QUEEN'S BENCH DIVISION
Manchester Civil Justice Centre
1 Bridge Street West
B e f o r e :
|- and -
GENERAL MEDICAL COUNCIL
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Mr Atherton (instructed by the GMC) appeared on behalf of the Defendant.
Crown Copyright ©
"25. In broad terms I accept the submissions of Miss Callaghan for the GMC, as to the proper approach for the court on an appeal under Section 40 of the Act, which were not disputed by Mr. Forde QC (with whom Mr De Bono appeared) for Dr Azzam. These principles are well established and appear most recently from GMC v Meadow  QB 462, Raschid & anor v GMC  1 WLR 1460 and Gupta v GMC  EWHC 2918 (Admin). 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.
26. To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: see e.g. R (Harry) v GMC  EWHC 2050 (Admin)."
I should add that paragraph 118 of Meadow makes it clear that CPR 52.11(2) applies, namely that unless it orders otherwise the Appeal Court will not receive evidence which was not before the lower court. I refused permission to Dr Hosny to do this for reasons I gave earlier in the hearing.
"2. This appeal is by way of rehearing: see 52PD 116(2). I must allow the appeal if persuaded that the decision of the panel was wrong: CPR 52.22(3)(a) and GMC v Meadow  EWCA Civ 1390 paragraphs 125. Because its findings involve judgments about the reliability and truthfulness of witnesses who gave oral evidence in front of it, I must accept its findings of fact unless material errors are clearly demonstrated; and because in determining sanctions, once misconduct and impairment of fitness to practise were found, the Panel is exercising a discretion entrusted to an experienced specialist body, albeit chaired by a lay member and containing an equal number of lay and professional members, I must give special place to its judgment: Fatani and Rashid v GMC  EWCA Civ 46, paragraphs 20 and 26."
The 2010 FTPP Matters
"The Panel is of the opinion that the onus was clearly on you to disclose the IOP conditions which were in place at the time you submitted your written applications for employment with the respective Trusts. It does not accept your argument that you did not read the 'Declaration' section of the application forms which require you to tick a box stating that the content of the application form is 'true and complete'.
The Panel applied the Ghosh test and concluded firstly that what you did was dishonest by the ordinary standards of reasonable and honest people. By categorically stating on the application form that you did not have conditions on your registration was clearly incorrect and this would be viewed as being dishonest by the ordinary standards of reasonable and honest people. Secondly, the Panel concluded that you must have realised that what you were doing would be regarded as dishonest by those standards. The Panel does not accept your explanation that you submitted an archived application form without checking it, as a reasonable excuse. The responsibility was clearly yours to ensure that the content of the applications was accurate before submitting it. You have told the Panel that you were embarrassed by the fact that your registration was restricted by the imposition of conditions and felt ashamed of it. You have also said that you were humiliated by this fact. The Panel is of the view that because of the effect which the conditions had on you, you knew what you were doing would be dishonest when you submitted the application forms."
Then later at page 23:
"Furthermore, you have told the Panel that, as a result of these proceedings, you have learnt to be vigilant in reading documents that you receive and send out. You have also explained that you now understand the role and purpose of the GMC and that you will be personally accountable should problems arise."
Other Relevant Chronology
The New Allegations: Paragraph 1
"If applicable, please provide details of any conditions/restrictions you may have."
Dr Hosny left this blank.
"Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?"
Dr Hosny stated "No".
"Have you been removed from the register or have conditions been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?"
There was a dropdown menu indicated, but no entry was made by Dr Hosny in the box.
"If you have any gaps within your employment history, please state below."
Dr Hosny's answer to this question made no reference to the periods when her employment was interrupted by the suspension of her registration by the IOP, i.e. 19 April to 21 May 2010, and 6 September 2010 to 16 September 2010.
"The information in this section is true and complete. I agree that any deliberate omission, falsification or misrepresentation in the application form will be grounds for rejecting this application or subsequent dismissal if employed by the organisation. Where applicable, I consent that the organisation can seek clarification regarding the professional registration details."
Dr Hosny indicated by a tick that she agreed to that declaration.
"In February 2011, you submitted applications for employment ("the applications") to
a. Addenbrooke's Hospital, Cambridge University Hospitals NHS Foundation Trust,
- has been admitted and found proved.
b. Mid Yorkshire Hospitals NHS Trust.
