Chapter 6: The General Medical Council
The GMC investigation: fifth Interim Orders Committee
The Panel notes that, while awaiting the conclusion of the police investigation, the GMC corresponded with the Trust. On 8 October 2004, the GMC wrote to the Chief Executive of the Trust to ask for full details of the terms, start and expiry, and monitoring of any voluntary agreement with Dr Barton restricting her prescribing of opioids and benzodiazepines (GMC100914, p160). On 12 November, Mr Pickering, by then Interim Chief Executive of Fareham and Gosport PCT replied, again providing incorrect information. He told the GMC that Dr Barton had “agreed to a voluntary arrangement from 1st October 2002 that she would not prescribe benzodiazepines or opiate analgesics” (GMC101066, p751).
On 25 November, Hazel Bagshaw, Pharmaceutical Adviser, Fareham and Gosport PCT, wrote the first of a series of letters to the GMC, providing full details of Dr Barton’s prescribing data from October 2002 to August 2004 (GMC100135, p383). This letter did not set out the exact terms of the prescribing restriction.
More than two years later, on 22 December 2006, the GMC understood that full disclosure from the police was imminent. Eversheds, the solicitors instructed by the GMC at this time, advised that the GMC should await disclosure of the full expert reports which they had requested from the police as it could be seen from the summaries that they were “critical of care afforded to patients and will almost certainly form the basis of a strong case of serious professional misconduct. Clearly the GMC will wish to review the IOP [Interim Orders Panel] position in this case” (GMC101066, pp644–5). As a result of changes to the law in 2004, Medical Screeners had been replaced by Case Examiners and the IOC had become the Interim Orders Panel (IOP).
Paul Hylton of the GMC responded on the same day, saying:
“My fear has always been that we would have too little information in respect of Dr Barton and too much information in respect of doctors who are not yet referred. Once all the information is in and you have had a chance to analyse it we will be in a position to decide whether Dr Barton, or any other doctor, should be referred to IOP.” (GMC101066, p644)
By 13 March 2007, having repeatedly requested the information, the GMC received disclosure from the police in relation to all the cases. Ann Reeves wrote to the GMC and asked how it was that Dr Barton was still practising (GMC101066, p688).
Eversheds told the GMC that it was working through the evidence for the most serious cases to refine the preliminary advice which had already been given. It was expected that this review would be completed within two or three weeks and that there would be a referral to the IOP “in due course as there is now a much larger body of evidence available” (GMC101066, pp687–8).
Mr Hylton replied: “if we are of the view that the matter should be referred to the case examiners for consideration of a referral to the IOP then we shall do so expeditiously.” He commented:
“… there seems to be an attempt to steer our investigation by the relatives or to move it forward at a pace that the relatives believe it should travel at. I am happy that Eversheds proceed at a pace and in the direction that your experience tells you you should go at this evidence evaluation stage. We cannot afford to get the investigation wrong or to allow the GMC to be used by families as a way of getting at Dr Barton.” (GMC101066, p687)
In the event, the GMC did not take the case of Dr Barton to a fifth IOP until July 2008 – 16 months after this exchange.
In May 2007, the GMC transferred instructions from Eversheds back to FFW. The documents do not disclose the reasons for this change.
At a telephone conference between all parties on 6 September 2007, a fitness to practise hearing was provisionally listed to take place between 8 September 2008 and 31 October 2008 (GMC100903, pp352–3). The time estimate was 40 days.
On 28 April 2008, David Horsley, the Coroner for Portsmouth and South East Hampshire, informed the GMC that simultaneous inquests would be held into ten deaths at Gosport War Memorial Hospital, and that it was unlikely these would be heard earlier than the autumn of 2008 (GMC100947, pp352–3).
On 18 June, the GMC and Dr Barton’s solicitors agreed that it was inappropriate for the fitness to practise hearing to take place before the inquests (GMC100903, p160). The provisional listing was set aside.
On 30 June, the GMC wrote to Dr Barton to tell her that the Case Examiners had decided that her case should be considered by the IOP. This letter indicated that the fitness to practise hearing had been put back and, in the meantime, Dr Barton was able to practise without restriction. It set out the reasons for the Case Examiners’ decision and said that, since the last IOC hearing, “the number of cases to be considered by the FtP [Fitness to Practise Panel] is now much larger and the concerns about this doctor much greater” (GMC100947, p374).
