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
		2nd April 2008

1. MR JUSTICE SULLIVAN: This is an appeal under section 40 of the Medical Act 1983 ("the Act") against a decision of the defendant's Fitness to Practise Panel ("the Panel") on 16th March 2007 directing that the appellant's name be erased from the Medical Register. The Panel's reasons are set out in a letter dated 19th March 2007 ("the decision letter").
2. Section 35C of the Act provides that:

"(2) A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of . . .

(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence."

3. The Panel summarised what the appellant had done as follows:

"On 12th January 2006 you were convicted of one offence of theft and five offences of using a false instrument with intent at Derby Crown Court; contrary to section 1(1) of the Theft Act 1968 and section 3 of the Forgery and Counterfeiting Act 1981. You were given community sentences for 12 months in respect of two of the offences of using a false instrument with intent, to run concurrently, and were ordered to pay costs of £612 . . .

You stole 18 prescription forms and forged five of them to obtain drugs for your own use using false names for the recipient and the prescriber. You also involved other people in your deception. When challenged by the police following your arrest, you persisted in telling lies. You were in breach of trust with your employer."

4. In the appellant's skeleton argument there were two grounds of appeal. Ground one challenged the Panel's conclusion that the appellant's fitness to practise was impaired and ground two challenged the proportionality of the sanction of erasure. In respect of ground one, Mr Johnson, who appeared on the appellant's behalf but who was not the author of the appellant's skeleton argument, fairly conceded that an appeal on this ground was in some difficulty because the issue of impairment had been partially conceded by the advocate (not Mr Johnson) who had appeared on behalf of the appellant at the hearing. Thus, we find in the transcript of the hearing the following exchange between the Chairman of the Panel and Mr Burrows, who appeared on behalf of the appellant:

"CHAIRMAN: . . . [You] are not disputing impairment?

MR BURROWS: I am not disputing impairment, but what I am simply drawing your attention to are documents in the bundle that relate to the transient nature of the disorder that led to the offences being committed. I accept that I am not arguing against impairment, although my understanding of the Rules is that although the Act says at 35C that --

'A person's fitness to practise shall be regarded as impaired for the purposes of this Act by reason only of . . .'

and, in this case it is a conviction or caution in the British Isles of a criminal offence, the fact is that it is still a matter for you. I cannot put forward any positive evidence against the fact that this gentleman has a conviction and therefore qualifies under the Act, but if you have a discretion to consider whether the impairment is still there, then those are the issues that I would draw your attention to.

I am keeping my powder dry for the next stage of the proceedings when I will refer you in some detail to some documents that I had hoped were before you already. That is all I have to say."

The Chairman then asked the Legal Assessor for advice and the Legal Assessor replied:

"In the light of the absence of arguments adopted by counsel against the proposition that the doctor's fitness to practise is impaired, I need say very little, except that the question remains a matter for the judgment of the Panel.

The Panel needs to take into account the nature and the circumstances of the offences and decide whether they amount to a serious departure from the standards expected of a doctor."

Mr Burrows did not raise any objection to that advice to the Panel from its Legal Assessor.

5. On behalf of the defendant, Mr De Marco accepts that section 35C should not be interpreted as meaning that the mere fact that there has been a conviction or caution, of any kind whatsoever, is sufficient of itself to justify a finding that a doctor's fitness to practise is impaired. He accepts that the nature of the conviction and all of the surrounding circumstances have to be considered before such a conclusion can be reached. It is understandable that in the circumstances of this case that consideration was relatively brief, because the offence in question was not merely one of dishonesty by the appellant, but dishonesty by him in his capacity as a doctor: stealing and forging prescription forms for drugs for his own use. That is the kind of dishonesty which very directly and obviously affects a doctor's capacity to practise the profession of medicine. As the Panel observed in its decision letter:

"Doctors occupy a privileged position in society. Members of the public expect doctors to be honest and trustworthy at all times, not just in the realm of their professional activities. The Panel considers that your behaviour in stealing and falsifying prescriptions, represents acts of deliberate dishonesty, and an abuse of your position as a doctor. Furthermore, in attempting to maintain the deception and not admitting it at the earliest opportunity, but continuing to lie to police officers during interviews you compounded your offence. You also involved other people in your actions. In acting in this way, you fell well below the standards expected by members of the public of a registered medical practitioner."

