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OUTER HOUSE, COURT OF SESSION
[2021] CSOH 85
P427/20
OPINION OF LORD HARROWER
In the petition of
AB
Petitioner
For judicial review of a decision of the General Medical Council
Petitioner: J Scott QC, D Anderson; Drummond Miller LLP
Respondents: Dean of Faculty; Anderson Strathern LLP
18 August 2021
Introduction
[1]
The petitioner's daughter, X, was born in January 2016 and has had a complex
medical history. From the age of 3 months, her symptoms included abnormal movements,
vomiting, retching and low blood sugars. She was treated from time to time at a specialist
children's hospital ("the Hospital"), and prescribed various medications, including
anti-convulsants. X developed other problems, not being able to eat by mouth and keep
food down, and had a feeding tube (a percutaneous endoscopic gastronomy tube or "PEG
tube") inserted in her intestine.
[2]
On 2 February 2018, aged 2, X was readmitted to the Hospital, acutely unwell with
severe dehydration, vomiting, diarrhoea and high blood sodium levels. Members of the
medical team suspected that X's illness might have been "induced", possibly by
2
administering an osmotically active substance through her PEG tube. On 5 February their
concerns were raised with Dr C, the consultant paediatrician at the Hospital with
responsibility for child protection. Over the next few weeks, X was kept in the Hospital.
Unsupervised access from her mother was stopped. Her medications were stopped. X
recovered. Her PEG tube was removed and the stoma where the tube entered the stomach
closed off with a removable "button". On 26 March 2018, Dr C co-authored a report which
concluded that X's presentation was consistent with "fabricated or induced illness". That
report led to the local authority initiating a child protection investigation, as a result of
which X was taken into care, though she was eventually allowed to stay with her father . X's
parents maintained her illnesses were a side effect of unnecessary medication.
[3]
In due course, independent expert reports were obtained, which cast doubt on Dr C's
conclusions. The safeguarding proceedings were dropped, and X was reunited with her
whole family. In a wide-ranging document running to some 97 pages, the petitioner
complained to the respondent, the General Medical Council, regarding Dr C's fitness to
practise. The respondent opened an investigation and obtained its own independent expert
report, following which it decided to take no further action against Dr C's registration. This
case is about whether the respondent's decision disclosed a judicially reviewable error of
law. It is not about the merits of the petitioner's original complaint.
The respondent's complaints procedure
[4]
The procedure for resolving complaints that a registered practitioner's fitness to
practise has been impaired is governed by the Medical Act 1983 and the General Medical
Council Fitness to Practise Rules Order of Council 2004. So far as relevant to this petition,
3
fitness to practise may be impaired by reason of "misconduct" or "deficient professional
performance".
[5]
The registrar has an initial filtering role, and may conclude a case himself on a
number of limited grounds, for example, that it is vexatious, that it is time-barred, or that it
does not raise a question of whether a practitioner's fitness to practise is impaired to a
degree warranting action on his registration (i.e. by erasure, suspension or the imposition of
conditions on the practitioner's right to practise). The registrar may also refer the allegation
directly to a medical practitioners tribunal for a full hearing.
[6]
Insofar as not dealt with by the registrar, the allegation is referred to the
respondent's case examiners (one medical, one lay) for investigation. The case examiners
must decide whether
the case should proceed further. If they do, then the matter may be
referred to a full hearing. They have other powers, which include giving a warning or
inviting the practitioner to agree to comply with undertakings of one sort or another.
If the
case examiners are unable to agree, the decision will be made by the respondent's
investigation committee, which has available to it similar options for disposal.
[7]
The registrar, on his own initiative or on the application of the complainer, may
review the decision of the case examiners if that decision is materially flawed and a review is
necessary for the protection of the public, for the prevention of injustice to the practitioner or
otherwise necessary in the public interest.
The case examiners' role
[8]
There was broad agreement between parties that, for the purposes of this case, the
role of the case examiners, when considering whether or not a complaint should proceed,
should be taken to be similar to that of the respondent's former Preliminary Proceedings
4
Committee acting under its previous rules, as described by Mr Justice Lightman in R v
General Medical Council, ex parte Toth 2000 1 WLR 2209, at 2219H to 2220E (the opinion in ex
parte Toth, formed the basis of an aide-mémoire drawn up for the use of the Preliminary
Proceedings Committee, and which has since been approved by Burton, J in Woods v General
[9]
The central feature of the respondent's complaints process is the investigation of
allegations by a medical practitioners tribunal before whom alone there is full disclosure of
documents and evidence and a form of hearing where the complainant and public can see
the proper examination of the merits of a complaint. The case examiners have a limited,
filtering, role. They may examine whether the complaint has any real prospect of being
established, and in so doing may themselves conduct an investigation into its prospects.
