England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		12th June 2006

1. MR JUSTICE COLLINS: This is a difficult and sad case. The appellant, Dr Devitharumai Fatnani, is now 70 years old. She has been in practice as a general practitioner for a number of years, and I should say straight away that there has been no complaint whatever about the standard of her care. Indeed, she was able to produce before the Fitness to Practise Panel, before which she appeared, testimonials, and indeed oral evidence, which underlined the quality of her service as a general practitioner.
2. The unfortunate matter is that she had an entirely dishonest daughter. That daughter got a job as a secretary in the firm of Goldman Sachs, and at least one or two of those with whom she worked directly were very high earners indeed. She managed to steal some £4.2 million from those two. That is over £3 million from one and about £1 million from the other. It seems that for a substantial time neither noticed that these thefts were being carried out.
3. Eventually, the daughter's dishonesty caught up with her. There was a long trial which resulted in considerable publicity, held at the Crown Court at Southwark over some 14 weeks, ending in the middle of June 2004. The fraud itself had taken place over a period of time (as the fairly lengthy indictment shows) between the middle of 2000 and the beginning of 2002.
4. The appellant was charged with five offences, essentially assisting in the disposal of proceeds of the fraud. She was in due course convicted on four of the five counts. The four counts each alleged offences contrary to section 93A(1)(a) of the Criminal Justice Act 1988 and concerned the purchase, or the assistance in the purchase, of a villa in Cyprus in the sum of some £675,000 in all. In addition, there was the redemption of the mortgage of the house in which the appellant lived and in which she carried on her practice.
5. Each of those counts alleged that the appellant was concerned in an arrangement whereby the retention or control by her daughter of the proceeds of her criminal conduct was facilitated knowing or suspecting that she was a person who was or had been engaged in criminal conduct or had benefited from criminal conduct. The fifth count upon which she was acquitted was under Section 93B(1) of the Criminal Justice Act 1988, and that alleged the assistance in the purchase of a motor car in the knowledge that the motor car was property which, in whole or in part, directly or indirectly represented another person's proceeds of criminal conduct. As I say, the jury acquitted her of that count which alleged knowledge but convicted her of the counts alleging suspicion.
6. The result was that the trial judge accepted that the jury's verdicts meant that she had been convicted on the basis of suspicion and not on the basis of knowledge. He had directed the jury, in the course of his summing up, on what was involved in that offence, in particular, as to what was the approach that the jury should adopt in deciding whether it had been proved that the appellant had the necessary suspicion. What he said was this:

"You know something if you discover it for yourself or are told about it by someone with first-hand knowledge. Suspicion is a plain word in common usage and should be given its ordinary meaning. It denotes an inkling, the imagining of something without evidence or on slender evidence."

That, it was submitted, was a misdirection and leave to appeal to the Court of Appeal was sought by the appellant, and indeed by the husband of her daughter who was also convicted on a number of counts alleging similar offences to those of which the appellant was convicted. But the Court of Appeal decided that although it would perhaps have been better had the learned judge not qualified the meaning of "suspicion" in the way that he did, it could not be said to have been a misdirection.

7. Having said that, as Mr Hardy very properly accepts, the learned judge himself, when it came to his sentencing remarks, stated, when making his observations to the daughter, as follows:

"You embarked on a spree of conspicuous consumption when dispensing of largesse of such magnitude that nobody close to you can, in my view, have had other than, at very least, very grave suspicions as to the sources of this spending power; especially those like you, Anthony De-Laurey, fully aware of your own and Joyti's continuing individual voluntary arrangements and you, [Devi Fatnani], not unacquainted with your daughter's financial problems."

That refers to the fact that Joyti had been subject to a voluntary arrangement, which indeed was paid off as part of the way in which the proceeds of the fraud were used.