6. The following passage in the decision letter is of critical importance:

"The Panel considered all the mitigating factors. There is no evidence of any direct harm done to patients. You pleaded guilty in court and admitted your wrongdoing. However the Panel is concerned that in your oral evidence today, you were inconsistent and the evidence you gave conflicted with statements made at other times and you were unable to explain these discrepancies. This shows a lack of insight into your dishonesty [My emphasis]."

That led the Panel to reach this conclusion in respect of the appropriate sanction:

"The Indicative Sanctions Guidance details some of the circumstances when suspension may be appropriate. The Panel considers that your actions are a serious departure from the relevant professional standards as set out in 'Good Medical Practice' (2001). You have shown a persistent lack of insight into the matters that led to the finding of impairment of your fitness to practise. It has determined therefore that to suspend your registration would not be sufficient or appropriate.

Consequently the Panel directs that your name be erased from the Register . . . "

7. If the Panel properly concluded that the appellant's evidence before the Tribunal did show a lack of insight into his dishonesty then, given the particular form that that dishonesty took, not merely would the appellant's fitness to practise medicine be impaired; it would be very surprising indeed if the Panel had thought that any other sanction than erasure would be appropriate. Although this is a re-hearing, and I am entitled to form my own view on the evidence, giving such deference to the views of the Panel as I consider appropriate in the circumstances, in a case where a tribunal at first instance has heard oral evidence, an appellate tribunal, looking only at the papers, will be very slow to disagree with the Tribunal's assessment of the oral evidence.
8. The principal basis on which Mr Johnson challenged both the Panel's conclusion as to impairment and its conclusion that erasure was an appropriate sanction, was its conclusion that the appellant had shown a lack of insight into his dishonesty. He submitted that the appellant had comprehensively admitted his wrongdoing after approximately two and a quarter hours of interview, so that any denial of culpability on his part had been short-lived. He then accepted his misconduct at a disciplinary hearing conducted by his employer. He pleaded guilty to the allegations at the Crown Court and in the report of Dr Suddles, a psychiatrist, which was presented to the sentencing judge at Derby Crown Court it was stated:

"Dr Farah described a great deal of remorse surrounding what has occurred. He regrets using the hospital prescription pads, and wished he had had the time to register with the general practitioner for appropriate treatments. At the time, he underestimated the significance of what he was doing, given Zopiclone was not a controlled substance (such as opiates), and is not widely abused. He now realises that he was in fact wrong, though felt the use of the medication enabled him to get through a very difficult time in his life."

9. In addition, Mr Johnson drew attention to the Pre-Sentence Report prepared by the Probation Service which said, amongst other things:

"It was clear from his attitude in interview that Mr Farah very much regrets his behaviour".

In the same report it was said of the appellant that:

"He decided that he needed an immediate solution to his problems. He decided to write prescriptions using a false name. He also used a signature which was illegible and not his own.

In total he wrote five prescriptions and visited different pharmacies each time in order to avoid detection. Mr Farah says he was careful to ensure that the tablets he prescribed himself were not addictive as he did not want it to affect his performance at work. At the time he knew what he was doing was wrong but acted out of frustration and helplessness."

It is submitted that that is a further recognition by the appellant that what he had done was wrong and therefore negates the Panel's conclusion that the appellant showed a persistent lack of insight into his misconduct.

10. Mr Johnson also drew attention to the appellant's evidence before the Panel. When he was asked by his advocate whether he had any observations to make about his misconduct he replied:

"Yes. What I did was wrong, I realise that and regret. I do not make any excuse for doing those things and I feel sorry for all those things, yes."

