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
		29th June 2009

1. MR JUSTICE FORBES: On 27th April 2009 I dismissed the appellant's appeal against the GMC's Fitness to Practise Panel's findings of fact ("the Panel").
2. The facts relating to the matter as a whole are fully set out in my judgment of 27th April 2009, to which I refer, but do not repeat.
3. The issue for the court today is whether the effect of my quashing the findings of fact in relation to one particular matter is such as to call into question the Panel's overall determination on sanction. In effect, I upheld all the findings of fact made by the Panel, other than the findings of fact with regard to the allegation that the appellant had forged another practitioner's signature on a document.
4. It is to be noted that in upholding the findings of fact that I did, I upheld six separate findings that the appellant's actions were, amongst other things, dishonest.
5. The fact that I have come to the conclusion that the essential issue for me today is whether the effect of quashing the findings of fact in relation to one particular matter was of such a nature and extent as to call into question the Panel's determination on sanction is reinforced by the recognition by Mr Hockton, on behalf of the appellant, that there is no proper basis upon which the sanction imposed by the Panel could be properly challenged if all the findings of fact were upheld. I refer to paragraph 22 of Mr Hockton's original written skeleton argument and, in the course of oral submissions today, he has confirmed that this remains the appellant's position.
6. The position, therefore, is that I must consider whether the Panel's decision on sanction was disproportionate and wrong (see CPR Part 52.11(3)) on the basis of such findings of fact as I have upheld. It is only if I conclude that the Panel's decision was wrong on that basis that I should then proceed to consider whether to substitute my conclusions with regard to sanction for those reached by the Panel.
7. In this context, I accept Miss Gallafent's submission, on behalf of the GMC, that I should have regard to the appellant's concession that his fitness to practise was impaired by reason of the findings of fact made by the Panel. It is also important to note that there is still no challenge to the finding of impairment in the light of my having quashed the findings of fact in relation to the one matter to which I have earlier referred.
8. Clear guidance on the proper approach to the application of my discretion on a section 40 appeal to vary a sanction imposed upon a doctor by a Fitness to Practise Panel has been given by the Court of Appeal in the well-known case of Raschid & Fatnani v General Medical Council [2007] 1 WLR 1460.
9. At paragraphs 19 and 20 the court said this:

"19. 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. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations at paragraph 34 of Ghosh v GMC [2001] 1 WLR 1915, page 1923G:

'The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner's failing amount[s] 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.'

20. 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."

10. As Miss Gallafent observes, that guidance has been consistently adopted and applied by the High Court, including by Cranston J in Cheatle v General Medical Council [2009] EWHC 645 (Admin).
11. It is also important to refer to the GMC's Indicative Sanctions Guidance, which points out there are some examples of misconduct where the Privy Council has upheld decisions to erase a doctor, despite strong mitigation, because it would not have been in the public interest to do otherwise, given the circumstances concerned: see paragraph 39 of the 2005 Guidance.
12. The Guidance also makes clear that the three "most serious areas of concern" are (a) sexual misconduct, (b) dishonesty, and (c) failing to provide an acceptable level of treatment/care.
13. As Ms Gallafent pointed out, on the issue of dishonesty, the Guidance provides as follows:

"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 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. The Privy Council has emphasised that:

'... Health Authorities must be able to place complete reliance on the integrity of practitioners; and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole [Dr Shiv Prasad Dey v General Medical Council (Privy Council Appeal No 19 of 2001)].'

45. Research misconduct is a further example. The term is used to describe a range of misconduct from presenting misleading information in publications to dishonesty in clinical drugs trials. Such behaviour undermines the trust that both the public and the profession have in medicine as a science, regardless of whether this leads to direct harm to patients. Because it has the potential to have far reaching consequences, this type of dishonesty is particularly serious."

