Tribunal's findings.
48. Notwithstanding his personal circumstances, the Tribunal considered that Dr Newley has provided limited evidence in relation to those matters that the 2019 Tribunal indicated would be useful to a future reviewing Tribunal. There is limited evidence in relation to Dr Newley's insight or remediation of the failings found proved, or how he has kept his skills and knowledge up to date during his suspension. The Tribunal reminded itself that there is a persuasive burden on Dr Newley to demonstrate that he is fit to return to unrestricted practice, and he has not sufficiently done so.
49. The Tribunal considered that Dr Newley has started the process of remediation, in recognising that some areas of his practice are deficient, notably in relation to record keeping. However, that process is by no means complete. The Tribunal is of the opinion that the risk of repetition has been diminished but there remains an ongoing risk. Therefore, the Tribunal cannot be satisfied it would be highly unlikely that Dr Newley would repeat his misconduct in the future, thereby presenting an ongoing risk of harm to patients."
"3. Dr Newley stated that he appears to be in a 'catch 22' situation similar to a year ago in relation to insight. He said that he has provided evidence which has come to light since the 2019 hearing that his clinical management in some of the cases was appropriate. He submitted that the new evidence does not show a lack of insight but rather 'a flexibility of thinking'.
4. Dr Newley stated that he expects he will be in the same position again in relation to insight until the GMC has concluded its investigation into his referral of Dr Burton. Dr Newley expressed a wish to return to practice should his health allow."
"14. Whilst the Tribunal accepts that Dr Newley has not yet demonstrated full insight into his misconduct, nor has he fully remediated his failings, it considered that he has the potential to respond positively to conditional registration. Further, the Tribunal considered that conditions would allow Dr Newley the opportunity to demonstrate that he can fully remediate his misconduct and can practise safely with the appropriate supervision. The Tribunal considered that Dr Newley may be able to provide some objective evidence, such as passing the assessment for inclusion on the GP Performers List. The Tribunal was satisfied that a period of conditional registration would be sufficient to protect the public and maintain public confidence in the profession."
The legal framework
"(2) Where the Medical Practitioners Tribunal find that the person's fitness to practise is impaired they may, if they think fit
(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;
(4) Where a medical Practitioners Tribunal have given a direction that a person's registration be suspended
(a) under subsection (2) above;
subsections (4A) and (4B) below apply.
(4A) The Tribunal may direct that the direction is to be reviewed by another Medical Practitioners Tribunal prior to the expiry of the period of suspension; and, where the Tribunal do so direct, the MPTS must arrange for the direction to be reviewed by another Medical Practitioners Tribunal prior to that expiry.
(5) On a review arranged under subsection (4A) or (4B), a Medical Practitioners Tribunal may, if they think fit
(a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;
(b) except in a health case or language case or a case of suspension under paragraph 5A(3D) or 5C(4) of Schedule 4, direct that the person's name shall be erased from the register;
(c) direct that the person's registration shall, as from the expiry of the current period of suspension or from such date before that expiry as may be specified in the direction, 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 Tribunal think fit to impose for the protection of members of the public or in his interests; or
(d) revoke the direction for the remainder of the current period of suspension,
but subject to subsection (6) below, the Tribunal shall not extend any period of suspension under this section for more than twelve months at a time."
"The statute is to be read together with the 2004 Rules and Rule 22 a) to i) makes clear that there is an ordered sequence of decision making, and the Panel must first address whether the fitness to practise is impaired before considering conditions. In my judgment, the statutory context for the Rule relating to reviews must mean that the review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Panel's satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments."
"163. It is important that no doctor is allowed to resume unrestricted practice following a period of conditional registration or suspension unless the tribunal considers that they are safe to do s.
164. In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, the tribunal will need to be reassured that the doctor is fit to resume practice either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence):
a. they fully appreciate the gravity of the offence
b. they have not reoffended
c. they have maintained their skills and knowledge
d. patients will not be placed at risk by resumption of practice or by the imposition of conditional registration."