- has been admitted and found proved."
The New Allegations: Paragraphs 2 and 4: Findings
"Paragraph 2 –
In the applications, you failed to disclose that
a. you were currently the subject of General Medical Council ("GMC") fitness to practise proceedings,
- has been found proved.
The GMC's Good Medical Practice (November 2006) sets out the requirement for doctors to be honest and open and act with integrity.
Paragraph 65 states that '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.'
The Panel is satisfied that you had an obligation to disclose the GMC proceedings on the applications. Furthermore, such obligation had been recently highlighted to you by the GMC.
The Panel rejects your explanation that you thought you were not subject to proceedings at the time because you had appealed the decision of a Fitness to Practise Panel (FtP) to suspend your registration. You were aware that the appeal had not yet been heard and it must have been obvious to you, therefore, that the proceedings were ongoing.
b. your registration was subject to an order of suspension imposed on 16 December 2010, not yet in force due to an ongoing appeal,
- has been found proved.
This follows from the Panel's finding at paragraph 2(a).
c. your registration had been subject to interim orders of suspension ("the IOP suspension orders") between
i. 19 April 2010 and 21 May 2010,
- has been found proved.
ii. 6 September 2010 and16 December 2010,
- has been found proved.
The relevant question on the applications was 'Have you been removed from the register or have conditions been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?'.
The question clearly covered any removal or conditions imposed by the GMC, which would include IOP orders. You have stated in evidence that, in hindsight, you concede this.
The Panel is satisfied that the question refers to past as well as present restrictions, as indicated in the wording itself and also implied by the fact that a doctor would not be applying for medical employment if they were currently removed from the register.
d. gaps in your employment history were, at least in part, a result of the IOP suspension order.
- has been found proved.
You have stated that you thought the question only referred to gaps such as maternity leave, sickness or sabbaticals, since the question did not mention GMC proceedings, and that this issue was not raised at your last FtP hearing. You have also stated that your work as a locum implied gaps in your employment.
The relevant question on the applications asked you to state any gaps within your employment history. This was unqualified and there was therefore no basis to justify your limited interpretation of it. Accordingly, the Panel rejects your explanations.
Paragraph 4 -
Your conduct at paragraph 2 was
- has been found proved.
The Panel considers that your conduct was dishonest according to the ordinary standards of reasonable and honest people. It is also satisfied that you realised that your conduct was dishonest by ordinary standards.
You have given evidence to this Panel that, at the time of completing the applications in question, you thought you were able to apply for jobs. This was the case. At the Interim Orders Panel on 27 April 2011, the transcript of which was introduced into evidence at your request, you referenced the view that 'Nobody would recruit anybody who has any problems with the General Medical Council'. In your oral evidence to this Panel you indicated that, not having declared your GMC history on the application form, you would have raised it at interview if asked. The Panel has found that you had an obligation to disclose previous and ongoing GMC proceedings and that you failed to do so was deliberately dishonest.
- has been found proved.
The applications which you completed would have given the reader an inaccurate, and therefore misleading, portrayal of your circumstances."
14.1 In the decision letter the FTPP said this on matters of law:
"The Panel has considered each of the outstanding paragraphs of the allegation separately. In doing so it has considered all of the evidence adduced, and has taken of Mr Atherton's submissions on behalf of the GMC and Mr Wells' submissions on your behalf. It has borne in mind that the burden of proof rests on the GMC throughout and that the standard is the civil standard of proof, namely the balance of probabilities.
The Panel has accepted the advice of the Legal Assessor. In particular, she has advised the Panel should give the word 'fail' its common usage, which implies not complying with an obligation to have done something. She advised that, when considering whether your conduct was misleading, the Panel should consider whether it was objectively misleading; it does not have to have been deliberately misleading.
With regard to dishonesty, Counsel and the Legal Assessor have referred to the two stage test set out in the decision in the Court of Appeal in the case of R v Ghosh  QB 1053. In determining whether your actions were dishonest, the Panel must first of all decide whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter. If it was dishonest by those standards, then the Panel must consider whether you must have realised that what you were doing was dishonest by those standards."
