Neutral Citation Number: [2009] EWHC 1048 (Admin)

Case No. CO/6580/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 6 May 2009
 
B e f o r e: 

MR JUSTICE MITTING
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Between: 
DR ANTHONIPILLAI NICHOLAS‑PILLAI 
Claimant

v 

GENERAL MEDICAL COUNCIL 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr Paul Spencer (instructed by Stainforth Solicitors) appeared on behalf of the Claimant 
Mr Ivan Hare and Mr Chris Hamlet (instructed by GMC Legal) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE MITTING:  This is an appeal under section 40 of the Medical Act by Dr Nicholas‑Pillai against a finding by the General Medical Council's Fitness to Practise Panel that his fitness to practise was impaired, and its decision to impose upon him a sanction of suspension for six months.  
2.	The proceedings arose out of a circumcision performed by Dr Nicholas‑Pillai on a very young boy, Patient A, in 2001.  The operation had to be redone subsequently by another medical practitioner.  The parents of Patient A were dissatisfied with the operation performed by Dr Nicholas‑Pillai.  They instructed solicitors, who on 12 August 2003 wrote to him in these terms: 
"We enclose our client's consent for release of medical records ... We are instructed to consider proceedings in relation to a circumcision operation which was undertaken on 27 April 2001.  Please could you forward your records in connection with this incident ..."
3.	There were two follow‑up letters.  It seems that Dr Nicholas‑Pillai did not respond to those letters until the General Medical Council took the matter up with him.  In consequence, he sent them a letter dated 5 March 2004, enclosing what he said were his practice's medical notes in relation to the procedure.  The first bore a date of 10 April 2001, and stated as follows: 
"Mother wants circumcision for religious reason.  
D/W father.   
Gen. Condition P 
FTND.
Past H/O Nil significant.
Allergies nil.
O/E Font Normal.  P
Locally ‑ unremarkable.  
Heart lungs. P
Explained the procedure." 
4.	The second bore the date 27 April 2001 and read: 
"Circumcision 
Normal skin preparation ‑ Savlon wash. 
Pre med  Phenogram. 
         Calpol 5ml.
Foreskin cleaned.  1% lignocaine infiltrate around the ridge (2ml).  
good local effect. 
dissected the foreskin up to the ridge and secured bleeders with clamps ‑ catgut tie to stop bleeder.  
Circular dissection and about 2.5cm to 3cm skin removed.  
Skin sutures purse string ‑ no bleeding. 
paraffin dressing with (gauze) dressing.  
advised regarding follow up and call SOS telephone No." 
5.	In letters to the GMC, RadcliffesLeBrasseur, acting for Dr Nicholas‑Pillai set out at length his usual procedures and his recollection of the events in issue.  The allegations which the Fitness to Practise Panel considered were set out in the notice of hearing dated 3 September 2007: 
"2.  On 10 April 2001, patient A's father brought patient A to the surgery in order for you to circumcise patient A. 
3.  In carrying out the said circumcision,
a. You removed an excessive amount of external skin from patient A's penis,
b.  You removed insufficient of the inner skin from patient A's penis. 
c.  (Deleted) 
d.  You carried out the operation in such a manner that the suture lines contracted over the tip of the penis leaving only a pinhole;
4.  On 25 July 2001, revision surgery was performed to patient A's penis. 
5.  As a result of the matters set out at Head of Charge 3, patient A's penis is cosmetically abnormal.  
6.  On or about 5 March 2004 you sent a letter to Christian Khan, a firm of solicitors acting on behalf of patient A,
a.  You enclosed with that letter medical notes that you said related to patient A,
b.  Those notes purported to state that,
 (i) you saw patient A in consultation on 10 April 2001, 
 (ii) you circumcised Patient A on 27 April 2001;
7.  The said notes were,
a.  Inaccurate and/or,
b.  Not prepared contemporaneously with or as soon as possible after the matters to which they related;
8.  Your conduct as set out at Head of Charge 3 was,
a.  Not in the best interests of patient A and/or,
b.  Below the standard to be expected of a reasonably competent medical practitioner; 
9.  Your conduct as set out at Heads of Charge 6 and/or 7 was,
a.  Unprofessional,
b.  Intended to mislead and/or,
c.  Below the standard to be expected of a reasonably competent medical practitioner." 