8. It is right that I should say, although it is obvious, that the appellant did not plead guilty to any of the counts. The learned judge at the trial made the observation, at the stage that he came to sentence, that the appellant had not accepted her guilt in the sense that she continued to maintain her innocence. That, of course, was in June 2004 and she was sentenced to a total of 6 months' imprisonment suspended for two years.
9. I should read what was said by the judge in sentencing because it is material to the submissions which have been made on the appellant's behalf:

"Your counsel submits that the correct disposal of your case is a suspended sentence of such length as not to result in your being removed from the Medical Register. He points to certain matters which he argues constitute exceptional circumstances warranting such a course. They include your work in the community over 40 years, the state of your health, both physical and mental, your age, the regard in which your patients hold you, the trauma consequent upon the discovery that your daughter has robbed you of some £16,000 during the course of this trial, and the steps you have taken . . . to see that the losers were to some extent reimbursed. The court imposes upon you in respect of each relevant count an immediate custodial sentence of 6 months. Those sentences will, however, in the light of the exceptional circumstances which I find have been put before me, be suspended for a period of two years."

10. Unfortunately, we do not have the observations of counsel made in the course of his submissions in mitigation, so what he had said about the length of any suspended sentence and its connection with a possible removal from the Register we do not know. The fact is that there is no particular sentence which either automatically does or does not lead to the sanction of removal from the Register. It is a matter for the Panel when it comes to consider a case based upon a conviction, as this case was. It is perhaps obvious and self-evident that the more severe the penalty, the more likely the Panel is to take an equally severe view of the conviction, but it does seem that there was a submission made to the learned judge that some length of sentence was regarded as critical. Unfortunately, his observations do not indicate one way or the other whether he was taking that into account.
11. Mr Hardy submits that a judge with the experience of the trial judge, Judge Elwen, would have been expected to have made some observation if he was doing other than dealing with the matter in a way which did not, in his view, automatically result in removal from the Register. That may or may not be a fair way of looking at it, but certainly the result of the sentence and the result of the observations taken as a whole was that it was clearly being left to the Fitness to Practise Panel to decide for itself what sanction was appropriate. Mr Hardy correctly accepts that he cannot make any more of it than that it was perhaps an indication of the judge's view, in the sense that the judge took the view that it was not automatic that there should be removal, although, of course, that was not the judge's task. The task was that of the Panel to decide what was the appropriate sanction. It is the Panel which has the responsibility of applying the standard to any particular conduct or conviction which results in a hearing before them.
12. Before I go further, I should say that it is equally common ground that I should not interfere with a sanction unless persuaded that it is clearly wrong. Mr Hardy put it on the basis that it was manifestly excessive. I have said in other cases that the approach should be clearly wrong. There is not really any difference between the two approaches.
13. The offences of which the appellant was convicted do not contain explicitly the word "dishonestly". Dishonesty is not, as such, a necessary ingredient. However, the Panel decided that it had no doubt that her conduct had been dishonest. Again very properly, Mr Hardy has not sought to argue (although the notice of appeal raised the point) that that was a wrong conclusion in itself. It seems to me that once there is suspicion that money is the proceeds of crime, an individual who carries on assisting in its retention is ipso facto being dishonest. Clearly there could be no argument but that it was dishonest to do that in the knowledge that it was the proceeds of crime. Suspicion, of course, is much less than knowledge. Indeed, it is less than belief. Nevertheless, as it seems to me, it is quite right to infer that it involves dishonesty.
