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 WC2A 2LL
		31 October 2007

1. MR JUSTICE BEATSON: This is an appeal pursuant to Section 40 of the Medical Act 1983 against the decision of the General Medical Council's Fitness to Practise Panel, dated 16 November 2005, following a three-day hearing to erase the name of Dr Henry Akpata from the Medical Register. The Panel found that Dr Akpata was unfit to practise as a result of his conviction in January 2005 for 10 offences of false accounting arising from his employment as a hospital locum and for dishonestly representing that he was a Member of the Royal College of Obstetrics and Gynaecologists when applying for employment through medical recruitment agencies.
2. Before I turn to the substance of the appeal, I should state that Dr Akpata is not present in court - and is not represented. I was shown a copy of a telephone attendance note with the relevant solicitor in the General Medical Council's (GMC) legal department, dated 4 July 2007. Dr Akpata telephoned from Nigeria and informed the solicitor that he had lodged everything with the court at that stage. He confirmed that he knew this appeal had been listed for today. He stated that he would not be at the hearing because his visa had expired and he was in Nigeria. As he did not have a valid visa he could not attend. The note states that he wants to proceed with the appeal and that the court has all that he wishes to rely upon. The court has not received any application for the adjournment of this appeal because Dr Akpata is not able to be here. Accordingly I decided to proceed with the hearing.
3. I invited Mr Weisselberg, who appeared on behalf of the respondent, to show me the documents relied on in Dr Akpata's skeleton argument and grounds of appeal. I had, before the hearing, carefully considered that skeleton argument and read the documents prepared by Dr Akpata for the purpose of this appeal. I was not aware that he would not be attending and did not therefore read the transcript of the hearing. I contented myself with reading the letter dated 17 November 2005 informing Dr Akpata of the outcome of the hearing. I had read the details of the criminal convictions, including the judge's sentencing remarks, and other key documents concerning Dr Akpata's application to the GMC's Fitness to Practise Panel to adjourn his disciplinary hearing. I was shown copies of his CVs and I saw copies of the references on which he relies.
4. The GMC notified Dr Akpata of the charges in a letter dated 13 October 2005. The first two charges related to his conviction on 6 September 2004 at the Birmingham Crown Court for the offences of false accounting which resulted in his being overpaid approximately £18,000 for his work as a locum doctor. Dr Akpata had pleaded guilty to these charges at the Crown Court. Charges 4 to 10 related to a representation in Dr Akpata's curriculum vitae (CV") which stated, incorrectly, that he had passed the membership examination of the Royal College of Obstetrics and Gynaecology. Dr Akpata had supplied this CV to a number of locum agencies which found him employment at the Birmingham Women's Hospital, the Maidstone and Tunbridge Wells NHS Trust, and the EAling Hospital NHS Trust. In all these cases he was employed as a locum specialist registrar in obstetrics and gynaecology. The remaining charges concerned his immigration status. The panel found those charges to be unproven and they are irrelevant to this appeal.
5. The panel found the charges relating to Dr Akpata's criminal conviction and to his incorrect CV to be proved. In relation to the criminal conviction the panel had regard to the sentencing remarks of His Honour Judge Challenor that he was guilty of a persistent and deliberate fraud and a gross breach of trust. In relation to the representations in the CV the panel determined that Dr Akpata knowingly made a false representation.
6. The appeal was lodged on 5 December 2005. The grounds of appeal can be reduced to four with various sub-heads. The first ground is that the Panel was wrong to refuse Dr Akpata's request for a postponement of the hearing. The second ground is that the Panel's findings of fact in relation to a number of the charges were incorrect. The third ground is that the penalty of erasure from the Register was unfair and disproportionate.
7. The fourth ground is concerned with the Panel's failure to comment on adverse media comments made in the light of his conviction. Paragraph 5 of the appellant's skeleton argument states that the news media, in reporting in January 2005, called him names such as "bogus or fake gynaecologist/surgeon who treated 15,000 women in NHS hospitals all over the UK for seven years without qualification". The skeleton argument states that the onslaught resumed during the Fitness to Practise Panel's hearing. It is submitted that it was unfair for the Panel not to have commented on the media reporting and set the record straight and for possible future inquiry.
8. Dr Akpata's complaint in relation to this ground is that he has practised for over 30 years and has kept faithfully to the letter of the Hippocratic oath. His complaint is it was unfair of the Panel not to comment, because he is not a bogus doctor or a doctor without qualification; he was a qualified doctor. The charges related not to his qualification as a doctor but to his alleged membership of the Royal College of Obstetricians.
9. I will return to each of the grounds after briefly setting out the legal framework. Section 35C(2) of the 1983 Act provides that fitness to practise is impaired, inter alia, by misconduct or a conviction for a criminal offence in the British Isles. Section 35D(2) of the Act empowers the Panel to direct that the person named be erased from the Register. The Panel is part of the GMC. The GMC's statutory objective under Section 1(1)(a) of the Act is to protect, promote and maintain the health and safety of the public.
10. I have referred to the fact that appeals are governed by Section 40. The power of the court on an appeal is by way of rehearing. The court may set aside a decision if it is either wrong or unjust because of a serious procedural irregularity in the proceedings before the Panel.
11. The powers of the court have been recently considered by the Court of Appeal in Raschid [2007] 1 WLR 1460. For present purposes it suffices to set out the summary in the headnote. That states -