The approach on appeal
"(1) The following decisions are appealable decisions for the purposes of this section, that is to say
(a) a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;
(4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, or section 41(10) below, appeal against the decision to the relevant court.
(5) In subsections (4) and (4A) above, "the relevant court"
(c) in the case of any other person means the High Court of Justice in England and Wales.
(7) On an appeal under this section from a Medical Practitioners Tribunal, the court may
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,
and may make such order as to costs as it thinks fit."
"(1) Every appeal will be limited to a review of the decision of the lower court unless
(a) a practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) At the hearing of the appeal, a party may not rely on a matter not contained in that party's appeal notice unless the court gives permission."
"Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and that approach of the appellate court:
i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
ii) the jurisdiction of the court is appellate, not supervisory;
iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal;
iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances;
v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate;
vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration.
The courts have accepted that some degree of defence will be accorded to the judgment of the Tribunal but, as was observed by Lord Millett at [34] in Ghosh, "the Board will not defer to the Committee's judgment more than is warranted by the circumstances". In Preiss, at [27], Lord Cooke stated that the appropriate degree of deference will depend on the circumstances of the case. Laws LJ in Raschid and Fatnani, in accepting that the learning of the Privy Council constituted the essential approach to be applied by the High Court on a section 40 appeal, stated that on such an appeal material errors of fact and law will be corrected and the court will exercise judgment but it is secondary judgment as to the application of the principles to the facts of the case ([20]). In Cheatle Cranston J accepted that the degree of deference to be accorded to the Tribunal would depend on the circumstances, one factor being the composition of the Tribunal. He accepted the appellant's submission that he could not be "completely blind" to a composition which comprised three lay members and two medical members."
Grounds of appeal
"1. Patient A: 1bii, 1ci, 1cii
2. Patient B: 2bi2, 2bi3, 2ci1, 2ci2, 2ci3, 2ci4, 2ci5, 2cii, 2ei, 2eii
3. Patient C: 3biv, 3bv, 3bvi2, 3ci, 3ciii, 3di, 3dii, 3gi, 3giv, 3hii, 3hiii, 4i, 4ii
4. Patient D: 5biii, 5cii, 5fi, 5gi, 5giii
5. Patient E: 6ci, 6cii, 6civ, 6cv, 6cvi, 6cvii, 6cviii
6. Patient F: 7aii,
7. Patient G: 8cii1, 8cii2, 8dii, 8div1, 8div2, 8div3, 8dv, 8eii1, 8eii2, 8eii3, 8eiii
I believe this covers all of the allegations of performance "seriously below the level of a competent GP" except one and therefore I think the imposition of temporary suspension and the variation to close supervision by the MPTS review panel are both unreasonable." (underlining added)
i) The words underlined have been added (including allegations 5(f)(i), 6(c)(v) and 6(c)(vii) which were not found proved by the 2019 tribunal);
ii) The appellant has removed reference to two allegations which were found not proved (1(a)(i) and 2(b)(ii)); and
iii) Although the appellant has retained the statement that "this covers all of the allegations of performance 'seriously below the level of a competent GP' except one", he has removed reference to 12 allegations that were found proved by the 2019 tribunal. He does not contend in his grounds of appeal that the following findings made by the 2019 tribunal were erroneous:
a) Failures to obtain an appropriate history in relation to Patients C and G: allegations 3(h)(i) and 8(a)(i)(2) and (4);
b) Failures to record an appropriate history in relation to Patients A, C, D and E: allegations 1(a)(ii), 3(b)(ii), 5(b)(ii) and 6(a);
c) Failures to make an entry/record follow-up advice in relation to Patients A and G: allegations 1(b)(i) and 8(e)(iv);
d) Failures to recommend a Digital Rectal Examination on certain dates for Patients D and E: allegations 5(e)(i) and 6(c)(iii); and
e) Failure to request Patient G undergo chemical reagent strip testing of urine on one date: allegation 8(c)(ii)(3).