They may then refuse to refer the allegation on for a full hearing if satisfied that it has no
real prospect of being established, but they must do so with the utmost caution (or, at least,
with caution: R v General Medical Council, ex parte Richards [2001] Lloyd's Rep Med 47, per
Sullivan J, at paragraph 58), bearing in mind that, whilst the practitioner is afforded access to
the complaint and able to respond to it, the complainant has no right of access, or to make an
informed reply, to that response.
[10]
There may be circumstances which entitle the case examiners to hold that the
complaint should not proceed for other reasons, but the case examiners must bear in mind
their limited (filtering) role and must balance regard for the interests of the practitioner
against the interests of the complainant and the public that complaints are fully and
properly investigated and that there is no cover-up. Any doubt should be resolved in
favour of the investigation proceeding. The case examiners should be particularly slow to
5
halt a complaint against a practitioner who continues to practise, bearing in mind that the
paramount consideration is the protection of the public.
Grounds of review
[11]
In this case, the petitioner seeks reduction of the decision of the respondent's
assistant registrar (exercising the functions of the registrar, in terms of section 16 of the
Medical Act 1983), communicated to the petitioner by letter dated 1 April 2020, declining to
review the decision by the respondent's case examiners, communicated to the petitioner by
letter dated 26 February 2020, closing the case against Dr C with no action. He does so on
the following grounds.
[12]
Firstly, in the particular circumstances of this case, it is said that X's illness must have
been a result either of her mother's actions, on the one hand, or of unnecessary medication
prescribed by Dr C's colleagues at the Hospital, on the other. Any report blaming the
petitioner's wife for making X ill, necessarily exonerated Dr C's colleagues (petition,
statement 25). Dr C therefore had a conflict of interest such that she should have excluded
herself from writing an expert report for child protection purposes (petition, statements 29
and 30). Her failure to do so amounted to misconduct or deficient professional performance.
The respondent is said to have failed to take this allegation into account (petition,
statement 6 and statement 28).
[13]
Secondly, it is alleged that Dr C failed to obtain the informed consent of the
petitioner and his wife, as X's legal representatives in terms of the Children (Scotland)
Act 1995, to various procedures and treatment while X was an inpatient at the Hospital
between 2 February 2018 and 28 March 2018. In concluding that X's parents, by bringing X
6
to the Hospital on 2 February 2018 for medical management, sufficiently consented to her
ongoing treatment, the respondent is said to have erred in law (petition, statement 31).
The case examiners' decision
[14]
The case examiners noted the test to be applied was one of "whether there is a
realistic prospect of establishing that [the] doctor's fitness to practise is currently impaired to
a degree justifying action on her registration". They noted that the test had two parts. The
first was whether the allegations, if proven, were serious enough to warrant action on the
doctor's registration. The second was whether the allegations were capable of proof to the
required standard, namely, that it was more likely than not that the alleged events occurred.
[15]
In making their decision, the case examiners were to have regard to the respondent's
objectives. These were to protect, promote and maintain the health and safety of the public;
to promote and maintain public confidence in the profession; and to promote and maintain
proper standards and conduct for members of the profession.
[16]
The case examiners then noted relevant paragraphs from the respondent's own
guidance Good Medical Practice and Protecting Children and Young People. That guidance
included the need to be honest and trustworthy when writing reports, and to make sure
they are not false or misleading. It also included the need to be satisfied that the doctor had
consent before carrying out any examination or investigation, or providing treatment.
[17]
So far as the first part of the test was concerned, the case examiners were satisfied
that the allegations contained in the complaint were sufficiently serious to warrant action on
Dr C's registration. As for the second part, the case examiners had regard to the advice of
the independent expert instructed by the registrar. They noted certain aspects of the
7
independent expert's advice, which, so far as relevant to those aspects of the complaint that
are the subject of the present petition, were as follows:
·
"that Dr [C]'s role was the named safeguarding health professional. In this
capacity her responsibilities were to oversee the management of Patient [X]'s care,
liaising with social services, the police and any other agency to protect the child's
best interests. She also made appropriate referrals to other clinicians, for example,
she referred Patient [X] to the plastic surgery team for a lump over her right orbit
·
that the day to day management of Patient [X] was the responsibility of the
medical and nursing staff who attended to Patient [X] and who saw her on daily
ward rounds
·
various points from the FII (A Practical Guide) Practice Points to support
Dr [C]'s actions. This included that the guide:
o
recommended that there should not be any need to confirm the
diagnosis before referring to children's social care as delay may be
detrimental to the child
o
stated, `[a]t this stage concerns about FII cannot be discussed with the
family as the child may be put at risk.'
