R (on the application of Li) v General Medical Council (2013) EWHC 522 (Admin)
Dr Li was facing allegations regarding his work as a paediatric locum in 2008 during which he administered a fentanyl patch to a post-operative patient to manage the pain, following which the patient
Dr Li was facing allegations regarding his work as a paediatric locum in 2008 during which he administered a fentanyl patch to a post-operative patient to manage the pain, following which the patient suffered a cardiac arrest and died. The GMC obtained an expert report which was highly critical of the high dose of opiate provided which was contraindicated and carried significant risk. A direct causal link was made between the prescription and the death of the child.
Dr Li (who at the time of referral to the GMC was in his late sixties and suffering with mental health problems) was referred to a Fitness to Practise Panel ("FTPP"). At the hearing, Dr Li applied for voluntary erasure (VE) from the medical register. Alternatively, it was argued on his behalf, the proceedings should be stayed as the health of Dr L was such that he was unable to participate in any hearing.
Three psychiatrists provided evidence to the FTPP. They all agreed that Dr L's mental health was such that (a) he was unfit to participate effectively in the GMC proceedings, (b) he was unfit to practise medicine now or at any time in the future and (c) participation in the process would have a profound effect upon Dr L’s psychiatric wellbeing, and the suicide risk that arose.
At hearing, the GMC adopted a neutral position; they did not dispute the medical evidence and conceded that should the panel stay proceedings at some point in the future, it would not be the GMC's application, at any point in the future, that the case should proceed in the absence of Dr L.
The FTPP determined that voluntary erasure would not be adequate to maintain public confidence in the regulatory process. In relation to that issue, the FTPP noted that there was "a parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed" and concluded that where there were issues relating to the death of a patient and there was a realistic prospect that the doctor would be able to continue working abroad (Dr Li had talked about working in Australia), potentially posing an ongoing risk to patients. Further, the panel was clear that voluntary erasure would not be adequate to maintain confidence in the regulatory process.
With reference to the submissions on Dr L's health, the FTPP felt that with appropriate psychiatric support, any suicide risks could be adequately managed. The FTPP's overall conclusion on the question of the application for voluntary erasure was that it was a finely balanced decision, but that the public confidence issues, and the obligation to protect patients in another jurisdiction, outweighed the arguments for granting voluntary erasure on the grounds of health and limitations of Dr L's capacity to defend himself."
As well as refusing Dr Li's application for voluntary erasure, the FTPP further refused the application to stay proceedings.
Dr Li appealed. The High Court held that the FTPP's decision to refuse voluntary erasure was irrational, and a conclusion which no tribunal properly directing itself on the unchallenged evidence could have arrived at. Reference was made to the fact that the declared intention to work overseas did amount to a valid consideration for public protection purposes (as although the GMC is a UK domestic regulator, it does have a wider public protection role where a practitioner is planning on working overseas) but if a panel is to attach weight to such a consideration, it should only do so where there is compelling evidence that the doctor has not only expressed a wish or an intention, but also that it is a realistic one. In this case, it was clearly just a distant hope.
The Court also considered that the interests of the bereaved parents should not have had any relevance, and that there was no sound evidential basis to the FTPP's conclusion that the identified suicide risks could be adequately managed.
Finally, it was held that the decision not to stay the proceedings was more irrational, with the High Court considering that the concession made by counsel for the GMC that it would not proceed to a hearing in the absence of Dr Li at some stage in the future, was significant.
As a result, the Panel’s decision in relation to both voluntary erasure and the stay application was quashed.
Read the case here.
Dr Li (who at the time of referral to the GMC was in his late sixties and suffering with mental health problems) was referred to a Fitness to Practise Panel ("FTPP"). At the hearing, Dr Li applied for voluntary erasure (VE) from the medical register. Alternatively, it was argued on his behalf, the proceedings should be stayed as the health of Dr L was such that he was unable to participate in any hearing.
Three psychiatrists provided evidence to the FTPP. They all agreed that Dr L's mental health was such that (a) he was unfit to participate effectively in the GMC proceedings, (b) he was unfit to practise medicine now or at any time in the future and (c) participation in the process would have a profound effect upon Dr L’s psychiatric wellbeing, and the suicide risk that arose.
At hearing, the GMC adopted a neutral position; they did not dispute the medical evidence and conceded that should the panel stay proceedings at some point in the future, it would not be the GMC's application, at any point in the future, that the case should proceed in the absence of Dr L.
The FTPP determined that voluntary erasure would not be adequate to maintain public confidence in the regulatory process. In relation to that issue, the FTPP noted that there was "a parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed" and concluded that where there were issues relating to the death of a patient and there was a realistic prospect that the doctor would be able to continue working abroad (Dr Li had talked about working in Australia), potentially posing an ongoing risk to patients. Further, the panel was clear that voluntary erasure would not be adequate to maintain confidence in the regulatory process.
With reference to the submissions on Dr L's health, the FTPP felt that with appropriate psychiatric support, any suicide risks could be adequately managed. The FTPP's overall conclusion on the question of the application for voluntary erasure was that it was a finely balanced decision, but that the public confidence issues, and the obligation to protect patients in another jurisdiction, outweighed the arguments for granting voluntary erasure on the grounds of health and limitations of Dr L's capacity to defend himself."
As well as refusing Dr Li's application for voluntary erasure, the FTPP further refused the application to stay proceedings.
Dr Li appealed. The High Court held that the FTPP's decision to refuse voluntary erasure was irrational, and a conclusion which no tribunal properly directing itself on the unchallenged evidence could have arrived at. Reference was made to the fact that the declared intention to work overseas did amount to a valid consideration for public protection purposes (as although the GMC is a UK domestic regulator, it does have a wider public protection role where a practitioner is planning on working overseas) but if a panel is to attach weight to such a consideration, it should only do so where there is compelling evidence that the doctor has not only expressed a wish or an intention, but also that it is a realistic one. In this case, it was clearly just a distant hope.
The Court also considered that the interests of the bereaved parents should not have had any relevance, and that there was no sound evidential basis to the FTPP's conclusion that the identified suicide risks could be adequately managed.
Finally, it was held that the decision not to stay the proceedings was more irrational, with the High Court considering that the concession made by counsel for the GMC that it would not proceed to a hearing in the absence of Dr Li at some stage in the future, was significant.
As a result, the Panel’s decision in relation to both voluntary erasure and the stay application was quashed.
Read the case here.