England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/04/2011

Mrs Justice Rafferty:

1. This is a statutory appeal by Dr Naveed Karwal under section 40 of the Medical Act 1983. She challenges both the Respondent General Medical Council ("GMC") Panel's finding that her fitness to practise was impaired and the sanction imposed. Although by way of rehearing, the appeal requires a review of the material and evidence before the Fitness to Practise Panel ("FTPP").
2. In Manchester in 2007 the hearing of charges alleging dishonesty against Dr Addy, the husband of the Appellant, and the Appellant was adjourned on the basis of the health of both, and restored to London in June 2008 against the Appellant alone. Dr Addy, unwell, was not proceeded against. In June 2008 the FTPP convicted the Appellant of three out of twenty-six allegations of dishonesty, concluding she had knowingly made to a professional colleague false representations about an investment scheme so as fraudulently to reassure him that £188,000 he had been promised would be paid.
3. The Panel found her conduct had been dishonest, falling below the standard expected of a registered medical practitioner, and likely to bring the profession into disrepute. It was not satisfied she had insight into her conduct and felt she had attitudinal problems about her involvement. It suspended her from the medical register for 12 months and directed a review which was held in December 2009 and March 2010.
4. In determinations dated 25 and 26 March 2010, the Panel found her fitness to practise impaired and she was further suspended for 9 months from the expiry of her then current suspension. The cumulative effect of the sanctions was a suspension of some 2 years and 9 months.

LEGAL FRAMEWORK

5. The case before the Panel was considered under section 35D of the Medical Act 1983 which reads where relevant as follows:

"(4) Where a Fitness to Practise Panel have given a

direction that a person's registration be suspended –

(a) under subsection (2) above;

….

Subsection (5) below applies.

(5) In such a case, a Fitness to Practise Panel may, if

they think fit –

(a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;…….."

6. The GMC's Indicative Sanctions Guidance of April 2009 explains that at a review the Panel needs reassurance that the doctor is fit to resume practice either unrestricted or with conditions. Paragraph 116 reads:

"It is important that no doctor should be allowed to resume unrestricted practice following a period of conditional registration or suspension unless the Panel considers that he/she is safe to do so. In some misconduct cases it may be self-evident that following a short period of suspension there will be no value in a review hearing. In most cases, however, where a period of suspension is imposed and in all cases where conditions have been imposed the Panel will need to be reassured that the doctor is fit to resume practice either unrestricted or with conditions. The Panel will also need to satisfy itself that the doctor has fully appreciated the gravity of the offence."

7. Findings of the Panel about reliability and truthfulness of a witness who gave evidence should be accepted unless material errors are clearly demonstrated: Pugsley v General Medical Council [2010] EWHC 2247 (Admin). In Raschid v General Medical Council [2007] EWCA Civ 46; 1 WLR 1460 in which the Court of Appeal considered the High Court's discretion on a section 40 appeal to vary the sanction imposed by a FTPP. Laws LJ at paragraph 19 said:

"…[since] the principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical 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."

At paragraph 20 he said:

"…the High Court will correct material errors of fact and of course 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…."

Thus, both in relation to the finding of impairment and to sanction, significant weight is to be afforded to the judgment of the Panel which exercised its professional judgment.

THE DETERMINATION

8. The key question at the December 2009 hearing was whether the Appellant had sufficient insight into or had "fully appreciated the gravity of" the offence. The Panel said it was:

"….satisfied that the responses given by you to Dr Barrett, Dr Rowlands, to Dr Wise's BIDR test, and to some extent Professor Mawgoud were at best disingenuous but, more likely, intended to mislead, and therefore dishonest. This evidences your lack of understanding of the seriousness of the matter and its potential impact. On the balance of probabilities, the Panel has determined that your behaviour continues to demonstrate lack of insight and real acceptance of the findings of dishonesty. The Panel has reminded itself of the findings of the Merrison report, and of the need to protect not only individual patients but also the collective confidence of the public in doctors as a whole. The Panel notes that the public interest includes not only such confidence but also the need to declare and uphold proper standards of conduct and behaviour. This Panel needs to satisfy itself that you have fully appreciated the gravity of the findings made against you, whether or not you accept them. It is the consideration of the Panel, exercising its own judgement that you do not have to confess to guilt, or accept guilt, in order to demonstrate insight. Rather, you have to appropriately recognise the issues in your case, which includes acknowledging that you have been found guilty, rather than trying to shy away, or mitigate from such a finding, even though you may choose to protest your continued innocence. To assert that you had been cleared, either wholly or in part, by the GMC is not, in this Panel's view, an indication of insight, nor is it an indication that you fully recognise or appreciate the gravity of the findings made, or the effect that your conduct has had on the reputation of, and confidence in, the profession. Accordingly, and in all, the circumstances, the Panel is not satisfied that you have any insight into the seriousness of the findings made, or the seriousness of your continued actions. The Panel, therefore, has determined that your fitness to practise continues to be impaired by reason of misconduct."

GROUNDS OF APPEAL

9. Advanced by Mr Alan Rawley QC who also appeared below, grounds of appeal are as follows:

i) Permitting, without warning or notice, the GMC to present a case of lack of insight

The finding of impairment was based on the Appellant's alleged lack of insight into her involvement in the fraud charges found proved against her. Lack of insight she concedes was a concern of the original FTPP in 2008, which required her to show her fitness to resume practice from the point of view of her mental and physical health and of her skills and knowledge as a doctor. Mr Rawley QC on her behalf criticised and criticises the GMC for, as he put it, having changed tack on the morning of the first day of the December 2009 hearing in seeking to prove impairment by lack of insight, without notice and over his objections.

The eventual finding was based on the evidence of two psychiatrists called by the GMC, Drs Rowlands and Barrett, who each said the Appellant had told him she had been completely cleared of any wrongdoing and in addition to their reports produced contemporaneous notes of their interviews with her. As soon as their reports had been received the Appellant's solicitors had written to say that "completely cleared" was an error.

The FTPP's finding that the psychiatrists' evidence was to be preferred to the Appellant's on this matter is said by Mr Rawley QC to be contrary to the evidence, to have failed to take into account errors by the two psychiatrists in other parts of their reports and to be contrary to common sense. The psychiatrists had, according to correspondence, been supplied by the GMC with the original 2008 findings against the Appellant and she had been told the same before either saw her. Both psychiatrists denied having received them. The GMC's case relied in part on her efforts to mislead both psychiatrists about the original findings (or dishonesty) whereas Mr Rawley QC points out that the Appellant at the very least believed each had a copy. Why then, he asked rhetorically, would she, an intelligent highly educated professional, make so fundamental and so easily detectable an error?

Further, the evidence of the two doctors that they were not mistaken in their evidence of the Appellant's answers and that they took careful histories is contradicted by those very histories which themselves include factual errors. Mr Rawley QC took me as an example to Dr Rowlands' notes which record the Appellant's account of having been cleared of allegation, whereas in the doctor's report the final noun has become plural.

The FTPP's findings that the Appellant told the doctors that she had been suspended in Manchester in 2007, that in 2008 she had been cleared of financial allegations, and that judgment had been given requiring her to return money she had not taken, Mr Rawley QC describes as totally misconceived. He supports his argument in reliance upon her very complicated background which she sought to make clear to the two psychiatrists. This layer of complexity added to the misunderstanding about the original findings so that the Appellant stood accused of having deliberately set out to mislead. This is not he submits a finding open on the evidence to the FTPP, which, so the submission goes, deceived itself.

As my rehearsal of the legal framework makes plain the FTPP was required to consider whether all the concerns raised in the original finding of impairment had been sufficiently addressed to the Panel's satisfaction: Abrahaem v GMC [2008] EWHC 183 (Admin) per Blake J:

"23…..In my judgment, the statutory context for the Rule relating to reviews must mean that the review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Panel's satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.

….