"A principal purpose of the Fitness to Practise Panel is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice."

For that reason the judgment of a Fitness to Practise Panel must be accorded particular respect.

12. Lord Justice Laws, with whom Lord Justice Chadwick and Sir Peter Gibson agreed, stated that the approach set out in a number of Privy Council cases - when exercising the jurisdiction which has now been passed to this court - should be followed. That approach requires the court to afford an appropriate measure of respect to the judgment of the committee, but not to defer to the committee's judgment more than is warranted in the circumstances: see Lord Millett in Ghosh v General Medical Council [2001] 1 WLR 1915, paragraph 34. Lord Justice Laws stated that this approach does not emasculate the High Court's role in these appeals. The court will correct material errors of fact and, of course, errors of, law and it will exercise a judgment "though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
13. I turn to the grounds of appeal. The first concerns the Panel's refusal to adjourn the hearing. The Panel had notified the appellant that the hearing would be on 14 November 2005 in a letter dated 13 October. That letter sets out the charges. On page 5 it states that if the appellant wished to make an application that the hearing should be postponed, he "should send the application to us as soon as possible stating the grounds on which you desire a postponement".
14. The appellant responded to the charges in a letter dated 8 November 2005. In a letter dated 10 November 2005, four days before the hearing was due to commence, he wrote to Mills & Reeve, who were acting for the GMC. He stated that he would not be able to attend the hearing "due to my present stressful state of mind for which I have been undergoing counselling currently". He enclosed a letter from Rev Appiagyei, his head pastor. He said that Rev Appiagyei had been counselling him since 6 September 2004. The letter refers to the fact that he had managed to send in his written submission and that he would be grateful if the GMC could consider a possible postponement of the hearing.
15. The letter from Rev Appiagyei confirms that Dr Akpata had been a member of his church for some three-and-a-half years, and that he had been offering him counselling since he had pleaded guilty to the offence for which he had been sentenced to 12 months in prison by the Birmingham Crown Court on 10 January 2005. The Rev Appiagyei's letter states that Dr Akpata's current state of mind had become a concern due to -

" ..... some of the following:

1 The passing away of his mother in Nigeria who he could not return to bury as the first son.

2 The attack on his solicitor son by armed robbers in Nigeria and

3 The impending judicial review of his immigration status."

The letter continues:

"These have all contributed to his disturbed state of mind now. He needs help spiritually and physically. The church is offering this to him. I shall be grateful if the impending hearing by the GMC could be reviewed now or later while we continue to assist him in these areas."

16. The application for the adjournment was refused. The chairman of the Panel stated that - and there was no issue as to this -

" ..... all reasonable efforts were successfully made to serve ..... Dr Akpata ..... "

with notice of the hearing. The Panel book took note of the fact that it should only proceed in the absence of the doctor in exceptional circumstances and with due caution. In this, the chairman appears to be referring to Jones [2002] UKHL 5, [2003] 1 AC 1 in which the House of Lords considered the discretion to continue the criminal trial in the absence of a defendant. The chairman stated:

"Because of the seriousness of the allegations against this doctor and because he has not given any indication of the length of postponement that he has asked for and because there is no significant medical evidence in front of us we have felt overall that the public interest really carries the day and that we should proceed in the absence of the doctor."