When he was asked about that matter by the Chairman of the Panel he said:

"I cannot make any excuse for I know I lost everything. I lost a lot of things. I lost my job, but it is not an excuse. What I did was wrong and I realise that . . . The wrong to get the medication for this way, because I can do a lot of better way to get the medication that I need at that time, yes."

It was submitted by Mr Johnson that on the basis of all that material the appellant had clearly expressed remorse and insight into his misconduct and the Tribunal could not reasonably have concluded otherwise.

11. Ably though those submissions were advanced, they overlook the fact which was noted by the Panel that not merely had the appellant made no comment when he was arrested shortly after 6 pm on 13th April, he had during the course of his first interview (which lasted, with a short break, about one and a half hours between 1.30 and 3.00 in the early hours of 14th April) not merely denied the allegations that were being put to him, but had told a series of lies in an attempt to exculpate himself. He began to make admissions well into the second interview which began, after he had obtained legal advice, at 3.43 in the afternoon of 14th April. I have read the transcripts of the interviews. It is unnecessary to rehearse the detail. It is plain, in my judgment, that the appellant persisted in lying to those who were interviewing him until they produced documentary evidence, which they had obtained in the time between the first and second interviews, which made it plain beyond any doubt that there was overwhelming evidence of his dishonesty. Even after the appellant began to make admissions, he continued to be evasive and to maintain some of his lies until eventually the truth was dragged out of him by perfectly proper but persistent questioning. The truth finally emerged in the last interview which began just before 6 pm on 14th April. Thus, to say that there were full and frank admissions by the appellant would be to misrepresent the position. The appellant's answers to the questions put to him in the interviews were very far from frank, and while there were eventually full admissions, those admissions came only after there had been numerous denials, fabrications and evasions on the part of the appellant.
12. It is clear that the Panel rightly attached particular importance to the appellant's evidence at the hearing before them. The appellant was very effectively cross-examined by Miss Bruce, counsel instructed on behalf of the GMC. She raised three matters with the appellant: first, what he had told the author of the Pre-Sentence Report; second, what he had told his employers; and third, what he had told the psychiatrist who had prepared a report on his behalf for the sentencing judge at the Crown Court.
13. In respect of the first of those matters, she referred the appellant to a sentence in the Pre-Sentence Report that said:

"Mr Farah has pleaded guilty to the above offences, I understand that he made full and frank admissions as soon as he was able to."

She asked the appellant:

"Is it right you made a representation to the Probation Officer that you had made full and frank initials as soon as you were able to?

A. Yes.

Q. It is not right you made full and frank admissions as soon as you were able to.

A. (No reply)

Q. That is not correct, is it?

A. I am sorry, where is it?

Q. In the third sentence down it says that you had pleaded guilty to the above sentences and you made full and frank admissions as soon as you were able to?

A. (No reply)

Q. Perhaps I can assist you, the first opportunity that you have had to make full and frank admissions in this case was at the point of arrest and when you were interviewed.

A. Yes.

Q. Is it right that you were neither full nor frank in interview, can you agree with that?

A. Yes, but . . . Yes.

Q. When you said to the Probation Officer for consideration by the Crown Court Judge that you had made full and frank admissions that is not correct, is it?

A. I did full admission after the third interview with the police and I realised I have to make that."

Miss Bruce then put to the appellant passages from the interview in which DC Dean, who was conducting the interview, repeatedly said to the appellant: "You are lying to me, aren't you?" and the appellant repeatedly denied that he was lying. For example: "Are those your drugs?", answer: "No. It's not my drug. It's Rashid Ali's drugs", and so forth.

14. Miss Bruce's questions continued:

"After two interviews you had two opportunities to be truthful and you did not avail yourself of those opportunities and that is accepted?"

I interpose to say that the two interviews might be regarded as one, with a short break between the first and second parts of the interview. The answer to that question from the appellant before the Panel was "Yes".

