England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17th December 2008

1. MR JUSTICE BLAIR: This is an appeal from a decision of the GMC's Fitness to Practise Panel made on 25th September 2007. The appellant is a doctor who was born in 1973. The Panel found that the appellant's fitness to practise was impaired by reason of misconduct. It imposed the sanction of erasure. In summary, the basis of the appeal is, firstly, that that sanction was a disproportionate one, and secondly, that irrelevant material was taken into account by the Panel when deciding to impose it.
2. The relevant legal provisions are set out in the Medical Act 1983. Section 35C provides that a person's fitness to practise shall be regarded as "impaired" by reason only of misconduct or deficient professional performance. I should interpose to say that the allegations made against the appellant in this matter related to misconduct.
3. Section 35D provides that where the Panel (that is to say the Fitness to Practise Panel) finds that the person's fitness to practise is impaired, they may, if they think fit, direct that the person's name shall be erased from the Register, direct that his registration in the Register be suspended during such a period not exceeding 12 months as may be specified in the direction, or direct that his registration shall be conditional. Again, I interpose to say that the appellant's case on this appeal is that either the sanction of suspension should be substituted for that of erasure or the matter should be remitted to the Fitness to Practise Panel for it to reconsider the sanction afresh.
4. Section 40 of the Act provides that the decision of the Fitness to Practise Panel under Section 35D giving a direction for erasure is an appealable decision. By section 40(7) the appeal comes to the High Court which may dismiss it or allow it, or substitute or vary directions for those given by the Panel or remit the case to the Panel with directions.
5. The approach of the court in such appeals was recently considered by the Court of Appeal in the case of Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46. In that case the Court of Appeal set out the correct approach to be adopted, and I direct myself in accordance with that decision. At paragraph 19 Laws LJ, giving the judgment of the court, said as follows:

"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel."

6. I now come to consider the facts of the matter, and should state at the outset that they gave rise to four sets of charges against the appellant, all of which were admitted. That, plainly, is an important matter. He admitted, essentially, all allegations that had been made against him, and asks for credit on that account.
7. Between 1992 and 1997 he attended the St George's Hospital Medical School where he failed the paediatric exam four times. That terminated his course, and of course terminated his opportunity to qualify as a doctor at that particular medical school. Between 1997 and 1999 the appellant attended the University of Surrey, and in June 1999 obtained a BSc Honours in Medical Biochemistry. It then happened that in 1999 he attended the University of Cambridge. He initially enrolled on a MPhil Biochemistry course, but transferred to a diploma in an economics course later.
8. On 20th September 1999 the appellant applied to the University of Southampton Medical School. In that application, he omitted to mention the fact that he had previously and unsuccessfully attended St George's Medical School and those years were subsumed into an extended period of study at Surrey University. That is the subject of charges 1 to 11.
9. Mr Ian Stern QC who has represented the appellant on this appeal (though I should say he did not represent him before the Fitness to Practise Panel) points out that the appellant did say to the University of Surrey that he had failed at St George's and so told no lie to them. As he puts it, having tried to move away from medicine, the appellant still wanted to realise his dream. It is said on his behalf that he passed all the examinations at Southampton. There is no evidence, it is submitted, of any harm to patients resulting from this particular piece of inadequate disclosure, and the point is fairly made that the fact that he was prepared to train yet again shows enormous determination on his part.
10. However, as Mr Jaffey has pointed out for the GMC, the fact of the matter is that he lied to get into medical school on this second occasion and, as he himself recognised when he gave evidence to the Fitness to Practise Panel, apart from any other consideration, thereby deprived someone else of a place.
11. At all events, he was at the University of Southampton Medical School between 2000 and 2004 where he obtained a Bachelor of Medicine degree. On 17th July 2003 he made an application to the Southampton University Hospital's NHS Trust for pre-registration for a house officer post, and that application forms the basis of the second set of charges against him. When applying to Southampton University Hospital's NHS Trust, he, as it is put by counsel, "inflated his grades and his position relative to other students".
12. A number of points are made on his behalf in relation to this particular matter as well. The GMC's case was that by reason of his supposedly excellent grades -- which were stated as A grades rather than the B grades they had in fact been -- he was offered a much coveted surgical placement. It is argued on his behalf that there is unclear evidence whether that was in fact the case or not. However, it seems to me that from the statement of Dr Julia Harris that indeed follows. The fact of the matter is that, as Mr Jaffey has pointed out, there was a new set of lies on this occasion. It was on that basis that the Panel was entitled to find in relation to this that he had been dishonest.
13. Proceeding with the history of the matter, between February and August 2005, the appellant undertook the post of surgical house officer. On 31st March 2005, in discussion with his clinical tutor, who was Dr Julia Harris, he stated that he had obtained an A grade in his surgical long case during his course at the University of Southampton. The appellant in fact received a B grade. This was the subject of the third set of charges against him.
14. It is pointed out on his behalf that on this occasion it was he who went to see Dr Harris, which is certainly correct. It is also pointed out that his version of events was such that it had been personality clashes that had led to the problems that he had experienced. It is said that he gained no benefit from stating that his grade was an A grade rather than a B grade. However, again it is important to note that this was a further untruth. The point of the meeting was to deal with concerns as to his performance, and plainly in that regard his grade was a relevant factor to take into account.
15. In August 2005 he commenced six months as a medicine house officer. On 26th October 2005 at his appraisal the appellant said there had not been problems in his previous placements. This was untrue. He had been appraised in March and May 2005 as "below standard" and "borderline" respectively in some areas. It is put on his behalf that everyone in the hospital in fact knew the true position. That may be correct, but, as is pointed out by the GMC, these untruthful statements were also raised in the context of his performance.
16. Mr Stern QC makes the following submissions. First of all, he submits that the matters which were the subject of these charges do not show harm to patients. He says that whether or not the appellant was qualified on the basis of A grades or B grades does not really matter. The fact is that he did successfully qualify as a doctor. It appears to me that that is a fair point, at least so far as the grades are concerned.
17. Mr Stern QC goes on to submit, however, as follows, and in many ways this formed the heart of the submissions on this appeal, that that what swayed the Panel as regards the erasure sanction were, in fact, issues in relation to performance rather than issues in relation to honesty which were the subject of the charges. He submits that any Panel would be swayed by what they read about him, and he submits that in this case the doctor in effect had no fair chance to respond. There are a number of matters that he raises in this regard, and I should refer to one of them in particular. That is an undated report by Dr Adams on the performance of the appellant. This report was prepared for the hospital's own disciplinary process. I should say that he was suspended by the hospital on 28th November 2005 and dismissed for gross misconduct on 16th June 2006. Mr Stern submits that this report was, on its face, entirely an assessment of the appellant's performance and irrelevant, therefore, to the charges of dishonesty against him. There is further material that he refers to in the form of statements and otherwise, which refers in at least one place to his clinical performance as being "dangerously ineffective". That, Mr Stern submits, was plainly very damaging. But the point was, he submits, that the performance of the appellant was not the issue that the Panel had to consider. I shall come back to that particular point later.
18. However, before doing so there are two other arguments that are raised by the appellant that I should deal with. The first is a challenge to the view of the Panel that the facts as shown in relation to the dishonesty gave rise to "a potential risk to patients". It is submitted that in fact there was no risk shown. The difficulty with that submission is that the appellant himself accepted, when giving evidence to the Panel, that his dishonesty could have put patients at risk. He did so rightly, in my view.
19. The next argument is that it was in effect not open to the Panel to find as it did that the remorse which the appellant expressed was not genuine. It is submitted that all charges were accepted. He told the Panel himself that he deeply regretted what had happened and offered no excuse. Nevertheless, the Panel at page 88 G of the transcript, said as follows:

