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Garfoot v General Medical Council [2002] UKPC 35 (02 May 2002)

Privy Council Appeal No. 81 of 2001

Dr John Adrian Garfoot Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL, OF THE

2nd May 2002, Delivered the 19th June 2002

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Present at the hearing:-

Lord Steyn

Sir Philip Otton

The Rt. Hon. Justice Tipping

[Delivered by Sir Philip Otton]

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1. At the conclusion of the hearing on 2 May 2002 their Lordships announced that they would humbly advise Her Majesty that the appeal ought to be dismissed and that they would give their reasons later. This they now do.
2. The appellant, Dr John Adrian Garfoot, appeals from a decision of the Professional Conduct Committee of the respondent Council on the 11 September 2001 that he was guilty of serious professional misconduct and its direction that his name be erased from the Medical Register.
3. The appellant qualified in 1974 and trained in a general practice. After working in a practice in Kilburn, London, which served a number of drug-addicted patients, in 1991 he started his own private clinic, described as a drug and alcohol dependency clinic. The appellant prescribed controlled drugs to drug-addicted patients. The drugs with which the Committee were principally concerned were injectable Methadone (an opioid, used as a heroin
4. substitute, usually prescribed in the form of an oral mixture), Dexedrine (Dexamphetamine sulphate, a stimulant drug and the only amphetamine available as a pharmaceutical product), various of the Benzodiazepines, in particular Rohypnol (a highly addictive benzodiazepine not available on the NHS) and injectable Diazepam (usually prescribed in tablet form).
5. On 16 July 2001 the General Medical Council gave the appellant notice that it would inquire into his professional conduct. The heads of charge related to 13 patients. The primary allegation against the appellant was that he had been guilty of irresponsible and/or inappropriate prescribing. At the start of the enquiry the appellant admitted the majority of the heads of charge. The Committee heard evidence and submissions and made findings of fact. The matters admitted were found proved. Of the matters not admitted, the Committee found proved the allegations of irresponsible prescribing and a further matter was not proved.
6. In the light of its findings of fact, the Committee proceeded to determine whether the appellant was guilty of serious professional misconduct. It so found and directed that the appellant’s name be erased from the Medical Register.
7. The Chairman announced the determination and direction of the Committee in the following terms:

“Dr Garfoot: The Committee accept that you acted in what you believed were the best interests of your patients. They have heard that as a private practitioner you attempted to fill a gap in NHS provision for patients who were difficult to manage, but good intentions are not enough. The Committee are deeply concerned by the evidence before them of your irresponsible prescribing of drugs of addiction and dependence.

The Committee heard that you established a clinic for the private treatment of drug addiction in 1991. This is a difficult area of medical practice beset by many uncertainties and pitfalls. A set of guiding principles was published by the Department of Health in 1991 (and revised in 1999) outlining established good practice. In fact, you entered this medical minefield without a map, relying largely on your own conviction that you knew the way. The Committee heard that specialist medical advice and post graduate education were not readily available in this field at that time, but they concluded that you could and should have taken steps to inform yourself as fully as possible while responsible for a special clinic in this field. Your attitude was revealed by your comment to your counsel: you said that you seemed ‘to remember attending a lecture somewhere’ but did not ‘quite remember the details’. You admitted in cross-examination that you had not used the 1991 Department of Health guidelines strongly to inform your practice and that you did not read relevant specialist journals.

The Committee accepted that your patients were very difficult to treat but they heard from expert witnesses that they were not so significantly different from those attending NHS clinics as to justify treatment which the experts respectively described as ‘hugely unusual’ and ‘eccentric’. It was suggested on your behalf that you had ‘attempted conscientiously to fill a gap in NHS provision but the expert called on your behalf conceded that a conscientious prescriber keeps himself up to date with all the guidelines and training as is available and seeks to apply both the guidelines and training to at least the majority of clinical situations. Further, the expert called on your behalf said that although most practitioners with experience in the field transgress one or other of the standard recommended principles from time to time, it is rare to find so many of the standard principles disregarded in single prescriptions as was the case in your prescribing. The Committee had to conclude that, by and large, patients dictated their own prescriptions. The Committee were reinforced in this view by your dismissive attitude to written agreements and to sanctions. The Committee concluded that the battle for medical intervention for change was lost before it had begun.

