Chapter 6: The General Medical Council
The GMC investigation: fourth Interim Orders Committee
Dr Barton returned to work as a GP. In accordance with the understanding reached while she was on sick leave, the issue of prescribing was reviewed. On 9 October 2002, Dr Barton attended a meeting with representatives of Fareham and Gosport PCT including Alan Pickering, Acting Chief Executive. The note of that meeting refers to an offer by Dr Barton of a ban on her prescribing opioids. This was agreed with the Trust. Benzodiazepines would be prescribed in accordance with British National Formulary (BNF) guidance. Dr Barton had been advised by her medical defence society to carry a single vial of diamorphine “in case she was presented with an absolute medical emergency” (GMC100943, p532). The Trust appointed a pharmaceutical adviser to examine Dr Barton’s prescribing data. The Trust held meetings which confirmed that she was complying with the voluntary restriction (GMC101057, p13).
The GMC was not informed of the agreement reached in October 2002.
Also in October 2002, the GMC considered the impact on its processes of the police referral to the CPS and the nurses’ dossier, which contained details of the concerns that had been raised in 1991. On 3 October, the GMC had a meeting with its solicitors, Field Fisher Waterhouse (FFW), where it was agreed that the speed of the GMC investigation would be affected by the police investigation and any prosecution by the CPS (GMC100942, p614). At this stage it was discussed whether the police could be asked to provide the papers on the understanding that no action would be taken until the conclusion of the investigation or prosecution. The advantage would be that the GMC would be able to prepare the case and be ready to start the regulatory proceedings as soon as possible. As for the impact of the nurses’ dossier, the GMC took advice and decided there was insufficient material to go back to the IOC (GMC101302, pp212–13).
On 3 October, the GMC considered which expert to instruct. Matthew Lohn, a solicitor and partner at FFW, considered whether to use Professor Ford, Dr Mundy or Professor Livesley, or another expert “with more relevant experience, eg, in cottage hospital”. It was noted that using another expert carried the “danger of undermining earlier reports” and that it would be better to ask Professor Ford to review his reports, “in light of all info, eg, [Dr]Barton’s responses re: nature of hospital, staffing etc” (GMC100089, p25).
Before FFW could arrange this with Professor Ford, the GMC agreed to put its investigation on hold to await the outcome of Operation Rochester (GMC100090, p1). It would be another year before action was taken leading to the fourth IOC.
Following a meeting on 30 September 2003, Hampshire Constabulary wrote to the GMC on 6 October. The letter records that, of 62 cases examined, “in a significant number of those cases, the experts took the view that there was negligent care and that the causation of death is unclear” (GMC100090, p42). The police had concluded that they needed to make a further assessment and interview Dr Barton. That interview was likely to take place in January 2004 (p41). In considering whether they should disclose information to the GMC for the purposes of the GMC’s processes, the police had to consider the risk to the public. Their understanding was that Dr Barton was not allowed to work at the hospital and “is not authorised to prescribe opiates”. Disclosure by the GMC to Dr Barton would undermine the police strategy for their interview with her (pp42–3).
On 6 November 2003, a Medical Screener sent a note to the GMC advising that Dr Barton should not be sent back to the IOC. Among the reasons given was “she has voluntarily agreed to restrict her prescribing of certain drugs” (GMC100090, p46). This information came from the letter from the police. The GMC had not sought verification of the terms of the voluntary restriction.
On 4 December, the GMC had internal discussions when it was realised that there had been no attempt to liaise with Dr Barton’s employers to see whether the employers needed to consider suspending her (GMC100090, p50).
On 9 February 2004, Mr Pickering wrote to the GMC in response to an enquiry about the local restrictions (GMC100090, p77). He said there was an agreement that Dr Barton would not admit patients to the hospital, nor would she supervise them. Despite having been at the meeting where it had been agreed, Mr Pickering did not tell the GMC there had been a revised prescribing condition in place since 9 October 2002.
As a result of this letter, the GMC was under the mistaken impression that Dr Barton was not subject to a voluntary prescribing undertaking and wrote to the police informing them of this (incorrect) understanding (GMC100090, pp88, 92).
In understanding the relevant chronology, the Panel notes that the police but not the GMC had been given a copy of Professor Richard Baker’s report (see Chapters 4 and 5). In December 2003, in response to the GMC, the police confirmed that they did have a copy but that it had been provided on a confidential basis (GMC100090, p49). The GMC did not receive a copy until 17 May 2004 and then only on terms which restricted disclosure (GMC101057, p734).
