Pugsley v General Medical Council

An appeal from a Fitness to Practise Panel is by way of rehearing, but the court must respect factual findings based on live evidence and the specialist judgment of the Panel. Deficient professional performance requires an unacceptably low standard of professional performance, ordinarily demonstrated by a fair sample of work. A single case may nevertheless be sufficiently illustrative where it exposes serious deficiencies in basic clinical assessment and management. Impairment is a separate question from deficient performance and requires consideration of whether the deficiencies continue and whether they create a public-protection concern. The appeal was dismissed because no material error of law, fact or judgment had been shown.

Mr Pugsley appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s decision that his fitness to practise was impaired by deficient professional performance. The Panel relied on deficiencies in a core knowledge test, cardiac surgery and non-military general surgery in emergencies. It imposed conditions on his registration, including restrictions on elective cardiac surgery and supervision requirements.

The appeal challenged findings of fact, the finding of impairment and the conditions imposed. The challenge to the immediate effect of the conditions was not pursued at the hearing. The central issues were whether the Panel had evaluated the evidence correctly, whether one patient could provide a sufficient basis for findings concerning general surgical performance, whether the Panel gave adequate reasons, and whether impairment had been established.

1. Appeal dismissed. The court held that the Panel had made no material error of law, fact or judgment. Its reasons were adequate and its findings were open to it on the evidence.

2. The appeal was technically by way of rehearing, but the court had to accept findings based on the reliability and truthfulness of witnesses unless material error was clearly demonstrated. Appropriate respect was also owed to the Panel’s specialist assessment of professional performance. That deference did not depend on the Panel containing a medical member with the practitioner’s speciality.

3. The Panel was entitled to uphold the finding that Mr Pugsley’s core knowledge performance was unacceptable. All three assessors had marked him below the minimum acceptable score, and the complaints about the testing process did not provide a sufficient explanation for the result.

4. The cardiac surgery assessment was relevant notwithstanding that Mr Pugsley had stopped practising as a consultant cardiac surgeon and did not intend to return to that work. He remained registered as a cardiothoracic surgeon and, without formal undertakings or conditions, remained entitled to practise cardiac surgery.

5. A single patient could properly be used in a case-based assessment where the case illustrated a range of important principles. The Panel was entitled to find deficiencies in the examination and assessment of a breast problem, the failure to consider cancer adequately, and the failure to check diabetic control before allowing the patient to leave. The absence of harm to the patient did not prevent the case from being relevant to professional performance.

6. The Panel correctly treated deficient professional performance and impairment as separate stages. It considered whether the deficiencies had been remedied, the evidence of reading and training, and the continuing public-protection implications. It was entitled to conclude that the evidence did not establish adequate remediation in core knowledge, cardiac surgery or emergency general surgery.

7. The conditions did not prevent Mr Pugsley from continuing in thoracic surgery or military practice.

The judgment records an appeal under section 40 of the Medical Act 1983 from the decision of the GMC Fitness to Practise Panel dated 13 October 2009. The High Court dismissed the appeal. The challenge to the immediate effect of the conditions was not pursued at the hearing.