14. What Mr Hardy submits is that there are, as he put it, degrees of dishonesty. That it cannot simply and properly be said: "It is dishonest and therefore all consequences that flow from an act of dishonesty must flow from it". It is necessary to analyse a little more carefully the conduct in question and to decide essentially how dishonest it was, what level of dishonesty should appropriately be attached to it. I am not sure that it is right to regard dishonesty itself as having different levels. Conduct is either dishonest or it is not. But what one has to do is to look at what was done and decide from that what should result from the dishonesty in question.
15. Here, the nature of the conduct was suspicion that the money had come from crime; indeed, grave suspicion. On the other hand, this was a mother who clearly trusted her daughter. That trust was entirely misplaced and to a dreadful extent, inasmuch as during the course of the trial the daughter stole £16,000 from her mother, that sum being her mother's money which had been put aside in order to enable her to have a little when she retired. The daughter, by forgery and dishonesty, obtained that from her mother, not content with having defrauded her employers as indeed she did. One can well imagine the appalling effect that that conduct -- over and above the dishonesty in the commission of the offences -- had upon her mother. The daughter was a consummate liar. She lied to her mother. She convinced her mother that she had not committed the offences, and indeed she pleaded not guilty to the offences that were alleged against her. Not surprisingly she was, on utterly overwhelming evidence, convicted of the various offences. But it is possible to feel some degree of sympathy with the predicament in which her mother was placed as a result of her daughter's conduct. Nonetheless, as I said, it is impossible to quarrel with the Panel's view that this was conduct by the appellant which was clearly dishonest.
16. The Panel stated, and rightly so, that as a result of the convictions the appellant's conduct had fallen seriously short of the standards expected of a medical practitioner. It considered carefully, as it had drawn to its attention, the Indicative Sanctions Guidance which had been published by the GMC. There was some argument below whether the April 2005 or the May 2004 edition was the one which should be applied. There is, in this context, little if any difference between the two. I have had put before me a copy of the April 2005 edition and Mr Hardy has not suggested that that is in any way the wrong one to look at.
17. In relation to erasure, the approach of the Privy Council (an approach which this court has confirmed) was that the Panel should not feel it necessary to erase an otherwise competent and useful doctor who presents no danger to the public in order to satisfy public demand for blame and punishment, but the reputation of the profession is more important than the fortunes of an individual member. Membership of the profession brings many benefits but that is part of the price. The guidance makes it clear that one of the three most serious areas of concern in relation to misconduct is dishonesty. Accordingly, what it boils down to is that where there has been dishonesty, it is inevitable that the Panel will think in terms of a possible erasure. Again, I do not understand Mr Hardy to contest that that is an inevitable result of a conviction involving dishonesty. Whether in an individual case there has to be erasure is, of course, a different question. That is the question which this appeal raises, because it was not suggested below, and it is not suggested by Mr Hardy, that a sanction below that of suspension would be appropriate. Indeed, reprimand or conditions would, it is recognised, not be an appropriate recognition of the seriousness of the convictions in this case.
18. The sanctions guidance deals with the consideration of material factors when considering conviction and makes the point that the Panel is bound to accept that the fact that the doctor has been convicted is conclusive evidence that he or she was guilty of that offence. It makes the point that the purpose of the hearing is not to punish the doctor a second time but to protect the public who might come to the doctor as patients, and to maintain the high standards and good reputation of the profession.
19. It is that aspect which is, and has been, determinative in the circumstances of this case. It is the recognition that the public has the right to believe that any doctor is completely trustworthy and must have confidence, therefore, in the profession. As the guidance says in paragraph 44 on page S1-9:

"Dishonesty, even where it does not result in direct harm to patients but is for example related to the doctor's private life, is particularly serious because it undermines the trust the public place in the profession."

That is the basis upon which the Panel acted and upon which it was clearly entitled to act.

