Consultant paediatric surgeon successful, in part, in appeal against decision to erase him from GMC register due to impaired fitness to practise.

MPTS

Dr Towuaghantse, a consultant paediatric surgeon, stood accused of serious clinical errors involving a case of poor clinical judgement and care in 2013 that resulted in the death of a child.

On 18 November 2020 the MPTS reach the conclusion that Dr Towuaghantse’s current fitness to practise was impaired and it concluded that the his conduct had put Patient A at unwarranted risk of harm which resulted in his avoidable death; it had brought the profession into disrepute; and it had breached fundamental tenets of the profession namely the provisions of Good Medical Practice and the Consent Guidance.

An order for erasure was therefore made.

Appeal

appealed on a number of grounds:

  1. The General Medical Council relied on irrelevant, prejudicial and inadmissible material during the factual stage of the case. It produced the written conclusions of the Coroner who had presided at an inquest into the death of Patient A, and who had heard evidence from a number of witnesses.
  2. The GMC relied upon an expert witness, described as Dr N in the determinations, but who was not independent. He had worked at the hospital in Newcastle where Patient A was treated, and he knew and had worked with key witnesses appearing for the GMC. His evidence should not have been given any weight.
  3. abandoned
  4. The GMC failed to produce antenatal medical records concerning discussions between Patient A’s parents and medical staff prior to the hearing. This was notwithstanding that the Appellant was being criticised for not personally discussing the case with the parents prior to operating on the child. When antenatal records were produced within the hearing, they were incomplete, and the Appellant was thereby prejudiced in his defence.
  5. abandoned
  6. The finding of impairment and the imposition of the sanction of erasure were unfair in all the circumstances, and in particular the Tribunal failed to give proper consideration to the facts that:
    1. the relevant events occurred in 2013, so more than 7 years before the hearing;
    2. the Appellant had recognised at an early stage that he had made errors in the case and shown insight: he had apologised to Patient A’s parents at the inquest, and which he repeated before and during the hearing;
    3. the Appellant’s practice over that 7 year period was unblemished, and he had not undertaken any paediatric work.

Judgement

Whilst the appeal failed on the majority of grounds, Mr Justice Mostyn remitted the matter, in part, for reconsideration on the issues of the impairment and sanctions phases to be reconsidered but without reference to, or taking into account of:

  1. the appellant’s decision to contest the allegations made against him at the inquest;
  2. the appellant’s failure thereafter to admit the narrative conclusions of the Coroner;
  3. the appellant’s decision to contest the allegations made against him at the MPT, or the manner in which he contested them.

    In his judgement and reasons for this, Mr Justice Mostyn said:

    “It is clear to me that a significant component in the decision-making process, both as to determination of impairment of fitness to practise, and in the imposition of the sanction of erasure, was the conclusion that the appellant was to be seriously faulted for (a) having contested the allegations against him at the inquest, and not having accepted the Coroner’s findings, and (b) having contested the allegations against him at the MPT. The pleas of not guilty (in effect) in both courts were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty.

    “In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.

    “In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment and sanctions phases.”

    Reaching a conclusion, Mr Justice Mostyn said:

    “Therefore, I have reached the conclusion that the decision-making processes that led to the finding of impairment, as well as the decision on sanction, were unjust because of a serious procedural irregularity.”

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