6.	Dr Nicholas‑Pillai admitted a number of the allegations.  Following the same numbering, he admitted 3d, 4, 6a and b.  The panel found some of the allegations unproven: again by reference to the numbers, 3a, 5, and 7a and b in relation to the allegation at 6b(i).  A word of explanation about that finding is required.  The panel accepted, because it accorded not only with the terms of the note of 10 April but also the evidence of the patient's parents, that Dr Nicholas‑Pillai had indeed seen the patient on 10 April 2001.  Consequently, the note which recorded the result of that examination and its date was not proved to be inaccurate or not prepared contemporaneously.  
7.	Allegations against Dr Nicholas‑Pillai fell into two categories: first, clinical performance, the actual performance of the circumcision; and secondly, dishonest note‑keeping.  In relation to the first set of allegations as to clinical performance, the panel found that the performance of the operation was deficient, but that it did not give rise to concern about the fitness to practise of Dr Nicholas‑Pillai, and no sanction was imposed in respect of it.  
8.	In relation to the second and most significant issue, the panel found that the note bearing the date 27 April 2001 was both inaccurate and not prepared contemporaneously, or as soon as possible after the matters to which it related, and was unprofessional and intended to mislead.  The panel, in short, found that Dr Nicholas‑Pillai had been dishonest in his clinical note‑keeping.  
9.	Its findings in relation to the question whether Dr Nicholas‑Pillai had seen Patient A and his parents on one or two occasions are not wholly clear.  As I have already noted, the panel accepted that Dr Nicholas‑Pillai had seen Patient A and his parents on 10 April 2001.  It seems to have been common ground that Dr Nicholas‑Pillai did in fact see Patient A and his parents on more than one occasion.  There are passages in the decision letter prepared by the panel which suggest that the panel may not have accepted that fact.  In particular, it observed: 
"The impression given by you in these notes was that you had an initial consultation with the parents of Patient A on 10 April 2001 before carrying out a circumcision on Patient A on 27 April 2001."
That statement appears immediately after the sentence which reads: 
"The panel has already found that the notes of the operation dated 27 April 2001 were inaccurate and not prepared contemporaneously." 
10.	The same point is repeated later on in the decision letter: 
"You have accepted that you enclosed with the letter dated 5 March 2004 the medical notes that you said related to Patient A.  Those notes purported to state that you saw Patient A in consultation on 10 April 2001 and that you circumcised Patient A on 27 April 2001.  This therefore gave the impression that you had carried [out] an initial assessment of Patient A before carrying out the circumcision some two weeks later." 
11.	Whether or not the panel found that there were one or two consultations, its finding that the note of 27 April 2001 was not prepared contemporaneously with, or as soon as possible after, the matters to which it related, and that it was inaccurate and intended to mislead, were unquestionably capable of supporting a finding that fitness to practise was impaired.  The panel expressly addressed the question of dishonesty when considering sanction.  Having reviewed the GMC's Indicative Sanctions Guidance, it observed: 
"The Panel considers that your dishonesty, as found proved under Head of Charge 9, undermines the trust which the public place in the profession." 
12.	There can therefore be no doubt but that the panel found that the note bearing the date 27 April 2001 was not only inaccurate and not prepared contemporaneously, but was prepared with a view to misleading Patient A's solicitors, and dishonest.  It was clearly entitled to reach those findings and its findings are not challenged.  It added in that context two sentences that are at the heart of the first part of this appeal.  Having said, "The panel takes a serious view of your dishonest conduct in providing inaccurate and misleading information", it went on to state: 
"Moreover, it considers that this dishonest conduct is compounded by the fact that you have given inconsistent and unreliable evidence at this hearing." 
13.	Later on, when considering sanction, it observed: 
"The panel considers that your dishonesty, as found proved under Head of Charge 9, undermines the trust which the public place in the profession.  In addition, as announced in its determination on your fitness to practise, this panel was concerned about your misleading instructions to your solicitors, RadcliffesLeBrasseur." 
