Chapter 6: The General Medical Council
Fitness to Practise Panel determination: Part Three, serious professional misconduct
Part Three sets out the panel’s determination that this was not a case where the findings of fact were insufficient to support a finding of serious professional misconduct. As a result, the panel needed to move on to consider “the extent to which [the facts it had found proved] indicated serious professional misconduct” and would then go on to consider sanctions (GMC100948, p241).
There was insufficient time to move to these considerations on 20 August 2009 and the hearing was adjourned for a date to be fixed.
Sanctions proceedings
This stage of the proceedings began five months later on 20 January 2010. The families complained to the GMC that this delay allowed Dr Barton’s representatives to collect evidence from patients and supporters, which then influenced the panel. It was suggested by at least one of the families that the defence put pressure on patients to provide testimonials (GMC000199, p3).
The evidence initially provided during the fitness to practise hearing contained 195 testimonials (GMC101186, pp1–295). The evidence presented at the sanctions hearing contained 184 testimonials (GMC101128, pp1–289). Dr Barton’s barrister explained during his submissions at the sanctions stage that his instructing solicitors had used the time since the determination to contact those who had given testimonials, in order to confirm that they still stood by their comments, in light of the findings (GMC000172, p62).
The legal test, guidance and case law for serious professional misconduct was set out by Counsel for the GMC (GMC000172, pp49–54). The legal assessor provided advice in relation to serious professional misconduct (GMC000172, pp24–43). On 29 January 2010, the panel gave its determination in public on serious professional misconduct.
In reaching its determination, the panel had to consider Dr Barton’s conduct historically and decide whether “looking at all the facts that have been admitted and found proved, Dr Barton’s conduct amounts to a serious falling below the standard which might be expected of a doctor practicing in the same field of medicine in similar circumstances” (GMC000172, p5).
The panel concluded that Dr Barton was guilty of multiple instances of serious professional misconduct and passed down the following judgement:
“The Panel took account of [Counsel’s submissions] and exercised its own judgement, having regard to the principle of proportionality and the need to balance the protection of patients, the public interest and Dr Barton’s own interests.” (GMC000172, p5).
“The Panel made multiple findings of fact which were critical of Dr Barton’s acts and omissions. These included but were not limited to:
The issuing of prescriptions for drugs at levels which were excessive to patients’ needs and which were inappropriate, potentially hazardous and not in the patients’ best interests;
The issuing of prescriptions for drugs with dose ranges that were too wide and created a situation whereby drugs could be administered which were excessive to the patient’s needs;
The issuing of prescriptions for opiates when there was insufficient clinical justification;
Acts and omissions in relation to the management of patients which were inadequate and not in their best interests. These included failure to conduct adequate assessments, examinations and/or investigations and failure to assess appropriately patients’ conditions before prescribing opiates;
failure to consult colleagues when appropriate;
acts and omissions in relation to keeping notes which were not in the best interest of patients, including failure to keep clear, accurate and contemporaneous notes in relation to patients, and in particular, in relation to examinations, assessments, decisions, and drug regimes.” (GMC000172, pp5–6)
“The Panel has concluded that Dr Barton failed to follow the relevant edition of ‘Good Medical Practice’ in relation to the following aspects of her practice;
Undertaking an adequate assessment of the patient’s condition based on the history and clinical signs, including where necessary, an appropriate examination;
Providing or arranging investigations or treatment where necessary;
Referring the patient to another practitioner where indicated;
Enabling persons not registered with the GMC to carry out tasks that require the knowledge and skills of a doctor;
Keeping clear accurate and contemporaneous patient records;
Keeping colleagues well informed when sharing the care of patients;
Ensuring suitable arrangements are made for her patients’ medical care when she is off duty;
Prescribing only the treatment, drugs or appliances that serve patients’ needs;
Being competent when making diagnoses and when giving or arranging treatments;
Keeping up to date;
Maintaining trust by;
- listening to patients and respecting their views
- treating patients politely and considerately
- giving patients the information they ask for or need about their condition, treatment and prognosis
- giving information to patients in a way they can understand
- respecting the rights of patients to be fully informed in decisions about their care
- respecting the right of patients to refuse treatment
- respecting the rights of patients to a second opinion
Abusing her professional position by deliberately withholding appropriate investigation, treatment or referral.” (GMC000172, p6)
“Further, Dr Barton failed to recognize the limits of her professional competence.
