Chapter 6: The General Medical Council
No GMC action on the consultants
The documents available to the Gosport Independent Panel include limited references to the consultants.
On 21 March 2002, at Dr Barton’s second IOC hearing, the Committee asked Counsel for the GMC for:
“… clarification as to whether the Committee is entitled to know what is [the consultant’s] role in this matter, as is set out in the Hampshire Constabulary letter [06 February 2002]. There is implicit criticism there of the consultant in charge. Are we entitled to know whether that particular consultant has been referred to the Council, or whether the police are continuing their investigations … It may be that could be relevant to the part that this doctor has played relative to the consultant.” (GMC101057, p20)
Counsel replied:
“I can certainly say that, so far as any police investigations are concerned, they are concluded, and there are no police investigations on going into [the consultant]. I wonder if I may take instructions on the other matter? [Having taken instructions] I have no instructions on any other action taken against [the consultant].” (GMC101057, p20)
The IOC identified that the role of consultant “could be relevant”. The GMC did not take this hint and there is no documentation available to the Panel to suggest that it took any further action to investigate who the consultants were, what their roles were or what part they had played in the problems at the hospital at this time.
The documents show no explanation as to why the GMC did not ask for a formal screening decision on the consultant. By this stage, the GMC knew that there were at least five cases of similar prescribing.
On 20 November 2002, the police had a meeting with the GMC to provide information about Operation Rochester. During the meeting, the police observed:
“… although there was a theme developing through the cases to suggest Jane Barton had relied on diamorphine and syringe drivers, the police had to investigate the practices of the other practitioners working at Gosport Hospital. The attendees agreed that Jane Barton could not be seen to be persecuted alone.” (GMC101057, p437)
On 19 January 2007, Eversheds (the solicitors instructed by the GMC at this time) attended a meeting with the police, to discuss disclosure from the Operation Rochester investigation (GMC101181, p85).
The solicitors “asked if the police looked at the possibility of prosecuting any other Doctors/Medical Staff as part of the investigation”. The police said that no charges had been brought against any of the consultants who had supervised Dr Barton, some of whom had been interviewed under caution on a voluntary basis (GMC101181, pp88–9).
In a conference call on 30 October, lawyers for the GMC, including Mr Kark and an investigation officer for the GMC, considered the available information about named consultants:
“[The] concern is that we will be criticised if we go ahead with only one doctor when we have got evidence against other doctors … Is there a case against these doctors? TK [Tom Kark] said that Dr Barton says that these consultants regularly reviewed the prescriptions … TK said we either prosecute the doctors, take statements or leave them alone … TK will prepare some advice on this at the same time as the draft charges.” (GMC101302, p794)
The investigation officer confirmed that these would be under the new rules and to add new complaints against two of the consultants, who could only be criticised for supervision, would be a major headache (GMC101302, p794).
The GMC asked Mr Kark for further advice after the completion of its investigation into Dr Barton.
In relation to one of the consultants, his advice was that a prosecution would not be appropriate (GMC100133, p19). In fact, the records show that three days after Mr Kark had made his closing submissions in the fitness to practise hearing, she “was voluntarily erased from the register on 7 August 2009 … therefore the GMC cannot take any action against this doctor” (GMC100187, p669). There is no evidence that the consultant’s application for voluntary erasure was communicated to the GMC department investigating the events at the hospital and bringing the case against Dr Barton. It would have been open to the GMC to consider whether to allow voluntary erasure to take place when a doctor was under investigation.
In relation to another consultant, Mr Kark advised that prosecution would be disproportionate, given the working arrangements at this local community hospital.
The documents were sent to Helen Gately, Assistant Registrar at the GMC, who on 9 February 2011 provided her decision on whether or not the allegations could be brought, despite the delay of over five years, because “it is in the public interest, in the exceptional circumstances of the case” (GMC100187, p668).
The Assistant Registrar considered the cases of two of the consultants and agreed with Mr Kark’s advice that the GMC had been aware of these allegations since July 2002. She said that while it would be “difficult to justify the very lengthy delay”, she also had to look at the effect of that delay (GMC100187, p672).
The Assistant Registrar’s conclusion was that “on the spectrum of the gravity of allegations, it is my view that the allegations are not grave enough to be capable of constituting ‘exceptional circumstances’ in the public interest that would require waiver of the five year rule” (GMC100187, p672).
The Assistant Registrar added that these two consultants did not pose an unwarranted risk to the public as they had not been brought to the attention of the GMC previously. The concerns did not appear to reflect a pattern of behaviour and so it was not considered to be in the public interest in the exceptional circumstances of the case for the allegations to proceed. Nor was it considered to be in the public interest, to maintain public confidence in the profession and the allegations did not need to be ventilated further by a public body (GMC100187, pp668–74).
In taking this stance, the GMC confirmed its decision not to extend its proceedings beyond Dr Barton.