14.2 In fact, as is apparent from the findings under paragraph 2, certain matters are found there which go to the issues also of whether under paragraph 4, Dr Hosny's conduct was dishonest and misleading. It is these issues which are at the heart of the appeal. In short, Dr Hosny maintains her case that her non-disclosure was not dishonest and not misleading. As her counsel stated:
[(i) Day 1, 11H]
"...in that the doctor failed to disclose the details given, she does not deny that, that she did not disclose the information that has been outlined to you. Her contention is that there was no deliberate action on her part, no connotation of blame. The intention of the doctor here is absolutely key in whether or not the action was dishonest or whether it was deliberately misleading at the time."
[(ii) Day 2, 12A]
"When the doctor read these forms she could not see where she was directly asked for that information, although I stress again she was also fully aware that the information was freely available on the Internet and would be checked by any prospective employers."
(2a)(2b)(2c) and (4): Issues
15.1 The determination of the 2010 FTPP was as follows:
"... the Panel has determined to suspend your registration for a period of 12 months ... The effect of this direction is that, unless you exercise your right of appeal, the period of suspension will take effect 28 days from when written notice of this determination has been served upon you. A note explaining your right of appeal will be sent to you."
15.2 Then the decision letter of the 2010 FTPP considered whether to impose an order for immediate suspension, and said:
"...it is not necessary to make an order suspending your registration immediately.
The substantive direction for suspension will take effect 28 days from when written notification is deemed to have been served upon you, unless an appeal is lodged in the interim.
This means that the substantive direction for suspension, as already announced, will take effect 28 days from when notice is deemed to have been served upon you.
Your interim order of suspension is hereby revoked."
15.3 As already mentioned, Dr Hosny filed a Notice of Appeal in January 2011. Therefore, at the time of her three applications, the suspension had not taken effect pending the determination of the appeal.
16.1 Under the subparagraphs of this heading, the 2012 FTPP found proved that Dr Hosny acted dishonestly and was misleading by failing to disclose that at the time of her applications:
(i) She was "currently the subject of General Medical Council ('GMC') fitness to practise proceedings". This related to the application form question:"Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?"
(ii) Her "registration was subject to an order of suspension imposed on 16 December 2010, not yet in force due to an ongoing appeal..." This related to the question:"If applicable, please provide details of any conditions/restrictions you may have."
(iii) Her "registration had been subject to interim orders of suspension" (April-May 2010, September-December 2010). This relates to the question:"Have you been removed from the Register, or have conditions been made on your registration by a Fitness to Practise Committee or the licensing or regulatory body in the UK or in any other country?"
16.2 In so finding, the FTPP rejected Dr Hosny's explanation that she thought she was not subject to proceedings at the time of her applications because of her pending appeal, on the basis that she was aware that the appeal had not been heard, and it must have been obvious to her, therefore, that proceedings were ongoing.
16.3 Evidence from Dr Hosny on these points was put in detail before the FTPP. Some material extracts, which I shall not read, are in the transcript:
(a) A statement that she read out at the beginning (Day 1/13B-15E)
(b) Oral evidence (Day 1/16A-F, Day 1 17A-C, Day 1/19A-B and D, day 1/20C, Day 1/23D-E, Day 1/30E-31D, and Day 1/46A)
These are not all the extracts, but are some material extracts which set out her case as put before the 2012 FTPP.
18.1 The FTPP did not give any weight to evidence which showed that Mr Miller, a panel member of the IOP hearing in April 2011 and a registered GMC doctor, and Ms Ledward, the GMC representative on the IOP, were themselves confused when discussing Dr Hosny's registration status in the period when her appeal was pending.
18.2 This matter arose when the FTPP asked Dr Hosny (Day 1/36) about who she thought the licensing body was in the question (paragraph 2(c) on registration conditions). She answered "The GMC", and said that the April 2011 IOP hearing had said she could have properly answered "No" to this question; instead she had left it blank. There was then an application by Dr Hosny, opposed by Mr Atherton, to adduce evidence of what was said at the IOP hearing. Part of the opposition was based on the relevance of what was said. Nevertheless, the FTPP admitted the evidence. I shall read the relevant section. This is Dr Hosny giving evidence:
"There was a conversation started when Dr Miller, in number F, said:
'Thank you. Just to carry on from my colleague, is it correct to say for clarification purposes that this doctor was not subject to any sort of order or restriction on her practice between 16 December and 24 March?'