The Panel has already commented at length on Dr Barton’s defective prescribing practices, her inadequate note taking and her failures with regard to consultation, assessment, examination and investigation. It does not refrain from emphasizing and holding her to account for creating the risks and dangers attendant upon such conduct and omissions.
As a consequence of the Panel’s findings of fact as outlined above, Dr Barton’s departures from Good Medical Practice as outlined above, and the attendant risks and dangers previously commented on, the Panel concluded that she has been guilty of multiple instances of Serious Professional Misconduct.” (GMC000172, p7)
The GMC regarded Dr Barton’s position as presenting a continuing danger to patients, a view demonstrated by the following email sent from Peter Swain, GMC Head of Case Presentation, to Paul Philip, GMC Director of Fitness to Practise, on 7 August 2009:
“Paul, Dr Barton has expressed the view during the hearing that if put in the same situation again she would behave in the same way.
The case raises very serious issues in relation to Dr Barton’s misconduct and lack of insight as well as wider issues as to the message to be sent about standards to be expected of the profession in the highly sensitive area of management of patients with potentially terminal conditions.
I am in no doubt that in terms both of patient protection and the wider public interest, the appropriate sanction submission is one of erasure.” (GMC100115, p78)
Having found Dr Barton guilty of serious professional misconduct, the panel went on to consider what sanctions should be imposed. The panel heard submissions from both Counsel and received legal advice from the Legal Assessor (GMC000172, p7). It considered the then current Indicative Sanctions Guidance (GMC100825, pp32–68), set out all the matters it took into consideration and reminded itself that any sanction it imposed was not designed to punish Dr Barton, although it might have that effect (GMC000172, p7).
Mr Kark reminded the panel of the relevant parts of paragraphs 21, 22 and 23 of the Indicative Sanctions Guidance:
“[paragraph 21] In deciding what sanction, if any, to impose, the Panel should have regard to the principle of proportionality, weighing the interests of the public with those of the practitioner. The Panel should consider the sanctions available starting with the least restrictive.
[paragraph 22] Any sanction and the period for which it is imposed must be necessary to protect the public interest …
[paragraph 23] … Whilst there may be a public interest in enable a doctor’s return to safe practice, and panellists should facilitate this where appropriate in the decision they reach, they should bear in mind that the protection of patients and the wider public interest (ie, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour) is the primary concern.” (GMC000172, pp56–7).
Before giving its determination on the sanction to be imposed, the panel asked all parties to return to address them regarding the ten-year delay from the date of the last charges to the hearing (GMC000172, pp26–32).
Mr Kark made submissions that erasure was the appropriate sanction. The GMC did not concede that Dr Barton no longer posed a risk to the public. In addition, the public interest (in terms of both the family members of patients who had died and also the wider public) demonstrated that erasure was the only sanction that would ensure the protection of the public and public confidence in the profession (GMC000172, pp59–60).
Mr Langdale argued that the panel’s charges showed that Dr Barton had exhibited an “error of judgement” and her overriding concern was to ensure that her patients did not suffer pain (GMC000172, p70). He argued that the appropriate order was for the conditions imposed by the IOC to continue and said that the 184 testimonials showed that Dr Barton was an excellent family doctor (GMC000172, p72).
During the course of his submissions, Mr Langdale had criticised the working conditions and in particular the supervision given to Dr Barton during her time at the hospital (GMC000172, pp68–9).