"Q. Page 78, the third interview where you start to make admissions, you were still prevaricating, not being completely truthful, is that right?

A. Which . . . 78?

Q. I will refer you specifically to the passage, page 78 towards the end of the third interview, 41 minutes into the third 45 minute session, it was put to you . . . "

The exchange is then put to the appellant. In due course, Miss Bruce put this question:

"My suggestion to you is that even after the third interview you were still not making a full and frank admission, is that something you can now accept?

A. Yes."

15. In respect of the second matter, that is to say what the appellant had told his employers, Miss Bruce put the following sentence in the Pre-Sentence Report:

"The hospital searched their records and looked at back dated prescriptions, having realised what had been happening they confronted Mr Farah who made full and frank admissions."

She asked the appellant:

"Is it still your position today that you made full and frank admission to your employers?

A. Yes."

She then took him to a passage in the Pre-Sentence Report which said:

"'2.5 . . . Dr Farah explained he only took one tablet a day and was not addicted to the drug.'

Is that right?

A. Yes.

Q. Is that still your position today that you only took one tablet a day?

A. I take one and sometimes two.

Q. Is it one or sometimes two?

A. Mostly one.

Q. Could I ask you to turn to page 73 of the [police] interview halfway down the page?

A. Yes."

The passage that was being put in cross-examination was this series of questions from Detective Constable Dean to the appellant:

"DC DEAN: Are you using it in excess? Are you using too much Zopiclone?

FARAH: Yeah not too much. Yes of course three or four at night yeah."

The interview summary then states:

"Farah confirmed that the prescribed dosage for Zopiclone was one tablet possibly two to be taken once a day. He confirmed he was doubling that dose for his own use because he was in a stressful situation and could not relax or sleep. Farah said that he had been taking Zopiclone for the last four months."

In the light of those answers to the police, Miss Bruce asked the appellant:

"There you think it might have been three or four?

A. That is not correct.

Q. Is it one or two or three or four?

A. One, maximum two.

Q. You say despite the fact you gave a previous inconsistent answer to the officer that you were being full and frank when you said it was only one tablet a day to your employers, is that right?

A. Yes.

Q. You did not mention then that it might have been two, as part of your full and frank admissions?

A. I take only one mostly, and sometimes two. I am not understanding complete the question here.

Q. I will put it one more time. What I am putting to you is that part of your case that you put before the Crown Court is that you had been full and frank with your employers about issues relating to the offences, do you understand that?

A. Yes.

Q. I am putting to you that you told your employers you took one tablet a night.

A. Yes.

Q. That is inconsistent with answers you have given today and answers you have given in interview, do you follow that?

A. Yes.

Q. Yet you are asking us to accept that the representations you made to your employer on that occasion were honest. I am just trying to understand your case. Is that right?

A. Yes."

16. Miss Bruce then examined this aspect of the matter by reference to the number of prescriptions and the number of tablets in those prescriptions. Having established that the prescriptions spanned a period of approximately two weeks between 28th March and 12th April 2005, she asked these questions and received the following answers:

"Q. Those prescriptions that you presented were for boxes of 56 tablets over that two week period?

A. Yes.

Q. Each one of those counts would represent a box of 56 tablets of 7.5 mgs. Can you confirm that for the Panel?

A. Yes.

Q. Your representation is, presumably, that between 28th March and 12th April 2005 you were taking one tablet a night.

A. Yes, because I am not taking all of them.

Q. I am going to suggest to you that that is questionable in the light of the fact you are presenting prescriptions for very large quantities indeed of the drug.

A. (No reply)

Q. Do you accept that is difficult and that those two do not sit well together?

A. Yes."

17. In respect of the third of the matters put in cross-examination, Miss Bruce asked this question:

"Dr Farah, at page 73 of your interview you were asked how many times you were using Zopiclone, and you gave your answer we have already heard about. You then go on to say that you had been taking Zopiclone for the last four months, is that right?

