R (on the application of Sheila Adam) v the General Medical Council  EWHC 3378 (Admin)
High Level Summary
This case was in respect of a claim for judicial review by Dr Sheila Adam against the GMC's decision not to refer for investigation her complaint about Professor Sir Bruce Keogh, the Medical Director of the NHS. She claimed that the GMC should have referred Professor Keogh for failing to ensure that concerns that were raised in respect of a particular patient's care were investigated, as well as following up on the general learning from what had happened to that specific patient. The overall question raised for consideration at this judicial review was therefore whether it was lawful for the GMC to decide that Professor Keogh's role was so far removed from clinical care in the context of how this complaint arose, that his failure to intervene was incapable of amounting to misconduct.
Permission to pursue the judicial review claim was refused; there was no evidence that Professor Keogh had a responsibility for clinical care in every unit in every hospital and he could not be responsible as a matter of misconduct for satisfactorily addressing or resolving any problem that was communicated to him. Such matters were about managerial decisions rather than clinical decisions and therefore his responsibility as a doctor was not engaged; Professor Keogh did not have a responsibility as a matter of professional conduct to attend personally to all errors which were brought to his attention.
The background to this judicial review is Dr Adam's complaint to the GDC in respect of the problems encountered by Patient BL, who was suffering from Kawasaki disease. He was allegedly declined treatment when he presented at the Royal Brompton Hospital as an emergency in 2010. He experienced further delays in his treatment and was not prescribed the right medical therapy.
Dr Adam had previously been involved in an arrangement made in 1993/1995 when BL was granted "open access" to the Royal Brompton Hospital but she had had no involvement in his clinical care. The problem that arose in 2010 was that when BL sought to be admitted as an emergency he was initially declined treatment as the Royal Brompton Hospital does not provide emergency care.
Subsequently the hospital denied knowing about the open access arrangement which caused disagreement between BL's family and the hospital. Professor Levin who had been involved in BL's care as a paediatrician was contacted by the family and he held a meeting with Dr Andrew Mitchell, the Medical Director of NHS London, to discuss the issues. Dr Mitchell sought to address the complaint and contacted Dr Adam in 2011 to ask about the open access agreement.
In 2011 Dr Adam's private contact details were disclosed to BL's father in error and when contact was made she agreed to intercede on his behalf in 2012 about the problems that they had experienced in 2010. There were communications between Dr Adam and Dr Mitchell, in which she proposed to contact Professor Keogh to seek his advice about the case and, unsatisfied with Dr Mitchell's response, Dr Adam then contacted Professor Keogh directly. When no proactive response from Professor Keogh followed Dr Adam wrote to the GMC seeking advice and was told that the GMC would not investigate. She nonetheless pursued her complaint against Professor Keogh and referred fifteen other doctors for investigation.
All of the cases were rejected at the Rule 4 stage (a decision by the Registrar as to whether the allegations, if proved, are capable of supporting a finding of impaired fitness to practice by reason, for example misconduct) or closed at the Rule 8 stage (Consideration by case examines following a referral by the Registrar).
Dr Adam asked for a Rule 12 review of the decision not to investigate in the case of Professor Keogh (a review by the Registrar as to whether the previous decision was wholly or partly materially flawed or whether there was new information which could have led to a different decision if a review is necessary for public protection, the prevention of injustice to the practitioner or otherwise necessary in the public interest). That review was held and resulted in a decision to uphold the decision to take no further action. This case therefore arises as a claim to seek the quashing of the decision not to pursue an investigation into Professor Keogh at the Rule 4 stage and the Rule 12 review.
Dr Adam's grounds of challenge were in Mr Justice Edis' judgment consolidated into two issues:-
i) Was the intervention of Mr Swain (Directorate Manager and Assistant Director of Investigations) such as to render the Rule 4 decision unlawful?
Tracy Fisher, the Assistant Registrar of the GMC, had sought advice from Mr Swain when she was analysing and considering the allegation against Professor Keogh. She asked Mr Swain which route to proceed down in relation to allocation for investigation (which Dr Adam submitted meant that Ms Fisher had decided that the complaint should not be rejected at the Rule 4 triage stage and was asking only how it should be progressed thereafter) and Mr Swain replied to Ms Fisher saying that he felt that Professor Keogh was too far removed from the point of care to be accountable on the issue. Ms Fisher stated in a witness statement that she did not regard this as a direction to her but merely advice which she was entitled to consider, and ultimately her decision was that the complaint that Professor Keogh did not investigate concerns to BL's satisfaction (who she mistook to be the complainant) was not normally something that would call into question his fitness to practice as a doctor or require a GMC investigation.
ii) Was it rational to conclude that the role of Professor Keogh as Medical Director of NHS England was so remote from clinical care in the context out of which the complaint arose, that his failure to intervene was not capable of supporting a finding of misconduct or deficient professional performance - this having been the decision on the merits at both the Rule 4 and the Rule 12 stage.
Mr Justice Edis rejected the claim that Mr Swain's email showed that he, rather than Ms Fisher, had made the decision and held that she was entitled to accept or reject advice and make further investigations as necessary. Nor did Mr Justice Edis consider that the identity of the maker of the complaint was of critical importance – whether it was BL or Dr Adam, as Ms Fisher was aware that the complaint was supported by Dr Adam because her witness statement was included as part of the complaint.
Mr Justice Edis commented that apart from the information in Dr Adam's witness statement there was nothing, either at the Rule 4 or Rule 12 stage, to show that Professor Keogh's formal role had any responsibility at all for the consequences of the complaints made by and on behalf of BL. He therefore concluded that there was no procedural flaw in the Rule 4 decision and that it was not irrational in its conclusion and rejected the argument that the Rule 12 decision was unlawful because it did not acknowledge the unlawfulness of Mr Swain's involvement at the Rule 4 stage.
In relation to the issue of Professor Keogh's role, Mr Justice Edis reiterated that there was no evidence to suggest that he had a responsibility for clinical care in any particular unit of any particular hospital; he could not be responsible, as a matter of professional misconduct, for satisfactorily resolving (or even addressing) every problem which he has communicated to him from anywhere in England. When taking a decision about whether an issue was within his sphere of responsibility this would not be a clinical decision arising out of his responsibility for the care of a patient or group of patients, but a managerial decision. Mr Justice Edis added that this reasoning also applied to the strand of Dr Adam's argument which suggested that because lessons could be learned from BL's case, which might be relevant to the treatment of other sufferers of Kawasaki Disease this brought it within Professor Keogh's responsibility as a doctor. Mr Justice Edis firmly rejected this suggestion saying "there are nearly always lessons which can be learned from mishaps, but that does not mean that Sir Bruce has a responsibility as a matter of professional conduct to attend personally to all mishaps of which he happens to learn".