GMC Performance Assessment Law

In Hill v General Medical Council [2018] EWHC 1660 (Admin), Mr Justice Kerr held (para 86 to 104) that he would not interfere with the decision of the Medical Practitioners Tribunal to make certain findings of fact at the fitness to practise hearing. He explained why:

1. 1. I turn next to the issue of performance. I think this case, where the written and oral evidence was unusually voluminous even by the standards of this document-heavy jurisdiction, should be of concern to the MPTS, which may not benefit from case management powers to support an overriding objective of the kind found in the Civil Procedure Rules.

1. 1. The dogged thoroughness with which Dr Hill opposed the performance allegations against her by every means at her disposal is, in one sense, to be admired. She left no stone unturned in her defence of her performance. But a consequence of the approach adopted by the defence was that the hearing became very lengthy and document-heavy.

1. 1. This made more difficult Dr Hill’s task, skilfully and eloquently though it was undertaken by Mr Hockton, of persuading this court, even on a rehearing of the issues (albeit without oral evidence) rather than a review exercise, that the tribunal’s assessment of the witnesses and the other evidence before it should be gainsaid in this court. This is particularly so where the degree of deference usually accorded to tribunals of this kind is at its greatest, as it is in matters of judgment of clinical practice.

1. 1. In the present case, the tribunal members, without any disrespect, came from backgrounds that would not endow them with deep expertise in general paediatrics. But the tribunal indisputably had the benefit of long familiarity over weeks and months with the parties, the documents, the witnesses and the arguments. Even on the steep learning curve I had to navigate to hear this appeal over four days (including pre-reading), I was at a considerable disadvantage when it came to assessing the probative value of evidence given orally, in particular, by looking at transcripts rather than seeing and hearing the witnesses.

1. 1. I would, therefore, hesitate long and require considerable persuasion before being satisfied that the tribunal’s assessment, reasoning and decision on the performance issues was wrong. It is in that context that I approach Mr Hockton’s submissions seeking to persuade me that they were wrong.

1. 1. In its determination on the facts, the tribunal began with an assessment of the witnesses. They formed a favourable impression of the two medical assessors (see paragraphs 35 and 36 in the decision dealing with the submission of no case). They formed an unfavourable opinion of Dr Hill’s credibility (see paragraph 11ff in the decision on findings of fact).

1. 1. They found that Dr Hill sought to mislead about relations with colleagues and record keeping and that her replies were sometimes dismissive, rude and appeared arrogant. They preferred the evidence of the medical assessors where there was a conflict. They formed a partially favourable view of Dr Milligan’s evidence, although they considered that he exceeded his remit on some occasions.

1. 1. Although these assessments of the witnesses did not bode well for a favourable outcome for Dr Hill; and although Mr Hockton said these assessments were unfair, I cannot see any basis for saying that the tribunal was doing anything other than its job in making the judgments that it made on the reliability and credibility of the witnesses. It gave cogent reasons for its views and, unlike myself, it had seen and heard the witnesses.

1. 1. The tribunal dealt with the “overall fairness” points made by Mr Hockton before it: that the scope of the assessment was inappropriate; that the cases had been taken from the start of Dr Hill’s employment at University College London Hospital; that her practice had not been observed; that “OCSEs” were “artificial” because the participants are not real patients; that Dr Gabbie had been unconsciously biased; and that the third party interviewees had not been called.

1. 1. I can find no unfairness in the tribunal’s rejection of those arguments. They were points to be weighed in the scales and, in my judgment, they were properly weighed. The tribunal was not bound to dismiss the allegations of poor performance on the strength of them alone.

1. 1. The tribunal then went on to consider each of the performance related allegations that had not been withdrawn, and the evidence for and against the proposition that Dr Hill’s performance in the areas of assessment, clinical management, record keeping and working with colleagues was “unacceptable”, and that it gave “cause for concern” in the areas of “relationships with patients” and “operative/technical skills”.

1. 1. In relation to the withdrawn criticisms, the tribunal found (see paragraph 44 of the decision dealing with the submission of no case to answer) that, after discarding the criticisms withdrawn by the assessors during their evidence and those rejected by the tribunal as not supported by the evidence, “there is sufficient remaining upon which a Tribunal could find the overall assessments proved.”

