England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court 1 Oxford Row Leeds West Yorkshire LS1 3BG
		23 February 2011

Mr Justice Parker:

1. This is an appeal brought by Dr Naheed under section 40 of the Medical Act 1983 ("the Act") from a decision of the GMC's Fitness to Practise Panel. In that decision the GMC decided that her fitness to practise was impaired and that her name should be erased from the register. The only challenge remaining is to the GMC's conclusions on sanction.PRIVATE 
2. The factual background is as follows. Dr Naheed applied for speciality training at Yorkshire and the Humberside Postgraduate Deanery by dishonestly cutting and pasting someone else's career history into her own application and claiming that that other person's experiences were in fact her own. Her application was thus to her knowledge fundamentally misleading.
3. In particular on the application Dr Naheed was asked to describe any experience of working closely with other people. She was allowed to give an example from both inside and outside medicine. In that answer she said that she had in 1998 joined her peers on an expedition to Pakistan:

"...Each of us rotated through roles in the team, including opportunities to be leader, accountable for financial, health and travel decisions. Collectively, we were responsible for construction of a new classroom for a village school and reaching the summit of Pakistan's largest mountain…".

4. She also said there that she had worked as part of a multi-disciplinary team on a busy stroke unit. In that environment she had achieved optimal recovery for the patient and it was inextricably linked to the successful collaboration of health care professionals. She coordinated weekly multi-disciplinary meetings to ensure regular communication between team members. She believed that this prepared her well for a career in obstetrics and gynecology where team work directly affected patient outcome.
5. She was also asked on the form to indicate her level of familiarity with information technology and in particular to note any formal qualifications. In that answer she referred to having learnt to use Reference Manager and Quickstart while completing her intercalated degree.
6. In a third question she was asked about problem-solving and decision making and situational awareness. She was asked to describe the most challenging situation that she had faced in the workplace and how she had dealt with this. And in answer she said that she had worked as part of the labour ward team on morning rounds:

"…we saw a Somali patient, reporting reduced fetal movements, with a pathological CTG prior to the onset of labour. It appeared that emergency Caesarean section would be the optimal mode of delivery. She was unable to understand English, and when we returned to obtain informed consent her husband was adamant that his wife should not undergo the procedure as it would be her second Caesarean section. I urgently requested an interpreter to ensure the lady was fully aware of her options. I explained to her husband that his concerns were noted, but the ultimate decision would be the patient's. Using the interpreter, my registrar and I were able to explain the potential risks of normal labour with an already pathological CTG in simple terms. Once aware of the urgency of the situation, the patient agreed to undergo emergency Caesarean section."

7. Dr Naheed ultimately admitted that that account was not one that applied to her personally. However, she maintained before the panel that that account was not misleading and dishonest because a similar experience had in fact befallen her. It appears from the evidence that she gave to the panel that the experience that befell her was materially different in that the particular case with which she was confronted did not involve the husband having to give any consent and, secondly, in the event a Caesarean had not proved necessary and the birth was normal.
8. Dr Naheed was then challenged by Dr Neligan, the Associate Postgraduate Dean, and she gave a dishonest explanation of the circumstances behind the application and told further lies.
9. At the outset of the letter from the Dean on 20 February 2009, the Dean said this:

"We have received your application for the above training position. In section T of the application form is a statement as follows:

'I understand that employment offered in this training programme is subject to satisfactory medical clearance and subject to the information provided on the application form or any other document being correct. The information you provide will be checked. Inaccuracies may result in your application being rejected and in extreme cases may merit a referral to the General Medical Council. Any false or misleading information provided on this form or any other document may result in any employment being terminated.'

You have indicated in that section that you have noted this statement and that the information you have given is accurate and complete.

I am now writing to request clarification and further information regarding some of the answers in your application. I will be grateful if you could respond to each of the questions below, and provide any evidence requested."