14. Unsurprisingly, Ms Gallafent emphasised the terms of paragraph 45 of the Guidance and the fact that all the findings of research misconduct involving dishonesty that the Panel made in the case of this appellant remain intact.
15. Ms Gallafent also submitted that it was not surprising that, in the light of that Guidance, it had been the GMC's submission to the Panel that the appropriate sanction in the appellant's case was one of erasure. Ms Gallafent made it clear that this still remains the GMC's position today. However, it is a matter of record that the Panel, having taken fully into account all the matters raised before them by the appellant, came to the conclusion that his actions, although serious, were not incompatible with his continuing to be a registered medical practitioner.
16. It is convenient to mention, at this stage, that all the matters raised before the Panel have been raised once more before me by Mr Hockton on behalf of the appellant. They are summarised in paragraph 8 of his careful and helpful written skeleton argument to which I refer, but do not repeat. In short, Mr Hockton submitted that, in the light of all these matters, which concentrate on the excellence of the appellant's medical record, the testimonials that have been written (both by patients and by professional colleagues) which speak so highly of him, matters such as the lack of any intention to make personal financial gain in respect of the various matters which are the subject of the adverse findings of fact against him, and other matters summarised in that paragraph, I should conclude that either it was wrong in principle to impose a sanction as serious as an order of suspension upon the appellant, or, in the alternative, if suspension was the correct sanction, that the tariff imposed, which is the maximum period, was far too long and that I should substitute a shorter period.
17. As I indicated earlier, in reality the only issue for me today is to decide whether the quashing of the findings of fact in relation to one of the heads of charge is of such significance that the Panel would have reached a different conclusion on the issue of sanction had they not taken that particular matter into account.
18. I have come to the firm conclusion that the answer to that question is that they would not have imposed a different sanction, whether in terms of the nature of the order or its duration.
19. Whilst it can be said that the allegation of forgery, in respect of which the findings of fact were quashed by me, can be said to be very serious, I accept Ms Gallafent's submission that it cannot properly be said to have been so much more serious than the other findings of dishonesty that, in the absence of that finding, the Panel would have reached a different conclusion. Indeed, as Ms Gallafent emphasised, and as the indicative sanctions guidance makes clear, research dishonesty is to be regarded as "particularly serious" and, as I have already indicated, all of the findings in respect of the research dishonesty remain intact.
20. Before concluding this judgment, I should mention that the appellant has raised an argument based on the effect of section 47 of the Medical Act. As Mr Hockton pointed out, the effect of this provision was recently considered by Cranston J in Cheatle (see above). In the course of his judgment, Cranston J suggested that the sanction of suspension on the grounds of misconduct will not only prevent the practitioner from working during the period of suspension, but it will, as a matter of law, bring to an end his employment as a National Health Trust.
21. As to that latter conclusion, it is to be observed that Cranston J's observations were necessarily somewhat tentative. It was not necessary for him to reach a final and concluded view upon the matter. However, Mr Hockton relied on the observations of Cranston J — in particular at paragraph 40 of his judgment — and submitted that this was a different state of affairs from that which prevailed at the time the sanction was imposed by the Panel in this case. At the date that the sanction was imposed in this case, the view was — and one shared by the GMC — that section 47 was couched in terms which gave NHS trusts a discretion as to whether to terminate a doctor's appointment in the event that his registration was suspended. Mr Hockton therefore submitted that if Cranston J's views are correct, namely that by operation of law the appointment in question is terminated, that is a matter which the Panel did not have in its mind when imposing the sanction that it did, and that had it been aware of the likely operation of section 47 the sanction that they did impose would have been correspondingly less.
22. I am not persuaded by that particular submission. As Ms Gallafent submitted, the proportionality of the Panel's decision is essentially unaffected by the degree of the risk of termination of the appointment being greater than that which was understood to be the case at the time the sanction was imposed in this case. The fact remains that at the time the Panel did reach the conclusion that it did with regard to sanction, it must be taken to have been aware that there was a very significant risk of the doctor's National Health Service appointment being terminated. The fact that that risk is now thought to be 100 per cent, as opposed to a very significant risk, does not, as it seems to me, affect the proportionality of the sanction in question and I reject Mr Hockton's submissions to the contrary effect.
23. In my view, taking into account all the matters which have been so carefully and persuasively put forward on the appellant's behalf by Mr Hockton, I am satisfied that the appellant's misconduct was at the upper end of the scale of seriousness for the reasons put forward by Ms Gallafent. As it seems to me, this is a case where, on the findings of fact as upheld by me, erasure would have been justified had the Panel decided to impose such a sanction.
24. I say that because, as it seems to me, it is unusual for cases involving findings of dishonesty by a disciplinary body in relation to a professional person not to result in erasure or striking off. The fact that in this particular case the Panel did conclude that it was appropriate to impose a lesser sanction than erasure seems to me to be very strong evidence that the Panel took into account every aspect of all the matters put forward so persuasively on the appellant's behalf by Mr Hockton.
25. For those reasons, therefore, I have come to the firm conclusion that there is no substance in this appeal against the sanction imposed by the Panel, which is accordingly dismissed.
26. Thank you.
27. MS GALLAFENT: My Lord, I am seeking the General Medical Council's costs in relation to this matter. You will be delighted to know that I do not have a summary assessment, this matter now having lasted 4 days, so we ask for an order that the costs be subject to detailed assessment if not agreed.
28. MR JUSTICE FORBES: Mr Hockton?
29. MR HOCKTON: My Lord, I do not know whether you will give me some discount for the albeit limited success in the first round.
30. MR JUSTICE FORBES: Well, what are you suggesting by way of a discount?
31. MR HOCKTON: Well, it would be unrealistic to suggest any more than 10 per cent, and only relating to that stage.
32. MR JUSTICE FORBES: Let us see what Ms Gallafent has to say about it. If I were to give some recognition of the very limited success of the appeal overall --
33. MS GALLAFENT: Well, my Lord, of course there has not been success in the appeal overall because the appeal, ultimately, is against the sanction imposed, and that sanction has been upheld by your Lordship. So in terms of outcome, this appellant has not been successful at all.
34. So far as the issue, your Lordship may remember we spent some 3 days on the substance of this case. To my recollection, time actually spent in relation to the allegations which your Lordship has not upheld was very short, actually, in comparison to the very, very large period of time spent in relation to some of the other allegations that required review of the expert evidence. So even if one were to look at the time spent in relation to that very short issue, we say it is far less than 10 per cent.
35. MR JUSTICE FORBES: You are quite right. There was very little time spent on it, because it very quickly became apparent that --
36. MS GALLAFENT: Yes, it was a matter of a very few minutes, by my recollection, it was the shorter aspects of by both my learned friend's and myself's submissions.
37. MR JUSTICE FORBES: Well, Mr Hockton, is there anything more you want to say?
38. MR HOCKTON: My Lord, no.
39. MR JUSTICE FORBES: I am satisfied that this is a case where it is appropriate to make the ordinary order as to costs. I do not propose to give any discount for the very limited amount of success, in terms of the original appeal against the findings of fact. So the appellant is to pay the respondent's costs of the appeal. I will put it in the plural because we have now had two appeals: costs of the appeals, such costs to be the subject of a detailed assessment on the standard basis if not agreed. Thank you both very much for your assistance.