1. 1. I do not think there was any unfairness or misdirection in that decision, provided that the performance in the areas in question is assessed overall, including by reference to the withdrawn or unsupported criticisms. That depends in practice whether the tribunal was justified in making the findings it did of “deficient” performance, and later of impairment of Dr Hill’s fitness to practise, to which I am coming.

1. 1. In its determination on the facts, in a long passage at paragraphs 50 to 136, the tribunal made its detailed findings of fact in relation to each area of practice in which it was alleged that Dr Hill’s performance was either “unacceptable” or (in two cases) gave “cause for concern”. I have considered carefully the findings made in this long section of the determination and I have carefully assessed the tribunal’s findings in the light of the written and oral evidence I have been shown and the submissions made, particularly by Mr Hockton, when addressing me on the sample case studies he selected from among those findings.

1. 1. The evidence and other documents to which I was taken by Mr Hockton were principally the report of Dr Milligan, the long witness statement of Dr Hill, extracts from the assessors’ report and extracts from the oral evidence of the four doctors who gave evidence at the fact finding stage. I found myself unpersuaded that the lack of balance of which Mr Hockton complained, is made out.

1. 1. It is true that the tribunal’s assessment of Dr Hill’s performance tended to be unfavourable to her case and favourable to the GMC’s. But that does not, of itself, show a lack of balance. I was not persuaded that the tribunal showed undue unwillingness to rely on Dr Gabbie’s evidence. I was shown instances where it was rejected and Dr Hill’s explanation preferred. Nor am I convinced that there was any unfair lack of respect for Dr Milligan’s expertise and evidence. I accept that Dr Hill had not herself agreed with Dr Milligan on every point on which he opined.

1. 1. I find myself led to the conclusion that the tribunal’s findings in relation to Dr Hill’s performance were not clearly wrong. Much of the reasoning is highly persuasive; other parts perhaps less so, but far from obviously flawed. I remind myself that I am not concerned with whether I would have reached the same conclusion as the tribunal, had I been the tribunal of fact.

1. 1. Mr Hockton’s other general points (disregard of the Bolam principle, the assessors’ lack of experience, the absence of any instance of a threat to patient safety, the significance of the 2013 assessment materials and the high score of 90 per cent in Dr Hill’s knowledge exercise) do not persuade me otherwise. These are forensic points that were made to the tribunal, and I am not persuaded that they failed to weigh those points when making their decision, which was careful, long and detailed.

1. 1. I, therefore, reject the challenge to the findings of fact leading to the conclusion that Dr Hill’s performance was deficient as alleged in the fourth, fifth and sixth charges.

(25 May 2018)

In Fahad Ali v General Medical Council [2017] Lawtel (unreported) – a doctor who refused to undergo a performance assessment appealed a MPTS FTP tribunal’s decision to impose conditions of practice. Appeal dismissed. The appeal judge noted that the Medical Act was silent on the procedural route to appeal, and determined that CPR Part 52.21(3) applied. (January 2017)

In Sultan v The General Medical Council [2013] EWHC 1518 (Admin) the appeal court upheld an erasure order. The doctor had undergone a performance assessment and was found to have fallen below the threshold expected of a doctor in a number of domains. He also faced allegations of misconduct for breaches of confidentiality. (May 2013)

See also Qureshi v GMC PC [2003] UKHL 56 (September 2003) in which it was opined that: ‘some skills are essential to the practice of virtually any branch of medicine and evidence of deficiencies in these respects in the practice of one form of medicine may suggest that there have been similar deficiencies in the practice of other forms as well. Thus the nature of the complaint and the other materials considered by the [GMC] screener may suggest to him that the practitioner’s actual past performance in another branch of medicine may also have been seriously deficient. If so, their Lordships do not think that Krippendorf‘s case prevents an assessment of performance in that other branch. Such an assessment may be particularly useful to the Committee of Professional Performance* in a case such as the present in which the practitioner declares an intention to specialise in that other branch.’

*The CPP process has since been replaced by the current FTP process, pursuant to the Medical Act 1983 (as amended). See also the GMC website for an updated (consolidated) version: GMC’s Medical Act 1983 (with amendments).

In Krippendorf v. The General Medical Council (General Medical Council) [2000] UKPC 45 – based on the then legislation, the Privy Council considered that the approach adopted by the GMC toward the doctor was flawed, as the procedure adopted had been unfair to the doctor. The evidence of the doctor’s on the job record of clinical practice should have been used rather than a performance connected with an assessment of hypothetical clinical or other cases. (November 2000)