25.The Indicative Sanctions were provided to the Appellant before the hearing in December 2005 and would be familiar to his advisers. The terms of para 32 were emphasised at the second hearing by counsel for the GMC. Mr Kellar submits that para 32 is included in the section under sanctions and can only be applicable when the Panel found that fitness to practise is still impaired under Rule 22.

26…this Guidance is intended to apply at reviews and will therefore have relevance as to the Panel's finding whether fitness to practice remains impaired…..The court is in no doubt, however, that at both hearings the Appellant would or should have been aware of the need for the Panel "to be reassured that the doctor is fit to resume practice whether unrestricted or with conditions" and will need "to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended, and has maintained his or her skills or knowledge"…"

In my judgement the position is clear and was or should have been clear at the time of the review. Not only the Appellant's dishonesty but also her lack of insight were concerns explicit in the conclusions of the 2008 FTPP. The 2010 Panel was therefore not only entitled, but obliged, to address them.

As to lack of notice, the GMC's Indicative Sanctions Guidance was clearly familiar to the Appellant's legal advisers. She would, or should have been, aware of the terms of paragraph 116 and of the need for the Panel at a review hearing "to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended, and has maintained his or her skills or knowledge": Abrahaem. At the hearing she engaged with the allegations upon which the GMC relied. I can see no reason to conclude that this complaint is made out.

ii) FTPP was not on the facts entitled to find lack of insight

This ground to some extent marches with that I have just considered and several of the arguments Mr Rawley QC deployed attach to both. The Panel's finding rested on the evidence in particular of Drs Rowlands and Barrett. Each said the Appellant told him she had been "cleared". The Appellant in evidence denied saying she had been "cleared".

The determination was as follows:

"As part of the evidence given particularly by Dr Rowlands and Dr Barrett the issue arose as to whether or not you stated, or falsely stated, that you had been cleared of wrongdoing in relation to your dishonest conduct, and whether, or not, your suspension was simply a result of your having failed to appear before a Fitness to Practise panel and having failed to undergo an assessment of your health. The Panel notes the consistent statements made by Dr Rowlands and Dr Barrett. It accepts that these are experienced professionals used to taking contemporaneous notes, and has concluded that their initial notes are generally accurate on the issue of what you said concerning the outcome of the GMC proceedings. You did not indicate to them that you were wrongly found guilty, or whilst the charges were found proved against you, you remain innocent. Rather, your repeated statement to these practitioners was that you were cleared of financial allegations/charges and that you were not prepared to discuss the matter further. In reaching these conclusions the Panel has been assisted by the oral evidence given, and the handwritten notes adduced."

In oral evidence each doctor explained the speed with which he reduced the fruits of his interview to his report before in detail considering what the Appellant had said. Dr Rowlands' report of 27 August 2009 includes "She tells me that at the hearing she was cleared of the financial impropriety allegations but that she was suspended for 12 months on the condition of providing medical reports and evidence of educational attainment." His oral evidence referred to his handwritten contemporaneous notes including: "She told me that she had been cleared of financial allegations and that she had not taken any money and I put that in quotes, which is what she would have said to me.

Dr Rowlands in evidence recognised that there was a long and complicated history of which he had a very small part in the bundle of documents and which did not really make sense. He told the FTPP that the main focus of the consultation was her mental health. He did not see it as his remit specifically to comment on the GMC hearings and though he probed a little it was not his job to contradict or challenge her.

Dr Barrett's report dated 29 August 2009 included:

"……..Dr Karwal spoke of some sort of case against her at the GMC – concerning financial matters, it seemed. She described herself as having been "cleared" by the council and said that as a consequence she would not speak of the matter and said that it was her view and that I should not ask about it……….

…..Dr Karwal declined to discuss what the nature of an earlier hearing at the Council in connection with financial matters had been. She described the Council as having "entirely cleared" her in connection with these matters."

Dr Barrett in cross-examination considered the suggestion that the Appellant had said "mostly cleared":

"No. I am very clear on this because I remember it very exactly; a most unusual interview…..rather like talking to a barrister than a doctor. ……When I asked about this matter, I was informed by Dr Karwal that she had been entirely cleared and that, consequently, she was not going to talk about it…..and that it would somehow be improper in the sense of a contempt of court sort of way that I would not ask about it and that that would be the wrong thing to do."