The Committee received evidence of 12 individual patients who displayed a pattern of excessive treatments, mostly over several years. Some patients became dependent on drugs such as Dexamphetamine which they had not taken regularly before, a prescription which the expert called on your behalf said he could not advocate in combination with Methadone. You failed to take all possible steps through regular urine tests and personal systematic monitoring to minimise the risk of prescribed drugs being diverted. You did not grasp opportunities to help patients change their habits or, on the other hand, to face the reality that their ‘treatments’ had failed and that you could no longer properly accede to their requests. The Committee heard evidence that your policy of giving patients what they asked for may have been accompanied by social and health benefits and that it helped to shield some from impure street drugs. They concluded however that the risks to your patients and the public as a whole far outweighed any benefits.

The Committee heard reasons for grave concern about the routes, formulation and size of substitute opiate dosage and your failure to ensure the minimum safe starting dose for those under your care. You repeatedly failed to bring all the clinical evidence into a reasoned therapeutic strategy of management. You did not always immediately inquire of general practitioners involved in their care and into their Home Office record. The Committee were also extremely concerned at the nature and combinations of other drugs you employed. Neither you nor the expert witnesses could explain the rationale for such dangerous combinations. The Committee were concerned that you did not regularly update general practitioners about your patients, failed to monitor them adequately and failed to make or record regular reviews of the effectiveness of their treatment. For all the above reasons the Committee find that your pattern of clinical management in this difficult field and your attitude to the need for your own education fell far short of the standard expected of a medical practitioner in this field and that you are guilty of serious professional misconduct.

The Committee looked for evidence both from you and from others that you would be prepared and capable of bringing your treatment of such patients within limits broadly acceptable to experts in the field, limits which would minimise the danger yet secure some benefits. They have heard and read your own statement to the General Medical Council dated 19 March 2001, written two and a half years after the GMC’s first letter to you and a year after your medical expert’s first report. You asked to be allowed to continue to practice in a manner which you believed to be medically correct. You said that you could no longer compromise on behalf of your patients and regarded any measure to the contrary as being tantamount to a breach of your medical ethics. Further, in that statement you showed extreme reluctance to devise and comply with a protocol of treatment. Subsequently, in oral evidence to this Committee, you said that you could work within a protocol equivalent to the latest guidelines.

Dr Gerada told us that you appeared now to see the need for some change in your practice by reducing doses and the number and combination of drugs but she could go no further than tell the Committee that she believed that you are putting in place ‘principles and practices that will go some way in ensuring safety and effective care to drug users’. She considered that it is too early at this stage to allow you to practise in an unrestricted manner. Despite your oral evidence, the Committee believe that you still have difficulty in accepting the need for radical change in your prescribing and doubt that you are capable of achieving such change.

The Committee considered very carefully and at great length whether conditions, which would need to be specific, measurable, realistic and achievable, could be formulated so as to remedy the deficiencies in your practice while protecting the public. The Committee concluded that no appropriate conditions could be devised notwithstanding those suggested by Dr Gerada.

The Committee noted carefully the testimonials submitted on your behalf and the evidence that there is a demand for private services in this field. They noted that your own list of patients is now fewer than 40 and the future of the clinic does not depend on your presence.

Taking all these considerations into account and the importance of maintaining public confidence in the profession, the Committee determined that in the public interest, the Registrar should be instructed to erase your name from the Register.

The effect of this direction is that unless you exercise your right of appeal, your name will be erased from the Register in 28 days time.”

8. The appellant’s primary contentions in the appeal are that:

(a) the Committee was in error to conclude that the appellant was guilty of irresponsible prescribing and thereby guilty of serious professional misconduct,

(b) the sanction of erasure from the Medical Register was excessive, disproportionate, inappropriate and unnecessary in the public interest.

