QUEENS BENCH DIVISION
Leeds LS1 3BG
B e f o r e :
sitting as a Judge of the High Court in Leeds
| DR MONA HOSNY
|- and -
|THE GENERAL MEDICAL COUNCIL
Craig Sephton QC (instructed by GMC) for the GMC
Hearing dates: 17th May 2011
Crown Copyright ©
Judge Behrens :
1. She said that the reference was sent to her as an attachment to an e-mail. She had kept the attachment (downloaded to a USB stick) but that she had not kept the e-mail. Thus she could not say when she received the reference or who sent it.
2. She did not open the attachment. She knew it was a reference and she assumed it would be a good reference. No-one would send her a false or a fake reference
1. She said that she had no recollection of writing "No" in the answer in the Barts Form as she did not understand what was being referred to.
2. She said she accessed the forms on a number of occasions and saved an archived form. The word "No" was stored on the archived form.
3. She never meant deliberately to deceive anyone. She was not dishonest.
4. She was not asked about conditions or fitness to practise at the telephone interview. She was asked about her registration, She did not volunteer information about her conditions because she was ashamed of herself and very much down. It was a low grade job (SHO rather than Consultant) and she was psychologically distracted.
1. there was no evidence of harmful deep-seated personality problems which might pose a risk to patients
2. there has been no repetition of the dishonesty; the Panel took into account that Dr Webb was in fact willing to provide a reference for Dr Hosny and that the false references were created for the purpose of expediency and there was no personl gain.
3. it was always Dr Hosny's intention to disclose the conditions and she did so on 25th August 2011 the day after the job offer.
4. Dr Hosny did notify locum agencies of the restrictions
5. in the light of the answers given to the Panel the Panel concluded that Dr Hosny had begun to show insight into her misconduct.
6. the Panel appreciated that there were language difficulties and that Dr Hosny is not always capable of comprehending complex documents
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
The principles are:
(1) The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
(2) The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
(3) The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;
(4) The court's function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that "a very strong case" is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)
18. The regime based on impairment of fitness to practise is based on amendments to the Act which came into effect in 2004. Before that, the relevant concept under the statutory regime for matters relating to a medical practitioner's conduct was that of serious professional misconduct rather than impairment of fitness to practise.
19. It appears that a reason for the change in concept may have been to emphasise that the regime under the Act is concerned with a medical practitioner's current and future fitness to practise rather than with imposing penal sanctions for things done in the past, although that was also the case under the previous version of the regime (in common with the position in relation to a range of bodies which regulate professionals): General Medical Council v Meadow  EWCA Civ 1390, -. The statute requires the FTPP to consider whether the fitness of a medical practitioner to practise "is" impaired: see s. 35D(2). Accordingly, the FTPP has to assess the current position looking forward not back: see also Meadow at  per Sir Anthony Clarke MR; Zygmunt v General Medical Council  EWHC 2643 (Admin) at  (Mitting J). However, as Sir Anthony Clarke MR also observed in Meadow at : " in order to form a view of the fitness of a person to practise today, it is evident that [the FTPP] will have to take account of the way in which the person concerned has acted or failed to act in the past."
48. Against this, Miss Grey submitted that each of Cohen, Meadow and Azzam was concerned with misconduct by a doctor in the form of clinical errors and incompetence. In relation to such types of misconduct, the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently (i.e. at the time of consideration by a FTPP) impaired; but Miss Grey submitted that the position in relation to the principal misconduct by Dr Yeong in the present case (i.e. improperly crossing the patient/doctor boundary by entering into a sexual relationship with a patient) is very different. Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence.
49. I accept Miss Grey's submission that the types of cases which were considered in Cohen, Meadow and Azzam fall to be distinguished from the present case on the basis she puts forward. Two points should then be made.
50. First, in my judgment, the overarching function of the GMC as set out in s. 1(1A) of the Act informs the meaning of impairment of fitness to practise by reason of misconduct in s. 35C(2), so that under s. 35C(2) and s. 35D the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public's confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
51. Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at  (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving "a rape or misconduct of that kind", in relation to which - by implication - such evidence might be less significant).
56. Probity means being honest and trustworthy and acting with integrity: this is at the heart of medical professionalism
57. You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession
59. If you have restrictions placed on your practice you must, without delay, inform any other organisations for which you undertake medical work
65. You must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents and that you must not deliberately leave out relevant information.
1. The Panel plainly had in mind the authorities to which I have referred including the passages from Sales J's judgment in Yeong set out above.
2. This was a case where the findings were of dishonesty. Thus this was one of those cases where the efforts of Dr Hosny to remedy the misconduct were likely to carry less weight than in a case where there had been clinical errors.
3. The Panel did consider whether Dr Hosny had remedied the misconduct. It made the point that her conduct in denying the dishonesty showed that she did not understand the gravity of the misconduct.
4. This was a case where the Panel felt that Dr Hosny had violated one of the fundamental tenets of the profession and that her integrity could not be relied on.