On 11 July, Dr Barton appeared before the IOC (now the IOP) for the fifth time (GMC100947, pp384–414).
Mr Stephen Brassington, Counsel for the GMC, submitted that “Dr Barton appears, at some stage in 2002, to have entered into a voluntary arrangement with her Primary Care Trust that she not [sic] prescribe opiates or benzodiazepines” (GMC100947, p399). In response to a question by the IOP he submitted: “conditions should mirror those which the doctor previously gave as undertakings” (GMC100947, p401).
Shortly before making that submission, Mr Brassington had been asked by the IOP “are you aware of the current status of those undertakings with the hospital?”, to which he replied, “No” (GMC100947, p400). Dr Barton’s solicitor indicated he would be able to assist and later did.
Mr Brassington referred the IOP to the statement of Det Ch Supt Watts dated 30 September 2004. This said, incorrectly: “Dr Barton has undertaken not to prescribe benzodiazepines or opiate analgesics” (GMC100947, p169).
The Panel notes that at no time did Counsel for the GMC provide the information that the GMC had had in its possession since the fourth IOC hearing; namely, that in October 2002 Dr Barton had reached an agreement with the Trust that she would not prescribe opioids and only prescribe benzodiazepines in line with BNF guidance. The GMC could have sought an accurate and up-to-date statement from the Trust but did not do so.
During the hearing, Dr Barton’s solicitor handed the IOP a copy of the letter dated 9 July 2008 from Hazel Bagshaw (now Community Pharmacy Development Manager at the PCT) to the IOP (GMC100947, p383). The solicitor confirmed that the GMC had not been given a copy in advance and he had not provided a copy that morning to GMC Counsel (GMC100947, p406). This letter said the agreement was: “Any prescriptions for diazepam issued will be in line with BNF guidance with no prescribing of diamorphine” (GMC100947, p383).
Dr Barton’s solicitor made the following submission:
“As this Panel will be aware, in relation to opioid analgesics they technically include a large number of medications; for example, that term of itself would embrace codeine. It has never been part of the voluntary arrangement that Dr Barton was not allowed to prescribe some opioid analgesics … the understanding is and the practice is that Dr Barton does not prescribe … schedule 2 drugs, the drugs of the category such as morphine … pethidine and so on. I want to make that clear to the Panel that it is not absolutely technically what the words might be taken to mean on the face of them.” (GMC100947, p406)
For the first time, an interim order was imposed, placing conditions on Dr Barton’s registration (GMC100947, pp410–11). Condition 5 said: “You must not prescribe diamorphine and you must restrict your prescribing of diazepam in line with BNF guidance.” Among the reasons for its decision, the IOP said that while it noted Dr Barton’s compliance with the local restriction, “it is concerned that the agreement is voluntary and there are no formal arrangements in place to monitor your continued compliance” (GMC100947, p413).
The documents show that the GMC pursued concerns about Dr Barton’s prescribing through five interim orders proceedings. An order was made on the fifth occasion. The Panel notes that the reason given – the fact that the agreement was voluntary – had applied from 2002 when the agreement was first made. As a voluntary agreement, it could lapse or be lifted without the GMC becoming aware. The interim order actually recognising these weaknesses did not come into effect until eight years after the GMC was made aware of the concerns in 2000.
The Panel also notes that the GMC was not clear about the terms of the voluntary agreement. Even in July 2008, as the interim order was being considered, its Counsel was misquoting the agreement despite the fact that a copy had been provided at the time of the previous IOC in October 2004. Given the importance of the issues, it is surprising to find that there was confusion on this key element of the argument.
GMC investigation halted
Prior to Operation Rochester, the GMC had anticipated a fitness to practise hearing in April 2003. On 2 December 2002, Hampshire Constabulary wrote to the GMC’s solicitors “to formally ask you to consider pending the anticipated hearing in April until further notice” (GMC101057, p446). Three weeks later, the solicitors replied: “I have received formal instructions from the GMC to confirm that the GMC proceedings regarding Dr Barton’s fitness to practise will be stayed pending the conclusion of the police enquiry” (p448).
By accepting the police’s request, the GMC’s investigation effectively stalled. As a result, the hearing which had been set for April 2003 did not take place until June 2009. By the time of the sanctions hearing there had been a ten-year delay which in itself affected the sanction which was imposed. The Panel notes this as one of a number of examples of a process of accountability being undermined by deferring to another organisation.