ON APPEAL FROM THE ADMINISTRATIVE COURT
His Honour Judge Bird
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BEAN
MR JUSTICE OUSELEY
| Dr Fazal Hussain
|- and -
|General Medical Council
Simon Phillips QC (instructed by GMC Legal) for the Respondent
Hearing date : 24 October 2014
Crown Copyright ©
Lord Justice Bean :
a. Allegation 2: "in your cv submitted to the Townhead Surgery between February and March 2010 you falsely stated that you had completed (a) an M.Sc in Pharmacy and Pharmacology at the Loughborough University of Technology (Loughborough University) (b) a B.Sc in Pharmacy and Pharmacology at the University of Leicester."
b. Allegation 4: "In respect of a Multi Source Feedback Form ("the Form") dated 2 June 2010 timed at approximately 09.31: … (b) you inputted all of the contents on behalf of healthcare assistant Lesley Wilson (c) the view and/or knowledge of healthcare assistant Lesley Wilson that you inputted was, in part, false…."
c. Allegation 5: "On or around 19th March 2010 during the course of your training in your reflective learning log you plagiarised: (a) the NHS Education for Scotland website (b) the University of Southampton NHS Trust Website"
d. Allegation 6: "On or around 11th May 2010 during the course of your training in your e-portfolio you plagiarised a publication of the "California Chlamydia Action Coalition"
e. Allegation 7: "On or around 19th July 2010 during the course of your training in your reflective learning log you plagiarised (a) reviews of the novel "The Citadel" from the Amazon website (b) a review of the novel "The Citadel" from the "enotes.com" website"
f. Allegation 9: "the conduct referred to [in the allegations set out above] was dishonest and that in relation to [the above facts] your fitness to practise is impaired by reason of your misconduct"
a) Use an "e-portfolio". It seems that the e-portfolio was a web based forum where thoughts and reflections on training were to be recorded. Those involved in GP training were able to read the doctor's entries if they were "shared" and, if appropriate, comment on them. The e-portfolio is intended to be used by trainees to show satisfactory learning, and development and reflection. It clearly forms part of a trainer's assessment of a trainee.
b) Provide "multi source feedback" ("MSF") from clinician and non clinician colleagues on his clinical performance and professional behaviour. The feedback was to be provided by the relevant colleague without reference to Dr Hussain. It was also to be provided anonymously and would be used to assess the trainee.
The evidence and the findings of the Fitness to Practise Panel
Allegation 2: the CV
|Qualification||Subject||Place of Study||Date Obtained|
|University of Bath, UK||1986|
|M.Sc||"||Loughborough University of Technology, UK||1982|
|B.Sc (Hons)||"||University of Leicester, UK||1980|
a. The CV contained a representation that Dr Hussain had an M.Sc in Pharmacy and Pharmacology from Loughborough University of Technology (Loughborough University) and a B.Sc in Pharmacy and Pharmacology at the University of Leicester. In so concluding, it rejected Dr Hussain's evidence that the quotation marks (") were not intended by him to be read as ditto marks. They found that the effect was that the Bachelor's and Master's degrees were represented as being in Pharmacy and Pharmacology. In fact, although Dr Hussain had a B.Sc and an M.Sc, they were not in Pharmacy and Pharmacology; and the B.Sc had been from the former Leicester Polytechnic, now De Montfort University.
b. There was a dispute between Dr Hussain and Dr Hall as to the circumstances in which the CV was requested. Dr Hussain's evidence was that Dr Hall had asked him for an informal note setting out his hospital experiences which led to Dr Hussain offering a CV; Dr Hall says he asked for a CV. The Panel rejected Dr Hussain's argument that the CV was being used solely for the purposes of a discussion with Dr Hall.
c. The Panel in any event appears to have concluded that the background against which the CV was provided was not determinative. It concluded that Dr Hussain was aware that the CV contained false information and that it would be relied upon. It emphasised the obligation on all doctors (recorded in Good Medical Practice) to be honest about their qualifications in all circumstances.
Allegation 4: the MSF form
a) The Panel noted that Dr Hussain's evidence was that part 2 had been completed by him but using Mrs Wilson's words and that she had returned to his room and confirmed what he had written and then submitted the form.
b) It noted that Mrs Wilson's evidence was that part 2 was not expressed in her words, that she had no knowledge of the matters there set out.
c) The Panel rejected Dr Hussain's evidence and accepted Mrs Wilson's, saying that it was "incredible" that she had "dictated to you what you should input on the form and that you remembered the words verbatim"
d) The Panel found the allegation proved.