·
that the decision to make a child protection order was made at a multiagency
discussion on 26 March 2018, about Patient [X]'s welfare. Although consultations
were made with other team members and social services, neither parent consented to
a voluntary arrangement for Patient [X] to be placed in foster care. It was therefore
decided that a child protection order would be applied for in the best interests of the
child
·
that once a decision was made for the Scottish Sherriff's [sic] Office to
determine what was in the best interests of Patient [X], it was not within Dr [C]'s gift
to determine the outcome
·
Dr [C] had consented to an independent review of the clinical aspects of the
case."
[18]
The case examiners then summarised the experts conclusions, which, again, so far as
relevant to the subject matter of the present petition, were as follows:
"The safeguarding referral
[...]
8
·
Dr [C] had made an appropriate safeguarding referral which was aligned
with the FII guidelines issued by the RCPCH
·
in writing her report, Dr [C] adequately considered Patient [X]'s previous
medical history noting that she had included a full chronology on the care of
Patient [X] in her report to the Children's Reporter for Scotland
[...]
·
in keeping with FII guidelines, Dr [C] considered the wider differential
diagnosis in place of FII and detailed these in her report
·
there was no significant delay in providing a comprehensive medical report
for social services. He noted that it takes time for medical records and GP records to
arrive and be collated and that Patient [X]'s period of observation in hospital allowed
the medical team to document any abnormalities in carer-child interaction and to
obtain a full picture of the child and family
·
he did not see any evidence of bias in Dr [C]'s report. He stated that the
report was `comprehensive and balanced' and `carefully considers other possibilities
in place of FII to explain Patient [X]'s symptoms.'
Consent
The expert said that the consent for Patient [X]'s care was implied consent. He
explained, `[t]he fact that Patient [X] was an inpatient in [the Hospital] and had been
brought there by her parent(s) on 02.02.18 for medical management was sufficient
consent for her ongoing treatment.'
The expert also noted that during a telephone consultation with [the petitioner] on 21
February 2018, Dr [C] explained that her role was as a child protection consultant
and she worked between her paediatric colleagues, social services and the police to
relay concerns. She also explained that she was the health contact for colleagues [...]
(where the family resided). The expert recognised that although [the petitioner] was
not satisfied with the responses given by Dr [C], he did not state at any point that he
did not consent to the ongoing treatment and care and multiagency strategy
meetings planned for Patient X.
Answering basic medical questions
The expert noted that the majority of basic questions were addressed by the doctors
who performed daily rounds. In her capacity as safeguarding lead, Dr [C] kept
Patient [X]'s parents informed in relation to relevant matters related to safeguarding
and welfare issues. This included at a discharge planning meeting on 26 March 2018
when Dr [C] (and others present) gave both parents ... the opportunity to ask
questions about `Patient [X]'s medical care received to date and her welfare in
respect of safeguarding issues.'"
9
[19]
The case examiners further noted that the expert had not identified any aspects of
Dr C's care "that fell below, or seriously below" the standard of the reasonably competent
consultant paediatrician and lead consultant paediatrician for child protection. They also
noted that the expert had confirmed that Dr C had followed the guidance issued by the
Royal College of Paediatrics and Child Health in Fabricated or Induced Illness by Carers (FII): A
Practical Guide for Paediatricians ("the RCPCH guidance") and that she had made the
appropriate referrals to police and social services. The case examiners accepted the expert's
advice and concluded that there was no realistic prospect of establishing that Dr C's fitness
to practise was impaired, and that it would not be appropriate or proportionate to issue a
warning.
[20]
By letter dated 1 April 2020, the respondent wrote to the petitioner, enclosing the
assistant registrar's decision, concluding that there were no grounds on which to review the
case examiners' decision. It was not materially flawed, and the petitioner had presented no
new information which might have led to a different decision.
Argument for the petitioner
[21]
Adopting her Note of Argument at the substantive hearing, senior counsel for the
petitioner submitted that "misconduct" had no "absolute meaning" and it was impossible in
changing circumstances and new eventualities to prescribe a complete catalogue of the
forms of professional misconduct which may lead to disciplinary action (Roylance v General
Medical Council (No 2) [2000] 1 AC 311 per Lord Clyde at pp 330 and 331; and Nandi v General
medical practitioners tribunal were well placed in the light of their own experience, whether
lay or professional, to decide where the line should be drawn in the circumstances of
10
particular cases, and their skill and knowledge required to be respected. Misconduct
involved some act or omission which fell short of what would be proper in the
circumstances.
