Ashton v The General Medical Council

On an appeal from a GMC Fitness to Practise Panel, the court must decide whether the committee was wrong and should respect its specialist evaluation unless the decision is shown to be wrong. A single clinical omission can amount to misconduct where it is sufficiently grave to be regarded as deplorable by fellow practitioners or as an elementary and grievous failure. NICE guidelines are not exhaustive rules. A referring doctor’s duty to make an appropriate urgent referral is independent of the receiving specialist’s later assessment. Impairment may properly be found where there is no persuasive evidence of insight or remediation. An immediate suspension requires a rational evidential basis showing necessity for public protection, the public interest or the practitioner’s interests; poor clinical care alone does not establish that necessity.

Dr Ashton appealed under section 40 of the Medical Act 1983 against findings that he had committed misconduct, that his fitness to practise was impaired, and that he should be suspended for six months. He also applied under section 38(8) to terminate an immediate suspension imposed under section 38(1), the court having granted permission to issue that application at the hearing.

The misconduct finding concerned Dr Ashton’s failure, on 16 July 2009, to mark a referral for Patient A as urgent despite his knowledge of the patient’s history, low haemoglobin and positive faecal occult blood tests. The central issues were whether the omission amounted to misconduct, whether impairment and a six-month suspension were justified, and whether immediate suspension was necessary.

1. Appeal and application. The challenges to the findings of misconduct and impairment and to the six-month suspension failed. The challenge to the immediate suspension succeeded.
2. The court’s task under sections 40 and 38 of the Medical Act 1983 was to decide whether the Panel was wrong and, only if so, to substitute its own decision. Appropriate weight had to be given to the Panel’s specialist expertise and its assessment of the gravity of professional conduct, applying Meadow v GMC [2007] QB 462.
3. The Panel was entitled to find that the single failure to make an urgent referral was misconduct. The applicable threshold was conduct regarded as deplorable by fellow practitioners or amounting to an elementary and grievous failure. A single omission may satisfy that threshold where it is particularly grave. The Panel had applied the correct test and was entitled to rely on uncontradicted expert evidence that an urgent referral was required.
4. NICE guidance was not an exhaustive code. The Panel could take account of clinical experience and training, including the evidence that iron deficiency anaemia should be presumed in the circumstances unless proved otherwise. The hospital specialist’s failure to upgrade the referral did not absolve the referring GP. The GP’s obligation was independent because he had clinically assessed the patient and knew the relevant history, whereas the specialist relied on the referral letter and medication list.
5. The finding of impairment was lawful. The Panel was entitled to consider the absence of evidence of insight, acknowledgment of inadequacy or remediation, and the continuing possibility of a return to general practice. The fact that the misconduct was isolated in a long career did not compel a conclusion that repetition was highly unlikely.
6. The six-month suspension was not unreasonable or disproportionate. Conditions were not shown to be workable or sufficiently protective where there was no persuasive evidence of insight or remediation. The Panel had properly considered public protection, professional standards and public confidence.
7. The immediate suspension was unjustifiable and wrong. Dr Ashton was not working and was practising, or intended to practise, in cosmetic surgery, where the misconduct was unlikely to recur. Poor clinical care did not itself establish a need for immediate suspension; the Panel’s reasons did not identify a material public risk or adequately explain why public confidence required an additional immediate order.

The judgment describes challenges to decisions of the GMC Fitness to Practise Panel dated 8 and 20 November 2012. The six-month suspension and findings of misconduct and impairment were upheld, but the immediate suspension order was set aside.