Hussein v The General Medical Council

For a referral engaging professional guidance, the doctor must already have assumed professional responsibility for the patient’s care. The mere introduction of a friend or relative to a specialist does not, without more, create that responsibility or amount to a referral. An introduction may nevertheless be evidence that the doctor was acting professionally, particularly when considered with other conduct. A tribunal must identify the meaning of a disputed term before deciding whether an allegation is proved. If it adopts a broader and unexpected interpretation, fairness may require that the doctor be warned and given an opportunity to adduce relevant expert evidence.

A Fitness to Practise Panel found that a consultant orthopaedic surgeon had referred a woman with whom he had a close personal relationship to a consultant colleague on four occasions. It concluded that he had thereby assumed responsibility for her medical care and had failed to provide adequate clinical information or notify her GP. The Panel imposed a three-month suspension.

On an appeal under section 40 of the Medical Act 1983, the appellant challenged the findings concerning the alleged referrals. He did not challenge findings relating to his ordering of ultrasound scans or discharging the woman from hospital. The central issue was whether informal introductions necessarily amounted to referrals engaging the relevant professional guidance.

1. The appeal was allowed in part. The findings concerning the four alleged referrals were set aside, except for the separate findings relating to the ordering of ultrasound scans.
2. An appeal under section 40 of the Medical Act 1983 is by way of rehearing. Under Civil Procedure Rules 1998, CPR Part 52.11, the High Court may intervene where the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. Appropriate respect must be given to a specialist tribunal’s understanding of professional standards and to its assessment of live evidence.
3. The Panel was wrong to treat “referral” as having an ordinary meaning extending to any arrangement for specialist care. In the context of the allegation, the relevant meaning was that in Good Medical Practice: referral involves transferring some or all responsibility for the patient’s care. That presupposes existing professional responsibility on the part of the referring doctor.
4. The mere fact that a doctor introduces a friend or relative to a specialist does not itself establish that the doctor has assumed professional responsibility or made a referral. The introduction may be evidence of professional conduct, but the question must be determined from the doctor’s overall actions and circumstances.
5. The Panel’s alternative reasoning effectively rewrote the guidance and created an extensive prohibition on informal introductions which was not expressed in the guidance. It also failed to give the appellant fair warning that it would apply that broader approach, depriving him of a proper opportunity to call expert evidence. That rendered the finding unjust because of a serious procedural irregularity.
6. The findings that the appellant provided medical care by ordering ultrasound scans were separately considered and were open to the Panel. They therefore stood. The case was remitted to a different Fitness to Practise Panel to reconsider fitness to practise and sanction on the basis of the surviving findings, including the hospital discharge and scan findings, leaving referral findings out of account.

• Fitness to Practise Panel: On 8 November 2012, the Panel found misconduct, impairment of fitness to practise and imposed a three-month suspension.
• High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was allowed in part. The referral findings were set aside, save for the separate scan findings, and the matter was remitted to a different Fitness to Practise Panel.