[2015] EWHC 854 (QB) 2015 WL

Transcription

1 Dr Saima Alam v The General Medical Council Case No: CO/4949/2014 High Court of Justice Queen's Bench Division Administrative Court 27 March 2015 [2015] EWHC 854 (QB) 2015 WL Before: Mr Justice Morgan Date: 27/03/2015 Hearing date: 24 March 2015 Representation Andrew Hockton (instructed by RadcliffesLeBrasseur ) for the Appellant. Simon Phillips QC (instructed by GMC Legal ) for the Respondent. Approved Judgment Mr Justice Morgan: Introduction 1 This is an appeal by Dr Alam against the decision dated 28 September 2014 of the Fitness to Practise Panel ( the panel ) of the Medical Practitioners' Tribunal Service of the General Medical Council ( the GMC ) to direct that Dr Alam's name be erased from the medical register. 2 Dr Alam was born in In 1993 she obtained her primary medical qualification from the University of Peshawar in Pakistan. She was granted full registration with the GMC on 20 January She worked at Guys and St Thomas' NHS Foundation Trust ( the Trust ) and, later, the Royal Brompton Hospital. 3 In 2011 Dr Alam was investigated by the relevant persons at the GMC and a number of allegations against her were then referred to the panel. The panel conducted a hearing lasting 31 days in January, May, June and September 2014 and, on 28 September 2014, decided that, pursuant to section 35D(2)(a) of the Medical Act 1983, Dr Alam's name should be erased from the register by reason of impairment of her fitness to practise; the impairment in question was by reason of misconduct within section 35C(2)(a) of the Medical Act Dr Alam duly appealed to the High Court against the decision of the panel. The appeal is confined to the part of the panel's decision which determined that the appropriate sanction was erasure from the register. The appeal is brought under section 40 of the Medical Act On such an appeal, the court may dismiss the appeal, or may allow the appeal and quash the panel's direction as to sanction and substitute any other direction as to sanction which could have been given by the panel: see section 40(7). The appeal is by way of a rehearing: PD 52D, para. 19.1(2). The court will allow an appeal where the decision of the panel was wrong : CPR 52.11(3)(a). The alternative ground for allowing an appeal, namely procedural irregularity pursuant to CPR 52.11(3)(b), is not relied on in this case. 5 On this appeal, Mr Hockton appeared on behalf of Dr Alam and Mr Phillips QC appeared on behalf of the GMC. I am grateful to them for their assistance. The decision of the panel

2 6 The decision of the panel is in the form of a composite document collecting together the various decisions made by the panel in this case and announced at different stages during the 31 day hearing of the matter. 7 The composite decision starts by setting out some 20 paragraphs which quote the allegations made against Dr. Alam and indicating those allegations which were admitted and those which were ultimately found proved: see pages 1 to 7. 8 The decision then addressed an application which had been made by counsel then instructed for Dr Alam that there was no case to answer in relation to a large number of the allegations which had not been admitted. The decision summarised the submissions made on behalf of Dr Alam and the GMC. The GMC formally withdrew a small number of the allegations. The panel then gave reasons for its conclusions that Dr Alam had a case to answer in relation to the other allegations. This part of the decision is from pages 7 to Between pages 18 and 41, the panel considered a large number of factual matters and made its findings of fact, dealing separately with the individual allegations. Amongst its findings of fact were the following: (1) in 2008, Dr Alam was referred to the GMC by the Medical Board of Queensland, Australia as she had been refused registration in Queensland because she had knowingly used false documentation to seek registration ; (2) in 2009, the GMC investigated the reference in (1) above, decided to take no further action but advised Dr Alam to ensure that she adhered to her obligations under paragraph 65 of Good Medical Practice, 2006 Edition, which stressed the importance of accuracy in documents she wrote or signed; (3) Dr Alam had made certain limited admissions to the effect that, in the period 2009 to 2011, five documents which related to her contained information which was not correct; these documents included an application for a specialist training post and three CVs; the inaccuracies related to her date of birth, her qualifications, a postgraduate study award and previous employment details; (4) she was referred to the GMC on 1 June 2011 by the human resources department at the Trust in relation to discrepancies in information she had provided regarding her date of birth and qualification dates; (5) she attended a disciplinary hearing convened by the Trust, the outcome of which was that she received a final written warning which was to remain on her file for 12 months; (6) the GMC's case before the panel centred on the allegation that she had knowingly provided false information in the documents and that it was misleading and dishonest for her to have done so; (7) the Panel recorded the legal advice which it had been given by its legal assessor; on this appeal, it was not suggested that any of that advice was incorrect; in particular, the legal assessor had advised the panel that it was entitled to draw inferences based upon the evidence but it should not engage in speculation; the legal assessor also referred to Webb v Solicitors Regulation Authority [2013] EWHC

