In the case of PSA v GMC relating to Dr David Dighton, the High Court, in allowing the appeal, commented, among other things, voluntary erasure not enough to protect the public.

Professional Standards Authority for Health and Social Care v General Medical Council and another – [2020] EWHC 3122 (Admin)

Brief Overview of the Facts

Dr Dighton was a cardiologist but also maintained a private practice as a General Practitioner. It is important to note that Dr Dighton had undergone no formal GP training, which he regarded as “unnecessary because of his work in general medicine and “the minor nature of his patients’ ailments.””

Between 2011 and 2017, on multiple occasions at the patient’s request, Dr Dighton prescribed to Patient A a number of powerful and potentially addictive drugs.

Over the same period, Patient A also obtained multiple prescriptions from her own GP for drugs of the same type. On 23 June 2017, Patient A was diagnosed with (among other things) prescription drug dependency.

Dr Dighton has in the past confirmed in writing that he was aware from the start that Patient A demonstrated the behaviour of an addict.

In 2011, Dr Dighton was issued with a letter of advice from the GMC relating to his prescribing. In 2016, he appeared before the GMC’s Investigation Committee and was issued with a warning relating to his prescribing of benzodiazepines.

GMC Fitness to Practise procedure

Medical Practitioners Tribunal Service (MPTS) Hearing and Decision

The proceedings before the MPTS took place in 2019 during which the GMC made numerous allegations of misconduct.

On the basis of the facts which it had found proved, the MPTS determined that Dr Dighton’s actions amounted to misconduct.

It went on to consider whether his fitness to practise was currently impaired by reason of misconduct, balancing the various factors which it regarded as weighing for and against impairment.

The MPTS expressed grave concerns in relation to Dr Dighton’s poor practice over a six-year period despite an advice letter in 2011 and a warning in 2016.

It described his lack of insight as “intractable” such that “he is unlikely to remediate and there is a material risk of repetition.” The combination of lack of insight, unfocused training, lack of any apology and lack of reflective practice meant that the risk of repetition could not be regarded as low.

The MPTS concluded that the his fitness to practise was impaired.

On the final day of the hearing, the MPT considered sanction. It considered oral evidence from Dr Dighton including that he had stopped work as a GP in December 2018 because of a discussion with an adviser from the Care Quality Commission who had impressed upon him that GP work was a speciality and that his experience was limited.

Upon weighing the mitigating and aggravating factors, the MPST decided to impose a suspension order on Dr Dighton giving “decisive weight to the fact that the second respondent had ceased to practise as a GP” and therefore held that his conduct was not fundamentally incompatible with his inclusion on the medical register.

PSA Appal

The PSA challenged the sanction on three grounds, that the MPTS:

• took an approach to the imposition of sanction which was irrational and wrong
• failed to have sufficient regard to the relevant guidance on sanctions
• took an irrational approach to the registrant’s insight into his misconduct

High Court Judgement

Prior to the appeal being heard, Dr Dighton agreed to voluntary erasure.

The GMC sought to persuade Farbey J that the appeal served no practical purpose “because the GMC is willing to grant his application for voluntary erasure.” In disagreeing with this argument, Farbey J commented that Dr Dighton “willingness to give up practice as a GP cannot reasonably be regarded as weighing decisively in favour of his suspension and against his erasure.”

She continued by saying: “The statutory regulation of the medical profession is designed to prevent the sort of risks which the second respondent [Dr Dighton] caused to Patient A. The second respondent’s resistance to regulatory control is a further facet of his lack of insight that means that he cannot be trusted to practice as a doctor again. That may only be reliably achieved by erasure.”

Farbey J removed Dr Dighton from the Register instead of remitting the case back to the MPTS.

Legal comment

As with many of these cases, the outcome turned on the facts. However, in all these cases there are lessons to learnt when reflecting on these facts.

In this case a number of things can be taken away by healthcare professionals:

• Lack of insight & reflection – this case illustrates again the importance and value of insight and reflection. Dr Dighton’s lack of insight was notable in this case and it played a determinative role in Farbey J judgement to erase him from the register. On the issue of insight and reflection, Dr Dighton also appeared to have paid little attention to the GMC warning and advice. Healthcare professionals are advised to carefully consider any formal warning issued by a healthcare regulator, to reflect on it and identify any practice improvements that might be required.

• Voluntary erasure is not enough – On the face of it, voluntary erasure would appear to solve the practical problem. However, as it evident in this case, that is not always the case. Some cases are so serious that, notwithstanding a voluntary erasure, the issues and risks will need to be addressed regardless.

• Competence must be not underestimated – It was notable in this case that Dr Dighton did not consider it necessary to be trained as a general practitioner but that the CQC asked his, as a consequence, to stop practising as a GP because “GP work was a speciality and that his experience was limited.”