"Entirely cleared" is not in his notes, but Dr Barrett was confident the Appellant had uttered the phrase. His evidence was thus not that he had supplied the qualifying "entirely" whereas it had not been articulated, rather that though it had been articulated he had not included it in his notes but remembered and explained it in evidence.

One difficulty the Appellant faces in advancing this ground is that the topic of exactly what she said was most thoroughly ventilated before the FTPP. I have set out in detail the path through the evidence along which Drs Rowlands and Barrett were skillfully led by Mr Rawley QC so as to show that no possible fortification for challenge went unscaled. The doctors gave answers consistent with each other and with the tenor if not the letter of their contemporaneous notes. What is striking is that each found the Appellant and this case remarkable in the sense that it was unusual. It made it easier for the FTPP to accept the clarity of their recollections. It seems clear to me that in preferring the evidence of Drs Rowlands and Barrett to that of the Appellant whom it described as "not reliable and credible", the FTPP reached a conclusion open to it and it follows that on this ground the Appellant cannot succeed

The finding of impairment was not open to the FTPP; alternatively it was not a proper finding and/or against the weight of the evidence.

10. Once again, this ground, inevitably and appropriately, requires consideration of matters already rehearsed. The finding of impairment was said to be based on the Appellant's lack of insight into her conduct whereas she argues that "the finding of lack of insight, [even] if properly made, could not impair [her] ability to practise". The Appellant's contention that insight can never be in issue in this type of case except in the very rarest of circumstances is difficult to equate with the jurisprudence and the Regulations. Insight – in the sense of determining whether the doctor has appreciated gravity – is inevitably an issue at a review. Dishonesty by a doctor, albeit unconnected with the practice of medicine, undermines the profession's reputation and public confidence. Conduct which the Panel, in the exercise of its expert judgment, considers has this effect provides a clear and proper basis for a finding that a practitioner's fitness to practise is impaired
11. The Appellant has always maintained her innocence of the original findings whilst acknowledging their importance and seriousness when expressing a firm purpose of amendment. Though Mr Rawley QC couched the case for the GMC as equating maintenance of innocence with lack of insight, I am not persuaded of such a stark error. The FTPP was scrupulous to make clear that it did not see acceptance of culpability as a condition precedent for insight. The GMC's position seems to me sound and unassailable on this point. As the Indicative Sanctions Guidance makes clear, at a review hearing a Panel will "need to satisfy itself that the doctor has fully appreciated the gravity of the offence". The findings of fact by the FTPP demonstrate its justifiable view that the Appellant had not fully appreciated the gravity of her offence, rather that she sought to minimise it and had lied about it. The Panel was entitled to take account of this want of candour and, sadly, continued dishonesty in reaching its conclusions on impairment.
12. Before reaching a conclusion I reminded myself of all the arguments advanced by Mr Rawley QC without the constraint of linking them necessarily to any one Ground. Thus I have reflected on the Appellant's admission to Dr Rowlands that she had been suspended for dishonesty albeit she gave the locus of the tribunal as Manchester where there was no such finding, simply a long-drawn out application over four days for an adjournment. She was conceding the originating finding, be it recorded in Manchester or in Timbuktu, and must be entitled to rely upon that concession as going to her honesty. She has a medical history which has not made her life easier. She has a husband whose own health has declined in sad circumstances and the burden upon the Appellant is not to be underestimated. Doubtless during the currency of these proceedings she found it challenging to concentrate on what was said against her and at the same time tend to her husband. The proceedings themselves have been protracted and not due to any fault on her part. Delay cannot but have eroded further her ability to focus. All that said, it is not open to me to find that the FTPP fell into error.
13. It follows that I cannot accept any of the submissions so cogently and persuasively advanced by Mr Rawley QC and that this appeal as to findings must be rejected. As to sanction, parties sensibly reserved their positions, and I shall if necessary consider in writing or orally any further submissions in that regard.