20. The Panel, in discussing the sanctions, as it had to, in an ascending order of seriousness, dealt with suspension, which had been advocated by counsel then appearing on the appellant's behalf, stating that it considered carefully the bundle of testimonials, referred to her unquestionable capabilities as a clinician, and appreciated that a number of patients supported her despite her convictions. It considered a letter of support from the Joint Chief Executive of London-wide LNCs which stated that the Camden Primary Care Trust had chosen to be supportive of her following the convictions. It bore in mind her many years of service as a medical practitioner, her strong desire to continue to practice, the fact that there were no previous GMC findings against her registration, and the favourable written evidence of her practice manager.
21. I should say incidentally that she has now retired from practice, having reached the age of 70, but she would hope, if it is possible, to be able to continue to act as a locum if the opportunity arises, and of course she would want, if appropriate, the stigma of erasure, bringing to an end an otherwise not only blameless but excellent career, removed.
22. Generally speaking, this court gives considerable deference to the Panel which, as I have said, sets the appropriate standards, and will be very reluctant to interfere with a sanction provided that the Panel has taken everything that it should into account and has not in any way misdirected itself. Even if there is an apparent misdirection, this court will consider very carefully whether it is appropriate to interfere where there has been obviously a general approach to the question as to whether particular dishonesty, as in this case, should result in an erasure, and will not, in all the circumstances, interfere lightly. As I have already said, there is a need for it to be shown that the sanction was clearly wrong.
23. The Panel observed as follows, and this, as it seems to me, is, in the circumstances of this case, crucial:

"The Panel considers that despite your apologies you still do not appear to have insight into or to accept the enormity of your criminal conduct. This was a huge fraud perpetrated primarily by your daughter, one in which, in respect of four counts, you were directly involved."

The Panel then went on to cite some of the observations of the trial judge in sentencing, and, in particular, it referred to these observations:

"You, Anthony De-Laurey [that is the appellant's son-in-law] and Devi [Fatnani] were the channels through which much of the stolen money was passed. That you barely profited directly from these arrangements is neither here nor there. The offences of which you were convicted strike and were intended to strike at the arrangements themselves. In light of the verdicts, it is Cyprus which clearly troubled the jury. The accounts in the Bank of Cyprus and the dealings with the villa at Ammas [the villa which was repurchased by the daughter] will have led them to conclude that they were sure that you suspected that Joyti was or had been engaged in, or benefited from, criminal conduct. Neither of you baulked at the arrangements you were asked to make. The activation of non-resident bank accounts required at least one personal appearance at Cyprus which involved the checking of identities. I have no doubt, on the evidence and the inferences that they were entitled to draw from it, that the jury were sure that you both had the relevant suspicions in light of the transactions you knew were going forward."

24. It is clear that the offences involved the facilitation by Dr Fatnani of disposal of the assets of her daughter's fraud. It is not suggested, and could not be suggested, that the appellant was involved in the fraud herself. She was not. She assisted the daughter in disposing of the assets, but that had nothing to do with the fraud. Although, of course, she could and should have indicated her suspicions to the proper authorities, one can perhaps understand why a mother might believe in her daughter rather than do what she ought to have done. On the other hand, it was clearly her obligation to have blown the whistle at that stage rather than being party to the facilitation of the disposal of the proceeds. To that extent, it can perhaps be said that she was involved in the fraud, although, as I understand it, by then the fraud had virtually ended in the sense that it was very shortly thereafter that matters came to the attention of the authorities.
25. Those observations of the Panel are clearly of importance because they would not have said that unless they had been influenced by those matters. The first point is that it is said that she did not appear to have insight into or to accept the enormity of her criminal conduct. I asked Miss Gallafent to refer me to any passages in the hearing before the Panel, at which she gave evidence, which could properly have been relied on in order to justify that observation. She referred me to the bottom of page 36 of the bundle when, in being asked questions in-chief by her then counsel, this was put:

" . . . [O]ne of the points the Committee will need to have regard to is how the profession is seen and how people regard the profession in light of a conviction of somebody like yourself for an offence which may not directly involve dishonesty but raises issues of dishonesty. You appreciate we have told the Committee that that is something that they will need carefully to think about. What do you have to say to the Committee in terms of your feeling about this?

Answer: I really do not know how to express. The most important thing I can say I am very, very sorry that I brought everything into disrepute."

