PSA challenge in the case of Lingam and the GMC: The importance of clear and adequate reasoning and analysis by Panels in Professional Discipline hearings

“I have come to the clear conclusion that the decision of the Panel must be quashed and remitted to them for reconsideration on the basis of a serious procedural error in the form of inadequate and unclear reasoning as to sanction. The reasoning process is inadequate for the Court to determine whether or not certain important issues were appreciated, and if so, how they were reasoned through. It is therefore not possible to determine whether the sanction imposed was “wrong” in the statutory sense. There has been a serious procedural error engaging the Court’s appellate jurisdiction.

…

…the reasoning of the Panel in imposing sanction evinces a serious procedural error in relation to the reasoning process. The Panel may be correct concerning proportionality and it is possible that the imposition of conditions, even in an acknowledged serious case where there was insufficient evidence of insight, was within the range of available decisions, but on its face it is not possible to accept that the Panel complied with its duty carefully to apply the Sanctions Guidance due to the inadequacy of their reasoning.” – Mrs Justice Foster DBE at paras 71 and 74.

Background

The adequacy of the reasons for a sanction imposed by the Medical Practioners Tribunal (“the MPT” or “the Panel”) on 12 October 2022 was recently challenged in the case of Professional Standards Authority for Health and Social Care v General Medical Council & Anor (Lingam) [2023] EWHC 967 (Admin).

A finding of misconduct and impairment against Professor Sundara Lingam (“the Professor” or “the doctor”) led to the Panel imposing a 24 months conditions of practice order with a review.

The background of the substantive case related to the Professor signing and issuing almost 300 private prescriptions between 2 January 2013 and 25 March 2014. The prescriptions were purportedly for use outside the UK, and the doctor had issued the prescriptions where there was insufficient or no relevant information available for him to prescribe safely. For example, at the time of prescribing the medicines the doctor did not know the patients’ gender, contact details, or have the GP or specialist medical records, community GP contact details, proof of identity, medical history, prescribed medication and/or over-the-counter medication, allergies etc. There was also evidence that some prescriptions were issued for patients who did not exist. The doctor accepted that, before prescribing the medications, he failed to make contact with the patients, their GPs or relevant specialists, nor had he adequately assessed the patients or arranged follow ups.

The medications were high value, branded (as opposed to the generic equivalent), specialist medicines which specifically required administration in a hospital setting such as the ICU or under the observation of a healthcare professional. This meant that there was a high risk of serious harm, and even death, if the medications were not properly administered or the patients properly monitored; a risk compounded by the fact that it was impossible to ensure that the patients receiving these medications were suitable for the prescribed medication. The doctor had prescribed medications in inappropriately large quantities without knowing who or what they were for. The doctor also acted outside his level of competence as a paediatrician by providing medication to adults and in specialist areas of expertise which he had no relevant experience such as rheumatology, infectious disease, gastroenterology, blood or renal carcinomas, dermatology, and oncology.

The doctor’s case was that he believed he was prescribing the medicines as part of a humanitarian enterprise for those in less developed countries who had no local access to the required medication and vitally needed it. The doctor maintained that he had no vested interest, no financial gain or interest, and genuinely believed he was helping people in addition to being a religious man who believed “if that’s what God has want [him] to do, [he] simply will do it” (sic). However, evidence showed that many of the prescriptions were for economically developed countries in which patients could be expected to acquire the medication themselves, such as Australia and Poland.

In relation to the connection between the parties:

• Medical Express Clinic: The doctor ran a clinic called Medical Express Clinic (“Medical Express”).
• Doctor B: The doctor involved two colleagues Dr B and another doctor, who also prescribed in the same manner, although both in respect of fewer prescriptions than Professor Lingam. Dr B, as Clinical Manager, chaired the clinical board of Medical Express and was acting as the director of clinical governance, and as the Clinic’s registered manager for the Care Quality Commission. Profession Lingam and Dr B’s cases were heard together. In the course of Dr B’s evidence, he explained that Professor Lingam had, without his knowledge or consent, made him the Clinical Manager at Medical Express. During the hearing, the Professor gave no explanation for this, and the Panel probed no further.
• Kool Pharma Ltd: The doctor completed prescriptions at the request of a company called Kool Pharma Ltd (“Kool Pharma”), to whom the doctor leased offices in the building he owned.
• King Edward hospital: The hospital, with which the Clinic worked, provided the medications to Kool Pharma as per the prescriptions.
• Although there were no allegations of dishonesty or financial motive, the doctor was the landlord of the company requesting the prescriptions (Kool Pharma) and the Clinic would have received remuneration in the sum of thousands of pounds over the period in question, albeit at the usual rate of a prescription.