The panel said that it was “no part of this Panel’s role to make findings in respect of other persons who might have been the subject of criticism during the course of the evidence." It also said:
“Dr Barton’s actions should not be judged in isolation. An injustice would occur were she to be judged the scapegoat for possible systematic failings beyond her control. Her actions must be judged in context. The Panel has had the benefit of hearing a great deal of evidence in that regard, and is well placed to define that context. This in no way detracts from Dr Barton’s own personal responsibilities as a medical practitioner however.” (GMC000172, p8)
When summarising the mitigation in relation to the offences, the panel:
“… noted that Dr Barton was operating in a situation where she was denied the levels of supervision and safeguard, guidance, support, resources and training necessary to ensure that she was working within safe limits. Even when there was Consultant cover it was often of a caliber which gave rise to criticism during the course of evidence. The Panel accepted Mr Langdale’s submission that the response of hospital management and senior colleagues against Dr Barton was such that she did, quite reasonably, feel that she was acting with the approval and sanction of her superiors.” (GMC000172, p10)
On 29 January 2010, the Fitness to Practise Panel gave its determination on sanction. In setting out the approach it had taken in relation to the ten-year delay, the panel highlighted that there was no binding authority but it had followed the legal assessor’s advice, which was:
“… the passing of time served the Panel well in that it provides a context in which Dr Barton’s attitudes and practices could be viewed and judged. It allowed the Panel to judge the efficacy of conditions as a workable sanction by opening a ten year window through which to view it.” (GMC000172, p11)
The panel first summarised its findings, having “made multiple adverse findings of fact in respect of Dr Barton’s prescribing practices, note keeping, consulting colleagues, assessments, examinations and investigations” and multiple instances of serious professional misconduct (GMC000172, p8). It set out the aggravating features and mitigating features of the offences and then the mitigation personal to Dr Barton (p9).
The panel then turned to consider the available sanctions, beginning with the least serious. The panel said that it “had no hesitation in concluding that given the seriousness and multiple instances of her professional misconduct it would be insufficient, inappropriate and not proportionate either to take no action or to issue her with a reprimand” (GMC000172, p12).
The panel then turned to consider the next most serious sanction, conditions. It said that it was unable to accept that Dr Barton no longer posed a risk to patients, but because she had been in safe practice for ten years, conditions may be formulated to meet that risk (GMC000172, p13).
The panel distinguished Dr Barton’s case from the highly publicised case of Harold Shipman and made it clear that, in its view, this was not such a case. However, it said it took “an extremely serious view” of actions that put patients at risk and had “no hesitation” in deciding that, even when considering the intervening ten years, it was necessary to take action “in order to maintain public confidence in the profession”. This was to “send a message to the public that the profession will not tolerate Serious Professional Misconduct” (GMC000172, p14).
The panel said that it was satisfied conditions might be formulated which would maintain public confidence in the profession. It was “greatly impressed by the many compelling testimonials which detailed Dr Barton’s safe practice over the last ten years” (GMC000172, p14). Although neither the panel nor the GMC was responsible for the rehabilitation of doctors, the panel said that it could be argued it was in the public interest to preserve Dr Barton’s services as a GP (GMC000172, p14).
The panel decided that an order for three years was appropriate and proportionate for the protection of patients, with 11 conditions. The first seven conditions imposed on Dr Barton were as follows:
1. She must notify the GMC promptly of any post she accepts for which registration with the GMC is required and provide the GMC with the contact details of her employer and the PCT on whose Medical Performers List she is included.
2. At any time that she is providing medical services, which require her to be registered with the GMC, she must agree to the appointment of a workplace reporter nominated by her employer, or contracting body, and approved by the GMC.
3. She must allow the GMC to exchange information with her employer or any contracting body for which she provides medical services.
4. She must inform the GMC of any formal disciplinary proceedings taken against her, from the date of this determination.
5. She must inform the GMC if she applies for medical employment outside the UK.
6. Regarding opiates:
a) She must not prescribe or administer opiates by injection. If she prescribes opiates for administration by any other route she must maintain a log of all her prescriptions for opiates including clear written justification for her drug treatment. Her prescriptions must comply with the BNF guidance for such drugs.
b) She must provide a copy of this log to the GMC on a six-monthly basis or, alternatively, confirm that there have been no such cases.
7. She must confine her medical practice to GP posts in a group practice of at least four members (including herself). (GMC000172, p15)
The record of the hearing shows that “There was a general outcry of disapproval from members of the public who then left the hearing chamber” (GMC000172, p16).
The further four conditions were then read out:
8. She must obtain the approval of the GMC before accepting any post for which registration with the GMC is required.
9. She must attend at least one CPD (Continuous Professional Development) validated course on the use of prescribing guidelines within three months of the date from which these conditions become effective and forward evidence of her attendance to the GMC within one week of completion.
10. She must not undertake palliative care.
11. She must inform the following parties that her registration is subject to the conditions above: any organisation or person employing or contracting with her to undertake medical work; any locum agency or out-of-hours service she is registered with or applies to be registered with (at the time of application); any prospective employer or contracting body (at the time of application); the PCT in whose Medical Performers List she is included, or seeking inclusion (at the time of application); her Regional Director of Public Health. (GMC000172, p16)
The panel was satisfied that these conditions “provide further safeguards for the protection of patients” (GMC000172, p16).