3 2078 (Admin) as authority for the proposition that an absence of motive for acting in a particular way did not preclude a finding of dishonesty; (8) the panel discussed the evidence given by nine witnesses called by the GMC; the panel noted that Dr Alam had alleged collusion between a number of GMC witnesses but the panel found no evidence of collusion; (9) the panel assessed the evidence given by Dr Alam; the panel did not find her to be a credible witness for three principal reasons, which were: (i) she gave unbelievable explanations; (ii) she failed to call corroborative evidence; and (iii) because she had previously been refused registration by the Queensland Medical Board on account of providing fraudulent information ; (10) the panel was unimpressed by Dr Alam's evidence and stated that she blamed others, or said that she could not recall events or denied that they had taken place, accepted no responsibility for her actions and gave inconsistent evidence; (11) some of Dr Alam's evidence was fantastical and improbable ; (12) the panel concluded that Dr Alam had lied throughout [her] evidence under oath ; (13) the panel then set out its detailed findings in relation to each allegation; it found that Dr Alam knew that statements she had made were untrue; in relation to the application for a specialist training post, as it was her third attempt to obtain that post, she wanted to present herself in the best possible light; (14) the panel then stated as follows: The Panel also noted that [counsel then appearing for Dr Alam] submitted that the GMC had not identified a motive nor any gain from your actions. The Panel has not identified a motive for your actions and is not prepared to speculate as to why you acted in the way you did. Neither has the Panel identified any gain for you arising from your actions. The Panel has taken account of the case of Webb where it was stated that an absence of evidence of motive did not preclude a finding of dishonesty. The Panel is clear, however, that all the dates on the application form flow neatly from the date of birth that you chose to use on this form. (15) Dr Alam was dishonest when she provided knowingly false information. 10 Having made its findings of fact on the allegations, the panel indicated that it could not immediately deal with the issue as to whether Dr Alam's fitness to practise was impaired and it therefore considered whether to make an interim order suspending Dr Alam in advance of a further hearing as to that issue; the panel then gave its reasons for holding that it was in the public interest to impose an interim order of suspension; these reasons included its view that it had made a series of findings involving dishonesty over a significant period of time. 11 At pages 43 to 49 of its composite decision, the panel considered whether Dr Alam's fitness to practise was impaired. The panel first considered whether her conduct amounted to misconduct. The panel referred to the 2006 edition of Good Medical Practice guidelines and quoted from a number of paragraphs stressing the need for probity, honesty, trustworthiness and avoiding false and misleading

4 statements. The panel then referred to the lies which Dr Alam had told in the various documents, the subject of the allegations, and the fact that she did this after she had been advised in 2009 to avoid false and misleading information. Dr Alam's conduct was held to be serious misconduct. On the issue of impairment, the panel noted that she had denied the allegations and had initially offered no apology; a statement put in that day offered an apology for an evasive manner during the hearing. The panel thought that the alleged insight into her condition was selfregarding and did not embrace the public interest or the reputation of the profession; she continued to blame others rather than accept responsibility herself. The panel was not satisfied that Dr Alam would not repeat her misconduct. The panel thought that honesty was at the heart of medical professionalism. Dishonesty could erode public confidence in the profession and could significantly undermine proper standards of conduct. The panel stated that it had an obligation to uphold the wider public interest. The panel held that Dr Alam's fitness to practise was currently impaired by reason of her misconduct. 12 The panel then turned to consider what sanction was appropriate. Its consideration of this question can be summarised as follows: (1) the panel stated that it reviewed all of the evidence in the case and a number of testimonials submitted by Dr Alam; (2) it summarised the submissions of counsel then appearing for the GMC who referred to the Indicative Sanctions Guidance; counsel submitted that the sanction should be at least suspension and that the panel should consider erasure; (3) it also summarised the submissions of counsel then appearing for Dr Alam; she referred to the positive testimonials which had been submitted; counsel stated that Dr Alam now recognised that she had personality problems and had sought counselling; counsel stressed the effect of a sanction on Dr Alam; she also acknowledged that in view of the very serious findings of dishonesty the decision as to sanction would be between suspension and erasure; she submitted that the appropriate sanction would be suspension for six months; (4) it then gave its reasons for its decision as to sanction; it stated that it had formed its own judgment, it had applied the principle of proportionality weighing the public interest with Dr Alam's interests and it had considered the guidelines in the Indicative Sanctions Guidance; (5) it stated that it had an overriding duty to act in the public interest which included the protection of patients, the maintenance of public confidence in the medical profession and the upholding of proper standards of behaviour; it recognised that the purpose of any sanction was not to be punitive although a sanction might have a punitive effect; (6) it briefly discussed the options of taking no action, imposing conditions and suspension; (7) it recognised the mitigating factor that Dr Alam was clearly an excellent doctor held in high regard by [her] colleagues ; there would be a loss if she were not able to practise her profession;

