Ed Madden, BL, looks at a recent English High Court case in which a consultant brought an application in the High
Court seeking to terminate suspension of his registration pending a full hearing of his case before the Fitness to Practise Committee of the GMC.
Dr Tubonye Harry was employed as a consultant in genito-urinary medicine by the James Paget University Hospitals NHS Foundation Trust in Norfolk. Dr Harry also maintained a small private practice, which from time-to-time involved him in travel to Nigeria.
In December 2010, NHS disciplinary proceedings were instituted against him and he was suspended from his post. It was alleged: i) that Dr Harry put blood samples through the Trust pathology laboratory for patients who were not patients of the Trust; ii) that he raised NHS prescriptions for non-NHS patients; iii) that he used NHS resources for overseas private patients; iv) that he transported human blood samples in breach of regulations governing their transportation; v) that he requested a member of staff to amend the records of a patient.
In January 2012, on foot of the disciplinary proceedings, Dr Harry was summarily dismissed from his post. The Trust referred the matter to the General Medical Council.
In April 2012, the Interim Orders Panel of the GMC met to consider whether, pending a full hearing before the Fitness to Practise Committee, an order should be made suspending Dr Harry’s registration or imposing conditions on his registration. Following the hearing, the Interim Orders Panel made a decision to suspend his registration for a period of 18 months.
Dr Harry brought an application in the High Court in which he sought to have the suspension terminated. When the matter came on for hearing in September 2012, Mr Justice Burnett said that the first three allegations (as outlined above) were variations of a single theme: that allegedly, Dr Harry “did not properly insulate his private practice from his NHS practice and thus wrongly provided NHS benefits to some of his private patients”. However, the judge said that the other two allegations were the ones which featured prominently in the Panel’s decision to suspend the consultant.
The transportation of human blood is governed by strict regulations. With regard to the fourth allegation, Dr Harry accepted that on a flight from Nigeria in December 2010 he carried two samples of blood in his hand luggage — one infected with HIV. He maintained that the samples were packed in accordance with the relevant regulations. He agreed, however, that the regulations also required that they be carried in the hold of the plane. He claimed that he had been unaware of this requirement at the relevant time.
The consultant also accepted that he opened the package containing the samples at his home before taking them to the laboratory. The regulations require that samples be opened in the laboratory.
The fifth allegation, which was admitted by Dr Harry, came about in the following way. Having been confronted by the NHS with the suggestion that he was using public resources for private patients, he requested a member of staff to amend the paperwork relating to a particular patient. However, within half an hour of his request, and without any intervention on the part of any other person, “he realised the folly of that course and reversed his request”.
Giving his judgment in the case, Mr Justice Burnett said it was common ground that it was not the function of the Interim Orders Panel to make findings of fact in relation to allegations made against a doctor. Rather, their function was to consider whether it was necessary for the protection of members of the public, or was otherwise in the public interest (or in the doctor’s own interests), that an interim order should be made suspending the doctor’s registration, or imposing conditions upon his registration for a period not exceeding 18 months.
The judge said that Dr Harry’s case did not raise any concerns about patient safety “in the sense so often encountered in GMC cases”. The risk in this case concerned the possibility that as a result of the inappropriate transportation of blood samples in December 2010, a member of the public might have come into contact with infected blood. Suspension could not do anything to undo what may have happened in the past. Rather, it was concerned with “looking to the future, albeit in the light of what was alleged to have occurred in the past”. Any future risk to the public could only arise were Dr Harry to repeat the error that he had made with regard to transportation of blood samples. Nothing in the material before the Panel, or in the papers before the Court, supported the proposition that in the light of all that had happened, Dr Harry might again in the future transport blood, contrary to the relevant regulations. In this regard, there was no real risk to members of the public in his continuing to practise pending the resolution of the proceedings before the Fitness to Practise Committee.
The judge said that while the consultant’s request to a member of staff to amend a record was unquestionably a serious matter, an informed and reasonable member of the public would not be offended by his continuing in practice pending a final determination of all the issues. In this regard, the Fitness to Practise Committee would in due course deal with all five allegations made against the consultant and would be in a position to decide where the public interest lay when it came to deal with the issue of sanction.
The Court went on to terminate the suspension imposed on Dr Harry’s registration.
Reference:  EWHC 2762 (QB)