This High Court case concerned the appeal of Dr El Baroudy against the findings on impairment and sanction of the Fitness to Practise Panel of the MPTS, which had directed that his name be erased from
This High Court case concerned the appeal of Dr El Baroudy against the findings on impairment and sanction of the Fitness to Practise Panel of the MPTS, which had directed that his name be erased from the medical register.
There was no challenge to the findings of fact in the case and it was accepted that on 21 January 2009, Dr El Baroudy failed to provide good clinical care to a homeless man known as AR, who had been found lying on the pavement and, who having attempted to assault a member of the ambulance crew attending him, as well as the police officers who had been called to assist, had been taken to Chelsea Police station in an intoxicated state.
Dr El Baroudy as the forensic medical examiner on duty, was called by the custody sergeant and was informed that AR was the worse for drink, and that in the struggle to control him had banged his head on the floor. Dr El Baroudy was asked whether or not AR should go to hospital and, having attended AR in his cell for about a minute, determined that AR was fit to be detained and did not need to be transferred to hospital.
It was not challenged that there had been a failure by Dr El Baroudy even to make basic assessments of AR's condition, with the result that Dr El Baroudy did not realise that AR was unconscious rather than asleep and that he needed an immediate transfer to hospital. AR was found dead in his call some three hours later.
There was, however, no allegation before the MPTS (where Dr El Baroudy represented himself) that Dr El Baroudy by either caused the death of AR or even caused AR to lose a substantial or significant or real chance of survival. The reasons for this are unclear in the High Court judgment, although we note that it was reported on BBC news early last year that Dr El Baroudy had been acquitted by a jury of gross negligence manslaughter, with the Judge reported as saying at the end of the case that the doctor's actions had been "negligent" but not criminal.
Judge Raynor QC, giving judgment in the High Court in Dr El Baroudy's appeal against the MPTS findings noted that authorities, including Roomi v GMC [2009] confirmed that the practitioner faces an allegation which is contained in the notice and no other allegation. He then stated that:
"Had the GMC wished to pursue those allegations, which would have been highly material, then in my judgment they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgment as to whether the fitness to practise was impaired or as to sanction on any question of causation, causation being defined as causing death or indeed causing the loss of any real chance of survival."
He went on to say that "What is perfectly plain is that evidence was led directed to the issue of causation as I have defined it", that evidence taking the form of evidence from Dr Cary, a consultant forensic pathologist. Judge Raynor QC stated that, given the charges which had been laid, the Panel should not have allowed evidence to be led as to the issue of causation, and should not have allowed issues of causation to affect judgments as to impairment or as to sanction, as it did.
He concluded that the allowing of evidence of causation to be given and the taking into account of evidence of causation, both in relation to impairment and in relation to sanction, amounted to a serious procedural irregularity that rendered the result on impairment and on sanction unjust.
The Panel's findings on impairment and sanction were therefore quashed and the case has been remitted to a fresh Panel, which, he directed, should proceed upon the basis that it is not alleged that Dr El Baroudy's misconduct either caused AR's death or caused the loss of any real chance of survival.
There was no challenge to the findings of fact in the case and it was accepted that on 21 January 2009, Dr El Baroudy failed to provide good clinical care to a homeless man known as AR, who had been found lying on the pavement and, who having attempted to assault a member of the ambulance crew attending him, as well as the police officers who had been called to assist, had been taken to Chelsea Police station in an intoxicated state.
Dr El Baroudy as the forensic medical examiner on duty, was called by the custody sergeant and was informed that AR was the worse for drink, and that in the struggle to control him had banged his head on the floor. Dr El Baroudy was asked whether or not AR should go to hospital and, having attended AR in his cell for about a minute, determined that AR was fit to be detained and did not need to be transferred to hospital.
It was not challenged that there had been a failure by Dr El Baroudy even to make basic assessments of AR's condition, with the result that Dr El Baroudy did not realise that AR was unconscious rather than asleep and that he needed an immediate transfer to hospital. AR was found dead in his call some three hours later.
There was, however, no allegation before the MPTS (where Dr El Baroudy represented himself) that Dr El Baroudy by either caused the death of AR or even caused AR to lose a substantial or significant or real chance of survival. The reasons for this are unclear in the High Court judgment, although we note that it was reported on BBC news early last year that Dr El Baroudy had been acquitted by a jury of gross negligence manslaughter, with the Judge reported as saying at the end of the case that the doctor's actions had been "negligent" but not criminal.
Judge Raynor QC, giving judgment in the High Court in Dr El Baroudy's appeal against the MPTS findings noted that authorities, including Roomi v GMC [2009] confirmed that the practitioner faces an allegation which is contained in the notice and no other allegation. He then stated that:
"Had the GMC wished to pursue those allegations, which would have been highly material, then in my judgment they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgment as to whether the fitness to practise was impaired or as to sanction on any question of causation, causation being defined as causing death or indeed causing the loss of any real chance of survival."
He went on to say that "What is perfectly plain is that evidence was led directed to the issue of causation as I have defined it", that evidence taking the form of evidence from Dr Cary, a consultant forensic pathologist. Judge Raynor QC stated that, given the charges which had been laid, the Panel should not have allowed evidence to be led as to the issue of causation, and should not have allowed issues of causation to affect judgments as to impairment or as to sanction, as it did.
He concluded that the allowing of evidence of causation to be given and the taking into account of evidence of causation, both in relation to impairment and in relation to sanction, amounted to a serious procedural irregularity that rendered the result on impairment and on sanction unjust.
The Panel's findings on impairment and sanction were therefore quashed and the case has been remitted to a fresh Panel, which, he directed, should proceed upon the basis that it is not alleged that Dr El Baroudy's misconduct either caused AR's death or caused the loss of any real chance of survival.