[22]
Two particular features of the circumstances in which Dr C came to write her report,
and which the respondent failed to take into account, gave rise to a conflict of interest.
[23]
The first was that Dr C's report set in motion a chain of legal consequences. The
social work authorities were "duty bound" to seek a child protection order. The application
would be ex parte, and the sheriff would have "little choice" but to grant it. Once the child
protection order was made, the reporter to the children's hearing would be "bound" to
arrange a hearing, at which a parent would "not be in a position" to challenge the need for
the order. Given the terms of the report, it would "inevitably result" in a decision to refer
the matter to the children's hearing. The report thus had the "inevitable" consequence that
X would be removed from her family "unless and until [Dr C] was shown to be wrong".
[24]
In this connection, the petition relied on the contention that Dr C, when providing
her report, was acting as an expert, and, as an expert, was not in a position to give
independent and impartial advice (statements 6, 25 and 26 under reference to Porter v Magill
Note of Argument, the argument was that Dr C's report set out an "expert opinion" which
was "designed to be used, and actually used" for the purpose of securing a child protection
order, and then forming the basis for the drafting of grounds of referral.
[25]
The second feature was that Dr C was confronted with a "stark choice" between
accepting, on the one hand, that her colleagues at the Hospital had misdiagnosed X's earlier
condition resulting in damage from the side effects of anti-convulsant medication and the
11
insertion of a PEG tube, and, on the other, that X was the victim of fabricated or induced
illness ("FII").
[26]
The combination of these two features in the circumstances of X's case meant that
Dr C "owed a duty" to X and her parents to seek specialist, independent advice before
providing her 26 March 2018 report. There was ample time between X's admission on
2 February 2018 and the provision by Dr C of her report to obtain that advice.
[27]
When considering the relevant guidance, it was insufficient to have regard only to
the terms in which that guidance was expressed; one had to have regard to its "spirit"
(under reference to Edward Wong Ltd v Johnson, Stokes & Master [1984] AC 296). But the duty
contended for - to seek specialist, independent advice - was in any event consistent with the
respondent's guidance in Good Medical Practice. Reference was made to the need promptly
to provide suitable advice or investigations where necessary (paragraph 15b); to consult
with colleagues where appropriate (paragraph 16d); to consider the needs and welfare of
any child patient (paragraph 27); to make good use of the resources available
(paragraph 18); to make sure that the practitioner's conduct justified the patient's trust in her
and the public's trust in the profession (paragraph 65); to be honest and trustworthy when
writing reports or giving evidence, to make sure that any reports or evidence were not false
or misleading, and to take reasonable steps to check that the information given was correct
(paragraphs 71 and 72); and when faced with a conflict of interest specifically in financial
dealings, to be open about the conflict, declaring one's interest formally, and to be prepared
to exclude oneself from decision making (paragraph 79).
[28]
The duty to seek specialist, independent advice was also said to be consistent with
the RCPCH guidance. Reference was made to FII being rare (paragraph 3.3); to the need to
distinguish between the anxious carer responding in a reasonable way to a sick child, and
12
the rare case of the carer whose behaviour risks causing harm by confusing and possibly
fabricating the presentation (paragraph 5.1); to the need for an apology for any distress
caused, where additional information emerges indicating a previously unrecognised
genuine illness, and to the need for an assurance that the child will not be subject to a child
protection plan (paragraph 5.54); to the fact that there will be situations where urgent
referral to children's social care is required (paragraph 6.1); to the inappropriateness of
delaying referral to children's social care pending confirmation of FII (paragraph 6.4); to the
range of matters that should be considered in any strategy discussion regarding possible FII,
including any outstanding investigations, further information gathering, and opinions that
would be helpful or necessary (including specialist child protection opinion or to address a
specific clinical issue) (paragraph 6.9); and in the context of disclosure of the possibility of
FII to the carer, to the range of matters that may be included in that discussion, such as, the
reasons why the identification of FII seemed likely, any other possible causes for the child's
signs and symptoms, and any further investigations and their likely impact on the decision
regarding FII (paragraph 7.3).
[29]
Senior counsel further submitted that the case examiners had applied the wrong test
to the question of whether or not consent had been obtained. The respondent's guidance in
Good Medical Practice required the practitioner to be satisfied that she had consent or other
valid authority before carrying out any examination or investigation or providing treatment
(paragraph 17). The notion that consent to ongoing treatment was "implied" by the fact that
X had been brought to the Hospital for medical management, and not subsequently
withdrawn, was "outdated" (petition, statement 31) and inconsistent with both the Supreme
respondent's guidance.
