Suspense
Allegations against health care professionals are, as a rule, difficult to deal with. The general public needs to be protected against the depredations of a dangerous rogue practitioner. However, the professional himself has a right to earn his livelihood and contribute to society and is not to be unfairly deprived of these rights.
The professional regulatory bodies, seised of cases concerning such professsionals, ensure that investigations are properly and thoroughly undertaken and concluded without undue delay. Nevertheless, interim measures by way of suspending the professional concerned may have to be applied even as the investigations proceed. Even when a conviction is brought against a professional, consideration needs to be given to the possibility of a suspension of registration rather than the more drastic sanction of erasure from the relevant register. Chance brought the recent opportunity to study cases involving suspensions of a doctor, a nurse and an osteopath.
A doctor
In R (GMC) v Dr Michael Stevenson [2007] EWHC 2132 (Admin) Dr Stevenson was a GP in . His employers, the local primary care trust, reported him to the General Medical Council (GMC) following his inappropriate use of diamorphine (heroin) on patients. One of his patients had died and Stevenson had been convicted of her manslaughter. The conviction itself was to be a subject of a fitness to practise hearing of the GMC.
In the meantime the local constabulary had investigated Stevenson’s conduct in relation to numerous other patients. The GMC, when apprised of these additional matters, opened a new and separate inquiry into Stevenson’s role, if any, in the deaths of 14 patients.
The GMC, which had applied an interim order of suspension on his registration, requested the
Administrative Court for an extension of this period of suspension by 12 months while investigations could be concluded, the public being protected in the meanwhile.Stevenson had now become severely depressed and was an in-patient in a private psychiatric hospital. He accepted his medical career was over. It was contended on his behalf that undue delay in investigating these matters and concluding these proceedings would be deleterious to his health. He accepted an extension of six months. The court, having weighed up all the factors, agreed there should be an extension of nine months. The problem for the GMC was that in these circumstances it may need to seek a further extension of time, which will inevitably add to its costs, but the court felt this was but one factor in the equation.
A nurse
The facts involved a nurse in Nursing and Midwifery Council v McMorine [2007] EWHC 2216 (Admin). The council had received allegations of a serious nature against this nurse. These included complaints of poor drug administration, failures in relation to patient care and causing patients undue duress and stress. These were coupled also with allegations of an inability and unwillingness to follow instructions and plans which had resulted in causing patients harm.
The nurse’s registration had been suspended by the council which is also permitted to extend such a suspension for a further 18 months before it needs to seek approval of the Administrative Court – this contrasts with the lack of power of the GMC to extend suspensions; it needs to go directly to the court for this purpose. The court studied the allegations that had been made and, while not commenting on the merits, accepted that public protection and the public interest justified an extension of the suspension being granted. However, it could not agree with the council’s request for an extension of six months of the suspension. The court directed instead that an extension of four months be allowed which it believed would be sufficient for the proceedings to be concluded.
An Osteopath
The case involving the osteopath was Moody v General Osteopathic Council (2007) EWHC 2465 (Admin), [2007] All ER (D) 378 (Oct). Moody, an osteopath of a quarter of a century’s standing, had been the subject of a complaint by a patient. The allegations made against him included the failure to identify and evaluate the needs of a patient, treating the patient inappropriately and incorrectly advising the patient against attending at an MRI scan examination. His registration had been subject to an interim suspension. His appeal to the court against an extension of the suspension had failed. In time he was found guilty of professional incompetence and his erasure from the register was directed.
What is of interest to us here is the reasoning employed by the council to seek erasure and not suspension. It seemed it was Moody’s general method of working—rather than his actions and omissions in the instant matter—that had exercised the council. It believed there was a fundamental flaw in his approach to practice and that he lacked insight into the deficiencies in his knowledge. While an admonition was an insufficient sanction, placing conditions on his practice would be futile, for his knowledge base was so deficient that no condition placed could protect the public. A suspension would only protect the public in the short term. Thus, erasure was the only permissible sanction. The court approved this process of reasoning which it said justified the order that had been made. Moody’s appeals against conviction and punishment were dismissed.