9. Mr Jonathan Crystal in an impressive submission took as his starting point that the treatment of drug addicts is medically controversial and self-evidently hazardous. The evidence before the Committee was that the appellant considered his prescribing clinically appropriate for intractable and damaged addicts. In no case was harm caused to a patient and there was no reliable evidence of significant diversion of prescribed drugs. There was a clear benefit both to the patients and public, the appellant cared about his patients. The question which the Committee should have addressed was not whether the appellant’s prescribing might have exposed patients to harm or the risk of the diversion of prescribed drugs but whether his prescribing in fact had caused harm to his patients or had resulted in the diversion. Consequently the Committee ought to have concluded that in the context of the medical practice being conducted at the Laybourne Clinic, the prescribing was not irresponsible, much less could it be categorised as serious professional misconduct.
10. Mr Crystal, realistically, recognised the difficulties the appellant faced in seeking to persuade the Judicial Committee that the prescribing was not irresponsible or that it could not be categorised as serious professional misconduct. The main thrust of his argument concentrated upon whether the sanction of erasure was excessive and necessary in the public interest. The Committee accepted that Dr Garfoot acted in what he believed to be the best interest of his patients. As a private practitioner he had attempted to fill a gap in NHS provision for patients who were difficult to manage. They acknowledged his good intentions in this regard. They further recognised that the appellant was engaged in a difficult area of medical practice beset by many uncertainties and pitfalls, and that his patients were very difficult to treat.
11. The Committee failed to take sufficient account of the context of the appellant’s practice and the clear benefits to the patients and public. This included the long term treatment of drug addicts with a 7.5% detoxification success and a low mortality rate and the benefit to patients from being treated at a clinic and not having recourse to street drugs. Accordingly the Committee should have concluded that it was not appropriate and necessary in the public interest to impose the ultimate sanction of erasure. The Committee should also have concluded that any deficiencies in the appellant’s practice could be addressed by conditional registration or some other sanction short of erasure. Moreover the appellant had decided to cease treating drug addicts but to return to general practice after a suitable period of retraining. Counsel drew our attention to the considerable number of testimonials and character references from a wide range of people including patients, politicians, the judiciary, other persons in public life and fellow doctors.
12. In reaching their conclusions their Lordships recognise that their jurisdiction is appellate and not supervisory, and that the Board is fully entitled to substitute its own decision for that of the Committee. In Ghosh v GMC [2001] 1 WLR 1915 at 1923 Lord Millett said:

“Practitioners have a statutory right of appeal to the Board under Section 40 of Medical Act 1983 which does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. The Board’s jurisdiction is appellate not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the Committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the Committee or in its decision but this is true of most appellate processes.

It is true that the Board’s powers of intervention may be circumscribed by the circumstances in which they are invoked particularly in the case of appeals against sentence. But their Lordships wish to emphasise that their powers are not as limited as may be suggested by some of the observations which have been made in the past …

the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the Committee’s judgment more than is warranted by the circumstances. The Council conceded and their Lordships accept that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration.”