14.	Mr Spencer, who appears for Dr Nicholas‑Pillai on this appeal but did not appear below, submits that the panel should not have made that observation in the context of its finding that fitness to practise was impaired.  He accepts that it was a proper observation to make when considering sanction, but not at the earlier stage.  The basis for the observation is not entirely clear from the decision letter itself.  I have been taken through a number of passages in RadcliffesLeBrasseur's letter of 17 August 2006, and compared assertions made in that letter with evidence given by Dr Nicholas‑Pillai about the consultations and about his practice, and inconsistencies between the two are demonstrated.  It is not necessary for me to set them out in this judgment because they do not seem to me to be matters of fundamental importance in determining whether or not Dr Nicholas‑Pillai's fitness to practise was impaired, or if so what sanction should be imposed upon him.  I deal with the issue as one of principle. 
15.	It might be tempting to draw an analogy with the practice of the criminal courts in imposing a sentence for a crime.  It is wrong for a sentencing court to treat as an aggravating factor the fact that a defendant has exercised his constitutional right to have the issue of his guilt or innocence determined by a jury.  The approach of the courts in criminal cases is to identify an appropriate sentence to impose for the offence after a trial, and then to discount that sentence, typically by up to one third, in the event of an early acceptance of guilt demonstrated by a plea of guilty at the first opportunity.   
16.	Putting the prosecution to proof, even giving evidence which the jury must reject as false, does not serve as an aggravating feature when sentence is determined.  The analogy is not however apt.  The Fitness to Practise Panel is not determining what sanction to impose upon a doctor by way of punishment, but to determine whether or not his fitness to practise is impaired, and if so, and in the public interest, what sanction should be imposed upon him.  It is not necessary for me to set out the well‑known learning on the purpose of such a finding and the imposition of sanctions.  It is rightly common ground that sanctions are imposed for the public interest, which includes protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.  Given that purpose, the panel are, in my view, clearly entitled to take into account, at the stage at which they determine whether fitness to practise is impaired, material other than the allegations which they have considered which suggest that it is either is not impaired or that it is impaired.   
17.	To take an instance not far removed from this case, this was an isolated act of professional dishonesty.  If Dr Nicholas‑Pillai had acknowledged that he had made up the notes after the event, or had inserted a date that he had no reason to believe was right after the event, and had accepted that, in so doing, he intended to mislead the patient's solicitors, then hard though it may have been to make those admissions, they would have stood to his credit, and might have tended to suggest that his fitness to practise was not as impaired as otherwise it would ordinarily be found to have been.  But he did not do that.   
18.	In the view of the panel, which is not disputed, he contested the critical allegations of dishonesty and intention to mislead.  That was a fact which the panel were entitled to take into account in determining whether or not his fitness to practise was impaired, even though it did not form a separate allegation against him.  Indeed, it is hard to see how it could have done.  One can envisage circumstances in which lying to a disciplinary panel may itself amount to professional misconduct such as to lead to a finding that fitness to practise is impaired and a severe sanction.  In a case, for example, of alleged clinical error, where a doctor had given false evidence to the panel about it, the panel would not be entitled to treat that as a freestanding ground of impairment of fitness to practise leading to a sanction.  If it found that the original clinical error which founded the allegation did not impair his fitness to practise and it was only the lies told to the panel, then that would have to be pursued in separate proceedings, with the charge made the subject of a separate allegation.  But that set of circumstances is likely to be highly unusual.   
19.	In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him. 
20.	I would reach that conclusion without the benefit of authority, but in fact it appears to have been assumed to be the case in Misra v the GMC [2003] UKPC 7 at paragraph 17, when the Privy Council observed in relation to entirely different facts: 
"If his denial were to be disbelieved then the Committee would have to consider his conduct regarding [Mr B] on the footing that he had received four requests to visit her but had failed to do so and on the footing also that he had lied on oath about two of the telephone calls." 
21.	The Privy Council there clearly accepted that lying on oath under the old procedure would be a factor relevant to the determination of the panel.  If it was relevant then, so it seems to me it is relevant now.  In fact, as I have observed, the matters which concerned the panel do not seem to have been of fundamental importance to its decision.  Mr Spencer accepts that for this appeal to succeed on this issue he would have to demonstrate that the panel's decision that fitness to practise was impaired was wrong, even leaving out of account the passages which he criticises in its decision letter.  I am entirely satisfied that the panel were right to conclude that Dr Nicholas‑Pillai's fitness to practise was impaired by reason of what the panel found to be misleading and dishonest clinical notes.  Accordingly, that ground of challenge to the decision fails. 
