Medical Tribunal’s Exiguous Reasoning
27 April 2023
The leniency of the imposition of a Conditions of Practice Order upon a doctor imposed by the Medical Practioners Tribunal in respect of inappropriate prescribing practices in 2013 and 2014 was challenged by the overarching regulator in the Administrative Court: Professional Standards Authority for Health and Social Care v General Medical Council & Anor (Lingam) [2023] EWHC 967 (Admin) Foster J
The finding of misconduct by the MPT related to the signing and issuing of almost 300 private prescriptions purportedly for use outside the UK where insufficient or no relevant information was before the doctor. Evidence showed that prescriptions were issued for patients who did not exist.
None of the allegations, including misconduct and impairment, were contested by the doctor. Professor L completed the prescriptions at the request of Kool Pharma Ltd a tenant company which had offices within his building believing that he was prescribing as part of a humanitarian exercise for those who had no local access to required medication. Two other doctors were also charged with prescribing in the same manner. The case before the Panel was opened for the GMC on the basis that Kool Pharma had misled the two doctors before the tribunal (a Dr B also appeared).
A referral was made to the General Medical Council in January 2015 but the GMC agreed to await the outcome of an investigation by the Medicines Healthcare Products Regulation Agency (MHRA) which had instigated a criminal investigation, although the MHRA did not interview the clinicians under caution until 2019 and then no criminal allegations were pursued. For seven years Professor L had been subject to a conditions of practice order imposed by an Interim Orders Tribunal.
Her Ladyship came to the clear decision that the decision of the Panel must be quashed and remitted it to them for reconsideration on the basis of a serious procedural error in the form of inadequate and unclear reasoning as to sanction.
The reasoning process was inadequate for the Court to determine whether certain important issues were appreciated and, if so, how they were reasoned through. It was therefore not possible to determine whether the sanction imposed was wrong in the statutory sense. There had been a serious procedural error engaging the Court’s appellate jurisdiction.
The Court highlighted the following in particular:
Seriousness. There was a significant risk that the Panel may have misapprehended the seriousness of the actions of Professor L. The exiguous reasoning dealing with the context of the prescribing did not reassure that they appreciated the extent or import of the factual background for the question of sanction. Importantly, it was impossible to know certainly whether the Panel in fact accepted Professor L’s explanation about humanitarian assistance which was central.
Dr B. There was extraordinary and unexplained conduct in respect of Dr B being placed, without his knowledge, in a position of regulatory responsibility for Professor L’s clinic. Particularly, given Dr B’s demonstrably subsidiary role, this was something that plainly could influence the Panel’s view of the gravity of the matter but it was not mentioned in either decision. The Panel must have formed a view.
Landlord of Kool Pharma. The closeness or otherwise of the relationship between Professor L and his tenant Kool Pharma, whom he had introduced to the Edward VII Hospita,l was another matter that was not mentioned in any of the reasoning except obliquely. Equally, the Panel must have formed a view and whether that fed into the question of seriousness was not clear. These matters highlighted the failure to examine properly the question of seriousness.
Aggravation and Mitigation. Although the Panel took into account its impairment decision when it was deliberating on sanction, the consideration of mitigation and aggravation even in that decision did not adequately reflect a number of relevant factors that were present.
Proportionality. The panel recognised that conditions were possibly appropriate where the doctor had been open and shown insight and then stated that suspension would be disproportionate particularly given the passage of time, but without giving any further reason to support disproportion or indicating what level of seriousness or impact it attributed to the misconduct in question.
Remediation and Insight. The Guidance emphasised the centrality of insight and remediation but the Panel noted only that Professor L was developing insight. The Panel did not specify what evidence of remediation it had accepted to date. No analysis was shown of the implications of the fact that fully seven years had passed since interim conditions were imposed, and yet still the development of insight was apparently only partial – indeed, there was insufficient evidence of insight. All of these implications for public protection were not explained.
The Guidance. The conclusion that a conditions order was appropriate appeared to be inconsistent with the Sanctions Guidance given the paucity (possibly absence) of evidence of insight and remediation, and yet no reason for this departure was given and there was no explanation of how the particular features of the case took it out of a more serious category.
In the criminal jurisdiction the Newton hearing had evolved to resolve issues as to the factual basis for sentence. In the present case the facts led were all accepted by Professor L, but it underscored the context of establishing carefully the factual basis, context and seriousness of any behaviour which fell to be sanctioned.
These matters were relevant because the giving of cogent and informative reasons, the duty of a Panel, was rendered much easier when central questions or uncertainties had been resolved. Cogent analysis at sanction stage was easier where the context and significance of the evidence had been explored. The Panel must, in the reasoning they set out, expose the relevant analysis so the reader understood what the principal issues were and what the Panel made of them. This was part and parcel of their function in protecting the public interest.