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Fitness to Practise Revisited

26 Jul, 13 | by Iain Brassington

***UPDATE: Important codicil at the end***

Back in March, I posted something about what I took to be a slightly odd Fitness to Practise decision by the GMC in respect of one Mohammed Al-Byati.  Via the BMJ, here’s another case that seems a bit strange:

A doctor who abducted her six year old daughter from her estranged husband nearly two years ago and took her to Pakistan has been struck off by a panel of the Medical Practitioners Tribunal Service (MPTS).

[...]

The MPTS panel, sitting in Manchester, acknowledged that Dar’s conduct did not relate to her medical practice.  But panel chairman Michael Whitehouse said that misconduct could also involve conduct “of a morally culpable or otherwise disgraceful kind,” which could prejudice the reputation of the profession.

The emphasis is mine, though it’s the stuff about the “reputation of the profession” that intrigues me.  If Dar has breached a court order, or is a kidnapping suspect, then fine – but that’s a matter for the courts.  She perhaps wouldn’t be able to practice if found guilty and imprisoned, but that’s a different matter.  It’s not obviously the GMC’s business.

Now, sometimes a profession might have an interest in disciplining people who misuse their association with it.  For example, the reputation of bankers or journalists may be tarnished by the things that some people do in their capacity as bankers or journalists.  And there may, to that extent, be at least some limited warrant for a public perception that bankers or journalists are bastards.  Limited, because the great majority probably aren’t and so we never hear about them, but there.  And so whatever the equivalent of the GMC for those professions is might be able to say that it has something to say on the matter.

But in this case, Dar’s conduct seems to have nothing to do with her being a doctor (as the MPTS panel acknowledges).  For this reason, it’s very hard to see what the rationale is for striking her off, beyond a public perception that is ex hypothesi baseless.  It’s hard to see that that should be determinative.

Here’s what the GMC itself says about such things:

[T]he public is entitled to expect that their doctor is fit to practise, and follows the GMC’s principles of good practice described in Good medical practice. This guidance sets out the standards of competence, care and conduct expected of doctors.

The gloss on this is mostly to do with medics’ relationships with patients – which seems appropriate.  The exception comes towars the bottom of the page, where it’s asserted that fitness to practise is likely to be questioned if a medic has

behaved dishonestly, fraudulently or in a way designed to mislead or harm others [and t]he doctor’s behaviour was such that public confidence in doctors generally might be undermined if the GMC did not take action.

Again, the emphasis is added.  The worry here is that public confidence in doctors might justifiably be dented by some behaviour – but the way seems to be open for the GMC to intervene if enough people were to tut, not so much because the tutting is warranted, as because there’s a lot of them.  What’s been (allegedly) done is potentially less important than public reactions.

It’s a strange thing.  If someone could explain the public perception aspect, that’d be really appreciated.  Do it well, and I’ll give you a guest post.  Deal?

Incidentally: the minutes of the March case are available online; they’re rather strange.  Pages 10 and 11 seem to me to be the important ones, and it’s worth quoting at length:

The Panel has noted the evidence of previous good character and that his clinical practice in the UK has not attracted criticism.  There have been no concerns in relation to his conduct in the UK.  The Panel has read the positive testimonials presented on Dr Al-Byati’s behalf.

The Panel has noted that the facts found proved in Dr Al-Byati’s case relate to his actions approximately 20 years ago.  The Panel has borne in mind that there has been no suggestion that Dr Al-Byati has behaved in a similar way before or since.  The Panel was of the view that the risk of repetition in this case was negligible, as it is unlikely that Dr Al-Byati will find himself in similar circumstances in the future.

Even having regard to these obvious mitigating factors, the Panel could not lose sight of the nature and gravity of Dr Al-Byati’s misconduct.

The Panel formed the view that the issue of remediation was of limited relevance in this case, as Dr Al-Byati’s actions were a consequence of his completing his compulsory military service in the dictatorship of Saddam Hussein.

The Panel has noted that Dr Al-Byati stated that, whilst he accepted that the treatment of prisoners during Saddam’s regime was deplorable, his own conduct was not of a morally culpable or otherwise disgraceful kind, as, in general terms, he was obeying obey orders in a ‘do or die’ situation.  The Panel acknowledged that Dr Al-Byati was a junior doctor whose behaviour was being controlled by a dictatorial, totalitarian regime which used systematic, widespread and extremely grave violations of human rights to control the population.

So far so good.  But then…

The Panel is concerned that Dr Al-Byati has not shown greater remorse for his actions, or more insight into the gravity of his own acts, but rather appears to be focussed on the position in which he found himself in Iraq.  The Panel also considers that his comments demonstrate a lack of understanding into the role of this Panel, which includes its primary responsibility to protect the public interest, in all regards.