"Although you apologised for your dishonesty, the Panel did not find your expressions of remorse convincing and it doubted whether your acceptance of your misconduct was genuine. It was not persuaded by your description of a circle of lies in which one lie led to other lies. The Panel's view is that the issues which brought you to this hearing are separate episodes of dishonesty, rather than a series of lies covering up previous lies. The Panel considers that your perception of your misconduct demonstrates a lack of insight on your behalf into your responsibility for your dishonesty."

20. It is plain to my mind that this assessment was pre-eminently a matter for the Panel, having as it did the benefit of hearing evidence from the appellant himself. It was a conclusion that they were entitled to come to. It seems to me that those two grounds, therefore, lack of remorse and absence of risk to patients, are insubstantial and give rise to no arguable appeal in this case.
21. The ground relating to the part which it is submitted was inappropriately played in the sanctions decision by evidence as to the appellant's performance as a doctor raises a more difficult issue. I have already set out the submission that Mr Stern makes in this regard, and must now test it against what actually happened at the hearing. Before doing so, I note that it is common ground that the Chairman in this case was a very experienced one. The transcript shows that at the impairment stage, the Chairman said as follows:

"The next question was the question of reading into the transcript. The Panel takes the view that most of the content of the statements is actually related to the doctor's performance which is not what this Panel is inquiring. We are inquiring into conduct. You have set out very clearly the conduct issues and Mr Gaisford [counsel then appearing for the applicant] has very clearly admitted all the issues so we do not really see that reading in long statements about performance is going to help us make a decision on the conduct aspects of the case. So we take the view that it is not necessary to read them in unless you feel strongly that something should be read in."

Following the finding as to impairment, and having heard from both counsel as to sanction, the Chairman said as follows:

"I have just one [that is question] and that concerns the practicalities of things. Mr Gaisford, you suggested that we should suspend him. We see from the papers that before he was suspended from his post and then dismissed there were clearly major performance issues which we have not considered but they are clearly in the papers that have been submitted to us. If he had major performance issues then and now he has had 22 months off practice, if we were to suspend for a year that would not come in for a month and so he would then be out of practice for a total of 35 months.

MR GAISFORD: Yes.

THE CHAIRMAN: If he already had major performance issues and is then out of practice for 35 months, how practical is your suggestion that he would then get back into good practice?"