Of note, the doctor had previously been referred to the General Medical Council (“the GMC”) for different matters in 2008, which included concerns arising out of a complaint about prescribing medication (including for those outside the UK). Although these matters did not proceed to a disciplinary hearing, the GMC reminded the doctor of its guidance in ‘Good Medical Practice’, that a doctor must prescribe drugs only where he or she has adequate knowledge of the patient’s health and is satisfied that the drugs or treatment serve the patient’s needs. The doctor also contacted the British Medical Association (“the BMA”) in 2004 and received guidance on prescribing for persons outside the UK who had not been seen, that particular care and great caution is needed in such circumstances.

At the substantive hearing, the doctor admitted all of the charges and did not contest misconduct and impairment. The doctor described his actions as “reckless” and the Panel ultimately put it down to his naivety and a misguided but genuine belief.

He had also been subject to an interim conditions of practice order, which was in force for seven years until the final hearing of the case, albeit the Panel noted that the doctor showed limited insight and remediation in that time.

The appeal

The Appellant was the Professional Standards Authority for Health and Social Care (“the PSA”). Its grounds of appeal were as follows:

i)   the MPT failed to grapple with the seriousness of Professor Lingam’s misconduct when making its decision as to sanction, in particular failing adequately to address the significance of the maintenance of standards and of upholding public confidence in the profession;

ii)  the MPT took an erroneous approach to the mitigating factors and failed to identify or take into account all of the aggravating factors;

iii) the Panel failed to take into account the registrant’s failure to understand what he had done wrong and to remediate over seven years, it was “irrational wishful thinking” to indicate that his insight would improve when subject to conditions; and

iv) the Panel departed from the Sanctions Guidance but failed to give reasons for doing so.

The first Respondent, the GMC, adopted a neutral stance during the appeal, but made observations for the assistance of the court and of Professor Lingam. The second Respondent, Professor Lingam, attended the appeal but made no oral contribution to the hearing except to indicate he wished the sanction imposed upon him to remain unchanged.

Decision

The High Court decided to allow the appeal and quash the decision of the Panel. The matter was remitted back to the Panel for reconsideration on the basis of a serious procedural error in the form of inadequate and unclear reasoning as to sanction.

The key considerations in this case, as highlighted by Mrs Justice Foster DBE at para 73 of the judgement were as follows:

Seriousness: Mrs Justice Foster DBE stated “Careful analysis of what happened and what its significance and seriousness are goes directly to public protection and is the best means of achieving that statutory objective. The same obtains for the duty of upholding the good name of the profession: a clear articulation of the impact of the behaviour upon reputation is called for in order properly to apply the sanctions criteria. In order to do that, a careful decision on the character and seriousness of the actions in question is required.” (at para 73)

In this case, there was a significant risk that the Panel may have misapprehended the seriousness of the doctor’s actions. The insufficient reasoning did not demonstrate that the Panel had appreciated the context of the prescribing, nor the extent or importance of the factual background. It was impossible to know for certain whether or not the Panel in fact accepted Professor Lingam’s explanation about humanitarian assistance, which was a central issue. There were a number of inconsistencies in the evidence which were not properly explored in the Panel’s reasoning, such as prescribing to developed countries where humanitarian need was not an obvious requirement, and the fact that the Clinic (which the doctor ran) received remuneration for the prescriptions despite the doctor stating he made no financial interest or gain. It may be that the Panel did accept the doctor’s explanation, but this simply was not clear in its reasons. The Panel, therefore, failed to comply with its duty to interrogate where necessary to understand the issues clearly.

Further, the Panel noted that it found the doctor’s evidence “unclear”, and they described him as “confused”, yet the MPT failed to probe further in the course of the doctor’s oral evidence to clarify any uncertainty or confusion.

The Panel’s decision lacked analysis of relevant matters that would have assisted them in determining the seriousness of the case for sanction. For example, the fact that the doctor admitted recklessness and that he hadn’t considered obvious risks when he issued the prescriptions. 

Dr B: Mrs Justice Foster DBE noted there was extraordinary and unexplained conduct in respect of Dr B being placed, without his knowledge, in a position of regulatory responsibility for the Clinic. This was something that plainly could influence the Panel’s view of the gravity of the matter, but it was not mentioned in its decision. Although the Panel did not probe this topic further, the Panel must have formed a view, and it ought to have weighed the important parts of the evidence it heard in its reasoning on the gravity of the doctor’s actions.

Landlord of Kool Pharma: Mrs Justice Foster DBE highlighted the Panel’s oblique reference to the relationship between the doctor and his tenant Kool Pharma, whom he had introduced to the Edward VII Hospital. Again, the Panel must have formed a view and whether that fed into the question of seriousness was not clear, as reasoning about this issue did not feature. This again highlighted the failure to properly examine the question of seriousness.