In summary, the Panel has concluded that Dr Al-Byati’s actions, in relation to his involvement in the regime in Iraq between 1992 and 1994, put some of his patients at risk of further harm, have brought the profession into disrepute, and that he has breached a fundamental tenet of the profession, namely his failure to ensure that the welfare of his patients was his first concern.

I’m going to assume that the patients put at risk of further harm were the prisoners he treated – in which case my question from March stands: would walking away and leaving them untreated, even if that hadn’t involved putting himself at risk, really have been preferable?  Even if were preferable, is it worth disciplinary action that the less-desirable option was chosen?

And what has a failure to understand the role of the Panel to do with anything?  Is that itself culpable?

But most perplexing is the point about a lack of remorse.  If it’s true that Al-Byadi really could not have done anything other than what he did - a thesis that seems not to be unreasonable – then it’s not at all clear why he should have shown remorse.  If ought implies can, then cannot implies not-ought – and the idea that one should show remorse for not having done something that is not morally required is difficult to understand… unless the Panel is in the business of disciplining people for not going through the requisite emotional motions.

UPDATE, 26.vii, 19:15: Someone who knows more about these things than I has asked me to make clear the distinction between the GMC (the regulator, acting as “prosecutor’ in FtP cases) and the MPTS (the quasi-independent tribunal service that runs the panels and hearings). “It is a relatively new separation,” says my correspondent, “but a crucial one in this type of case, in particular as the GMC is currently seeking a legislative change to allow it to appeal MPTS panel rulings where it disagrees with the outcome.”
Happy to oblige.

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  • Keith Tayler

    As I have said in other posts, quasi-judicial proceedings of tribunals, disciplinary hearings, complaints processes and the ombudsmen system should be of much greater interest to academic medical lawyers and ethicists. Far too much emphasis is placed upon statute and the decisions of various courts, the assumption being that if we get these right all will be well. But tribunals etc. are for the most part law makers unto themselves. As the Chief Financial Ombudsman put it when describing the whole ombudsmen system ‘We do not have to pretend to “find” what the law is. We unashamedly make new “law”…The ombudsmen are not bound by the doctrine of precedent, but we do aim for consistency’ They are not consistent which means we have self-styled capricious law.

    I do not know the detail of how the MPTS works, but from the March minutes it does not appear to be interested in giving Dr Al-Byati a fair hearing which means they also had little regard for the public interest. He had no legal counsel, attended the hearing on one day out of four because he claimed not to be able to afford travel expenses, and was only given a few hours to write a response to the ’determination of the facts’. They claimed to be following the principles set out in R .v. Jones [2001] EWHC Crim 168; but having read this I do not believe a court, working within these principles, would have proceeded without him being present because he could not afford the train fare. At the very least they would have very strongly advised him to have counsel to protect his interests during his absence. Doctors are exceptionally well paid, so I guess there was some other reason for his behaviour. As you point out, they criticise him for not understanding the role of the Panel. But if they thought he did not understand it they should have made every effort to explain it to him and keep him present.

    I am always I bit worried when a dictionary is handed around a court, especially where the person on trial first language is not English. (Austin thought there was good philosophy in dictionaries. He was wrong because they give you a false sense that you “know“ your way around language) At the bottom of p4 they give the OED definition of “complicity” as being ‘the fact or condition of being involved with others in an activity that is unlawful or morally wrong.’ (My OED also says ‘Partnership in evil action’) The Legal Assessor (he appears to be the Ringmaster of the circus) then goes on to advice ‘that the Panel must be satisfied that Dr Al-Byati knew of the activity that was taking place and that his involvement was deliberate, as opposed to undertaken recklessly or by accident.‘ What happened to ‘or forced upon by pain of death’? At the bottom of p6 we get the Panel ’has accepted [presumably from the Ringmaster] that in order to be complicit a person does not have to desire a particular outcome’. If that so, would the Panel of said that Jewish concentration slaves could not have refused to work because they would have been executed but they were nonetheless complicit in the Nazi war effort and, what it is more, they refused to show remorse? For sure people who have been in this type of situation often experience a deep emotional crisis that may include feelings of remorse. Nonetheless, I agree with you, these emotions are misplaced and should not taken as being the correct behaviour.

    Like you I am not convinced by this ruling. Obviously we only see it through the minutes and have not heard Dr Al-Byati’s giving his evidence. He does seem to be a bit “strange” (not that strangeness can be a offence for if it were there would be very few doctors) and he does seem to have difficulty in assessing the threat level of his environment. This ruling will no doubt work as a PR exercise in the world of Daily Mail readers (this is my in depth analysis of the ‘public perception‘ issue). But as I say, there are thousands upon thousands of decisions like this and it is high time more attention was given them. Thank you for bringing this one to light.

    PS. Just seen that you have posted again on this subject. Have not read it yet.

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