A. Yes.

Q. You were interviewed, were you not, in April 2005?

A. Yes.

Q. That would mean if you had been taking it for the past four months you commenced taking it in January 2005?

A. Yes.

Q. Can I ask you to turn to page 83, the report from Dr Winbow, psychiatrist and he relates the history and background as you have accounted it to him, and there he states you took medication from November 2004 until March 2005, is that right?

A. Yes.

Q. So we have moved from January to April 2005, to November 2004 to March 2005, is that right?

A. Yes.

Q. Again, at page 87 you say it to Dr Finch, consultant psychiatrist, and again it was towards the end of November 2004, is that right?

A. Yes.

Q. When did you start? Was it November 2004, January 2005 or another date?

A. End of November 2004.

Q. You ask us to accept that despite the inconsistencies in your previous statements?

A. Yes."

18. In the light of those answers in cross-examination, the Panel was, in my judgment, fully entitled to conclude that the appellant had indeed shown a persistent lack of insight into the matters that had led to the finding of impairment of his fitness to practise.
19. Turning to ground two, it was submitted that the Panel had failed to take account of various mitigating factors. They included the following: that the appellant had acted out of character as a result of stress that had been induced by the death of his brother and separation from his family, his wife having left him; that the circumstances in which the offences occurred were transient and unlikely to reoccur; that the appellant did not present any risk of harm to his patients; that he had received a community rehabilitation order rather than a sentence of imprisonment; that this was a case where he was obtaining the drugs for his own use because he could not sleep rather than for financial gain; that he had successfully rehabilitated himself and resolved the personal issues which had appeared to be the trigger for his misconduct; that he had no previous convictions, no history of professional misconduct of any kind and that the period over which the dishonesty occurred was a relatively short one.
20. The Panel said in its decision letter that it had considered all the mitigating factors:

"There is no evidence of any direct harm done to patients. You pleaded guilty in court and admitted your wrongdoing . . .

Mr Burrows has indicated on your behalf that there is no record of any previous complaint regarding your fitness to practise and that these actions are out of character. At the time you were under stress, suffering bereavement and the medication was a method of dealing with this stress, merely to allow you to sleep properly and to deal with the stressful demands of your job."

The Panel also referred to the psychiatric reports which had been produced for their assistance.