Vulnerable Adults
A similar problem to the above had to be considered by the Court of Appeal in R (on the application of Wright and others) v Secretary of State for Health and another [2007] EWCA Civ 999 , [2007] All ER (D) 361 (Oct).
The facts involved the Care Standards Act 2000 (CSA 2000), s 82 which by s 82(1) places a duty on those caring for vulnerable adults to refer to the secretary of state any care worker whose conduct was such that harm could thereby be caused to such vulnerable adults. Section 82(4) CSA 2000 requires the secretary of state first to make a judgement from the information submitted of whether or not it was appropriate to place such a care worker on a warning list.
The effect of being placed on such a list is that a care worker is effectively rendered unemployable in the kind of work he had been doing. The care worker has the right of appeal to the Care Standards Tribunal, but not if his name is only provisionally on the list – unless nine months have elapsed. He may be able to seek, at least in theory, a judicial review of the secretary of state’s decision, but there are practical considerations as to why this is not a satisfactory form of seeking relief.
The only ground of challenge in these circumstances was likely to be that the secretary of state could not properly arrive at a decision that it may be appropriate for the care worker to be included in the list; a listed person could not get a speedy judicial determination of the underlying facts, namely whether or not he had committed the misconduct alleged.
At first instance the claimants, who were all affected care workers, won a declaration that CSA 2000, s 82 incompatible with right afforded by Arts 6 (right fair trial) and 8 (right to private life) of the Convention. The secretary of state appealed. The crux of claimants’ case was that provisional inclusion in the list was procedurally unfair because the care worker has no right under the statute, or opportunity i practice, to be heard before the provisional listing too place. Art 6 is engaged as the care worker does no get any hearing, let alone a fair and public one. Art 8 is engaged because of employment and reputation could interfere with the care worker’s private and personal life.
The Court of Appeal allowed the appeal. In the reasoning of the majority of CSA 2000, s 82(4) could be read and given effect so as to be compatible with Art 6. The Act did not expressly accord or deny to a worker an opportunity to make representations at a provisional listing stage. Therefore, s 82(4) could be interpreted as requiring the secretary of state to give workers the right to make representations before he makes a decision unless he reasonably considers that the resultant delay would place a vulnerable adult at risk of harm.
Statutory Capacity
The coming into force of the Mental Capacity Act 2005 (MCA 2005) has allowed us to observe the interplay between statutory rules and what up to now have been common law rules. The occasion to do this arose in In the matter of MM (an adult) Local Authority X v MM and KM [2007] EWHC 2003 (Fam).
The facts concerned MM who is now aged 40. She has serious disabilities which include paranoid schizophrenia and a moderate degree of learning disabilities. She is functionally illiterate and her childhood was a catalogue of trauma and abuse. For 15 years she had been engaged in a relationship with KM, who is described as a psychopathic individual with a tendency to alcohol misuse and an unstable lifestyle. Proceedings were commenced by the local authority after MM absconded from her placement and had been found in a state of self-neglect and having ceased to take her treatment. The local authority sought various declarations including where and with whom MM should live and have contact, and to enter into a contract of marriage.
Capacity rules
The common law rules applying in these circumstances can be briefly summarised. Masterman-Lister v Brutton & Co; Masterman-Lister v Jewell and another [2002] EWCA Civ 1889, [2003] 3 All ER 162 offers the test to be applied to decide on the capacity to litigate. Re MB (Medical treatment) (1997) 2 FLR 426 offers guidance on testing capacity on where an individual should live and with whom she should have contact. Sheffield City Council v E and another [2004] EWHC 2808 (Fam), has the rules on deciding on the capacity to marry and X City Council v MB, NB and MAB [2006] EWHC 168 (Fam) offers advice on deciding on the capacity to consent to sexual relations.
The common law rules also established the presumption that an adult has capacity and that capacity is subject and issue-specific. Paragraph 4.4 of MCA 2005’s Code of Practice states:
“An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general.”
The common law rules had also established that to have capacity an individual must be able to grasp, retain and weigh up the relevant information so as to be able to come to an informed decision on the relevant matter. This is now set out in MCA 2005, s 3(1).
In this case the court made interim declarations in relation to MM’s placement pending the local authority’s final care plans. Final declarations were given in respect of her capacity to consent to sexual relations.