On 24 June 2004, Finlay Scott, GMC Chief Executive, telephoned Paul Kernaghan, Hampshire Constabulary’s Chief Constable, to discuss the GMC’s concerns about the delay in progress. During this call, Mr Scott (incorrectly) indicated that the prescribing undertaking had lapsed. The Chief Constable “echoed the concerns of the GMC” and said he would speak to the officer in charge of the case upon his return from annual leave (GMC101057, p435).
On 2 July, the Chief Constable wrote to Mr Scott updating him on the investigation. He said he had met with Mr Pickering on 11 June who had told him that there was a voluntary arrangement with Dr Barton “that her prescription of Opiates and Benzodiazepines are supervised at the time by another GP” and that her prescription levels were being monitored independently through the Trust IT systems (GMC101247, pp105–6). The Panel notes that this was not an accurate description of the voluntary restriction which in fact provided that Dr Barton would not prescribe opioids at all and that benzodiazepines could be prescribed in line with the BNF guidance.
On 21 July, Detective Superintendent (Det Supt) David Williams informed the GMC that the Category 2 cases (see Chapter 5) would be disclosed to the GMC that week “in the absence of strong legal rationale”. He went on to say: “I confirm that the following information has been received from the local healthcare trust … Dr Barton has undertaken not to prescribe benzodiazepines or opiate analgesics from 1 October 2002” (GMC101057, p430). This was again an incorrect description of the restriction.
The GMC chased up the promised disclosure of the Category 2 cases on 5 August. It expressed its concerns about patient safety and felt that an interim order was more likely to be obtained with the new material (GMC101057, p510).
The police replied that a meeting with lawyers had been arranged for 12 August. Det Supt Williams said:
“… whilst I appreciate the concerns with regard to patient protection, it seems to me that the risks in respect of Dr Barton’s continuing practice have been ameliorated by the voluntary conditions in place. Have you considered taking a statement or receiving a formal report from the primary trust? Detailing the exact conditions, and evidencing precisely the prescriptions being written up by Dr Barton. This would not compromise our investigation and would demonstrate that the GMC were independently assessing on going risk.” (GMC101057, pp509–10)
Following the incomplete information in the letter of 9 February from Mr Pickering, the GMC had not sought a formal report or statement from the Trust detailing the conditions.
On 30 September, Det Ch Supt Watts provided a statement to the GMC, summarising the investigation into Dr Barton (GMC101057, pp835–44). This statement was provided for use at the IOC hearing.
On 24 September, the GMC wrote to Dr Barton informing her that the new information from the police would be put before the IOC on 7 October (GMC101057, pp43–4).
On 1 October, the GMC sent instructions to Roger Henderson QC to represent it at the IOC. The instructions were to seek an interim order of suspension and, if this was unsuccessful, to ask the IOC to consider the option that Dr Barton should not prescribe benzodiazepines or opioids at all (GMC101302, pp1644–50).
On 5 October, Mr Henderson responded, saying “in the absence of any recent problems or report problems with her practice and the fact that the present evidence advances the case only a little”, he wondered if the GMC should seek the proposed restriction on prescribing benzodiazepines and opioids rather than suspension (GMC101302, pp1639–40). The GMC agreed with his advice and this was the submission made at the fourth IOC hearing.
Solicitors for Dr Barton provided the GMC with a copy of the agreement reached in October 2002 that Dr Barton would not prescribe opioids and that benzodiazepines would only be prescribed in line with BNF guidance. This was the first time that the GMC had understood the correct details of the voluntary restriction. For two years the GMC had believed, first, that the prescribing restriction had lapsed (even after it had been reinstated) and then, from police reports, that it was different to the one which actually was in place.
The IOC decided it was not necessary to impose an interim order on Dr Barton’s licence to practise and gave the following reasons: the police investigation was not finished and Dr Barton had neither been arrested nor charged. The IOC noted there had been no concerns about Dr Barton’s work in general practice and that there was a voluntary undertaking in place. The IOC did not explain why it rejected Mr Henderson’s submission that an interim order was necessary, in addition to the voluntary undertaking, because a voluntary undertaking was not available to members of the public or prospective employers and was “of no particular duration and capable of being withdrawn at any time and incapable of enforcement by the General Medical Council” (GMC101057, p74).