5 (8) it referred to aggravating factors which were: (i) the repetition of misconduct over a considerable period of time; (ii) the misconduct occurred after the advice given by the GMC following the investigation into the matters involving the Queensland Medical Council; (iii) the misconduct was repeated and prolonged; (iv) the stance taken by Dr Alam at the hearing and the repetition of lies ; (v) the fact that even in the submissions made in relation to impairment and sanction, Dr Alam maintained that she had not been dishonest; (9) it considered whether Dr Alam showed insight into the matters which had been found proven; it concluded that she did not have such insight; the panel said that it saw evidence of harmful, deep seated personality or attitudinal problems on the part of Dr Alam and it referred to the evidence it relied on for this comment; (10) it concluded that suspension would not be an effective deterrent against a repetition of the misconduct; (11) it concluded that the misconduct was not just unacceptable because of the accompanying lack of insight and recognition of fault but also because it was fundamentally incompatible with Dr Alam's continued medical registration; (12) it referred to paragraph 82 of the Indicative Sanctions Guidance and held that there was: (i) a particularly serious departure from the principles set out in Good Medical Practice and behaviour fundamentally incompatible with being a doctor; (ii) a reckless disregard for the principles set out in Good Medical Practice and/or patient safety; and (iii) a persistent lack of insight into the seriousness of the conduct or its consequences; (13) it concluded: All these factors are present in your case. Integrity and honesty is at the heart of the public's trust in a doctor and the medical profession as a whole. Whilst there has been no evidence of any harm caused to patients the Panel has grave concerns about a doctor who is capable of persistently lying to the extent and over the period that you have. Furthermore, the Panel is satisfied that in the circumstances of this case the reputation of the profession is seriously damaged by the nature and extent of your behaviour. The Panel has concluded that your conduct is so serious that protection of the public and the wider public interest can only be achieved by erasure. It has therefore determined to erase your name from the medical register. (14) finally, the panel concluded that Dr Alam's registration should be suspended with immediate effect. The submissions on this appeal 13 Mr Hockton, on behalf of Dr Alam, accepted the panel's findings as to misconduct and impairment. He therefore accepted the panel's findings as to dishonesty on the part of Dr Alam. However, he submitted that the sanction of erasure was disproportionate and wrong. He submitted that the sanction in this case, if upheld on appeal, would effectively end Dr Alam's career; Dr Alam is now 42 years old. This comment was not contradicted by the GMC. Mr Hockton said that the panel failed to pay any or any sufficient regard to:

