El-Huseini v General Medical Council [2021] EWHC 2022 (Admin) (16 July 2021) 

The Appellant (“Dr El-Huseini”) appealed to the High Court against the determination of the MPTS on 24 May 2016 to suspend his registration for a period of 12 months on grounds of misconduct and health. The suspension was subsequently extended on review, but on the grounds of health only.

Background

At the time of the events which were the subject of the misconduct charge, Dr El-Huseini worked as an anaesthetist at the University Hospitals Coventry and Warwickshire NHS Trust. In August 2008, he had suffered a stroke. This led to a diagnosis of conductive aphasia and anomia (forms of difficulty in processing information or speaking caused by damage to the brain). Despite these problems, Dr El-Huseini continued to work at UHCW.

He was working there on 17 June 2011 when an incident occurred with a Patient A. That patient required general anaesthesia for an operation in connection with dental issues. Dr El-Huseini, as the anaesthetist responsible for Patient A, had identified, prior to the anaesthetic, that the patient had a “difficulty airway”. Patient A experienced a clinical episode in the form of an airway obstruction when in the recovery room. The misconduct alleged, and proved, against Dr El-Huseini was that he was not in the immediate vicinity of the recovery area when this episode occurred.

A separate issue which was before the MPT concerned Dr El-Huseini’s health. The MPT accepted the evidence of two doctors, Dr Vesey and Dr Friedman who had given evidence at the hearing. The MPT’s conclusion was that Dr El-Huseini’s health was such as to put patients at risk and that accordingly his fitness to practise was impaired by reason of adverse physical/mental health.

Accordingly, the MPT concluded that his fitness to practise was impaired by both misconduct and adverse physical/ mental health.

MPTS findings

The MPT did, however, find that it had been proved that Dr El-Huseini, as the anaesthetist responsible for Patient A, had identified, prior to the anaesthetic, that the patient had a “difficulty airway”. The MPT also found it proved that the patient experienced a clinical episode in the form of an airway obstruction when in the recovery room. There is no dispute about the fact that this occurred. The misconduct alleged, and proved, against Dr El-Huseini was that he was not in the immediate vicinity of the recovery area when this episode occurred. The MPT held that the facts proved amounted to misconduct and that this misconduct amounted to impairment. It held that Dr El-Huseini had failed to provide the level of care necessary to protect Patient A and so fell seriously below the standard to be expected of him.

Appeal

Mr Justice Jacobs turned down all grounds of appeal advanced by Dr El-Huseini saying:

“If as in the present case, a doctor does not provide a witness statement, does not attend the hearing so as to explain his position on the facts and give evidence about them, and does not cross-examine the relevant witnesses, then there will usually be little prospect of a successful challenge to MPT’s fact-findings, on disputed issues, based on evidence from witnesses who did actually give statements and oral evidence to the tribunal. This is so whether or not the doctor had made statements on disputed issues in documents after the event.

“There was, similarly, a clear and firm evidential basis for the MPT’s conclusion that Dr El-Huseini was not in the immediate vicinity of the recovery room when the clinical episode occurred.”

On the issue of impairment due to health, Dr El-Huseini’s grounds of appeal relied upon the fact that the reports were relatively old, having been written in November 2013.

However, Jacobs J commented that:

“there was nothing in the evidence which suggested that Dr El-Huseini’s health issues described in their reports were either likely to improve, or had indeed improved, thereafter” therefore “the MPT was fully entitled to pay regard to the expert evidence of the two doctors, and to accept their conclusions, even though their reports were based on work carried out in 2013”.

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