She then became upset and clearly broke down, and then after a few moment she said this:

"During the trial it was very, very hard. The moment I got to practice I used to be able to switch off and to do my work which I enjoyed not only to provide the best considered service to my patients. After the patients saw something . . . nobody said -- on the contrary they used to say 'We are very sorry. We are sorry you are going through'. They had all confidence in me and we just got on with the work. Presently my suspended sentence is coming to an end in May next year. I just want to say I am sorry. I have brought our profession to quite a lot of disrepute and always suffer. But I would just like to say physically I am OK now. I can be given a chance and I would like to continue doing my general practice . . . I really care for my patients and I never in my profession had any question of a loss of trust in my patients in any circumstances."

26. Miss Gallafent submits that she was given an opportunity to indicate acceptance of her criminal conduct and the extent of it but she did not do so. That, as it seems to me, is unfair. She accepted, and said that she was very sorry, that she had brought everything into disrepute and there is nothing in her observations -- and indeed there was no further questioning on that topic -- which, as I see it, could justify a positive finding that she still did not appear to have insight into, or to accept, the enormity of her criminal conduct.
27. The question really is: how did the Panel judge her criminal conduct? Of course it was serious. Of course a sentence of 6 months' imprisonment, albeit suspended, indicates that it was serious, and of course this was an enormous fraud perpetrated by her daughter. But it is always necessary to remember that she was not convicted of any direct involvement in the fraud. Indeed, there was no evidence that she was in any way directly involved in the fraud. What she was convicted of was assisting in the retention of proceeds, suspecting that they were the proceeds of crime.
28. The Panel then went on:

"This was a huge fraud perpetrated primarily by your daughter."

It was perpetrated entirely by her daughter. Of course, one does not want to read too much into the precise words used by the Panel, nor is it a question of construing it as if it was a statute. But it is a little worrying, in my view, that the Panel used the word "primarily" in connection with the alleged failure to have insight into or accept the enormity of the criminal conduct. It does suggest that the Panel may have taken a rather more serious view of the appellant's involvement than was justified by the evidence that was before them. It is, of course, easy to say to oneself that she was convicted of offences committed in connection with a most serious and well publicised fraud by her daughter. That, in itself, would no doubt make the public concerned about any sanction which was less than the most severe. But one has to think in terms of the well-informed public, not the public who read the media and do not necessarily follow the full details of any particular matter. In this case, the full details were such as, in my view, did not justify those observations made by the Panel.

