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Radiologist faces second tribunal after High Court quashes 12 month suspension

BMJ 2021; 372 doi: https://doi.org/10.1136/bmj.n708 (Published 12 March 2021) Cite this as: BMJ 2021;372:n708
  1. Clare Dyer
  1. The BMJ

A High Court judge has quashed a sanction of 12 months suspension from the UK medical register for a doctor who breached conditions banning him from working as a consultant, after the General Medical Council argued that the punishment was too light.1

Anthony Donadio, who was working as a locum consultant radiologist in London, was referred to the GMC by his clinical director after a high rate of false positives in radiology results was noted by several clinical departments. As a result, patients were needlessly worried about the prospect of having cancer and were subjected to unnecessary tests and scans, the court was told.

Donadio underwent a GMC performance assessment, which found his performance deficient and recommended that he should work only at the level of a supervised junior trainee, level three of the nine leading to consultant. Interim conditions imposed pending a full hearing required him to work at a level lower than consultant and to be directly supervised in all his posts.

By the time the interim orders tribunal heard his case in July 2018, he had moved to a locum consultant post at Kettering General Hospital. The GMC charged him with dishonestly breaching the conditions by working as a consultant for 10 days in July and August 2018. He had left the UK to deal with family matters in Ukraine in August 2018 before his misconduct was discovered.

At his tribunal hearing, the GMC argued that he should be struck off the register, but the tribunal decided that this would be disproportionate. It noted in mitigation that the misconduct took place over a short period of time, it had ceased before he was discovered, and there had been no repetition since.

The tribunal decided that he should be suspended for the maximum 12 months, with a review hearing that had been scheduled to take place on 12 March. The GMC appealed to the High Court, arguing that suspension was insufficient to protect the public interest.

Mrs Justice Collins Rice said that her overall impression of the tribunal hearing was of “painstaking conscientiousness,” not least in assuring fairness to the doctor, who was absent and unrepresented. But she said that the reasons given for choosing suspension—his departure from the UK and the short period of breach—were not enough to deal with the question properly before the tribunal: the status of his registration and fitness to practise should he return to the UK.

Donadio’s counsel argued that the doctor’s original fault was overprotectiveness and his dishonesty was just knowingly working a few days longer as a consultant than he should have. This was nothing like the sort of acquisitive or deceptive conduct with which the GMC sanctions guidance on dishonesty was concerned.

The judge said that the sanctions guidance, which focuses on such examples of dishonesty as falsified certificates or fake CVs, was not particularly helpful in cases of regulatory breach. “Charging dishonesty in such circumstances has a potential to distract from the substance of the matter, and the sanctions guidance does not assist in minimising that potential,” she added.

She said that a simple merit based approach to the underlying conduct was insufficient. “It does not grapple with the seriousness of the breach as such and therefore undercuts the formal processes already engaged for the protection of the public.”

She agreed with the GMC that the tribunal’s findings of fact and determinations on misconduct and fitness to practise “triggered the sanctions guidance’s indicators for erasure and not for suspension.” But the tribunal was entitled to depart from the guidance altogether, as long as it gave sufficient explanation for what it was doing.

She concluded that the tribunal “made an error of principle . . . resulting in an insufficiency of reasons for departure from the sanctions guidance,” and quashed the suspension. The GMC said the case would go back to the tribunal for it to reconsider the sanction.

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