In assessing the maximum period of three years as appropriate, the panel said that the sanction would be reviewed before the end of that period. If the review hearing then decided that the conditions were still necessary, a further order could be made (GMC000172, p17).
The documents show how Dr Barton benefited from the delay before the fitness to practise process took place. The ten-year delay was interpreted as ten years of good practice to weigh in the balance. The Gosport Independent Panel notes that the decision on the sanction to be imposed on Dr Barton was taken 19 years after the nurses had first expressed concerns, as described in Chapter 1.
The decision on sanctions prompted an email response to the GMC from Mrs Reeves, who was clearly unhappy, not just with the outcome but also with the conduct of the hearing (GMC100017, pp13–15).
On 29 January 2010, Niall Dickson, Chief Executive of the GMC, issued a press release, which said:
“We are surprised by the decision to apply conditions in this case. Our view was the doctor’s name should have been erased form the medical register following the Panel’s finding of Serious Professional Misconduct. We will be carefully reviewing the decision before deciding what further action, if any, may be necessary.” (GMC100825, p433)
Mrs Reeves immediately wrote to the GMC complaining that the press release “was an absolute joke” (GMC100017, p8).
The website for the British Medical Association (BMA) states that the association is the trade union and professional body for doctors in the UK. It represents the needs and interests of doctors. On 2 March, Dr Hamish Meldrum, its Council Chair, wrote to Professor Peter Rubin, Chair of the GMC, to formally put on record the BMA Political Board’s “extreme disquiet” that Mr Dickson had criticised the decision of the Fitness to Practise Panel. The BMA described this as “inappropriate and an unwelcome departure from established practice” and “tantamount to an interference in due process” (GMC000729, p1).
In correspondence with Mrs Reeves, Mr Dickson stressed that the GMC’s view was that Dr Barton’s name should have been erased from the register. He told her:
“We are now asking the government to give us the right of appeal to the High Court in cases where we believe the Panel outcome is too lenient or could put patients at risk … Under our proposed reforms a senior judge will head up the new tribunal service … Our frustration with the existing system is that the panels are autonomous (and rightly so) but we cannot challenge their decisions.” (GMC100022, p13)
In 2010, the only mechanism to appeal the sanction decisions of the Fitness to Practise Panel was if the Council for Healthcare Regulatory Excellence (CHRE) (which was informed of the outcome of all GMC hearings) referred the case to the High Court for an appeal. Members of the public and interested parties had no right of appeal.
On 3 February, the GMC instructed Leading Counsel to advise on whether or not the GMC should support such a referral if the CHRE were to make one. If the CHRE were to refer the case to the High Court for an appeal, such an appeal would have to have been lodged by 1 April 2010.
The CHRE held a case meeting on 23 March, adjourned until 29 March. The CHRE set out the test it had to apply “when considering ‘undue leniency’” was:
“… whether the decision was one which the Panel, having regard to the relevant facts and to the objective of the disciplinary proceedings, could reasonably have imposed. The question is whether the decision of the Panel was ‘manifestly inappropriate’ having regard to Dr Barton’s conduct and the interests of the public [CHRE v Ruscillo [2004] EWCA Civ 1356]. The Members noted that it was not enough that they themselves might have come to a different view.” (GMC100426, pp9–14)
The CHRE concluded that, although the members considered erasure to be the most appropriate sanction, the test had not been met to refer the case to the High Court for an appeal (GMC100426, p14).
The CHRE issued a news statement setting out that it considered the fitness to practise decision to be “lenient but not unreasonable in law”. It expressed sympathy for the families concerned with the deaths of patients but highlighted that “medical regulation is not about punishment or blame but about whether or not a doctor is fit to practice medicine”. It explained why the CHRE did not agree with the GMC panel’s decision but stated that the CHRE had decided “it was reasonable in law for them to reach that conclusion” (GMC100426, p6).
Having received this determination from the CHRE, the GMC had no other avenues of appeal. Mr Dickson issued a press release, which said:
“This was a complicated and difficult case which has caused anguish and upset to a great many people. We understand and support the view of the CHRE that Dr Barton should have been erased from the medical register but also understand and accept the legal position in relation to an appeal.” (GMC101302, p961)