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Tribunal service was wrong not to allow doctor to quit medical register, judge says

BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f1672 (Published 14 March 2013) Cite this as: BMJ 2013;346:f1672
  1. Clare Dyer
  1. 1BMJ

The High Court in Manchester has quashed an “irrational” refusal by the Medical Practitioners Tribunal Service to let a suicidal paediatrician remove himself voluntarily from the medical register rather than face allegations of misconduct at a fitness to practise hearing.

Judge Graham Wood said that the decision to refuse the request was “a conclusion which no tribunal properly directing itself on the identified unchallenged evidence could have arrived at.”

Unusually, his judgment conceals the identity of the doctor, whose case was heard in private and who is referred to only by the initials LI.

The doctor, now aged 67, was working as a paediatric locum at Queen Elizabeth Hospital in Woolwich, southeast London, in 2008 when a 10 year old boy with cerebral palsy was brought to the hospital’s emergency department with pain in a hip, which had previously been operated on. He was unable to be admitted as an inpatient because of a shortage of beds.

LI prescribed a fentanyl patch, an opiate, which released at 50 micrograms an hour. The pharmacist expressed concern about the dose, which the doctor was reluctant to change, but he ultimately agreed to halve the dose.

The boy was given the patch and within two days had a cardiac arrest and died. His parents complained to the General Medical Council, which obtained a consultant paediatrician’s report making a causal link between the prescription, said to be “reckless,” and the death.

A GMC interim orders panel placed conditions on LI’s registration, and he worked in Western Australia under the same conditions from 2009 until late 2011. Meanwhile, details emerged of a further incident in which a child with cerebral palsy had died in 2007 at a hospital in north Wales after being admitted with a suspected viral infection. LI had not treated the child but was responsible for the night clinical team and the management of the child. In July 2012 LI was suspended under an interim order.

The judge said that LI had been practising without criticism in Australia but that he had mental health problems and had been treated by a psychiatrist for a number of years. His problems were complex and involved “the exhibiting of Asperger’s traits which was associated with recurrent depressive episodes, anxiety, and obsessional tendencies.” He also had thoughts of suicide.

The medical evidence was central to the panel’s decision making process, said the judge. The panel heard from three psychiatrists, including his treating psychiatrist and an independent psychiatrist asked by the panel to give an objective opinion.

The three psychiatrists provided written and oral evidence “that Dr I’s mental health was such that not only was he unfit to participate effectively in the GMC proceedings but also, and significantly, that he was unfit to practise medicine now or at any time in the future.” There was no discernible difference among the three, and the panel accepted that LI was genuine and not seeking to manipulate the process.

There was a residual risk of suicide if a hearing went ahead with LI present, the judge said. And once the GMC had that said it would not go ahead with a hearing in his absence, if a stay was granted on this occasion because of his health, “a very compelling reason was required if such a factor [health] was not to tip the balance substantially in favour of the granting of voluntary erasure.”

The panel had been “alarmed” by LI’s wish to practise in Australia if he were allowed to take himself off the UK register. It also mentioned “a parallel interest on the part of the bereaved parents in seeing that any professional culpability is identified and risks appropriately managed.”

However, the judge said that the declared intention to work in Australia would be relevant only if it were realistic. The panel’s limited evaluation of this did not inspire confidence that it had considered whether a determination on voluntary erasure that spelt out the evidence that LI was unfit to work as a doctor at any time in the future—as the GMC was advocating—would have addressed the risk to overseas patients.

And an indication that the panel had taken into account irrelevant matters was its reference to the parallel interests of the bereaved parents, added the judge. Complainants used to be entrusted with bringing the “prosecution,” but under current guidance the interest of the bereaved parents could not have had any relevance, he said.

Notes

Cite this as: BMJ 2013;346:f1672