10. There then are a number of detailed questions. Question 5, for example, probes the alleged expedition to Pakistan in 1998 and the doctor's experience working on a stroke unit. Question 7 probes the answer from the application form in relation to information technology. Question 9 probes the description of the event on the completed application form about the labour ward and the Somali patient who could not speak English.
11. Dr Naheed replied to that letter on 6 March and dealt specifically with the matters to which I have referred. And without going into further detail, it is plain that she was both maintaining the veracity of her existing completed application form in those respects and, indeed, was seeking to bolster it by the provision of what could only be false photographs and also false certificates.
12. The matter did continue along the disciplinary procedures and in due course Dr Naheed found herself before the Interim Orders Panel. That panel is of course an important element in the disciplinary procedures of the GMC because that panel has to take a view whether, pending the substantive disposition of any appeal, that the public interest demands there should be an interim suspension of the doctor in question or other measures intended to protect patients and to promote the relevant public interest. It is therefore, of course, paramount that at that stage the doctor in question should be as candid as possible in order that the GMC may take informed and proportionate decisions. However, unfortunately Dr Naheed maintained her position that the application form was accurate in material respects and therefore regrettably sought to mislead the Interim Orders Panel.
13. However, and this is of course to her very great credit, when she came ultimately before the panel on the substantive hearing she did admit in large part, in overwhelmingly large part, the charges against her. The part that she continued to resist related to the alleged treatment of the Somali patient, a matter to which I have already alluded and which I need not repeat.
14. In mitigation of what she had done, Dr Naheed told the panel that she had been struggling to complete certain sections of the job applications forms under the heading "Extracurricular Activities". She had not been successful in being shortlisted, despite having made a number of job applications. She therefore adopted somebody else's application form content so as to stand a prospect of being more successful. She had initially sought to cover up her wrongdoing as I have explained, but later made admissions in a letter written on her behalf by her then solicitors.
15. The panel having found impairment, and that element of course is not challenged, went on to conclude that, taking into account all of the evidence it had heard, Dr Naheed's fitness to practise was impaired by reason of her conduct and that erasure was the appropriate sanction.
16. As regards sanction, the determination recorded that the panel had borne in mind its duty to consider the protection of the public and the public interest, that the public interest included amongst other things protection of patients, the maintenance of public confidence in the profession and the declaring and upholding of proper standards as set out in the GMC's guidance Good Medical Practice. It has taken account of the guidance provided within the ISG. The panel said that they were applying the principle of proportionality, weighing the public interest against the doctor's own interest. The panel recognised that the purpose of sanctions was not to be punitive, although they may have a punitive effect, but to protect patients and the wider public interest. The panel had borne in mind that dishonest behaviour affected the reputation of the profession and compromised the trust and confidence that the public are entitled to have in the profession. It considered that the doctor's dishonest actions had put those aspects of the public interest at risk.
17. The panel went on to consider whether a period of suspension would be an appropriate sanction, but decided that that was not sufficient. The panel said that in view of the detailed explanations required by the Dean to satisfy himself that her application was genuine, she could not have been in any doubt that every aspect of the application form had to be true and accurate. The panel was primarily concerned with the proven allegation that noted that she had admitted two previous applications for employment using the same false information and the panel bore in mind that she had lied during the appearance before an Interim Orders Panel.
18. The panel then referred to the well-known case of Dr Prabha Gupta v GMC (Privy Council Appeal No 44 of 2001) with its reference to also the well-known case of Bolton v Law Society [1994] 1 WLR 512 by the Court of Appeal and referred to certain passages in those decisions.
19. The panel then identified elements of serious misconduct in this case, for example the serious departure from the principles set out in the Good Medical Practice, the reckless disregard for those principles, the abuse of position and trust, the dishonesty involved and what the panel found to be a persistent lack of insight into the seriousness of the actions or consequences. The panel considered that all of the above factors were relevant in the case and it concluded, and this is the key conclusion, that the doctor's actions were "fundamentally incompatible" with her continuing to be a registered medical practitioner and that conclusion was in the panel's view manifested by one serious departure from the relevant professional standards, as set out in the relevant paragraphs of Good Medical Practice. Secondly, the serious and repetitive nature of dishonesty and the acts made to cover up such dishonesty. And, thirdly, the lack of insight into the doctor's behaviour.
20. The legal framework for this appeal is now familiar. The appeal to this court is by way of re-hearing, but the burden is still on the appellant to establish a material error of fact or law. The principal purpose of the panel in relation to sanction is the preservation and maintenance of public confidence in the profession rather than the dispensing of retributive justice. The court must accord, therefore, a certain degree of respect or deference to the judgment of the professional panel when it comes to the imposition of sanctions: see Raschid v GMC [2007] 1 WLR 1470 at paragraph 19 by Laws LJ. The exercise of professional judgment is especially important when it comes to sanction -- see Cheatle v GMC [2009] EWHC 645 (Admin) at paragraph 15 by Cranston J. However, if this court despite paying such respect is satisfied that the sanction is clearly inappropriate, then this court must interfere -- see Salsbury v Law Society [2009] 1 WLR 1286 at paragraph 30 by Jackson LJ.
21. Mr Pievsky, on behalf of the defendant, submits that the court will in particular accord the GMC special respect where the issue to be determined is a doctor's honesty or the implications of his dishonesty. Dishonesty acts which compromise the integrity of job applications are acts which undermine something fundamental to the system of medicine. In my view that submission is supported by Macey v GMC (?) [2009] EWHC 3180 (Admin) at paragraphs 43 to 44 by Irwin J.
22. Mr Pievsky also submits that where dishonest conduct is combined with a lack of insight, is persistent or is covered up, nothing short of erasure is likely to be appropriate. That also appears to me to be sound proposition, having regard to Farah v GMC [2008] EWHC 731 (Admin) at paragraph 7 and 11 by Sullivan J (as he then was).
