General Medical Council v Donadio [2021] EWHC 562 (Admin) (10 March 2021)

This is an appeal by the GMC against a MPTS decision to impose a 12 months suspension on Dr Donadio’s registration that the GMC says this sanction is insufficient to protect the public.

Background

Dr Donadio had been the subject of a fitness to practise referral in June 2017. He was at the time working as a locum consultant radiologist at London North-West Hospitals NHS Trust. His clinical director, in making the referral, was concerned that his performance might be deficient and that this might be linked to an anxiety condition. She described him ‘over calling’ abnormalities in radiology results – false positives – at a level so high it had been noted by several clinical departments. As a result, patients were being worried unnecessarily about the prospect of having cancer; and some were having needless further appointments, tests and scans, including unwarranted radiation exposure and invasive procedures. Dr Donadio acknowledged the problem, explained it by reference to anxiety and personal worries relating to his family in Ukraine, and was confident his performance in his next locum posting would be back to normal standards.

A GMC performance assessment was undertaken in April 2018, in response to the referral. It found Dr Donadio’s professional performance to have been deficient, and that he was fit to practise on a limited basis only. His performance was ‘unacceptable’ in assessment and clinical management, and gave ’cause for concern’ in record keeping and working with colleagues.

As a result of this assessment, Dr Donadio was referred by the GMC to an Interim Orders Tribunal (IOT to place him under an interim order making his registration subject to conditions.  He did not attend the IOT and was not represented. The IOT determined there were serious concerns about Dr Donadio’s fitness to practise, such as might pose a real risk to members of the public and adversely affect the public interest. The IOT imposed an interim order that Dr Donadio’s registration was to be conditional on his compliance for a period of 12 months with certain specified requirements.

The Medical Practitioners Tribunal Decision

Dr Donadio left the UK in August 2018, to attend to family matters in Ukraine. In the meantime, however, it transpired that he had continued to work as a consultant radiologist at Kettering, unsupervised, as before. The GMC brought proceedings against him in the MPTS alleging breach of his interim conditions order.

The MPTS found the factual particulars proved finding that the breaches were committed in the knowledge of the conditions imposed on him.

The GMC had sought the sanction of erasure from the register in these circumstances but the MPTS instead imposed a suspension for 12 months. It is this decision which is the subject of the appeal.

After a lengthy discussion on the merits of the appeal, Mrs Justice Collins Rice, in quashing the MPTS’ decision said:

“In these circumstances, I reach the following conclusions. I agree with Mr Hare that the MPT’s own findings of fact, and determinations on the issues of misconduct and of fitness to practise, triggered the Sanctions Guidance’s indicators for erasure and not for suspension.”

Rice J said the MPTS failed to “properly to assess the gravity of conduct before it, and hence correctly to apply itself to the question of sanction – in this case, by failing fully to address the quality of that conduct as a regulatory breach.”

“…it is imperative that MPT decisions on sanction clearly demonstrate to the public that they also have this fully in mind, and that cases of the deliberate breach of specific restrictions imposed personally on doctors are expressly dealt with as such. It is, after all, a matter going directly to the overarching objective. In particular, where a doctor’s registration has been made conditional on compliance with certain requirements, and those requirements are not complied with, it is essential that an MPT deals directly with the conditionality of the doctor’s registration in its assessment of the gravity of the conduct before it, and in its approach to sanction, and demonstrates that clearly in the reasons it gives for its conclusions.”

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