Medical Journalist Oncall - Note Pad

I found out that the lives of 90,000 doctors in India were placed on ice in the most unfair manner imaginable. In this article I outline a medical education disaster that is evolving in India. To read the article click here. With thanks to Baby Doc for his help on this piece. 

Following the shocking admission from the former Health Minister, I was compelled to write this piece for IBTL. Thankfully, our editor is a bit of a rebel so he agreed to publish it. Click here to access the article and please do leave a comment on IBTL. With thanks to all the doctors in India who kindly helped me with this piece. I had to go from knowing zero about this matter to writing about it in about 1.5 hours. There will be a follow-up.

MISS COLLIER (barrister representing the GMC): That in itself certainly would not be enough.

JUDGE HARRIS: It is like a totalitarian regime: anybody who criticises it is said to be prima facie mentally ill – what used to happen in Russia.

MISS COLLIER: My Lord, that is very far from the circumstances of this case.

JUDGE HARRIS: Of course it is…

Extract from the challenge against the GMC Registrar for failure to consider a doctor’s Article 10 rights. R v GMC Ex Parte Pal 2009. 

Collins J 

“Mr Garlick sought to raise an argument — one of the grounds upon which he was given permission — relating to Article 10 of the European Convention on Human Rights. Of course, freedom of speech is important, but the regulation of medical practitioners and professionals in general is something which is clearly in accordance with the law in this country and is necessary for the protection of the public. There can be no question that regulation by the GMC in circumstance such as this is proportionate and thus would mean that there was no breach of the Article 10 rights” 

Translating this - it means the GMC can investigate using the Medical Act and it is lawful. Article 10 doesn’t need to be considered and nor is it relevant. Their action is said to be automatically proportionate ie in the public interest. 

Counsel for the GMC and the GMC’s past and current position on Article 8 - Right to Privacy. This is in Pal v GMC 2004. From the transcripts. She discusses the balance between the role of the regulator and the rights of the individual. 

MISS COLLIER:  So if I could go back to Article 8.  At the end of the hearing yesterday I had referred to the authority of Holder v The Law Society, that being authority for the proposition that the court will pay due deference to a specialist regulator when considering whether there has been a breach under Article 8.

Could I ask you to go to tab 23 of the first authorities bundle which is in volume 2.  If one goes to paragraph 30 at page 11, Carnwath LJ, considering the margin of discretion or the margin of appreciation or area of judgment, said:

“With respect to the sum as to…[one doesn’t need to go into the details of what that submission was]…and to the judge, this approach ignores the all-important factor when considering issues of proportionality of the margin of appreciation or discretion or area of judgment allowed to the legislator and the decision-maker and the review of the principles in Roth.  This aspect was not mentioned by the judge although it was referred to in written submissions.”

Then if one goes on to paragraph 31:

“In the present case the margin arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case.  In the former case, the only remedy may be a declaration of incompatibility.  The intervention procedure now contained in the Solicitors Act is long established, dating back to 1941 in its earliest form, and has been reviewed by the court on many occasions.  As appears from the cases to which I have referred, it has been recognised as draconian in some respects but necessary for the protection of the public interest, and the courts have repeatedly emphasised the balancing exercise which it involves.  I see no material difference between this and the fair balance which Article 1 requires.  Nor do I see any reason why the Human Rights Act 1998 should be thought to have changed anything.”

He then finds that there are no arguable grounds for thinking that the margin allowed to the legislature has been crossed, and goes on at paragraph 32 to consider the margin allowed to the decision-maker.

“Having reached that point, the Law Society’s actions must be judged by reference to the procedure laid down by parliament, not to some hypothetical alternative procedure.”

Then at 33 one gets to the core of it:

“The Law Society also has a margin of discretion but the court has a separate duty to consider the merits of the case in accordance with the principles I have discussed while paying due regard, as Sedley LJ said in Giles, to the views of the Law Society as the relevant professional body.  As I have said, this meets any fair balance requirement.”

In that case, the judge had found that the Society’s intervention was entirely justified.  

So that authority makes good my submission that the court will pay due deference to the views of a specialist regulator.  Therefore when considering justification and whether there is a real prospect of success, one has to take into account the degree of deference that the court will take when deciding whether the interference was justified.

(FPD/SG/2002/0460) Extract from a GMC letter to the complainant.

“I note from your correspondence that you are concerned about the comments that Dr Pal has made on the website NHS Exposed about the treatment the NHS provides patients. In January 1999 the Standards Committee of the GMC met to consider issues involving the behaviour of doctors who comment in the media. It was their view that the GMC should not attempt to curtail doctors’ rights to express their personal opinions. Doctors, like anyone else commenting in the media, are subject to the same constraints imposed by media regulatory bodies, and the libel laws. Furthermore, the committee considered that the professionals reputation depends principally on the standards of care and conduct provided by doctors to their patients, and not on personal opinions as put forward in published letters or articles. Whilst you may disagree with the comments Dr Pal has made, we cannot take action against a doctor who is expressing a personal opinion”.

Dear Dr,

I cordially invite you or a representative of your Department to participate or attend a Discussion Forum of the World Thyroid Register (WTR) at 10.30am on Friday 27^th April 2012 at the Conference Suite of the Ardencote Manor Hotel & Country Club, The Cumsey, Lye Green Road, Claverdon, Warwickshire, CV35 8LT, Tel : 01926 843 111and Fax: 01926 842 646. There is no charge for attendance or participation.

We have enclosed a provisional agendum which will be finalised when we have a more precise list of participants and attendees.

You may be aware that the WTR seeks debate and resolution of three outstanding issues in the care of patients with hypothyroidism. These are:

1. The reliability of thyroid chemistry in the diagnosis of hypothyroidism.
2. The usefulness of thyroid chemistry in deciding levels of thyroid replacement.
3. Failure of supply of useful thyroid medicaments - particularly li-iodothyronine  (T3) and desiccated thyroid extracts - to patients where there is reasonable indication of their potential usefulness. This issue will not be discussed at this Forum as it is presently a focus of investigation and debate by Thyroid UK and Thyroid Patient Advocacy.

Yours sincerely,

Gordon R B Skinner  MD, DSc, FRCOG, FRCPath

Contact afshan@vri.org.uk

Of course, everyone should know that doctors have no free speech. Dr Zorro, my favourite medical blogger has this to say - see link