Father of young child with stomach conditions fails in challenge of rejection of misconduct complaint

A petition by the father of a young girl with complex medical problems against a decision of the General Medical Council not to sanction a doctor whose report resulted in their child being temporarily removed from their care has been rejected by the Outer House of the Court of Session.

The daughter of the petitioner, AB, suffered from abnormal bouts of vomiting and low blood sugar from the age of 3 months, later developing problems keeping down food. He argued that the GMC ought to have sanctioned Dr C and sought reduction of the respondent’s decision not to review their decision not to take action.

The petition was heard by Lord Harrower. The petitioner was represented by J Scott QC and Anderson, advocate, and the respondent was represented by the Dean of the Faculty of AdvocatesRoddy Dunlop QC.

Taken into care

In 2018 the petitioner’s daughter, X, then aged 2, was readmitted to hospital with severe dehydration, vomiting, and diarrhoea. Members of the medical team treating X began to suspect that her illness might have been induced by the deliberate induction of an osmotically active substance through an endoscopic tube that had previously been inserted into her intestine. Her parents maintained that the illnesses were a side effect of unnecessary medication.

One of the doctors who treated X co-authored a report which supported the induced illness conclusion after she had been in hospital for a few weeks with no unsupervised access from her mother. This led the local authority to initiate a child protection investigation, as a result of which X was temporarily taken into care. She was later returned to her parents after independent expert reports cast doubt on Dr C’s original findings.

The petitioner subsequently made a complaint to the GMC regarding Dr C’s fitness to practice. The GMC, after conducting its own investigation and obtaining its own expert report, ultimately decided not to take further action against Dr C’s registration. This decision was communicated to the petitioner in February 2020, with a request for review rejected on 1 April 2020. The petitioner sought reduction of the latter decision.

It was argued by the petitioner that in the circumstances of this case X’s illness must have been the result either of her mother’s actions or unnecessary medications. In writing her report that blamed X’s mother, Dr C by necessity exonerated herself and therefore had a conflict of interest such that she should have excluded herself from writing it. Her failure to do amounted to misconduct or deficient professional performance.

Senior counsel for the petitioner submitted that Dr C had been acting in the role of an expert when she was not in a position to give independent and impartial advice. She owed a duty to X to seek specialist advice before providing her report and had ample time to do so between X’s admission and the publication of the report.

Neither barred nor excused

In his opinion, Lord Harrower said of the conflict of interest argument: “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 team and the local authority.”

He continued: “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.”

On the suggestion that Dr C was acting as an expert, he said: “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’.”

Lord Harrower concluded: “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.”

For these reasons, the petition was refused. A secondary argument that the respondent’s case examiners had erroneously concluded that X’s parents had consented to her ongoing treatment was also rejected.

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