Allegations 5, 6 and 7: plagiarism
a) (allegation 5) On 19th March 2010 Dr Hussain made an entry under the heading "what did you learn" apparently concerning his thoughts on a talk he had attended on the subject of "Spirituality in Palliative Care". It is clear that the vast majority of the entry has been copied from the NHS Education for Scotland website and from the University of Southampton NHS Trust website.
b) (allegation 6) On 11th May 2010 Dr Hussain made an entry under the same heading on the subject of "taking a sexual health history". It was in large part copied from information published online by the "California Chlamydia Coalition".
c) (allegation 7) On 19th July 2010 Dr Hussain posted an entry under the general heading of "reading". In answer to the question "what were you reading?" he answered "I read Cronin's Citadel as part of a tutorial". In response to the question "what did you learn?" he copied large tracts of reviews of The Citadel from the Amazon and enotes.com websites.
Q But at the time of making the e-portfolio entry ….. you had not even looked at the book, had you?
A No I did not. No. No. No.
Q So why not tell [the code of conduct panel] that?
A I have not read at that time, my wife read it, and I read it afterwards, day or so…….……
Q You had, when this entry was made, no knowledge whatsoever of the contents of the book, did you Dr Hussain; you had not read it?
A At that time I read a few pages. Like I said at the beginning, I did read a few pages, but then I went, after one day or something, I read most of it.
a) Substantial parts of the entries had been copied without attribution.
b) Dr Hussain was attempting "to pass off the ideas and words of other people as [his] own knowing that [he] would be assessed on this material",
c) Dr Hussain would have known that by actively "sharing" entries he was inviting assessment on them.
The Panel concluded that this was not "behaviour befitting an honest person".
Allegation 9: dishonesty
The form of the allegations
"the deliberate and intentional making of a statement which was known to be incorrect knowing that it would, and intending that it should, be relied upon by others. It is not sufficient that a statement is an untoward error or a sloppy mistake, however foolish or discreditable such conduct may be".
"If you are satisfied the disputed act or omission occurred…..you should then go on to consider whether the GMC have proved that the error was false, ie intentionally wrong and not just a misunderstanding, a mishearing or a silly mistake borne from sloppiness. Both of these two latter matters fall under the main heading of dishonesty in count 9".
"The Panel must first of all decide whether according to the standard of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards that is the end of the matter and the case fails. If the GMC have not satisfied you on the balance of probabilities that reasonable and honest people would consider an act to be dishonest then that is the end of the matter. If you are so satisfied then you move to the second question: if it was dishonest by those standards then the Panel must consider whether Dr Hussain must himself have realised that what he was doing was by those standards dishonest".
The judge's decision
"For my part and considering the totality of the evidence before the Panel on this issue, I doubt that reasonable and honest people would regard what Dr Hussain did as dishonest. It was certainly wrong, careless and regrettably misleading, but in my judgment not dishonest. The Panel rejected Dr Hussain's assertion that the CV was put together in a "rush". It therefore took away the factual basis on which the Settle practice had been willing to conclude that Dr Hussain had made a simple mistake. However, the fact that the qualifications were awarded many years ago and that Dr Hussain had a Ph.D in the relevant subject are in my judgment strong indicators of a lack of dishonesty and simple carelessness. The rejection of Dr Hussain's version of events and the finding that he was not generally a credible witness, as Miss Hewson submitted, is not sufficient on its own to warrant a finding of dishonesty……….
It is regrettable that the Panel may have dealt with "dishonesty" in respect of the CV under the rubric of "falsity", as it may have considered was legitimate following the advice [of the Legal Assessor] set out at paragraph 48 above. This possible confusion between falsity and dishonesty alone in my judgment would justify the conclusion that the Panel's attribution of dishonesty was unsustainable. The second stage of the Ghosh dishonesty test does not therefore fall to be applied."
The grounds of appeal
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society  1 WLR 512 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price." Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case. On that footing, and without deferring to the judgment of the committee on the matter to a greater extent than is warranted in the circumstances, their Lordships are satisfied that, for the reasons which it gave, the sanction of erasure was wholly appropriate for the protection of the public and of the standing of the profession."
Mr Justice Ouseley
Lord Justice Longmore