13
Argument for the respondent
[30]
On behalf of the respondent, the Dean of Faculty argued that it was misconceived to
regard Dr C as acting as an expert when writing her report. Rather, she was simply acting in
her role as the clinician responsible for the well-being of X whilst in the Hospital. Senior
counsel for the petitioner had not suggested that Dr C's concerns were anything other than
genuine. Those concerns were that X had suffered FII at the hands of a parent. In the
circumstances, she was professionally obliged to act upon those concerns.
[31]
The petitioner's suggestion that a clinician in such a situation would find herself in a
position of conflict, because blaming the parent in some way exculpated the clinical team,
was unfounded. If it were correct, a clinician involved in the care of a child, who had
concerns about possible harm from a parent, could never act upon those concerns by writing
a report for child protection purposes, or even by reporting the matter to the police. The
position advanced by the petitioner was unworkable and dangerous.
[32]
In any event, in writing a report for child protection purposes, such as that provided
by Dr C, the clinician was not acting as an "expert", in the sense discussed in Kennedy v
Cordia (Services) LLP 2016 SC (UKSC) 59. An expert witness in the course of litigation was
there to testify, in an independent and impartial manner, on matters relating to his
particular expertise. It is that expertise that qualified the expert, unlike other witnesses, to
give opinion evidence. A clinician making a reference in the circumstances presently under
consideration, was not offering evidence at all, let alone opinion evidence. She was merely
bringing to the attention of the proper authority concerns which had arisen in the course of
caring for a child. In any event, it was commonplace for an employee of a defender, if
sufficiently qualified, to give opinion evidence. Being an employee goes to weight, not
14
admissibility: R (Factortame Limited) v Secretary of State for Transport, Local Government and the
[33]
The Dean of Faculty drew support from the RCPCH guidance which stated at
paragraph 5.28, "if at all possible, the case should continue to be managed by the same
medical team in the same setting throughout its duration. A change of medical team at any
stage can cause delays in the identification of FII thereby increasing the risk of further harm
to the child". And, at 6.1, it stated:
"there will be situations when an urgent referral to children's social care is
required... If a paediatrician is concerned about the immediate safety of the child
then a referral must be made, particularly in the case of suspected non -accidental
poisoning and suffocation".
[34]
In addition, the Dean of Faculty referred to the respondent's guidance, Protecting
Children and Young People, which required all doctors to act on any concerns they had about
the safety or welfare of a child, and stated that, where the interests and wishes of parents put
the child's safety at risk, they must put the interests of the child first. "Taking action will be
justified", the guidance said, "even if it turns out that the child ... is not at risk of, or
suffering, abuse or neglect, as long as the concerns are honestly held and reasonable, and the
doctor takes action through appropriate channels". Doctors were required to tell an
appropriate agency, such as the local authority children's services, or the police, promptly if
they are concerned that a child is at risk of or is suffering from abuse. They were told that
they do not need to be certain that the child is at risk:
"If a child ... is at risk of, or is suffering, abuse or neglect, the possible consequences
of not sharing relevant information will, in the overwhelming majority of cases,
outweigh any harm that sharing your concerns with an appropriate agency might
cause" (paragraph 32).
15
[35]
On the issue of consent, the Dean of Faculty argued that, by taking X into the
Hospital as a result of ill health, the parents provided the Hospital and its staff with the
necessary consent to treat X. The case of Montgomery did not suggest that, in such
circumstances, a hospital (and all of its staff) should be paralysed, unable to act in any way
unless and until parental consent had been given for each and every step in the treatment
and investigation of a patient. Montgomery was distinguished as being a case about the test
for medical negligence in a situation where a patient sustained injury in the course of a
procedure to which she consented but in respect of which there were alternatives that she
was not told about. It was not a case about proper professional conduct in the course of
clinical practice. In the absence of identification of injury to X arising from treatment or
procedure to which an alternative should have been given, Montgomery was simply of no
relevance. The case examiners had made no error of law in their decision. Alternatively,
they had not been shown to have acted unreasonably in deciding that the complaint should
not proceed further.
Decision
[36]
I have decided that the petition should be dismissed, for the following reasons.