17. The Panel had power to postpone a hearing under Rule 29 of the Fitness to Practise Rules SI 2004 No 2608. Rule 31 enables it to proceed and determine an allegation where a practitioner is neither present nor represented if it is satisfied that all reasonable efforts have been made to serve the practitioner with notice.
18. The grounds for Dr Akpata's appeal on this issue are; first, that it is contrary to Rule 29 for the Panel to hear the case in his absence despite what he describes as a timely application for postponement, and that he had been thereby deprived of his inalienable right to a fair and just hearing. Secondly, he refers to the serious consequences on him of these proceedings and the letter of his counsellor, the Rev Appiagyei. In summary, he submits that insufficient weight was given to the counsellor's letter and that the Panel erred in refusing to adjourn the hearing.
19. The second ground consists of a number of complaints about findings of fact made by the Panel. It is difficult to identify from the appellant's skeleton argument the facts about which he is complaining. Mr Weisselberg's skeleton argument (at paragraphs 18 to 22) purports to set them out. I shall, however, try to identify them from the appellant's skeleton argument.

(1) Paragraph 3b: his suspension from the Medical Register - first, for 18 months and then extended by a court order on 28 September 2005 for a further 12 months - was adequate to protect the public interest.

(2) Paragraph 4a: the Panel do not refer to the fact that his CV was submitted to four medical recruitment agencies. Only three are considered in the decision; the fourth, Corinth Healthcare is not.

(3) Paragraph 4b: the Panel did not take account of the fact that he started working as a registrar and specialist registrar or staff grade within the speciality after obtaining full GMC registration in July 2001.

(4) In relation to Ealing Hospital, one of the three hospitals that forms the subject of the misleading CV charges, the approval for his placement was made on the basis of his GMC registration number and verification of its validity. Those were the essential requirements for the job and the other jobs in which he worked, together with his references. His submission appears to be that the Panel erroneously did not take into account, or make a finding, that there was no need for him to have a specialist qualification to do the job he did.

(5) Paragraph 4e: the reference on his CV "1999 MRCOG UK" was a mistake. It should have been regarded as a genuine typographical error which was not premeditated.

(6) The appellant complains that Dr McCarten of Maidstone Hospital was not called to testify at the hearing and this was detrimental to the case of the GMC.

[(7)] In paragraph 6b the appellant states that the evidence of Mr Paul Barnett, Secretary to the Royal College, was "scanty and not true".

(8) In paragraph 6c he states that -

"No evidence was advanced as required by law to show that [he] worked in a post for which he was not necessarily qualified and that [he] thereby risked patient care and safety."

(9) Paragraph 6d - there was -

"No evidence from any clinician or departmental head ..... to show that [he] would not have been employed at [the three hospitals] had it been known that [he] was not a member of the Royal College of Obstetrics and Gynaecology."

The appellant states that no evidence was forthcoming because membership was not a requirement for his grade of employment.

20. The third ground of his appeal is that the Panel's decision to erase his name was unfair and disproportionate. This is dealt with in paragraphs 6e and 7 of his skeleton argument. Although he does not expressly do so, he appears to rely on matters which I have already set out in support of his submission on fairness and proportionality.
21. Finally he complains about the failure to comment on adverse media comments which I have set out above.
22. The removal of a professional man from the Registrar which authorises him to practise is a serious matter. I have carefully considered the proceedings before the Panel and the appellant's complaints about its procedure and its decision.
23. I have concluded that that this appeal should be dismissed for the following reasons.
24. First, in relation to the refusal to postpone the hearing, the Panel had copies of the decision in Jones and other relevant authorities as to the approach to be used. It also had advice from its legal assessor. Its decision that it should only proceed in exceptional circumstances and with due caution shows a correct appreciation of the approach to be used. It had regard to the seriousness of the allegations and accepted criminal act in the course of Dr Akpata's conduct of his job as a locum doctor, and a misrepresentation on the CV that he gave locum agencies which found him employment. It had regard to the absence of any indication of the length of postponement, the absence of any significant medical evidence and the general public interest.
25. Dr Akpata's counsellor does not state that he was unfit or not competent to attend. Two of the three specific matters referred to in the letter were not recent matters. Thus, it is apparent from Dr Akpata's own submissions sent on 8 November in response to the allegations that his mother had died on 19 June 2003. There is no date given for the attack on his son in Nigeria.
26. It appears that Mr Justice Ouseley's decision to order the Asylum and Immigration Appeal Tribunal to reconsider its decision which had been adverse to the appellant was given on 8 November 2005, but that date is in manuscript and may not be entirely clear. Moreover while it is stated that the church was offering spiritual and physical help to the appellant, the letter does not state that the hearing should not go ahead. What the Rev Appiagyei states is:

"I shall be grateful if the impending hearing by the GMC could be reviewed now or later whilst we continue to assist him in these areas."