6 (1) Dr Alam's hitherto good character; (2) the testimonial evidence that she was a good doctor; (3) the absence of any patient complaint or patient harm; (4) the fact that the conduct found proved involved no advantage or gain to Dr Alam; (5) the fact that the misleading information did not influence and had no material impact on those to whom it was provided; (6) the difficulties generated by the fact that official documentation concerning matters such as Dr Alam's date of birth was inaccurate; (7) the fact that prior to the hearing, Dr Alam had corrected the relevant inaccuracies; (8) the public interest in allowing otherwise competent doctors to practise; (9) the fact that Dr Alam had already been subject to internal disciplinary proceedings in relation to the conduct in question; (10) the fact that the conduct was remediable and had been remedied. 14 Mr Hockton stressed the comment made by the panel as to motive and gain, which I have quoted at paragraph 9(14) above. He submitted that since the misleading information had not been provided with a view to Dr Alam gaining an advantage, the dishonesty in this case was markedly less serious than other forms of dishonesty. The absence of a fraudulent motive was said to be a significant mitigating factor. 15 Mr Hockton further submitted that the panel should not have formed a view as to whether Dr Alam had personality or attitudinal problems because the panel did not have the necessary expertise to form that assessment and it had not heard any relevant expert evidence on that subject. The panel was therefore wrong to be influenced by the view it had inappropriately formed. 16 Mr Hockton also criticised the panel's statement, which I have quoted in paragraph 12(13) above, that protection of the public and the wider public interest can only be achieved by erasure. He submitted that there had been no issue as to the protection of the public as it had never been suggested that there was any question as to patient safety. 17 Mr Hockton also addressed the question as to the circumstances in which the court should show a degree of deference to the assessments made by the panel and the extent of any such deference. He reminded me of the well known cases in this area of Ghosh v General Medical Council [2001] 1 WLR 1915 at [33] [34] (citing Evans v General Medical Council, unreported, 19 November 1984, in relation to reviewing the sanctions imposed by the GMC), Preiss v General Dental Council [2001] 1 WLR 1926 at [27], Meadow v General Medical Council [2007] QB 462 at [120], Raschid and Fatnani v General Medical Council [2007] 1 WLR 1460 at [18] [20], Yeong v General Medical Council [2010] 1 WLR 548 at [58] (referring to the panel having a margin of judgment to decide on sanction ) and Hussain v General Medical Council [2014] EWCA Civ 2246 at [47] [48].

7 18 Mr Phillips QC, on behalf of the GMC, took me in detail to the allegations as to Dr Alam's dishonesty in knowingly providing false information on various occasions and to the panel's findings in those respects. He addressed me as to the correct interpretation of the panel's comment as to motive and gain which I have quoted at paragraph 9(14) above. He drew attention to the panel's comment that when Dr Alam applied for the third time for a specialist training post she wanted to present [herself] in the best possible light. He also referred to Dr Alam's statement, which she submitted for the purpose of making submissions to the panel following notification of the panel's findings of fact. In that statement, she referred to her low self esteem and her desire not to miss out on opportunities by failing to advertise her full potential on application forms. 19 Mr Phillips addressed me on the guidelines as to Good Medical Practice which were in force at the time of the misconduct in this case and he also took me to the Indicative Sanctions Guidance. 20 Mr Phillips then referred to the panel's assessment of Dr Alam's conduct in connection with, and at, the hearing before the panel and, in particular, its finding that she had lied throughout her evidence. He cited Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin) where it was conceded that when a fitness to practise panel comes to consider the appropriate sanction, it is entitled to take account of what had been revealed about the doctor from his or her conduct at the hearing. The court in that case went on to hold that such matters were also potentially relevant when considering the question of impairment. Lying on oath could be relevant to the panel's assessments as to impairment and as to sanction. In that case, permission to appeal to the Court of Appeal was refused by Hooper LJ: see [2009] EWCA Civ Mr Phillips also referred to Gupta v General Medical Council [2002] 1 WLR 1691, which has been repeatedly followed and applied, which held that in a case like the present, the panel is not primarily concerned with the punishment of the individual practitioner but rather with the protection of the public interest and public confidence in, and the reputation of, the medical profession. 22 Finally, Mr Phillips addressed the particular matters relied upon by Mr Hockton which, it had been argued, had been given inadequate weight by the panel. Discussion and conclusions 23 This appeal is limited to an appeal against the sanction imposed by the panel. There is no challenge to the panel's findings as to misconduct, dishonesty and impairment. The question before the panel, and now before the court, is as to the appropriateness of the various possible sanctions and, in particular, the sanction of erasure, as a response to the finding that Dr Alam's fitness to practise was impaired. This question necessarily involves an assessment of the nature of the impairment and the degree of that impairment. For the purposes of the appeal, I will proceed on the basis of the findings of the panel as to the nature of, and the degree of, the impairment. 24 On behalf of Dr Alam, Mr Hockton skilfully placed great weight on the panel's comment as to motive and gain, which I have quoted at paragraph 9(14) above. He