Conflict of interest
[37]
The first ground of review is that the case examiners "failed to consider" the
petitioner's allegation that Dr C had a conflict of interest when submitting her 26 March 2018
report. The starting point for considering any such argument must be the case examiners'
reasons for their decision. Interestingly, the phrase "conflict of interest" does not figure in
the case examiners' reasons, including those parts of the independent expert's advice noted
16
by them. However it does not follow that either the case examiners or the independent
expert failed to have regard to this aspect of the petitioner's complaint. The case examiners
noted that the expert was asked to comment on whether Dr C "appropriately made a
safeguarding referral". The "appropriateness of the safeguarding referral" is a much more
general rubric that is apt to refer not just to Dr C's alleged conflict of interest, but also to the
whole congeries of allegations made by the petitioner that focussed on Dr C's role in the
referral process. These included repeated allegations of bad faith and of actual bias on the
part of Dr C. And although senior counsel made it absolutely clear that these very serious
allegations formed no part of the subject matter of the present proceedings, in order
properly to understand the case examiners' decision, it is important not to lose sight of the
actual complaint that was before them. In particular, while stripping away bad faith and
actual bias arguments from the present petition may have brought a welcome clarity to
proceedings, it also gave the conflict of interest argument a degree of prominence which it
lacked in the original complaint. In my opinion, the reasonable reader would have
understood the case examiners to be addressing Dr C's alleged conflict of interest as one
issue amongst others relating to the appropriateness of the safeguarding referral.
[38]
This interpretation is confirmed by a closer reading of those aspects of the expert
report highlighted by the case examiners in a series of bullet points (and r eproduced at
paragraphs 17 and 18 of this opinion). In the first two bullet points, it was noted that Dr C
was not responsible for the "day to day management" of X's care, but rather was "the
named safeguarding health professional". As such, her responsibilities were to "oversee the
management of X's care", and to "liaise with social services, the police and any other agency
to protect the child's best interests". In implement of these responsibilities, she would be
obliged to report her concerns regarding X and the possibility of FII to the multi-agency
17
team and the local authority. The reasonable reader would have understood the case
examiners to be confirming that Dr C would be neither barred nor excused from carrying
out these responsibilities simply because an alternative explanation for X's illness might be
found in the treatment provided by Dr C's colleagues.
[39]
In the first bullet point of the conclusions (paragraph 18, above), it was noted that the
appropriateness of the safeguarding referral was "aligned with the FII guidelines issued by
the RCPCH". (I note in passing that the current RCPCH guidance is Perplexing Presentations
(PP)/Fabricated or Induced Illness (FII) in children, but this only superseded the 2009 guidance
in March 2021, and therefore does not apply to the present case.) Particular reference was
made by the case examiners to a recommendation directed at the "initial management" of
the case, where the practitioner is told not to wait to confirm the diagnosis before referring
to children's social care, "as delay may be detrimental to the child" (p21). This should be
read together with the recommendation in the same 2009 guidance, directed at the "further
medical management" of the case, and which tells the practitioner to "resist requests for a
change of clinical team or hospital as this may place the child at risk of harm" (p28). The
case should be managed "by the same medical team in the same setting throughout its
duration" (paragraph 5.28), as a change of medical team at any stage "can cause delays in
the identification of FII thereby increasing the risk of further harm to the child".
[40]
Apparently, it had previously been thought that cases of FII "should be managed by
a doctor with specific expertise from outside the situation in which the identification was made"
(emphasis supplied), but, at least by the time of the 2009 guidance, this was no longer
regarded as best practice other than in exceptional cases (paragraph 5.27). The significance
of the case examiners' reference to the RCPCH guidance, as the reasonable reader would
have understood, is that it highlighted the importance of Dr C retaining control of the case
18
as the lead child protection consultant, notwithstanding that there may have been
allegations made against the medical team.
[41]
This is sufficient to deal with the case on record, but at this point it is convenient to
note a subtle but significant shift in the petitioner's argument. Whilst the petition is
premised on a failure by Dr C to "exclude herself" from the provision of a report for child
protection purposes (paragraphs 28, 29 and 30), the argument at the substantive hearing was
only that Dr C failed to seek independent, specialist advice before providing her 26 March
2018 report. This is not a mere pleading point, since the more extreme position adopted in
the petition, and not advanced at the substantive hearing, was the only version of the
argument put forward by the petitioner in his original complaint. In my view, the case
examiners can scarcely be criticised for not considering an argument that was never
suggested to them.
[42]
In any event, this modified version of the argument - that Dr C failed to seek
independent, specialist advice soon runs into new difficulties of its own. Firstly, if the
mischief at which it is directed is intended to be a perceived conflict of interest, then it is far
from clear that it goes far enough as a response. In other words, if Dr C genuinely had a
conflict of interest, why indeed should she not exclude herself from decision -making, or at
least declare her interest? Surely, it would not be enough merely to take independent,
specialist advice, since she would retain the ultimate decision -making role regarding what to
include in her report, including whether to disregard that advice. So, whilst the modified
argument may seem more attractive than the extreme position that required Dr C to exclude
herself from any involvement in writing a report, it does so at the cost of being inconsistent
with the very mischief it is designed to address, namely, the alleged conflict of interest.
