Radeke v General Dental Council [2015] EWHC 778 (Admin)

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The background to the case was very serious, involving the death of a patient, and the allegations that were found proved against the Appellant consisted of both clinical failings and also dishonesty. In the High Court, Turner J was able to narrow the appeal issues to that of dishonesty. Thus it was decided that if the court found that the Panel had been right to find dishonesty then the findings in respect of impairment and erasure would not be disturbed, conversely if the court found that the Panel had been wrong to make findings of dishonesty then, the sanction of erasure would be quashed and the matter would be remitted to a differently constituted Panel who would consider afresh the question of sanction.

The court having had regard to the lack of motive for deception on the part of the Appellant, and the fact that the dishonesty appears to be somewhat of an afterthought on the Part of the Respondent, Turner J found that there was no dishonesty and that the contradictions, namely the different accounts that the Registrant had given to the investigator and the coroner, were innocent. The sanction of erasure was duly quashed and the matter was remitted back to a differently constituted panel.

Facts

The Appellant was a Consultant in Oral Surgery at Kings College Hospital.  As Turner J notes "In 2012 things went disastrously wrong when one of his patients died in the aftermath of his treatment. He was subsequently investigated for alleged misconduct arising out of this and two other cases (para.2)". Naturally, of most concern was the case of Patient X who bled to death after having her teeth extracted by the Appellant. The Panel had found proven, in addition to those which he had admitted, the charges related to clinical failings. Indeed Turner J stated the following "Dr Radeke ought not to have performed the operation. In particular, if he made adequate enquiries he would have realised how ill Patient X really was. He ought to have made a much more thorough assessment of his patient's condition. Entrusting her to make her own enquiries of her GP was a serious error. He ought to have carefully reviewed the discharge notes from the hospital and communicated with the hospital directly to find out if it would be safe for him to go ahead with the procedure (para 13)".

But in addition to the clinical failings that were found proved whether by way of admission or by the Panel themselves, was the finding that the Appellant had been dishonest in that "… [He] told Mr Palmer [Investigator for employer] one thing and later told the coroner something different in circumstances in which the only plausible explanation is that he was deliberately lying to one or the other (para.15)". The dishonesty was related to how the Registrant had assessed the "Oral Surgery Procedure Sheet (Intravenous Sedation)" form, and in particular the section where an ASA or "American Society of Anaesthesiologists" score was to be inputted. It was said that "… Dr Radeke told Mr Palmer during the meeting that he had assessed Patient X as falling into category ASA 2 at the time of carrying out the procedure and only in retrospect did he appreciate that she ought to have been placed in a more serious category. In contrast, when answering questions at the inquest, Dr Radeke appeared to be saying that he had recognised that she fell into a more serious category at the time (para.18)". The Panel had found that the Appellant had given a different account because it was "… an attempt to deflect criticism" (para.25).

In light of the above the Panel determine that the Registrant's name should be erased from the Dental Register. 

Grounds of Appeal

The grounds of appeal had initially related to both the findings in respect of the alleged clinical failings as well as the dishonesty. However it was ultimately agreed between the parties and Turner J that the court would only be tasked with resolving the issue of dishonesty alone. The agreement was in the following terms "If [Turner J] were to find against Dr Radeke on this issue, his counsel realistically accepted that no complaint could be made about the findings on impairment and the sanction of erasure and that would be the end of the appeal. If, on the other hand, [the judge] were to allow the appeal on the dishonesty issue then the remaining clinical issues could safely be remitted for consideration of sanction to a differently constituted panel" (para10). 
 
Judgment

A preliminary matter that Tuner J dealt with was the absence the Appellant from the disciplinary hearing. What the judge found to be particularly odd was that despite Dr Radeke's absence from such important proceedings, no evidence in the form of a witness statement setting out his responses to the allegations had been adduced. Whilst taking on board the evidence that had been given to the Panel, namely a letter from the Appellant's General Practitioner which confirmed that the Appellant found such proceedings extremely distressing and that any attendance of such proceedings would in all likelihood impact adversely on his health. His lordship nevertheless concluded that he envisaged even in such circumstances (where a practitioner would be unfit to attend a hearing) that s/he should still provide a witness statement and that "Where such a practitioner fails to produce such a statement, circumstances may arise in which an adverse inference could be drawn in accordance with the approach of the Court of Appeal in Wiszniewski v Central Manchester HA [1998] Lloyd's Rep. Med. 223" (para.8). However in this case the learned judge made no such finding on the basis that the Panel themselves did not take any issue with the absence and the lack of written representations.

In respect of the substantive dishonesty issue, Turner J found that whilst the aforementioned ASA assessment was regarded by both the GDC and the Panel as of "very considerable clinical significance" (para 26), he stated that he took "as different view" (para.27). In respect of Patient X it was clearly of importance that she had died as a result of bleeding. The ASA which so fixated the GDC and the Panel was however used "… to determine Patient's suitability for intravenous sedation and not the risk of post-operative bleeding. Patient X's death was unrelated to her sedation" (para.29). Furthermore the ASA categories were "extremely vague" (para.30) and ultimately not particularly relevant to the decision to go ahead with the tooth extraction procedure and lasering of ulcers as happened in this case (para.33). Turner J concluded "Against this background, I am satisfied that the Coroner and the Panel fell into the trap of treating the ASA Status categorisation on the Procedure Sheet in an overly mechanistic way" (para.36).

The Judge found that whilst it was alleged that the Appellant had been dishonest in respect of a feature that was of little relevance to the cause of death, he had, conversely, been transparently honest about clinical failings that could be attributed to the fatality.

Another feature that diminished the GDC's case and undermined the Panel's finding was that the dishonesty allegation came later on; leaving Turner J to conclude that such tardiness belied the ultimate limited importance of the ASA assessment.

Turner J also found that it simply made no sense that the Appellant would start lying before the coroner, when the investigator Mr Palmer and counsel were present and he could have been challenged and cross-examined. Furthermore, had there been blatant dishonest inconsistency, then it is very likely that he would have been challenged, but he was not and this infers that there was no malice behind the contradiction.

In arriving at his decision on the issue of dishonesty the judge also had regard to the issue of motive. He noted "In most cases of alleged dishonesty the motive will be clear. By way of contrast in this case the motive is, to say the least elusive" (para.57). There was a distinct lack of disadvantage in lying to the coroner, and this obviated the presence of a clear motive.

In respect of the issue of inconsistencies Turner J stated the following "It is indeed the case that what Dr Radeke told the Corner about his assessment is not entirely consistent with what he told Mr Palmer. However, the inquest took place about ten months after the death of Patient X and about eight months after Dr Radeke had given his account to Mr Palmer. Experience reveals that even the most honest witnesses can be mistaken and give inconsistent accounts over time. It is inherently unlikely that the inconsistency in this case was dishonest" (para.60). The judge also noted that what made the charge of dishonesty all the more improbable was that in addition to being a liar, it would make the Appellant, a man of good character, a perjurer as well.

Appeal Allowed.

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