23. In this appeal Mr Gledhill, who has most ably and succinctly presented the arguments for the appellant, relies essentially on three matters. First of all, and I will deal with them slightly out of order, Mr Gledhill submits that the panel did not take into account sufficiently the mitigating factors here, namely that Dr Naheed had admitted the majority of the charges and expressed remorse, and was of previous good character. Secondly, the senior doctor, Dr Mulik had volunteered to be a mentor and to assist with future job applications. Dr Mulik plainly took the view that Dr Naheed should not be struck off and that some lesser sanction should be applied. Thirdly, the possibility of a job offer to work in a supportive environment, and there were quality testimonials in support of Dr Naheed that confirmed that she was competent and valued as a colleague. The English language was not Dr Naheed's mother tongue, which had affected her confidence and ability in completing the applications form and that she was by then undertaking an English Language improvement course in order to gain the confidence that she had lacked.
24. As to that point it is quite plain from the decision that the panel were well aware of those elements of mitigation that had been put forward. Nonetheless, the panel were faced with a situation where they had concluded on sound basis that Dr Naheed had been dishonest in a way that was fundamental and undermined confidence in the medical profession. She had been dishonest in relation to an application form, which clearly is an important matter, and, secondly, had been dishonest when first appearing before the IOP.
25. It is well recognised in the authorities on this area of the law that in a number of cases there will be mitigating factors and that the person indeed may be competent clinically and not in the past have been guilty of such significant dishonesty. Nonetheless, the authorities make clear that for a doctor honesty, certainly in the matter here involved, is indeed fundamental and therefore it does not appear to me that the panel acted in any way disproportionately in deciding that, having regard to the mitigating features that I have outlined, nonetheless erasure from the register would be justified.
26. The second matter raised was that the panel had failed properly to take into account the learning and educational work that can be undertaken by a doctor during a period of suspension. Dr Naheed could have been directed to undertake training and education in the area of probity in that area in the future, either through an approved programme or by way of one-to-one tuition. However, again on this second point it does not seem to me that the panel acted in any way disproportionately. The panel had identified a fundamental character flaw in this case. This was not a case of failure in relation to clinical matters where obviously in many instances steps can be taken to remedy clinical failures, even if they are quite significant, without the draconian step of erasure. The panel here were faced with something very different, namely simple lack of truth in the important respects that I have identified. And it is not immediately obvious what programmes would be appropriate in order to inculcate in someone who has failed to appreciate the importance of honesty the need for it and the detrimental consequences that can flow from an absence of honest behaviour. Therefore, in my judgment the panel did not take a disproportionate decision by in principle deciding upon the course of erasure, notwithstanding the point that has been made about possible remedial measures having regard to the precise nature of this conduct in this case.
27. The third point relates to the question of insight into the wrongdoing. It may well be the case that someone who has behaved in a dishonest matter, even in respect of important issues, can nonetheless come to have insight into the wrongdoing, and it really is in this context that the appellant has referred to the parallel case of Dr Elkhider. He also had misconducted himself in a similar fashion by making similar use of the plagiarized document in his own job application. That matter was dealt with by a separate panel. The two panels did not communicate in any way with each other during the course of the hearings, nor in relation to the sanctions that were ultimately handed down. No objection was taken to that course of action at the time. Indeed, Dr Naheed wished to ensure that that occurred and no objection is taken by Mr Gledhill in relation to the fairness of that procedure.
28. Mr Gledhill has produced in his skeleton a very detailed comparison of the positions of Dr Naheed and Dr Elkhider, and it appears that indeed there are striking similarities between the two cases. Without descending into the detail, for I am prepared to accept that there are indeed very striking similarities, including the attempt to deceive the Dean, Dr Nelligan, in the same way as Dr Naheed had sought to deceive that individual, there are nonetheless two significant points of difference. The first is that Dr Elkhider did not seek to deceive the Interim Orders Panel. It appears from the information before me that he in principle was at that point prepared to admit that he had acted in a dishonest way. I have already alluded to the importance of candour before the panel and it plainly was very much to that doctor's credit that at that stage he recognised that he had to admit his wrongdoing and to face up to the consequences.
29. Secondly, in his case and I have been drawn to the relevant passages, the panel were ready to accept that Dr Elkhider had recognised his wrongdoing and had genuine insight into it. They based that finding no doubt on the impression that that doctor had given them during the hearing. This court has to bear in mind at all times on appeals of this nature that it does not have the advantage of having seen the relevant doctor or indeed other witnesses give their evidence and be cross-examined and to form a professional view as to the veracity and sincerity of those answers. The panel, therefore, has a very substantial advantage over this court in the kind of assessment here in issue. The crux of the matter being, to what extent could Dr Elkhider's statements about insight be relied upon? He was also buttressed by some third party testimonials as to his fundamental honesty. Quite correctly, Mr Gledhill reminds me that I should be cautious about third-party testimonials. They are only the opinions of others and quite often, and I do not know whether that was the case here, they have been given in ignorance of the full picture and therefore the weight that can be given to them sometimes has to be qualified or even discounted. In any event, that panel did accept that the doctor had shown relevant insight.
30. It is argued strongly on behalf of this applicant that the decision of this panel was not proportionate because, unlike the case of Dr Elkhider, this panel was not prepared to accept that Dr Naheed had demonstrated true insight into the wrongdoing. As I have already recited, the lack of insight did form a material part of the findings of the panel in a way they could be seen as critical because that lack of insight was one of the two key distinguishing features between this case and the case of Dr Elkhider.
31. Mr Gledhill has drawn my attention to the case of Brennan v Health Professional Council [2011] EWHC 41 (Admin) before Ouseley J and in particular to paragraph 50 where Ouseley J said that "counsel had made some telling points about the evidence given by Mr Brennan, but I do not know if they were the points which weighed with the committee. I do not know if it is accepted what Mr Brennan had to say, but thought that it was all too little too late. Counsel's insights cannot stand in the place of adequate reasoning by the decision-making body dealing with the principal points at issue".
32. However, it seems to me on a challenge in relation to proportionality I have to ask myself where a panel has made a finding of fundamental dishonesty and has concluded that the doctor in question has not demonstrated insight into wrongdoing, whether there was material before the panel upon which such a conclusion could have been based. In that respect certain of the answers given in cross-examination are of some relevance.
33. On the second day there was the following interchange when Dr Naheed was giving evidence. She was asked:

"Can you explain how you came to ask your solicitors to write that letter?"

34. That was the letter in which Dr Naheed accepted that she had earlier given a dishonest explanation. She said:

"Because when I look back at my actions just after that IOP hearing I feel burden of my conscience. This incident happened because I feel it is pure misunderstanding of extracurricular activities. The new form came at the time and there were questions and a lot of information and for me a problem for these things, how to answer and the language to use. Back home actually the problem is that we got job, the only criteria is the clinical experience and the qualification. The questions are usually based on clinical competency. I thought these extra curricular activities are only to fill in the application to look impressive rather than any real meaning of significance."

35. Then later on she was asked:

"You say you knew at the time you were dishonest, or is it only more recently you have realised it was dishonest, or is it something in between?

Answer: When I fill in the application and I did not give any importance to the extracurricular activities. When I signed I thought they are asking about my clinical experience, my qualification, my courses, I thought they were just asking, that is why I put that 'Yes' at the time.

Question: When did you realise that what you had done was wrong.

Answer: Just after the IOP hearing. I thought they have suspended me for 18 months so I have done something very, very wrong."

36. Then a little later on the doctor was asked:

"How is it the Panel can be reassured that what you have done in the past is not something that you will repeat?

Answer: It is purely because of my lack of understanding; I was under a lot of pressure in 2005/2007, as I said before. I stuck to my application, the original application I did not make any false application in two years' time. Although my PLAB was going not to expire, I was domestically and financial struggling at the time but I stuck to my original CV."