19
[43]
Of course, this is not to suggest that there it will never be appropriate to seek
independent, specialist advice. Quite the opposite. As is noted in the RCPCH guidance, the
assessment of FII is complex, and it may be necessary to involve an appropriate, tertiary
specialist, provided overall management of the case remains with the responsible paediatric
consultant (paragraph 5.24). However, the appropriateness of that course of action turns on
the need for specialist advice at the tertiary level, rather than the referring consultant herself
being disabled from carrying out her secondary level role by reason of any conflict of
interest.
[44]
It may be worth noting in passing that Dr C did in fact seek independent, specialist
advice from a consultant nephrologist prior to making her 26 March 2018 report, albeit the
advice was given on an informal basis, and on the understanding that Dr C would not rely
on it for medico-legal purposes, since the specialist did not have access to the details of X's
case or her notes. This raises the further question, if there were to be something in the
nature of a duty to seek independent, specialist advice, in the circumstances of this case, of
what exactly that duty would look like. Would it be enough to have sought that advice on
an informal basis, as Dr C did? Or would it have been necessary to provide full access to the
patient's notes and clinical information, and obtain a "formal" report? The RCPCH
guidance notes only that tertiary specialists should be "carefully briefed" and "the remit of
their involvement ... clearly delineated" (paragraph 5.24). The precise contours of the
alleged duty to seek independent, specialist advice were not discussed at the substantive
hearing, but given the view that I have taken, that the case examiners adequately addressed
the allegation of an alleged conflict of interest, it is unnecessary for me to explore the matter
further here.
20
[45]
I consider that the Dean of Faculty was well-founded in his criticism of the
petitioner's pleaded case that, in writing her report, Dr C was acting as an "expert".
However, as already noted, by the time of the substantive hearing, the petitioner's argument
was rather that the case examiners erred by "failing to take into account" the "considerable
power" of Dr C's report, which "inevitably" set off a whole chain of legal consequences. At
least two aspects of the independent expert's report, as noted by the case examiners, were
relevant to this part of the discussion. Firstly, the expert noted that the decision to apply for
a child protection order was made at a "multiagency discussion", rather than specifically by
Dr C. Secondly, once the matter was put into the hands of the court, it was said to be "not
within Dr [C]'s gift to determine the outcome". Senior counsel for the petitioner might well
disagree with these conclusions; she might say that Dr C's report was of such "power" that
it had already determined the outcome, at least until a contrary report had been produced:
but it cannot be maintained that the case examiners failed to consider the role of Dr C's
report within the context of the regulatory framework of which it formed part.
[46]
Senior counsel for the petitioner also maintained that the case examiners failed to
consider the peculiar circumstances of this case, namely, the "stark choice" facing Dr C,
between, on the one hand, admitting that her colleagues at the Hospital had misdiagnosed
X's earlier condition resulting in damage from the side effects of prescribed medication, and,
on the other, the conclusion that X was the victim of FII. However, this analysis was not the
position put forward by the petitioner in his complaint. He stated, "Two things happened
concurrently with [X]'s recovery: [Her mother] was prevented from having unsupervised
contact with [X], and the medication prescribed to her by doctors at [the Hospital] was
stopped. One, both, or neither of these factors could have been a cause of the recovery..." (emphasis
supplied). In other words, the either/or position adopted in these judicial review
21
proceedings formed no part of the petitioner's complaint. Once again, the case examiners
can scarcely be criticised for not considering what was not suggested to them.
[47]
In any event, the expert did at least acknowledge that, "in keeping with FII
guidelines", Dr C had "considered the wider differential diagnosis in place of FII and
detailed these in her report". He is here referring to Dr C's later report which had been
requested by the Reporter. But even in her 26 March 2018 report, Dr C had considered and
provided a detailed account of the petitioner's theory that X's illnesses were attributable to
her medications. The case examiners clearly concluded, as the reasonable reader would
have understood, that Dr C had been candid about the petitioner's alternative explanation
for X's illness. Whether or not that gave rise to a need to instruct an independent expert
report would be a matter for the Reporter or the court to consider.