21. There is no reason to disbelieve the Panel's assertion that they did consider those mitigating factors, but given the nature of the appellant's dishonesty and given the Panel's finding that there had been a persistent lack of insight into that dishonesty, whatever the mitigating factors were, the inevitable consequence was that erasure from the Register was an entirely proportionate response to the appellant's conduct. The Panel was entitled to come to the view that where a doctor had engaged in deliberate dishonesty and abused his position as a doctor, and had then shown a persistent lack of insight into that conduct, he simply could not continue to practise in the medical profession. Thus, the Panel's conclusion as to sanction was, in practical terms, inevitable once it had reached the conclusion it did about the appellant's lack of insight into his dishonest conduct. For these reasons, this appeal must be dismissed.
22. MR DE MARCO: I am grateful, my Lord. We apply for our costs of this appeal. I have handed up a schedule and my learned friend has seen that. It is a total sum of just over £6,000 including VAT. I have seen my learned friend's schedule. It is of a very similar amount, a few hundred pounds less. We say it is a reasonable amount.
23. MR JUSTICE SULLIVAN: I have not seen Mr Johnson's schedule. Do you want to show it to me? If there is going to be any argument about it, I can at least compare the two. First of all, Mr Johnson, is the principle disputed and, secondly, is the amount disputed?
24. MR JOHNSON: No, my Lord, the principle is not disputed. The amount, there are a few figures here which are disputed. Overall it cannot be disputed, although there are some matters to deal with regarding the way in which payment might be made, due to the financial circumstances of appellant.
25. MR JUSTICE SULLIVAN: Right. If you want to argue about the amount then I will look at your summary assessment of costs to see whether there is, as it were, a broad equivalence between them. If all you are doing is to say "Yes, I accept that these costs are reasonable but I want time to pay", as it were, it will probably not be necessary for me to look at it. What is the position?
26. MR JOHNSON: My Lord, the only figures on this which I would say are slightly distinct relate to not counsel but solicitors. In particular, the attendance today has been put down as five hours. Obviously, it is only a half day so that is quite wrong.
27. MR JUSTICE SULLIVAN: They were not to know that.
28. MR JOHNSON: No, of course. I am not criticising. Maybe the work on documents is significantly greater on the GMC's side rather than our own, particularly when the appellant prepared the bundle. We have only taken two hours. The GMC has claimed 4.6 plus 0.2. Apart from that, there is very little discrepancy.
29. MR JUSTICE SULLIVAN: Was there discussion as to what should go into the bundle?
30. MR JOHNSON: There was some about numbering. They prepared the index but the bundle was prepared by my instructing solicitors.
31. MR JUSTICE SULLIVAN: Yes. To an extent it is swings and roundabouts, of course, as to the balance between the amount of work done by counsel and the amount of work done by solicitors. I take your point that we can knock something off because they have not had to stay here for five hours. We must not go on or we will add to the costs. What shall we take off for that? Where is that?
32. MR DE MARCO: It is the bottom of the first page of the statement of costs, "Attendance at hearing -- 5 hours".
33. MR JUSTICE SULLIVAN: Right. Well, I am going to knock it down to a grand total of £6,000. That will knock that one down, it seems to me.
34. MR JOHNSON: My Lord, I would say that if the hearing has lasted between 10.30 and just after 1, of which maybe an hour was waiting anyway --
35. MR JUSTICE SULLIVAN: I suppose they will have to pay for that, will they not.
36. MR JOHNSON: The claimant was waiting as well. That would be maybe two and a half hours. That would be somewhere in the region of £400 which would take us to about £5,700.
37. MR DE MARCO: I am not quite sure about my learned friend's adding up. Hours, travel and waiting, I am not sure if that changes given that my instructing solicitor has come from Manchester.
38. MR JUSTICE SULLIVAN: Yes. Mr De Marco, I cannot see there is any point in getting into a state about £5,700 actually, if I say that.
39. MR DE MARCO: My Lord, yes.
40. MR JUSTICE SULLIVAN: Otherwise we will spend at least £50 arguing about it. I will order that the GMC ought to have its costs. The appellant is to pay the respondent's cost. I summarily assess those costs in the sum of £5,700. Now, you want some sort of time to pay.
41. MR JOHNSON: My Lord, obviously now he cannot practise as a doctor and he is practically without any real assets at all; he has no house or no car. He is looking for other jobs but the normal 14 days will be quite out of reach. It might be that an unusual direction be given so that he can pay in installments, or alternatively a longer period than 14 days to enable him to actually obtain a job.
42. MR JUSTICE SULLIVAN: I cannot go into questions of installments. That will be subsequently if and when the GMC seek to enforce their costs. Obviously they would then have to establish that he had something.
43. MR JOHNSON: My Lord, I appreciate that.
44. MR JUSTICE SULLIVAN: That he was deliberately not paying as opposed to just completely unable to pay. What I will do, and I cannot see the GMC can sensibly object to that, is to give a period -- I am happy to give two months, if necessary -- to pay the costs. Not that I am expecting someone who is out of work or unable to work as a doctor will necessarily be able to find that money in two months, but it will give the GMC and the appellant time to perhaps reach some sensible agreement as to what might be done.
45. MR JOHNSON: My Lord, I am grateful.
46. MR JUSTICE SULLIVAN: Is that a sensible course?
47. MR DE MARCO: Yes, my Lord.
48. MR JUSTICE SULLIVAN: The normal period for paying the costs is extended from 14 days to two months.