37. In this context again, I have to bear in mind that this court does not have the advantage of having heard that evidence being given by the witness in person, nor indeed have the advantage that the panel had of evaluating as a whole in the light of the evidence given as a whole to what extent the panel could be confident that Dr Naheed indeed had shown true insight into what she had done.
38. I also have to bear in mind that, as I explained earlier, she had maintained that she had not acted in a misleading or dishonest way in relation to a clinical experience, where it does appear that the account upon which she was ultimately relying differed materially from the one that she put forward in the application form. Therefore, it does seem to me, particularly taking account of the special position that the panel enjoys, that there was here material to support the finding by the panel that there had not been a full recognition of the dishonest behaviour. That is a matter in my judgment eminently for the panel to evaluate.
39. It is a difficult question when a doctor or any other person is accepting wrongdoing to determine whether indeed they then have insight into their behaviour. It is a question of judgment and assessment. The panel were well placed in this case to make that assessment and, for the reasons I have given, they were entitled on the material to reach that conclusion. And therefore I have come to the view that none of the points that have been advanced so ably by Mr Gledhill lead me to judge that the panel here reached a disproportionate decision.
40. As I said, the principal thrust is the distinction between Dr Elkhider and in my judgment there were the two material differences, firstly conduct in relation to the hearing before the IOP and, secondly, and importantly, the issue of recognition of the wrongdoing, which was materially different in each of these cases. I should just finally say that Article 8 was referred to. Insofar as that article is engaged, Article 8(2) creates public policy exceptions in relation to the public interest and health and safety of patients and requires proportionality, but for the reasons given any challenge on proportionality fails and therefore in my view Article 8 really adds nothing to this particular case. The final conclusion is that I dismiss the appeal.
41. Mr Gledhill: My Lord, two matters if I may. First, a potential correction to your judgment.
42. Mr Justice Parker: Yes.
43. Mr Gledhill: I am not sure if I misheard, but I think at one point, a couple of points you said Dr Malik --
44. Mr Justice Parker: Right.
45. Mr Gledhill: It is M-U-L-I-K, if that can be noted?
46. Mr Justice Parker: All right, I will check the name to get that right.
47. Mr Gledhill: Thank you, my Lord. The second point is there is an application for costs which I am now instructed to make. I do not know if you received my schedule?
48. Mr Justice Parker: Yes, let me look at it.
49. Mr Gledhill: My Lord, the first page relates to solicitors' costs 1.8 hours. GMC, 2.6 on opponents, 1.7 on others, relatively small costs there.
50. Mr Justice Parker: Then your fee.
51. Mr Gledhill: Then my fee is on page 3. In my submission, those are as a whole reasonable and proportionate costs of a case of this nature.
52. Mr Justice Parker: Yes. Do you take any point?
53. Mr Pievsky: I have a cribsheet because there is Legal Aid involved and I am not familiar with Legal Aid.
54. Mr Justice Parker: The usual -- it is all subject to the Access to Justice Act so it cannot be enforced.
55. Mr Pievsky: If you are inviting me to respond on a summary basis, I am happy to do so. If I might just read my instructions?
56. Mr Justice Parker: Yes.
57. Mr Pievsky: We request that there be an order that the appellant pay the respondent's costs to be subject to detailed assessment, not enforceable without order of the court. Secondly, that there be a detailed assessment of the appellant's publicly funded costs. So my instructing solicitors are asking for detailed assessment rather than a summary assessment. If you want me to deal with the summary assessment, I will respond.
58. Mr Justice Parker: You are not saying why you take issue at this stage with any of the amounts.
59. Mr Pievsky: We are unfamiliar with what work done on negotiations related to.
60. Mr Justice Parker: The Legal Services Commission may be involved.
61. Mr Pievsky: Yes. And with respect to my friend the fee sought for counsel is towards the higher end for what we would respectfully submit is the usual fee in these proceedings.
62. Mr Justice Parker: Yes.
63. Mr Gledhill: I apologise. I am told work done on negotiation, that should be work done on documents.
64. Mr Justice Parker: Right.
65. Mr Gledhill: So if my learned friend wants to reply on that, obviously I do not take objection. I think it is a case that is suitable for summary assessment (inaudible) amounts. If the claimant's costs are to be assessed that is a different matter. Of course we would be content with a normal order not to be enforced (Inaudible) the Access to Justice act.
66. Mr Justice Parker: I do not see any obvious deficiency or flaw in this costs schedule. The amounts seem to me fair and reasonable having regard to the nature of the case and I am quite well placed to make that decision. I might be better placed than others, so I am minded in fact to make the order in respect of the amount mentioned £8,827.10. It seems to me on the point in relation to counsel's fees having regard to the nature of this case, that fee is reasonable.
67. Mr Gledhill: I am obliged.
68. Mr Justice Parker: Thank you both very much for your very helpful and succinct submissions.