"Dr Newley will also be able to provide any other information that he considers will assist."
His grounds of appeal continue:
"The MPTS review panel declined to consider the new evidence concerning Dr Burton's report and the MPTS errors of fact presented to them as they stated this would amount to a re-trial which was not their function. However I was not contesting every determination of the original MPTS panel, only the ones based on the errors in Dr Burton's report and the factually incorrect determinations of the MPTS panel."
The appellant's application to adduce new evidence
"You have also asked what weight has been given to both your opinion and Dr Burton's opinion. Unfortunately, I am not able to answer that question as it is not the role of the Assistant Registrar to resolve a conflict of evidence. I can see that you believe that by not taking action against Dr Burton, this indicates that the Assistant Registrar accepted Dr Burton's opinion over yours. However, this is not what the Assistant registrar has concluded. Rather, the Assistant Registrar agreed with our medically qualified colleague who advised that Dr Burton's opinion was reasonably formed based on his interpretation of the NICE guidance and also agreed that those guidelines are open for interpretation. As I have explained above, a differing interpretation is not a fitness to practise issue and we can only intervene when a doctor's fitness to practise medicine is impaired."
"first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."
"The impact of the decision on the public good is, as Smith LJ makes clear, an important feature of the case when it comes to the exercise of discretion but the context of this type of case also requires appropriate consideration to be given to the importance of effective and efficient regulation of the profession. Neither does the decision in Muscat's case nor the observations of Smith LJ support the proposition that departure from Ladd v Marshall is justified by this principle alone."
"55. The Tribunal received extensive evidence from Dr Burton and Dr Middleton [experts called by the GMC and the appellant, respectively,] in relation to the vital role of DRE in the diagnosis of prostate cancer. That evidence was compelling and harmonious. Dr Middleton stated:
'The only way a prostate can be assessed in a GP surgery is by the GP performing a digital rectal examination. It is therefore my opinion that all patients with lower urinary tract symptoms and all patients with a raised PSA should be counselled and informed of what the implications might be for the symptoms and signs that are abnormal and a rectal examination should be offered it is my opinion that if a GP fails to discuss the issue of a rectal examination and therefore fails to offer a rectal examination, then this would be an action that is seriously below the standard expected of a responsible GP'
56. The Tribunal heard oral evidence from the experts that there is some ambiguity in paragraphs 1.8.6 and 1.8.8 of the NICE Guidance in relation to when to refer to specialist care but, notwithstanding this, the experts and the NICE Guidance are clear about the duty to recommend DRE in these circumstances. At no time in any of the guidelines was there ever a suggestion that a GP should regard the recommendation and performance of a DRE as an optional activity.
57. The Tribunal accepted the evidence of both expert witnesses and determined that there is a clear duty upon all GPs to recommend and perform DRE in accordance with national guidance." (emphasis added)
"62. Dr Middleton
The NICE Guidance 2005, in particular paragraphs 1.8.6 and 1.8.8, is confusing and contradictory in relation to symptomatic and asymptomatic patients, and also in relation to borderline PSA results.
63. Dr Burton
Dr Burton, whilst accepting there are ambiguities which he agreed cause some confusion (paragraphs 1.8.6 and 1.8.8 NICE 2005), said that one should not lose sight of the fact that there is overriding advice, the general tenor of which is that a high PSA should indicate referral because of the risk of malignancy."
Analysis and decision
i) the flowchart as demonstrating that a DRE was not recommended for asymptomatic patients with borderline PSA; and
ii) the second paragraph of the email from NICE dated 19 January 2017 - which stated:
"1.8.2 and 1.8.3 gave guidance on which patients should have been given a DRE and PSA test. 1.8.5 to 1.8.7 gave guidance on what actions should have been taken based on the results of those tests, therefore sections 1.8.5 to 1.8.7 did not indicate that all men of any age need DRE and PSA levels on a regular basis."
