Gosalakkal v General Medical Council
This case highlighted that the decision of a professional panel is one of a specialist panel that has an understanding of what is expected of the profession and should be accorded specialist respect. It also emphasised that conduct which falls outside the course of professional practice can still amount to serious misconduct, so long as there is a link with the profession. This conduct does not need to be repeated or continuous in order for misconduct to be found.
Case Summary – Gosalakkal v General Medical Council  EWHC 2445 (Admin)
High Level Summary
An appeal against a six month suspension order by the General Medical Council’s Fitness to Practise Panel. Silber J dismissed the appeal on the basis that the facts found did amount to serious misconduct and the finding of the appellant’s fitness to practise being currently impaired was correct.
Mr Gosalakkal [“the Appellant”] was a Consultant Paediatric Neurologist at Leicester Royal Infirmary [“UHL”], part of University Hospitals of Leicester NHS Trust [“the Trust”]. The Appellant was the lead clinician for paediatric neurology and the co-author of the “Drug withdrawal and admission protocol for paediatric video telemetry” used in the Video Telemetry Unit [“the Protocol”]. The Appellant appeared before the Fitness to Practise Panel [“the Panel”] over a total of 43 days between 18 November 2013 and 12 December 2013, and between 23 June and 25 July 2014.
The allegations which featured as part of the appeal were: allegation 5(e); a failure to provide good clinical care to Patient D, in that he (a) failed to recognise that the staffing needed to provide safe telemetry was inadequate [“the safe telemetry charge”]; and allegations 8(a) – (c); a failure to communicate appropriately with the parents of a patient in an email dated 7 February 2011 [“the email”], in which he (a) asserted that a “group of paediatricians” were carrying out a campaign against him; (b) asked the parents to write to the Trust requesting to see him; and (c) asked the parents not to tell the Trust that they had received an e-mail from him [“the email charges”].
The Panel held that the safe telemetry charge and the email charges amounted to serious misconduct.
The Appellant challenged the Panel’s determinations on its finding of serious misconduct on each of those two charges, of impaired fitness to practice and in relation to the sanction imposed.
The grounds of appeal were as follows:
- The interventions by the Chair of the Panel were procedurally improper;
- The Appellant was not guilty of misconduct on the safe telemetry charge as it (a) related to “staffing” affecting Patient D and not the different issue of monitoring; (b) the issue of monitoring and responsibility for the Protocol was the responsibility of the Trust and not of the Appellant; and (c) there was no evidence to support the Panel’s finding in relation to the safe telemetry charge.
- The Panel provided inadequate reasons for its findings on the safe telemetry charge;
- The Panel erred in law in finding serious misconduct in relation to the safe telemetry charge and holding that the care given to Patient D and the Protocol was the Appellant’s fault;
- The Panel erred in law in finding misconduct in relation to the email charge;
- The Panel erred in law in finding impairment in relation to the safe telemetry and the email charge; and
- The sanction imposed was disproportionate.’
In relation to the first ground of appeal, Silber J held that the appellant failed to show ‘a serious procedural irregularity, which caused an injustice as required by CPR 52.11(3)’. Silber J was also of the view that all the interventions from the Chair were relevant and fairly and properly worded, and the Appellant was a ‘very intelligent witness who was able to stand up for himself’. Additionally, at no point during the hearing, had either the Appellant or his representative complained that he was unable to give his account.
The thrust of the telemetry charge was that the Appellant had been responsible for a Protocol which stated that, “nurses in charge at station are required to monitor as much as possible”. The Panel concluded that the Protocol was not fit for purpose as it demonstrated that the Appellant “failed to ensure staffing was adequate to provide safe video telemetry”. Silber J found that this was not surprising at all, given that the Protocol did not provide for a minimum amount of monitoring to be required, nor did it state what should happen if there was no monitoring available, and he held this to be a “serious deficiency in the Protocol”. Furthermore, Silber J agreed with the Panel’s finding that the Protocol represented the directions given by the Appellant to the staff and he therefore rejected the suggestion that only the Trust could be accountable for the failures in the monitoring requirement. In relation to the Appellant’s contention that there was no evidence to support the Panel’s finding in relation to the telemetry charge, Silber J dismissed this as it was his view that there was clear evidence from the appellant, and from the GMC’s expert witness, that the Protocol contained inadequate information. Subsequently, the Panel were entitled to reach the decision which it did.
The third ground of appeal contended that the Panel had mixed issues and had therefore failed to show how the Protocol demonstrated a failure to ensure adequate staffing levels. This ground was dismissed as Silber J found that the
‘decision of the Panel… focused on the failure of the Appellant when preparing the Protocol to ensure there was a need for continuous monitoring and so the Protocol was not fit for purpose… it also failed to state, as it should have done, that if continuous monitoring was not available, telemetry should not take place’.
In relation to the fourth ground of appeal, Silber J held that there was a “powerful case” for finding that the Protocol was not fit for purpose and that this amounted to serious misconduct on the part of the Appellant. In particular, Silber J reiterated Auld LJ in Meadow v GMC  QB 462 
“it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expected of its members in matters of medical practice deserve respect”.
The Appellant’s fifth ground of appeal included the fact that his conduct in sending the email was “outwith the course of professional practice itself”. Silber J considered Lord Clyde in Roylance v GMC  1AC 311, that there must be a “link with the profession of medicine”, and concluded that the mere fact that the Appellant was acting “outwith the course of professional practice itself”, did not prevent him from being found guilty of serious misconduct, as the email clearly had a “link with the profession of medicine”. Nor did Silber J accept the submission that there was a requirement where the complaint does not relate to the practice of medicine, that the conduct be repeated or persistent.
In relation to the sixth ground of appeal, Silber J found that the Panel had been entitled to make a finding of impairment. The Appellant had shown a “surprising” reluctance to appreciate or understand the gravity of the misconduct in relation the email charge, which he had challenged throughout; and secondly, in relation to the telemetry charge, the Appellant only appreciated the need for continuous monitoring after lengthy questioning. In accepting the Panel’s conclusion that it was not satisfied that the Appellant had recognised or remedied his wrongdoings such that they would not be repeated again, Silber J again made reference to Auld LJ as set out above.
The final ground of appeal was also dismissed as Silber J did not consider the finding of the Panel to be an error.
The appeal was therefore dismissed. Silber J highlighted that, as set out Meadow, it was not possible for him to substitute the Panel’s view of the Appellant’s practice with any other. Furthermore, he held that ‘none of these submissions… relied on by the Appellant, whether considered individually or cumulatively, constituted valid ground for allowing the appeal’.