Mr Gaisford then made a short submission dealing with that point, to which the Chairman responded as follows:

"That is fine. I wanted to bring that up because no doubt that will be a matter that we will consider in camera, and I wanted to give you every opportunity to address it in your client's favour.

MR GAISFORD: I should perhaps say with regard to the performance aspect these were not matters that were pursued by the General Medical Council as a charge, but they are properly before you because one of the allegations is that the doctor misrepresented how things had been going, and they had not been going as well as he said. That is why performance matters come into the picture.

CHAIRMAN: I realise that; performance is not our concern, it is the conduct issues, but taking the whole thing in the round that evidence has been put before us and therefore we do need to bear it in mind."

22. Having considered the matter, the Panel then reached its decision with regard to sanction as follows. It sets out the facts, saying that in the appellant's evidence to the Panel he admitted that his actions were totally unacceptable in: (1) omitting to mention on his 1999 UCAS application form to study medicine in Southampton that his previous medical student career at St George's Hospital had been terminated in 1997; (2) falsely inflating his medical examination grades on his 2003 application form for the Southampton pre-registration house officer matching scheme; (3) giving false information in 2005 to Dr Harris, his clinical tutor; and (4) giving false information in 2005 to Dr Coleman who was appraising him. It then went on to say as follows:

"You have accepted that your dishonesty has undermined trust in the profession and it has placed patients at risk. You described yourself as being caught in a circle of untruths from which you lacked the courage to escape. You then explained that you have now had time to consider the consequences of your actions, and you now appreciate the importance of honesty. You said that your dishonesty would not be repeated if you were given a further chance. You described medicine as your first love.

Although you apologised for your dishonesty, the Panel did not find your expressions of remorse convincing . . . "

It then continued, as I have already indicated, on that particular matter.

23. The Panel referred to certain legal cases that had been drawn to its attention. It then ran through the various options that were available to it: taking no action, which it deemed would be insufficient; conditional registration, noting that neither counsel submitted the conditions were appropriate; and then came to suspension, which of course had been submitted to be appropriate. However, it stated:

"In all the circumstances, the Panel determined that suspension of registration would not be a sufficient sanction in your case, given your repeated dishonesty and the potential risk to patients.

Dr Satya, your actions are likely to have undermined public confidence in the profession. Repeated incidents of dishonest behaviour by any doctor can only bring the good name of the profession into disrepute. It has concluded that your misconduct is fundamentally incompatible with your continuing to be a registered medical practitioner.

The Panel has therefore directed that your name be erased from the Medical Register. The Panel is satisfied that this is necessary for the protection of patients, the maintenance of confidence in the profession and in declaring and upholding proper standards of professional conduct."

24. Mr Stern QC submits that performance was taken into account at the stage of sanction. As he has submitted, it was not the fact that there was material put before the Panel in this regard -- it is not an objection in principle in that regard -- it was the expansive material that was put before the Panel that was, he submits, so prejudicial that the applicant did not get a fair hearing. The fact that the Panel did not mention this material is, he submits, neither here nor there.
25. On this matter I preferred the submissions that have been made to me by Mr Jaffey. He points out that the last two charges were in the context of the appraisal of the appellant's performance, so there was material before the Panel and rightly so; indeed, inevitably so, because the fact that he had lied in the context of the appraisal of his performance was in itself important. He points out (and it is indeed clear from the extracts from the transcript that I have referred to) that the Chairman raised this point himself first. He submits, and I accept, that the transcript shows that the Panel was well aware of the issues to which it had to turn its mind in this case. When read fairly, in my judgment, the Panel did not inappropriately deal with the performance issues when dealing with counsel's submissions as regards sanctions. Furthermore, I accept what Mr Jaffey has submitted, namely that this was not a matter that was taken into account ultimately for the reasons set out in the decision.
26. I have considerable sympathy for the appellant. He is clearly a talented young man and has much to contribute, as is evident from the testimonials which I have read. But the fact is that on four occasions he was not truthful about his educational or medical attainments. This is a very serious matter in the case of a medical practitioner. In my view, the sanction imposed by the Fitness to Practise Panel was a proportionate one. It was entitled to reach the decision it did as regards sanction and this appeal must be dismissed.
27. MR JAFFEY: My Lord, I have an application for the costs of the appeal the GMC have incurred. I do not know if your Lordship has a copy of the schedule of costs.
28. MR JUSTICE BLAIR: No, I do not, I am afraid.
29. MR JAFFEY: (Handed). My learned friend also has a copy. I do not know whether or not your Lordship wanted to hear me on the detail or the principle or hear if my learned friend has any objections first.
30. MR JUSTICE BLAIR: This is a case where the appellant will no longer be able to practise as a doctor. So he has lost his livelihood. What do you say about it, Mr Stern?
31. MR STERN: My Lord, I say nothing about the figures. So far as the amount is concerned, as I understand it, if your Lordship were to order costs it would not be the applicant that would pay, it would be the professional body. The insurance body.
32. MR JUSTICE BLAIR: Yes. Thank you very much for drawing that to my attention. There is nothing on the figures then?
33. MR STERN: No.
34. MR JUSTICE BLAIR: In that case you can have your costs. I am most grateful to both of you.