Aggravation and Mitigation: It was noted that although the Panel took into account its impairment decision when it was deliberating on sanction, the consideration of mitigation and aggravation in its impairment decision did not adequately reflect a number of relevant factors that were present. For example, the potential aggravating factor that it was the doctor who personally introduced all the parties involved.

Proportionality of the sanction: Although the Panel recognised that conditions were possibly appropriate where the doctor had been open and shown insight, in this case it noted he had not demonstrated sufficient insight. The Panel also stated that suspension would be disproportionate particularly given the passage of time, but did not giving any further reason to support disproportion or indicating what level of seriousness or impact it attributed to the misconduct in question. Again, Mrs Justice Foster DBE considered this reasoning was inadequate to demonstrate the particular factors that impressed the Panel and to help the public understand what drove the MPT to the conclusion it reached on a conditions of practice order.

Remediation and Insight: The Sanctions Guidance emphasises the centrality of insight and remediation, but the Panel noted only that the doctor was “developing insight”. Allowing the doctor to continue practising with restrictions while “improving his insight” and completing “his journey of remediation” was said to be proportionate and sufficient to protect the public interest and uphold the name of the profession. However, the High Court noted the Panel did not specify what evidence of remediation it had accepted to date and its reasoning in fact stated that the doctor had presented no evidence of CPD and that although remorse was accepted, there was “little evidence … of specific efforts to complete further training to improve his compliance” and “insufficient evidence of insight or targeted remediation”.

No analysis or explanation was shown of the implications of the fact that seven years had passed and yet the development of insight and remediation was apparently only partial.

The Guidance: The conclusion that a conditions order was appropriate appeared to be inconsistent with the Sanctions Guidance given the absence of evidence of insight and remediation, and yet no reason for this departure was given and there was no explanation of how the particular features of the case took it out of a more serious category. Mrs Justice Foster DBE was clear that this is not a case where the High Court conclusively found that the sanction imposed was wrong – but it may have been, as the reasoning does not allow of an informed decision.

The Panel’s duty: Last but not least, Mrs Justice Foster DBE highlighted that “any unclearness or lack of clarity should, where central to the task at hand, be resolved by the Tribunal where possible… A Panel should feel bold, where the facts have been opened only, (not canvassed thoroughly in evidence), to resolve any material issues they have by questioning as far as they need to do so, to clarify the central issues arising.” (at paras 78 and 79)

This was compared to Newton hearings in Criminal Courts, which resolve issues as to the factual basis for a sentence to allow the Court to sentence on a true and proper basis. Therefore, even though the doctor accepted the allegations in this case, there were gaps in the evidence that the Panel failed to clarify when it had the opportunity and duty to do so, and which would have allowed it to properly address these points in its reasons.

Mrs Justice Foster DBE went on to say “Cogent analysis at sanction stage is easier where the context and the significance of the evidence has been explored. As stated, this exploration may, in a case where the facts are admitted wholesale, and no, or only a short, hearing takes place, need to be accomplished by the Panel itself. They must then, in the reasoning they set out, expose the relevant analysis so the reader understands what the principal issues were, and what the Panel made of them. This is part and parcel of their function in protecting the public interest.” (at para 81)

Analysis of the High Court’s decision

The issue in this case ultimately was not whether the sanction was right or wrong, it was the adequacy of the reasons of the Panel because without knowing why and how a panel has reached its decision, it was impossible for the Appeal Court to consider whether or not the sanction was correct.

The Appeal Court highlighted a number of key factors that the Panel failed to address in its reasons despite highlighting that the points had arisen in the evidence. The Panel also didn’t explain its departure from the Sanctions Guidance and its assessment of why a conditions of practice order was the appropriate and proportionate sanction, which the High Court deemed was “irrational wishful thinking” as opposed to reasoned judgment.

It is clear that panels are expected to be proactive where evidence is unclear. Panels have a duty to probe witnesses and interrogate further where it is necessary to understand the evidence clearly. The High Court noted that part of the difficulty arises where a registrant accepts the allegations, which in this case led to some the evidence not being properly examined or fully scrutinised by the Panel as it was not contested. However, it is nonetheless important for panels to delve into the issues which ease the burden of decision making and providing reasons. The High Court considered it is much easier for panels to provide full and comprehensive reasons when central questions or uncertainties have been resolved and where the context and the significance of the evidence has been explored. Where facts are admitted, it is down to the panel to ensure proper exploration and ensure this is reflected in its reasons.

There is an expectation that its reasoning is detailed enough to show that it has made a fully informed decision when effecting the overarching objective of public protection and helping the public understand how and why it reached whichever conclusions it has.

The High Court’s guidance in this judgment on how panels approach its written determination, especially at Sanction stage, provides key considerations for panels and highlights the importance of it discharging its duty by setting out its responsibilities and assists with how to avoid the pitfalls that were identified in the substantive case.