13. In the instant case, it is appropriate for their Lordships to consider the evidence which was before the Committee. This included the report and evidence of Dr Raistrick a distinguished Consultant Psychiatrist specialising in the treatment of drug addicts. Having studied the record of the named patients he concluded that “the patients received remarkably similar treatment but yet treatment that is quite unusual by the standards of other clinics”, and which gave rise to concerns about the practice of the Laybourne Clinic. In his opinion the named patients were certainly at the more difficult end of the drug user spectrum. Their treatment was based on pharmacotherapies and invariably for a maintenance prescription or at least a long term prescription. Prescribing at the Laybourne Clinic was well outside the limits of accepted practice and the regimen contravened the 1991 and 1999 Clinical Guidelines. In particular, the guidelines recommended the use of oral methadone as the norm, and that injectable methadone should be restricted to exceptional cases, typically 20% of a specialist clinic population. All cases at the Laybourne Clinic received injectables. The maximum dose of oral methadone should rarely exceed 100 mgs. Typically two to three times this dose had been prescribed. Dexamphetamine substitution is not normally part of the methadone programme; it was routinely prescribed and in the face of contraindications. Benzodiazepine is not normally recommended as part of the methadone programme, it was routinely prescribed in inexplicable combinations. The most addictive Benzodiazepines had been prescribed. There was an absence of supervised consumption. The maximum frequency of collection was twice weekly – daily collection is, and always has been, usual for high tariff drugs and where (as in the named cases) the stability and responsibility of an individual patient remains in doubt. Few, if any, sanctions against non-compliance with the agreed prescriptions were imposed. Most disturbingly, there appeared to be no attempts at stabilisation on oral prescriptions or to engage patients in anything other than maintenance prescribing.
14. The Committee in its determination found that the 12 patients displayed a pattern of excessive treatments, mostly over several years. Some became dependant on Dexamphetamine, a prescription which the expert called on the appellant’s behalf said that he could not advocate in combination with methadone. The appellant had failed to take all possible steps through regular urine tests and personal systemic monitoring to minimise the risk of prescribed drugs being diverted. He failed to grasp opportunities to help patients change their habits or, on the other hand, to face the reality that their “treatments” had failed and that the appellant could no longer properly accede to their requests. The Committee expressed grave concern about the routes, formulation and size of substitute opiate dosage and the failure to bring all the clinical evidence into a reasoned therapeutic strategy of management. They expressed their extreme concern at the nature and combination of drugs employed. The most significant conclusions of the Committee were that it was rare to find so many of the standard principles disregarded in single prescriptions and that “by and large, patients dictated their own prescriptions … the battle for medical intervention for change was lost before it had begun”.
15. In the light of the catalogue of failings by the appellant found by the Committee, their Lordships are satisfied that the Committee’s conclusions that the appellant had prescribed irresponsibly and was guilty of professional misconduct were inevitable. These findings were fully justified by the expert evidence and also by admissions made by the appellant during his evidence. Accordingly we consider there is no merit in the first ground of appeal.
16. Turning to the question of erasure their Lordships have concluded that, although the ultimate sanction, it was neither excessive, disproportionate, inappropriate nor unnecessary in the public interest. The evidence and the conclusions of the Committee indicated a very serious state of affairs. Their Lordships cannot accept the argument that the patients did not suffer harm. Where there was no attempt at stabilisation on oral preparations and no attempt to engage patients other than by maintenance prescribing there was inevitable harm to such patients. Proceedings under section 36(1) of the Medical Act are designed to ensure the protection of the public, the maintenance of public confidence in the profession and the maintenance of appropriate standards in the medical profession. The circumstances of the present case indicate the importance of maintaining public confidence in medical practitioners working in this difficult area with particularly vulnerable patients. Their Lordships bear in mind that the Committee specifically found:

“The Committee heard evidence that your policy of giving patients what they asked for may have been accompanied by social and health benefits and that it helped to shield some from impure street drugs. They concluded however that the risks to your patients and the public as a whole far outweighed any benefits.”

17. The Committee considered carefully and at length the option of imposing conditions but concluded that no appropriate conditions could be devised so as to enable him to continue practising in his chosen specialty. The Board has re-considered the situation in the light of the proposal that he will depart from this field, undertake general practice and that he has no intention of treating drug users again. Even if their Lordships had been persuaded that this was a practical proposition, they would nevertheless have come to the conclusion that the circumstances of the case were so serious that the order of erasure was entirely appropriate and, inevitable and that there was no basis to justify setting it aside.
18. Accordingly it is not necessary to consider the question of whether he should be permitted to continue to practice. Nothing in the proposed conditions or the character references persuaded their Lordships that this would be a desirable or appropriate determination.
19. Their Lordships will therefore humbly advise Her Majesty that this appeal should be dismissed. The appellant must pay the respondent’s costs of this appeal.