8 sought to suggest that the panel had made a finding that Dr Alam had no motive for her actions and, in particular, did not have the motive of gaining an advantage thereby. He then developed his submission that this was a case where the dishonesty found by the panel was somewhat technical, and not serious, because it was not motivated by an attempt to gain an advantage. 25 On reading the panel's decision, I was initially puzzled by the panel's comments as to motive, possibly because I had been influenced by Mr Hockton's skeleton argument which suggested that this was a case where an attempt to gain an advantage was not the motive. I was particularly puzzled because the panel made clear and firm findings that Dr Alam had been consistently dishonest and because the usual motive for making knowingly false statements in a job application or a CV is to gain an advantage thereby. 26 I consider that the panel's comments as to motive need to be read carefully in the context of the decision as a whole. The panel held that Dr Alam knowingly made false statements and that she was dishonest when she did so. The panel's comments about motive appear to have been influenced by two considerations. The first was the legal advice it received, based on Webb, that an absence of evidence of motive did not preclude a finding of dishonesty. The second was that the legal assessor had warned the panel that whilst it could draw inferences, it should not speculate as to matters on which there was no evidence. 27 I consider that the panel was somewhat cautious in declining to make a finding as to motive. For myself, I would have thought that the motive for the false statements in this case was obvious. The obvious inference was that Dr Alam hoped thereby to improve her prospects of success in connection with the relevant procedure, whether it was a job application or an appraisal. 28 However, in view of the panel's comment about motive, I will proceed for the purposes of this appeal on the basis that her motive has not been established. That is as far as the panel went. It did not go so far as to make a positive finding that Dr Alam had no motive when she knowingly made false statements. The panel made clear findings that Dr Alam was dishonest. It regarded the dishonesty as serious. It would not be right for the court to hold that the dishonesty was not serious just because the panel, for the reasons which I have explained, was somewhat cautious about attributing a motive to Dr Alam. 29 The panel also held that Dr Alam did not in fact gain an advantage by reason of her knowingly false statements. I fully accept that finding of the panel but I do not think this finding should be given any great weight. I would not give it much weight in view of the panel's findings that Dr Alam was guilty of serious dishonesty even though she did not in the end gain as a result. 30 The panel was criticised for making a finding, which it then took into account, as to Dr Alam's personality or attitudinal problems. It was said that the panel had no expertise in the area of personality problems and it had no expert evidence to assist it. I do not accept that criticism. It is clear that in the context of selecting the appropriate sanction, the panel should consider the doctor's insight into the misconduct which has been found. Paragraph 34 of Indicative Sanctions Guidance explains the relevance of the doctor having, or not having, insight into the problem

9 and accepting, or not accepting, that he or she has done something wrong. The same paragraph refers to the panel assessing this question. I consider that the panel in this case did not need expert evidence to assist it with its assessment. It was well able to assess Dr Alam's attitude and her lack of insight. It was entitled to make its findings in this respect and there is no other basis on which its findings can be challenged on this appeal. 31 The panel was also criticised for its reference to the protection of the public when justifying its decision on erasure. Mr Hockton submitted that there was no evidence that Dr Alam had exposed patients to risk. The panel acknowledged that there was no doubt as to Dr Alam's clinical abilities. The panel's reference to the protection of the public is explained by its earlier statement that it had grave concerns about a doctor who is capable of persistently lying to the extent and over the period that you have. I consider that this statement was justified and was a proper explanation for the panel's later reference to the protection of the public. 32 It was said that the panel failed to give adequate weight to the matters listed in paragraph 13 above. It cannot be said that the panel left those matters out of account. This is a case where the panel considered the relevant matters, decided what weight should be given to them and took them into account along with other matters which, in the view of the panel, brought the scales down in favour of erasure. In any case, it is now for the court to assess the weight to be given to the relevant matters although the court should only set aside the panel's sanction of erasure if the court is persuaded that that sanction was wrong. 33 When considering what should be the appropriate sanction, the court must have regard to the findings of the panel as to misconduct, impairment and dishonesty. It must also have regard to the facts which are now stressed on behalf of Dr Alam. Further, it must have regard to the consideration that the assessment is not an assessment of how Dr Alam should be punished. The assessment relates to the level of response to the proven impairment which is appropriate in the public interest and in the interests of public confidence in the medical profession. 34 I am assisted by the guidance in paragraph 82 of the Indicative Sanctions Guidance which states that erasure may well be appropriate where the conduct involves any of the following: (1) a particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor; (2) dishonesty, especially where persistent and/or covered up; (3) persistent lack of insight into the seriousness of actions or consequences; and Paragraph 111 of that Guidance adds that dishonesty, especially where persistent and/or covered up, is likely to result in erasure. 35 I also note the following remarks of Mitting J in Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin) : These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty, the balance ordinarily can be expected to fall

10 down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty. 36 Having regard to the matters which I have described above, I consider that the panel's decision to impose the sanction of erasure in this case was well within its margin of judgment, it was not wrong and it is not an assessment with which the court ought to interfere. 37 It follows that the appeal will be dismissed.