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How not to carry on an independent hospital

The Administrative Court has given judgment in an unsuccessful appeal by Dr David Waghorn against his conviction at City of Westminster Magistrates’ Court in June 2011 for carrying on an independent hospital without being registered.

The Care Standards Act 2000 was in force in March 2010 when Dr Waghorn was found by Care Quality Commission (CQC) inspectors performing a liposuction operation on a female patient in an unregistered basement of premises in Mayfair. CQC alleged that what he was doing amounted to carrying on an independent hospital without being registered in respect of it.

To do so was an offence under section 11(1) of the Act, which provided:

“Any person who carries on or manages an establishment or agency of any description without being registered under this Part in respect of it (as an establishment or, as the case may be, agency of that description) shall be guilty of an offence.”

CQC prosecuted the doctor. He pleaded not guilty but was convicted after a trial in the City of Westminster Magistrates’ Court, which imposed a fine on him of £2,500 (the maximum being £5,000) and awarded costs of £28,642.96.

Dr Waghorn appealed, using the procedure of ‘appeal by way of case stated’. This allows the High Court to review the way the magistrates’ court has applied the law to the facts. It is not a re-hearing of the whole case, as would have happened if the doctor had exercised his right of appeal to the Crown Court.

The magistrates’ court specified four questions for the opinion of the High Court, the first being whether a medical practitioner who undertakes a cosmetic surgical procedure at an independent hospital is deemed to have ‘carried on’ that independent hospital.

It was not disputed by Dr Waghorn that he performed cosmetic surgery in the basement room and that he was not registered under the Act to perform the procedure in the room, which the magistrates’ court found was an independent hospital within the definition in section 2(3) of the Act. Thus, the question was whether in doing so the doctor ‘carried on’ the hospital within the meaning of section 11(1).

The Judge found that Dr Waghorn was the sole clinician attached to that hospital on that day; he assumed overall responsibility for the surgery and for the patient’s welfare; he performed the surgery without assistance of any kind; he had brought in and used his own aspiration machine and other medical equipment, which he himself maintained; he intended to transport, store at his home and then dispose of all the clinical waste himself. He alone was responsible for the standard of care provided and for all the administration, including the completion of relevant documents, any medical notes and appropriate record keeping. He alone was accountable for the services and the standard of care provided.

The Judge accepted that the answer to the first question in the appeal would not inevitably be ‘yes’, if the practitioner could show that he or she held practising privileges, granted by a person who was carrying on the regulated activity. In the present case however there was no evidence that the doctor held practising privileges.

The second question was whether it is necessary for a medical practitioner to have an interest in the independent hospital in order to be deemed to have ‘carried on’ the hospital.

The Judge held that it was not necessary for a person to have either a proprietory interest in the establishment, such as a lease, or any non-proprietory interest, for example a licence.

The third question was whether the term ‘carrying on an establishment’ was deemed to encompass only those persons who are regarded as manager and/or owner of the particular establishment. The Judge answered that question also in the negative. She said there were important public policy reasons for not restricting the scope of the requirement to register to persons who own or manage the relevant establishment. There was a need for someone to be accountable for the activities taking place in an establishment. In the present case, that was Dr Waghorn.

The fourth and final question was whether the evidence as a whole in the case supported the finding that, at the time of the CQC inspection, Dr Waghorn was ‘carrying on’ that independent hospital. For the reasons already given, the Judge held that the evidence clearly supported that finding and that he was carrying on a hospital and was therefore guilty of an offence under section 11(1) of the Act.

The doctor’s appeal was dismissed and he was ordered to pay CQC’s costs of the appeal amounting to £10,734.25.

The Judge did not confine herself to narrow, technical points of law. One of the submissions Dr Waghorn made in the course of the appeal was that CQC’s decision to prosecute him had been a wholly unreasonable exercise of their powers, in circumstances where, as a lone medical practitioner conducting cosmetic surgery on a willing patient, in premises over which he had no control, he considered that he should not be required to register under the Act. The Judge did not accept this argument but said –

“In my view, however, it is precisely because he was in overall and sole charge of this entire process, in a room which is, in law, a hospital, that the requirement for him to register under the Act as a person ‘carrying on’ that hospital is important. Registration is required in order that there can be effective, regulatory supervision of medical services provided in independent hospitals, in such circumstances, in accordance with the purpose of this legislation to safeguard the welfare of the patients to whom those services are provided.”

Dr Waghorn requested the Judge to certify that the case involved a point of law of general public importance, so that he could appeal to the Supreme Court. She refused to do so, saying that it seemed to her the facts of the case were (and hopefully would remain) unusual and that there was nothing in the case that raised it to the status that she could certify a point of law of general public importance.

Of course any similar prosecution would in future be under the Health and Social Care Act 2008 but the Waghorn case suggests that the courts will come down hard on practitioners who carry on regulated activities without complying with the system of registration.

Stephen Janisch
t: 020 7227 6705
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