QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF FARAH||Claimant|
|GENERAL MEDICAL COUNCIL||Defendant|
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Mr N De Marco (instructed by the GMC) appeared on behalf of the Defendant
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"(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."
"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."
"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.
"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."
"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 . . . "
"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."
"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.
"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.
"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?
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.
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.
"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?
"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?
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?
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?
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?
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?
Q. I am putting to you that you told your employers you took one tablet a night.
Q. That is inconsistent with answers you have given today and answers you have given in interview, do you follow that?
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?
"Q. Those prescriptions that you presented were for boxes of 56 tablets over that two week period?
Q. Each one of those counts would represent a box of 56 tablets of 7.5 mgs. Can you confirm that for the Panel?
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?
"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?
Q. You were interviewed, were you not, in April 2005?
Q. That would mean if you had been taking it for the past four months you commenced taking it in January 2005?
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?
Q. So we have moved from January to April 2005, to November 2004 to March 2005, is that right?
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?
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?
"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.