29. However, they then went on to consider the impact of dishonesty and indicated (and correctly indicated, in my view) that the dishonesty, whatever level one applies to it, did represent a gross breach of the principles of medical practice and falling short of the standards of conduct the public was entitled to expect from a registered medical practitioner. The Panel determined that the actions were fundamentally incompatible with her continuing to be on the Register and that a suspension was not a sufficient or appropriate sanction, and public trust in the profession and disapproval of the conduct needed erasure.
30. As I said earlier, although I am persuaded that the observations which I have referred to were not entirely justified, that does not mean that the ultimate sanction was not justified. One has to look -- and I now have to look -- at the conduct and decide whether it does indeed justify the sanction that was imposed by the Fitness to Practise Panel. This was dishonest action by the appellant. It was, in my view, serious dishonesty in the sense that it was an involvement in the proceeds, and assisting her daughter in dealing with the proceeds, of what she must have appreciated was a serious criminality, in the sense that she should have suspected that the very large sums of money which her daughter was able to dispense could not conceivably have come from honest sources, however much she was duped by the dishonesty and the lies told to her by her daughter.
31. On the other hand, there were the very favourable reports upon her and the recognition that she has suffered herself very considerably as a result of the conduct of her daughter. She has, to an extent, been a victim of her daughter's dishonesty. I say to an extent because of the £16,000 which her daughter dishonestly obtained from her. Once she was aware of her daughter's dishonesty, she take steps to try to do as much as she could to repair the damage which had been caused to others.
32. I am bound to say that, having regard to all the circumstances, I do not think that it was necessary to impose the ultimate sanction of erasure. But I would not have thought it right to interfere if the Panel had directed itself in a way which was proper. It is clear that there is what might be described as a "grey area" where a judge may take the view that he would not have imposed a particular sanction but it cannot be said that to have done so was clearly wrong. I must be careful to ensure that I am not applying my views when the views of the Fitness to Practise Panel are what Parliament has decided primarily are the ones that should prevail. As I repeat, that must depend on the individual case and on the Panel having had regard to anything they should not have had regard to or having taken a mistaken view of the evidence before it.
33. For the reasons I have sought to indicate, I take the view that this Panel did, in those respects, take a mistaken view of the seriousness of the conduct of the appellant. For that reason, I feel that I am able to deal with the matter on the basis that the true position is that she was not as seriously involved as the Panel appear to have believed. In all those circumstances, it seems to me that it is not necessary that the end of the appellant's career should be marked by erasure. Still, the seriousness of what she did will have to be recognised and, as is accepted, nothing short of suspension is appropriate. What I propose therefore to do is to allow this appeal and to substitute for the erasure a period of suspension which will now take immediate effect.
34. Remind me, Miss Gallafent, as to the suspension that is to be imposed. I think it is two years, is it? Maybe I am wrong.
35. MISS GALLAFENT: Under section 40(7) your Lordship has the power on this appeal --
36. MR JUSTICE COLLINS: I can remit or I can substitute.
37. MISS GALLAFENT: If you are to substitute, you can only substitute a direction which could have been given by the Fitness to Practise Panel. If one goes back to section 35D, the Fitness to Practise Panel can direct suspension but during a period not exceeding 12 months. That is section 35D(2)(b).
38. MR JUSTICE COLLINS: So I have to substitute a suspension for 12 months which will have effect from today. Is there any problem with that?
39. MISS GALLAFENT: My Lord, no, not so far as the substitution of the decision is concerned. I am grateful.
40. MR HARDY: My Lord, I make an application for costs. I am conscious that on one view Dr Fatnani might be said to be fortunate in the determination which your Lordship has arrived at. Equally, if I may say so, no-one could say that she was anything other than the author of her own misfortune. So my application for costs is set in that context.
41. MR JUSTICE COLLINS: I am grateful, Mr Hardy. I was thinking, I am afraid, along the same lines. Although I have allowed this appeal, I think, perhaps unusually, this is a case where it would not be right to make an order for costs against the GMC.
42. MR HARDY: I would not seek to press your Lordship on that.
43. MR JUSTICE COLLINS: There will be no order for costs.
44. MISS GALLAFENT: I do have an application, my Lord. There is an application for permission to appeal.
45. MR JUSTICE COLLINS: You are not entitled to. Not from me anyway. It is a second appeal. If you can find a point of law, good luck to you. This is entirely on the facts of this case. Although I appreciate that the GMC feels that I am a bit too free in allowing these appeals, I do not think I am. There is not really any scope.
46. MISS GALLAFENT: Thank you, my Lord.
47. MR JUSTICE COLLINS: Seriously, this is a second appeal so it is a question, is it not, of applying to the Court of Appeal? I do not have any power to allow or to refuse permission. I think that is right.
48. MISS GALLAFENT: My Lord, as I understand it now, your Lordship could --
49. MR JUSTICE COLLINS: I can give you an extension, I think, if you ask for it.
50. MISS GALLAFENT: Yes, I do.
51. MR JUSTICE COLLINS: Is it 14 days?
52. MISS GALLAFENT: Can we have 28?
53. MR HARDY: I do not resist that application at all.
54. MR JUSTICE COLLINS: Well, certainly you can have that extended.
55. MR HARDY: May I indicate that I do so because I take the view that the longer my learned friend searches for a point of law the more elusive it will become.
56. MR JUSTICE COLLINS: I am bound to say that unless you can say that I have been irrational, which is always possible, there is no point of law to be found. Thank you both.