written by Sarah Lennon, trainee
R (Adam) v GMC [2015] EWHC 3378 (Admin)
The High Court refused permission for judicial review of a decision of the GMC not to investigate a complaint that the Medical Director of the NHS, Sir Bruce Keogh, failed to investigate concerns relayed to him by a senior colleague, Doctor Sheila Adam. The case provides interesting observations about the responsibilities of senior personnel within the NHS to investigate and take a personal interest in individual cases and clinical care within particular hospitals or units, and is a useful complement to cases such as Roylance and Remedy UK which grappled with similar issues.
Patient A had a rare medical condition called Kawasaki disease, and had previously received negligent treatment from the NHS and recovered substantial damages. Among the consequence of that sequence of events, Patient A was granted open access to the Royal Brompton Hospital ('the Hospital') for emergency treatment. Some fifteen years later, when Patient A attended the Hospital for such treatment, he was initially refused care. Patient A's family alleged that this caused an unnecessary delay in treatment and further alleged that Patient A was prescribed the incorrect medical therapy once he did receive treatment. Patient A's family subsequently brought further proceedings against the NHS following unsuccessful cardiac surgery. The Medical Director of NHS London, Doctor Andrew Mitchell, tried to put forward resolutions to resolve the dispute with Patient A's family, but these were rejected.
Doctor Adam was notified of the concerns surrounding Patient A's treatment when her number was disclosed in error to Patient A's father. Upon listening to the family's concerns, she wanted to be clear as to the lessons that could be learnt in respect of Patient A and Kawasaki sufferers generally. Following provisional discussions with Doctor Mitchell, she decided to notify Sir Bruce of her concerns. Sir Bruce responded, indicating that it was not appropriate for him to become involved in individual clinical cases. Doctor Adam disputed this, stating that as the Medical Director of the NHS, he was responsible for ensuring concerns were properly investigated. As no further response was received from Sir Bruce, Doctor Adam made a referral to the GMC.
The GMC notified Doctor Adam that they would be taking no further action in respect of her referral as the matter was not one "that would call into question [Sir Bruce's] fitness to practice" ('First Decision'). Doctor Adam requested a review of this decision. Following review, the GMC maintained its position, noting that there was no provision that compelled Sir Bruce's to take a personal interest and intervene in the case of Patient A. The GMC further noted that NHS England was not a complaint body and that it would be impossible for Sir Bruce's to intervene in all situations such as the one in question ('Second Decision'). Following receipt of this decision, Doctor Adam initiated proceedings for judicial review against the GMC. In respect of the Second Decision, Doctor Adam alleged that the GMC was incorrect to assess the strength and merits of the allegation. She contended that at the referral stage, the question should be whether the allegation is capable of supporting a finding of misconduct.
The Administrative Court refused permission for Doctor Adam to pursue her claim. The court noted that there was no evidence to suggest that Sir Bruce had responsibility for clinical care in any particular unit of any hospital. Practically, the court observed that it would be impossible for someone in Sir Bruce's position to act upon every problem communicated by email from anywhere in England. Sir Bruce had to rely on the systems and procedures in place in order to effectively undertake his role and in any event, the court concluded that the decision not to take a personal interest in Patient A's case was a managerial as opposed to a clinical decision. The court concluded that in light of the above considerations, the decision of the GMC could not arguably be described as irrational.