NEWTON HEARINGS IN ALL BUT NAME? – PSA v GMC & Professor Lingam  EWHC 967
Many regulated professionals facing allegations in the course of their professional lives admit that things may have gone wrong. Professor Lingam qualified with a diploma of Licentiate of the Royal College of Physicians from the Royal College of Physicians of Edinburgh in 1974. He worked for over 30 years in the NHS, retiring in 2004. He was also the medical director of an entity known as the Medical Express at the relevant time. He was accused of improper prescribing. By the time of the Tribunal hearing, he admitted every one of the allegations and that they amounted to misconduct.
Professor Lingam faced allegations that he had completed the prescriptions at the request of a company called Kool Pharma Ltd. The charges alleged that Professor Lingam had been provided with information by the Pharmacy that was insufficient to allow safe prescribing. It did not contain the patient’s gender, contact details, GP or specialist medical records, community GP contact details, proof of identity, medical history, prescribed medication and/or over-the-counter medication, allergies etc. It was alleged and accepted that Professor Lingam had also failed to identify certain “red flags” including that overseas consultants requested medication to be written for patients who lived in a different country from themselves.
The admitted allegations included prescribing medications in inappropriately large quantities without knowing what they were for or the monitoring arrangements that they required. He was ignorant as to who was collecting them, or where they were being sent. He also admitted acting outside his level of competence by prescribing a medication in a wide variety of specialist areas. It was also admitted and found proved that this could have led to very serious consequences indeed. None of the allegations asserted a motive for the behaviours. Professor Lingam admitted in his evidence that he had been reckless although it had not been alleged in terms that his disregard of GMC Guidance was reckless. His evidence was that he was aware of and had looked at the Guidance before acting as he did.
The GMC presented its case on the basis that Kool Pharma had misrepresented the purpose of the prescriptions to Professor Lingham. In giving evidence, Professor Lingham stated that he had written the prescriptions on the understanding that they were intended for patients in poor countries in Africa.
Having heard all the evidence including Professor Lingham’s acceptance of both misconduct and impairment, the Tribunal imposed Conditions on his registration. This sanction was appealed by the Professional Standards Authority who stated that the Tribunal had not properly grappled with the seriousness of the prescribing of dangerous medications in vast quantities where the patients had not been examined or assessed.
Mrs Justice Foster DBE agreed that the sanction imposed was wrong and remitted the case back to a new Tribunal for reconsideration. In doing so she made interesting and important observations at §76-81 about how disputes of fact should be dealt with when the overall allegations are admitted.
Firstly, she stressed the importance of Tribunals engaging fully with the facts to understand context, character and seriousness of allegations when the facts have not been disputed and the full evidence therefore not heard in the same manner as it is canvassed when the allegations are in dispute. Foster J stated that in such cases the presenting officer must open the facts, but the Tribunal also has a duty to fully engage with the evidence and any lack of clarity should be resolved by the Tribunal where possible.
At §79 of the judgment Foster J states “A Panel should feel bold, where the facts have been opened only, (not canvassed thoroughly in evidence), to resolve any material issues they have by questioning as far as they need to do so, to clarify the central issues arising”. She went on to compare such inquiry to that available in the criminal jurisdiction pursuant to R v Newton 1982 77 Cr App R 13, albeit commenting that the criminal process is far removed from the regulation of professionals. In Newton hearings witnesses, not limited to the defendant, can be called to resolve factual disputes.
Foster J set out that having a clear understanding of the factual matrix is relevant in order to give cogent and informative reasons for decisions on sanctions. She stated that this process may need to be accomplished by the Panel itself in circumstances where allegations have been accepted and the case presenter does not fully explore the evidence through cross examination.
Thus, at first blush, it may seem that Foster J envisaged a new process to be adopted by Tribunals in circumstances where a registrant accepts the allegation but not all of the underlying facts. However, this is neither unhelpful to Registrants nor new. It has always been the case that a registrant who accepts an allegation but not all of the underlying facts may give evidence on those which they accept and those which they dispute and be exposed both to cross examination and questions from the Tribunal. Moreover, there has always been an opportunity for the Case Presenter and the defence to agree a series of admitted facts in advance of the hearing. Perhaps what went wrong in this case and was of concern to Foster J is that the Tribunal failed to specifically state those facts which they accepted and formed the basis of their decision on sanction.