Ms Mallick has advised, represented and assisted a Consultant Haematologist in respect of a professional disciplinary at the Medical Practitioners Tribunal, whereby the GMC make a number of allegations arising out of her time working as a locum between the 19th August 2013 to the 28th October 2013. Ms Mallick had successfully represented the Consultant in an appeal before the Employment Appeal Tribunal in respect of two aspects of a public interest disclosure claim (concerning the failure of another Consultant, to diagnose correctly and to make certain medication available for an aged cancer patient) against the Isle of Wight NHS Trust. The matter has been remitted for a rehearing in January 2017.
The hearing before the MPT gives rise to a number of allegations ranging from whether the Consultant had suggested to a Lymphoma patient that a certain treatment plan involving a combination regimen was curative when it was extremely unlikely contrary to palliative treatment plan recommended by the Multi-disciplinary team, providing medication without efficacy data, asking for Bone Marrow Trephines to be sent to her rather than her colleague (the colleague had commenced an investigation in Myeloma rather than identifying Mastocytosis) and inappropriate behaviour.
The GMC rely on an expert, who although a Consultant Haematologist, having written a number of peer-reviewed papers, was no more experienced than Dr Brito-Bapabulle. In particular, it is argued that her recent post as the Clinical Director of Haematology, Oncology and Palliative care would result in a natural bias to palliative care. Dr Brito-Bapabulle has sought to demonstrate that the combination regimen would have allowed for 37% chance of success of the lymphoma and therefore on allowing a liberal interpretation of the word curative provides a chance of increasing the life of a Lymphoma patient. In respect of efficacy data of dosage amounts for a certain drug, the GMC expert suggests that the amount was not founded on any evidence base. Dr Brito-Bapabulle argues that she made a permissible clinical decision on dose having conferred with Glaxo-Smith Klein. In respect to an aspect of Dr Brito-Bapabulles’ behaviour to which an allegation is raised, the GMC expert concludes that it does not amount to a failure of clinical care.
Dr Brito-Bapabulle had applied for a postponement of the hearing at the start of the hearing to allow primarily, an expert to be allowed to give evidence on her behalf. She had been dissatisfied that the expert, a Consultant Haematology (with experience of largely Myeloid patients) was not suitably qualified to act as an expert in respect of the allegations she faced. The primary allegations focused on Lymphoma patients and she required the expertise of someone who was best experienced to give consideration of a new approach to the treatment of Lymphoma (Dr Brito-Bapabulle had relied on up to date research provided in American medical journals). This required conducting an appropriate investigation of research, experience and understanding of a Consultant Haematologist specialising in Lymphoma patients. The only person who could meet the required standard of expertise was the chair of the Lymphoma committee.
The MPT refused on the decision, relying in its reasons many of the reasons provided before commencement of proceedings by the case manager. In particular, it was argued that Dr Brito Bapabulle would not receive a fair hearing, in the absence of having her own expert to challenge the GMC expert. Dr Brito-Bapabulle had contacted Consultant Haematologist and Chair of the Lymphoma Committee, Dr Linch, who had indicated his willingness to provide support but could not until January 2017 due to personal commitments. The application was refused. The MPT relied on public interest, inconvenience caused to the GMC witnesses and the fact that Dr Brito-Bapabulle had months to obtain a suitable expert.
Miss Mallick advised that the best approach to take was not to Judicially review the decision or to obtain injunctive relief in a bid to halt proceedings but to continue cross-examination of the GMC witnesses and to apply once the GMC Expert had been challenged. Miss Mallick further advised that Dr Linch should be contacted to provide a preliminary view and his availability. Dr Linchs preliminary view has been that there has been no misconduct on the part of Dr Brito Bapabulle in respect of the GMC allegations. This had been forwarded to the MPT and he further stated that he would make himself available to attend to give evidence on behalf of the Dr Brito Bapabulle.
Miss Malick further advised that she obtain witness statements from the relative of the Lymphoma patient, who was best able to provide evidence as to what was discussed with the patient regarding the risks involved in the use of the combination regimen (of three drugs) and the chances that regimen would be curative. The witness has provided supporting evidence and is willing to provide oral evidence. This witness evidence further supports a patient witness, who provides on behalf of the GMC but states that Dr Brito Bapabulle had wanted to do her best to help patients.
The MPT has acceded to the request of an adjournment having initially refused earlier postponement applications. Dr Brito-Bapabulle is to be permitted to call Consultant and Leading Haematology authority for Lymphoma patients, Chair of the Lymphoma Committee, Dr Linch. He is to provide his report in late January 2017 to the GMC expert to establish grounds of a dispute between the experts.
The slant on the allegations put forward in the Newspaper Articles are yet to be confirmed by the GMC in its findings.
To read further articles on this case please visit The Times and The Telegraph.
Nabila Mallick is part of the Employment Group at No5 Chambers, to view Ms Maillicks profile please click here.