22.	The second ground of challenge raised with my permission today is that the sanction imposed, six months detention, was disproportionate and excessive.  In this context I remind myself of the guidance given by the Privy Council in Ghosh.  At paragraph 34, while accepting that the task of the Privy Council (now the Administrative Court) is not simply one of review, observed: 
"For these reasons the Board will accord an appropriate measure of respect to the judgment of the Committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public.  But the Board will not defer to the Committee's judgment more than is warranted by the circumstances.  The Council conceded, and their Lordships accept, that it is open to them to consider all the matters raised by Dr Ghosh in her appeal; to decide whether the sanction of erasure was appropriate and necessary in the public interest or was excessive and disproportionate; and in the latter event either to substitute some other penalty or to remit the case to the Committee for reconsideration." 
23.	That passage was cited by Laws LJ, in giving the judgment of the Court of Appeal, in Raschid v General Medical Council [2007] 1 WLR 1660.  At paragraph 20 he observed: 
"These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course 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."  
24.	In this case, the panel considered the relevant passages in the GMC's Indicative Sanctions Guidance, which include, under the heading "Dishonesty":
"44.  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 ... improperly amended patient records ..." 
Those comments appear in the paragraphs dealing with erasure, which refer to dishonesty as amongst the three most serious areas of concern. 
25.	It is readily understandable why that guidance is given.  Dishonesty and the maintenance of clinical records does go to the heart of the public's trust in medical practitioners.  It is, as Mr Spencer acknowledges, a very serious matter for a doctor to be found to have prepared clinical notes with a view to misleading, and dishonestly.  
26.	Under the heading "Suspension", in paragraph 27 the Indicative Guidance notes that it can be "used to send out a signal to the doctor, the profession and the public about what is regarded as unacceptable behaviour", especially in circumstances where the incident is unlikely to be repeated. 
27.	In this case, the panel made no express finding whether this instance of dishonesty was or was not likely to be repeated.  I am content to proceed on the basis that there is no reason to believe that it will be.  But it remains a serious act of misconduct on the part of Dr Nicholas‑Pillai.
The panel received, and I have read, testimonials for Dr Nicholas‑Pillai, and evidence from Dr Marks, in which he spoke of his long knowledge of Dr Nicholas‑Pillai and of his astonishment that this act of dishonesty had occurred.  I proceed on the basis that, apart from this incident, Dr Nicholas‑Pillai has had an exemplary professional career, and one which is of great value to his patients, and that in depriving his patients of his services for six months, they will be deprived of something of value to them.  
These cases always result in the balancing of one public interest against another.  In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned.  Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one‑off instance of dishonesty.  In this case, the panel, it seems to me, took a merciful course by deciding only to suspend Dr Nicholas‑Pillai, and to do so for six months.  I find it quite impossible to say that that sentence was disproportionate to the professional misconduct which it found proved, or is in any way open to criticism.  
I therefore reject the second of the two grounds of appeal, as I did the first.
28.	MR HARE:  My Lord, we are obliged for that.  Could I hand up our statement of costs? 
29.	MR JUSTICE MITTING:  Yes.  I received a statement of costs from the appellant's side.  I have something to compare.  Is there any criticism of this, Mr Spencer? 
30.	MR SPENCER:  Could you forgive me for one moment, my Lord? 
31.	MR JUSTICE MITTING:  Yes.
32.	MR SPENCER:  My Lord, no.
33.	MR JUSTICE MITTING:  No.  I assess the respondent's costs, including VAT, at £6,645.30, and order the appellant to pay that sum to the respondent.
34.	MR SPENCER:  My Lord, I have instructions to seek permission to appeal on the point of principle that your Lordship has dealt with.  There is nothing I wish to add, but I do, on instructions, ask your Lordship to grant permission to appeal to the Court of Appeal.
35.	MR JUSTICE MITTING:  No, I do not think you have any realistic prospects of success on that and I refuse permission.  Thank you both.