27. Mr Weisselberg showed me two recent decisions on adjournments. Neither of them raise precisely the issue in this case but they provide some guidance. The first is the decision in Mahmood v General Medical Council [2007] EWHC 474 (Admin) in which the doctor was seen in the presence of the hearing location, did not appear, but the Panel was informed during the course of the hearing that he had been taken ill and admitted to University College Hospital but then decided to proceed. Mr Justice Mitting held that that decision was flawed.
28. The second case is the decision in Vaidya v General Medical Council [2007] EWHC 1497 (Admin) in which the application for an adjournment was based not on the unavailability of the doctor, subject to the disciplinary proceedings, but the unavailability of his solicitor and his chosen counsel. Mr Justice Bennett held that the decision to adjourn was not unfair in the circumstances of the case.
29. What those cases show is the need for caution before proceeding in the absence of an appellant. In Vaidya there was no reason given as to why the doctor could not have been present at the hearing, and the application based on the unavailability of his professional advisers was made some considerable time after notice of the hearing date had been given. That case is of less assistance to me than Mahmood.
30. I have no doubt in this case that the decision of the Panel was well within its power under the rules. It had regard to the approach of the Privy Council and the need for caution and was entitled to take into account the absence of medical or other evidence that Dr Akpata was unfit to attend. It had by then received his letter setting out his submissions. This was a substantial document. There is no indication in that letter of any difficulty in attending.
31. I turn to the second ground. This concerns facts which are said either to have been erroneously found or not to have been found when the Panel made its decision. First, it is submitted that the extension of the period of suspension suffices to protect the public interest and erasure from the register was not necessary. This was a matter supremely within the competence of the Panel. They clearly considered whether it was necessary to erase Dr Akpata's name from the Register. There is no error of fact or law in their approach on this. Bearing in mind the court's secondary role (see Raschid), there is nothing in this point.
32. The fact that Dr Akpata's CV had been sent to a fourth agency is not a matter which assists Dr Akpata. If anything, the Panel's failure to deal with this means that it took a narrower view of the extent of his misrepresentations than was in fact the case. The fact that he had a full GMC registration since July 2001 is also not of assistance to him. The Panel does not refer to this but the decision does refer to the fact that CVs containing the misrepresentations have been circulated to recruitment agencies since January 1999. Secondly, the charge was not that he was not a qualified doctor or did not have GMC registration. The charge was that he included on his CV a representation which stated incorrectly that he had passed the membership examination of the Royal College of Obstetrics and Gynaecology.
33. The next complaint is that there was no evidence from Mrs Mahadevan, a clinician at Ealing who would have confirmed that the Royal College qualification was irrelevant for obtaining a locum registrar post. Her evidence would have related only to one of the three hospitals upon which the charges were based - the Ealing Hospital. The Panel heard from an employee of the agency which put the appellant up for the job at the Ealing Hospital and from the business manager of the relevant division of a hospital. It was not necessary for the Panel also to hear from Mrs Mahadevan or from Miss Lazenby (the relevant person in the agency). Moreover the charge was not that the appellant "would not" have obtained a hospital; it was that he "might not" have. It was recognised that he might have obtained the job in the framing of the charge. The charge was different to the charges in respect of the Birmingham Women's Hospital and the Maidstone & Tunbridge Wells Hospital.
34. A number of the other grounds upon which the appellant relies focus on the fact that he did not need the membership of the Royal College to do the jobs he did, and that the Panel had not considered, had not found, that he had done what he should not have done or failed to do what he should have done as a clinician. These grounds miss the point. The charge was not that he was not a good enough doctor. It was that he was unfit to be on the Register because of his criminal conviction and the misrepresentation on his CV.
35. The complaint that the Panel did not regard the CV's omission of the word "attempted" before "MRCOG" as a mistake is an attempt to revisit the Panel's finding. The finding was one which was open to the Panel to make. The Panel had before it the appellant's submissions on this. It did not accept his explanation that this was a typographical error and that his daughter had typed the CVs for him. It did not accept his explanation that this was not a wilful matter. There is no material before this court which suggests that this conclusion was something which the Panel was not entitled to reach. This ground of appeal simply wishes to revisit the Panel's findings of fact.
36. It is complained that Mr McCarten did not give evidence. But, as is seen in the transcript of the hearing on 14 November (pages 44 to 50), Mr McCarten did give evidence. He was not asked about the letter to which the appellant refers in his grounds of appeal. He was, however, asked if he would have put the appellant forward for the job of specialist registrar if he had known that the appellant had not passed even Part I of the MRCOG examination. He said he would not (see the transcript).
37. The next ground concerns Mr Barnett. The submission that the tribunal should not have accepted Mr Barnett's evidence is unsupported by any reasons. It is unarguable that the Panel was not entitled to accept Mr Barnett's evidence.
38. Finally, with regard to the complaint that the Panel did not hear evidence from any clinicians, it was for the Panel to decide what evidence it heard. The issue was whether the hospitals would have employed him as a locum specialist registrar had they known he had not even passed Part I of the examination for the MRCOG qualification. The Panel heard evidence from a former human resources manager at the Birmingham Hospital, and Mr McCarten was the medical locum co-ordinator at Maidstone. It is not arguable that the failure to hear from clinicians meant that the Panel's conclusion that the appellant would not have been employed at these two hospitals is flawed.
39. As far as ground 3 is concerned, the appellant was convicted of a serious criminal offence. His false accounting amounted to some £18,000. The Panel found that the appearance on his CV of "1999 MRCOG UK" was not a typographical error but was a deliberate false representation, a finding which for the reasons I have given they were entitled to make. In view of those findings, it was appropriate for the Panel to decide to erase his name from the Register. The decision was in accordance with the Indicative Sanctions Guidance published. This states in paragraph 43 -

