R (on the application of El-Baroudy v General Medical Council [2013] EWHC 2894 (Admin).

The examination resulted in D failing to realise that AR was in fact unconscious rather than asleep and needed to be immediately transferred to hospital. Such was the lack of care that Dr Callaghan, an expert in forensic medicine, characterised it as ‘dangerous and tantamount to non-existent’. Within 3 hours, AR was found dead in his cell. However, there was no allegation that D’s actions, or inactions, caused or contributed to the death.

It was held on appeal that;

‘there was no allegation that the misconduct either caused death or caused the loss of any realistic chance of survival. Had the GMC wished to pursue those allegations, which would have been highly material, then in my judgement they should have been clearly stated in the charges and, in the absence of being stated, evidence directed to those issues should not have been led and the Panel should not in any way have based a judgement as to whether the fitness to practise was impaired or as to sanction on any question of causation, causation being defined as causing death or indeed causing the loss of any real chance of survival’ [14]

Evidence was though led as to the issue of causation by a Consultant Forensic Pathologist who made various statements as to the effect of the failures. Having considered the wording of the Panel’s decision it was held that the Panel did allow such considerations influence their decision.

It was said that ‘it is obviously a matter of substantial importance in considering the gravity of the case to consider outcomes. If the GMC had wanted to allege such an outcome, it should have been alleged specifically. Not being so, the evidence should not have been led’.

‘I am persuaded in this case that the allowing of evidence of causation to be given and the taking into account of evidence of causation in the way I am satisfied it was, both in relation to impairment and in relation to sanction, amounted to a serious procedural irregularity that renders the result on impairment and on sanction unjust.’.

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