- to seek to establish that Dr Barton was an unreliable expert witness.
"On appeal, the appellant made general submissions in respect of digital rectal examinations, the NICE guidelines and PSA levels, submitting that the Tribunal and the experts were mistaken in various respects. In my view, the Tribunal was entitled to reach the conclusions which it did on the basis of the expert evidence and the documentary evidence which it received and carefully considered. I do not consider that the appellant's submissions on appeal in respect of these matters demonstrate that the Tribunal's conclusions were wrong."
"94. There were a number of allegations that the appellant failed to request the patient to undergo: (1) and ECG; (2) ABPM or HBPM; and (3) chemical reagent strip testing of urine. In its findings in respect of allegations 8(c)(ii)(1), (2) and (3), on 4 May 2012, the Tribunal recorded that, in the rule 7 response, the appellant said that he did not offer anything other than home blood pressure monitoring as the patient's hypertension had not been confirmed and he considered that her menopausal symptoms could be the cause. In his witness statement, he said he may have offered ABPM. The Tribunal concluded that he had not asked the patient to undergo any of these tests and, according to the expert witnesses, he should have done so in the light of the patient's elevated blood pressure over a number of consultations.
95. On appeal, the appellant has sought to challenge the expert evidence as to the requirement to conduct these tests, arguing this was only after hypertension had been confirmed that an ECG or chemical reagent strip testing would be required. I am not satisfied that the appellant has established that the expert evidence on this issue was flawed and therefore that the Tribunal's findings were wrong.
96. The same allegations were made in respect of the consultations on 3 January 2014 and 27 February 2014. As, by that stage, the elevated blood pressure had continued for some time, the case for undertaking such tests had become even stronger. The Tribunal recorded that the appellant accepted the opinion of the experts and conceded that these tests should have been offered to the patient. In those circumstances, the appellant has no arguable ground of appeal.
99. During submissions on Patient G, at 3.45pm on the first day of the hearing, 15 minutes before the conclusion of his submissions, the appellant asked if he could introduce new evidence. I indicated that that was not possible. It would be an exceptional course to admit fresh evidence on an appeal of this kind and, in my view, far too late in the progress of this appeal to do so."
"17. At paragraph 51 of the Sanctions Guidance, Tribunals are informed that it is important to consider insight, or lack of, when determining sanctions. Paragraph 52 makes the following observations:
'A doctor is likely to lack insight if they:
a. refuse to apologise or accept their mistakes
b. promise to remediate, but fail to take appropriate steps, or only do so when prompted immediately before or during the hearing
c. do not demonstrate the timely development of insight
d. fail to tell the truth during the hearing.'
Insight and denials
18. It would be wrong to equate maintenance of innocence with a lack of insight. However, continued denial of the misconduct found proved will be relevant to the Tribunal's considerations on review. As paragraph 52 of the Sanctions Guidance makes clear, refusal to accept the misconduct and failure to tell the truth during the hearing will be very relevant to the initial sanction. At the review stage, things will have moved on. The registrant may be able to demonstrate insight without accepting that the findings at the original hearing were true. The Sanctions Guidance makes it clear that at a review hearing the Tribunal is to consider whether the doctor has fully appreciated the gravity of the offence and must be satisfied that patients will not be put at risk if he resumes practice.
20. I conclude having reviewed all the relevant authorities that at a review hearing:
a. The findings of fact are not to be reopened;
b. The registrant is entitled not to accept the findings of the Tribunal;
c. In the alternative, the registrant is entitled to say that he accepts the findings in the sense that he does not seek to go behind them while still maintaining a denial of the conduct underpinning the findings;
d. When considering whether fitness to practise remains impaired, it is relevant for the Tribunal to know whether or not the registrant now admits the misconduct;
e. Admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it;
f. If it is made apparent that the registrant does not accept the truth of the findings, questioning should not focus on the denials and the previous findings;
g. A want of candour and/or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment."
Conclusion