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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> El-Baroudy, R (on the application of) v The General Medical Council [2013] EWHC 2894 (Admin) (05 August 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/2894.html Cite as: [2013] EWHC 2894 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX |
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B e f o r e :
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THE QUEEN on the application of EL-BAROUDY |
Appellant |
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- and - |
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THE GENERAL MEDICAL COUNCIL |
Respondent |
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Mr Hare (instructed by the GMC) appeared on behalf of the Defendant
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Crown Copyright ©
HHJ Raynor QC:
(quotation not checked)
"failed to dispense (inaudible) examining AR to make a substantial assessment of the condition;
(c) failed to make adequate effort to rouse AR;
(d) failed to use a watch or clock to assess AR's respiratory rate;
(e) failed to examine AR's pupils;
(f) failed to take AR's pulse rate;
(g) failed to take his blood pressure;
(h) failed to make an assessment of Coma score;
(i) failed to recognise he was unconscious due to the combined effects of alcohol and opiate intoxication;
(j) failed to recognise that his condition represented a medical emergency;
(k) failed to arrange for AR immediately to be transported to hospital;
(l) failed to make adequate records of your examination; and
(m) failed to provide adequate instructions for future care and treatment".
It was then alleged that, by reason of those and other matters, Dr El-Baroudy's fitness to practise was impaired because of his misconduct.
"It is clear from a combination of 15(2)(a) and 17(3), and indeed it is perhaps self evident, that the practitioner faces an allegation which is contained in the notice and no other allegation, unless that notice is amended in accordance with rule 17(3)."
"It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge."
And at paragraph 41:
...it does appear to me quite basic that care must be taken with the framing of a disciplinary charge, and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. There may, of course, be provision, as there is in other Tribunals, both formal and informal, to permit amendment of a charge, provided the principles in the cases are respected. Where care has clearly been taken to frame a charge formally and put it formally to an employee, in my judgment, the normal result must be that it is only matters charged which can form the basis for a dismissal."
(quotation not checked)
"Had arrangements being made to urgently transport the deceased to hospital at the time when he was in the cell, it seems that he would have survived at least in the short-term, bearing in mind that according to the custody record, he continued to breathe for some hours afterwards."
(quotation not checked)
"On the basis of the CCTV evidence, it seems likely that the deceased passed into a state of unconscious even before Dr El-Baroudy attended and remained in that state until he died. On the basis of the CCTV evidence, it is not even possible to objectively determine at what stage he actually died."
(quotation not checked)
"Please identify the time when AR would have been beyond recovery, at which point death became inevitable regardless of any medical intervention."
(quotation not checked)
"The point at which AR would have been beyond recovery cannot be precisely determined. However, at any time when he was still breathing it would have been possible for simple supportive measures and/or opiate reversal to have prolonged survival. The likelihood of such earlier intervention succeeding cannot however be estimated."
(quotation not checked)
"If you cannot answer question 1 above, had that point been reached at the time that Dr El-Baroudy conducted his examination?
(quotation not checked)
"If it is accepted that the deceased was still breathing at the time he was still breathing and for some time thereafter then the point at which death became inevitable had not been reached."
(quotation not checked)
"Please identify the time when AR would have been beyond recovery at which death became inevitable regardless of any medical intervention."
He answered:
(quotation not checked)
"The first thing to say is that it cannot precisely be determined. However, any time he was still breathing would indicate he was still alive, albeit in an intoxicated unconscious state, and therefore the opportunity for supportive measures and the reversal of the effects of the opiates that I have described, the possibility of that being carried out would exist. However, I cannot say what the likelihood of success from that earlier intervention would be, because he might already have damaged his brain significantly through the period of unconsciousness and indeed, bearing in mind that I have found, with Dr al-Saraj, extensive changes in the brain, it would suggest he might well have succumbed to significant brain damage even before he was dead."
"In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant Panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances."
(quotation not checked)
"In addition the Panel took the view that public confidence in the profession would be undermined if a finding of impairment were not made in this case, given the tragic outcome for AR."
(quotation not checked)
"Consequent with (inaudible) and through your neglect of duty and care an opportunity for AR to survive was lost."
Given that the Panel had in mind that the finding of impairment fell to be made "given the tragic outcome for AR" and given that it is clear that the Panel saw the responsibility of the doctor as involving the loss of what was described as the "opportunity...to survive", it seems reasonably clear to me that, in finding there was impairment, one matter that was taken account of was the fact that this lack of care did have a causative effect in relation to the death, if only the loss of what was described as the "opportunity for AR to survive". Be that as it may, it is perfectly plain that one reason for erasure or one fact taken into account was the Panel's perception that "through your neglect of your duty of care, an opportunity for AR to survive was lost."
(court adjourns)
Why should I simply not, out of an abundance of caution, treat the notice of application as having been made and quash it?