[48]
For all these reasons I would reject the petitioner's argument that the case examiners
failed to consider that Dr C had a conflict of interest requiring her either to exclude herself
from decision-making, or to seek independent, specialist advice before providing her
26 March 2018 report.
Consent
[49]
The petitioner's second ground of review is that the case examiners erred in law by
applying the wrong test to the question of consent. I agree with the Dean of Faculty that the
case of Montgomery does not apply to the present case. Montgomery clarified the existence of
the patient's right to decide whether or not to accept a proposed course of treatment, in
circumstances where alternative treatments were reasonably available. Since the right could
only be exercised on an informed basis, the patient in such circumstances required to be
advised of the risks involved in opting for the particular course of treatment or rejecting it
22
(McCulloch v Forth Valley Health Board 2021 SLT 695). Since the petitioner does not aver any
alternative course of treatment reasonably available to X, Montgomery has no application to
the circumstances of the present case.
[50]
Nor am I persuaded that the case examiners made any error of law when they
concluded that X's parents, by bringing her to the Hospital, had given consent to her
ongoing treatment. At the very least there would require to be averments of the specific
factual situation in which it might be said that implied consent to ongoing treatment ceased
to apply, or was withdrawn. The petition contains no such averments.
[51]
There is a suggestion in the petitioner's Note of Argument that the case examiners
"failed to consider" an allegation of a failure to provide X's parents with information to
enable them to give informed consent to the removal of the feeding tube. This appears to
relate to the decision, once feeding via the tube had been stopped, to close off the stoma with
a removable "button". In statement 9 of the petition, it is averred that, "Dr C did not inform
the petitioner ... that she would support foster care for [X] if her `button' was not removed
and the stoma surgically closed". It is unclear to me how precisely this averment is intended
to relate to the petitioner's complaint. If I have understood the original complaint correctly,
the removable button, precisely because it was removable, was seen by the medical team as
presenting a risk that X, if allowed to return home, could be subjected to further induced
injury. What the petitioner objected to was not being adequately informed that a permanent
surgical closing off of the stoma had been an available treatment option, which might have
allowed X to remain with the family rather than being taken into care. If this is a correct
understanding of the complaint, I do not consider it is adequately focussed in the
petitioner's pleaded case. It is not clearly set out in the petition itself, and insofar as it is set
out at all in the Note of Argument, it is said to be an allegation that the case examiners failed
23
to consider. However, the petitioner's case on the issue of consent is not based on a failure
to consider, but on the case examiners having applied the wrong test and erred in law, and I
have already rejected that argument.
[52]
Even if I were to entertain the argument as a "failure to consider" point, I would
have rejected it. At the foot of page 1 of their decision, the case examiners stated, "When
Dr [C] said that [X] could go home on 26 March and that there was a plan to remove her
feeding tube prior to discharge, Dr [C] allegedly did not provide [X]'s parents with any
information to enable them to give informed consent to this procedure". Standing that
specific acknowledgment of the alleged failure to obtain informed consent, I cannot accept
the argument that the case examiners failed to consider it.
[53]
The case examiners accepted that the allegations in the complaint were serious
enough to warrant action on Dr C's registration. That was inevitable given the allegations of
bad faith and actual bias. It is perhaps an open question whether it remains the case in
respect of the more limited allegations that formed the subject matter of the present
proceedings; in other words, whether either ground of review, even if it were well founded,
was sufficiently serious to warrant action on Dr C's registration. Probably that question
would have required to be considered afresh by the case examiners, had I been minded to
grant the orders sought, but since I was not addressed on it at the substantive hearing, I
would reserve my opinion on the matter.
Disposal
[54]
I shall sustain the respondent's first plea in law and dismiss the petition, reserving all
question of expenses.
24
[55]
At the substantive hearing, senior counsel for the petitioner moved the court to grant
an order to protect X's identity, in terms of section 46(1)(a) and (b) of the Children and
Young Persons (Scotland) Act 1937, the court having already made such an order, on an
interim basis. While this case was at avizandum, I was advised that the petitioner no longer
sought the order craved, since it had come to light that, prior to the interim order being
granted, substantial publicity had already been given to X's identity in connection with the
matters with which these proceedings are concerned, both nationally and internationally. In
light of that information, I recalled the interim order. However, while the reporting
restriction itself may no longer have been justified, I also took the view that X's welfare was
still a relevant consideration justifying the anonymisation of her identity in this opinion. I
have also sought to protect Dr C's identity, and the integrity of the respondent's own
complaints procedure, since whatever my decision in these judicial review proceedings,
publication would be a matter for the respondent, in accordance with its policy, and indeed
section 35B of the Medical Act 1983. I have therefore anonymised, in this opinion, all
references to the child, her parents, the registrant and the Hospital.
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