Garaffa v General Medical Council

An appellate court reviewing a Medical Practitioners Tribunal must allow for the tribunal’s specialist expertise and its advantage in seeing and hearing witnesses. A single incident involving one patient may amount to serious professional misconduct where its seriousness and culpability meet the required threshold. Systemic failings do not absolve a consultant surgeon of the responsibility to verify that the proposed treatment is consented to. Remediation and a low risk of repetition do not necessarily eliminate impairment where the conduct was serious and its consequences grave. In determining sanction, the tribunal must consider patient safety, public confidence and proper professional standards, as well as mitigation, and must proceed from the least restrictive sanction upwards.

The appellant, a consultant urological surgeon, performed an irreversible vaginectomy during gender reassignment surgery. The patient had not consented to that procedure. A Medical Practitioners Tribunal found that the appellant failed to verify the patient’s consent and medical records, that the procedure amounted to misconduct, and that his fitness to practise was impaired. It imposed a five-month suspension.

The appellant challenged the tribunal’s factual findings, its conclusions on misconduct and impairment, and the proportionality of the sanction. The central issues were whether the consent form had been amended before the surgical checklist, whether the appellant bore responsibility despite systemic failures, and whether his later changes in practice justified no finding of impairment or a lesser sanction.

1. Appeal dismissed. There was no error in the tribunal’s findings that the patient had not consented to a vaginectomy and that the consent form was amended after the relevant surgical checklist.
2. The tribunal was entitled to consider logical possibilities where there was no reliable direct evidence about when the amendment was made. The evidence did not establish that every member of the surgical team would have noticed the omission from the consent form. It was open to the tribunal to find that the appellant was absent or insufficiently attentive during the relevant process.
3. A single failure concerning one patient can amount to serious misconduct. The question is whether the seriousness and culpability of the conduct meet the threshold on the evidence. The appellant’s mistaken belief in consent was not attributable solely to the booking form and theatre list. He had failed to see the patient, read the records sufficiently carefully, and verify the consent for the proposed procedure.
4. Systemic failures may contribute to an outcome but do not relieve the responsible consultant of the duty to ensure that treatment is properly consented to. The appellant bore significant responsibility for performing major irreversible surgery without confirming consent.
5. The finding of impairment was justified. Remediation, a low risk of repetition and the absence of previous similar incidents did not prevent a finding of impairment where the conduct was serious, the patient was especially vulnerable, the consequences were grave, and the appellant had shown only limited insight. Impairment could be found even without a continuing risk of repetition.
6. The five-month suspension was proportionate. The tribunal considered mitigation, testimonials, remediation, the isolated nature of the incident, the appellant’s specialised practice and the public interest in his return to safe practice. It was nevertheless required to protect the public, maintain public confidence and uphold proper professional standards. The sanction was not punitive or a device to disregard remediation.

• Medical Practitioners Tribunal: found misconduct and impairment of fitness to practise and imposed a five-month suspension.
• High Court (Administrative Court): appeal dismissed; the tribunal’s factual findings, conclusions and sanction were upheld.