" ..... that registered doctors must be honest and trustworthy."

Paragraph 44 states:

"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. Examples of dishonesty in professional practice could include defrauding an employer, improperly amending patient records or submitting or providing false references, inaccurate or misleading information on a CV and failing to take reasonable steps to ensure that statements made in formal documents are accurate."

This guidance is given the section of the document dealing with erasure.

40. In deciding on erasure, the need to protect the patient, the wider public interests and the reputation of the profession is, as Lord Bingham stated in Bolton v The Law Society, more important than the fortunes of an individual member. It is for this reason that, although these charges did not relate to Dr Akpata's clinical competence, the Panel was entitled to conclude that erasure was the appropriate remedy.
41. I can deal briefly with the fourth ground of appeal. The fact that the Panel failed to comment on extraneous media comment on Dr Akpata's case is neither erroneous in law nor a procedural irregularity.
42. For these reasons this appeal is dismissed.
43. I want to say one thing. I realise I did not set out the charges at the beginning in a clear way, in other words, the conviction on 6 September 2004 for offences of false accounting and precisely what the misrepresentations were. When I get the transcript I will insert at the relevant point effectively material from paragraph 6 of the respondent's skeleton argument.
44. I decided not to lengthen a long judgment by referring to counsel's need to bring along statutes. You will know that the Stationery Office copy of the 1983 statute is useless because it does not contain the current version. We live in a third-world country with a state that cannot provide up-to-date versions of its laws for those who have to adjudicate. That is why counsel has to do it.
45. MR WEISSELBERG: I apologise. I forgot to do it this morning and I failed to do it.
46. MR JUSTICE BEATSON: I am not saying this in anger.
47. MR WEISSELBERG: Before you rise - - - - -
48. MR JUSTICE BEATSON: You want your costs. I am going to say that you are entitled to your costs. Are you asking for summary assessment.
49. MR WEISSELBERG: I have a schedule.
50. MR JUSTICE BEATSON: Give me the schedule. I am going to give the doctor liberty to apply. I am going to ask those instructing you to undertake to fax the schedule out, and what I say about this, to him.
51. MR WEISSELBERG: They will try and fax it.
52. MR JUSTICE BEATSON: They have a telephone number. That telephone number may or may not be there, but they should use reasonable efforts.
53. MR WEISSELBERG: - - - - - to contact Dr Akpata so as arrange circumstances in which he can receive a copy.
54. MR JUSTICE BEATSON: Yes.
55. MR WEISSELBERG: Absolutely. I am happy to give that undertaking on behalf of the GMC. On behalf of Dr Akpata what I would be saying is that at the very least attendance at hearing figures need to be reduced substantially.
56. MR JUSTICE BEATSON: Absolutely. I do not want to make you say anything more than you can properly say.
57. MR WEISSELBERG: I suppose that what I invite your Lordship to do - wearing my GMC hat - is to take a very broad brush approach and order £4,000.
58. MR JUSTICE BEATSON: I am going to take a broad brush approach and I accept your submission, but I will make it £3,750. I will make it clear that Dr Akpata is to have liberty to apply in respect of this to be exercised within 14 days of receiving notice of this order. The GMC may find there are practical difficulties.
59. MR WEISSELBERG: What the GMC will attempt to do is to telephone Dr Akpata. In default of being able to contact him on that number, the order will just lie on the GMC's file and if they are able
60. MR JUSTICE BEATSON: If they want to enforce it they have to do something.
61. MR WEISSELBERG: Absolutely.
62. MR JUSTICE BEATSON: They will decide whether they will spend more trying to enforce it than letting it lie on the file. Thank you.