Miss Ledward, as the GMC representative, said:
'That is right. The way it was worded on the GMC website is that she was subject to suspension but it was not yet in force and because the interim order had been revoked there was no restriction on her practice at that stage.'
Dr Miller further added:
'Going on from that, is it correct that she was not, therefore, subject to any fitness to practice procedures?
Miss Ledward answered:
'The submission on behalf of the GMC is that is a different question. As you will appreciate, if one takes out the complicated factor of being after a fitness to practise determination, a doctor, as this doctor was, may' -- she said 'may' -- 'be subject to a fitness to practise investigation or proceedings, which is the question that the application form asks, without there being any restrictions on their practice at the time'. They are two different questions as to whether there is an investigation or proceedings underway and also whether the doctor's practice is restricted in any way. The question that is asked on the application form, if I may just take one example, for example, page 30 of the bundle' -- which your Honour has asked me about – 'is that there are two separate questions. One is about conditions or restrictions, which it might be argued this doctor at this time was entitled to say, 'No, there are none' because the suspension was not in force.'"
18.3 Dr Hosny's assertion was that this passage evidences some confusion. However, the FTPP Chairman carefully questioned Dr Hosny afresh on the question at Day 1/52C to Day 1/53. I shall read the relevant passage:
"Q First of all, do you accept my premise that this, because of the way it is written, has to apply to the past and not necessarily to the present?
Q Right. I understood you to agree with me that the licensing and regulatory body in the United Kingdom is the General Medical Council?
A Yes, so I felt that 'no' would not be the correct answer. That is why I left it blank. I was not sure whether to say yes or not.
Q Why would you not say 'yes'?
A Because I have not been removed from the register and I did not have any conditions by fitness to practise.
Q Excuse me, you did have conditions placed on you by the IOP, which is a body of the General Medical Council.
A Yes, but it said 'fitness to practise', so half of the question 'no' and half of the question 'yes'. That is why I felt -- maybe if I was asked and ---
Q Doctor, I think you need to listen to the question and not rush into the same answer that you have just given.
Q Do you not understand the Interim Orders Panel to be operating on behalf of the General Medical Council?
A I know the Interim Orders Panel and the Fitness to Practise Panels are panels and the General Medical Council is the executive body.
Q Who keeps the register?
A The General Medical Council.
Q Right. Therefore, when you look at page 32, which we have looked at, and the register of your entry says -- this is the General Medical Council, it is not the Interim Orders Panel, the General Medical Council: '21 May to 20 August, this doctor had conditions'.
A Yeah, but these conditions is being proposed by Interim Orders Panel.
Q I am sorry, this is the register. This is your registration ...
Q ... by the General Medical Council and it says you had conditions. It does not say it is conditions that only apply to the Interim Orders Panel, does it?
A Yeah, my understanding is that the General Medical Council do the end result of the Fitness to Practise Order/Interim Order Panel on my registration status.
Q Right, but this is the licensing body and they have made a note that you had conditions on your registration.
A Yeah, based upon the Interim Orders Panel decision. That is why -- I am very sorry if I am not able to send my message across. Like, for instance, if I was suspended by a Fitness to Practise Panel, it will appear on the General Medical Council web site as 'suspended'."
So: (a) Dr Hosny accepted the paragraph 2(c) question referred to the past.
(b) The Chairman pointed out that the register of Dr Hosny's GMC entry showed that the conditions had been imposed, though Dr Hosny accepted that she insisted it was the IOP who had imposed restrictions, while accepting that the IOP and the FTPP are panels, and the GMC is the executive body.
18.4 In my judgment, there is no merit in this ground of complaint. In respect to paragraph 2(c), the FTPP were not wrong in concluding that the question covered IOP orders and past restrictions. Insofar as there was any discussion in the IOP hearing in April 2011, this was fully and carefully considered by the FTPP. They were entitled not to regard this as something which in any way exculpated Dr Hosny.
19.1 Next, Dr Hosny complains about this passage in the FTPP determination as delivered orally in relation to paragraph 4, the finding of dishonesty. Day 2/19F:
"You have given evidence to this Panel that, at the time of completing the applications in question, you thought you were able to apply for jobs. This was the case. However, in your evidence you stated that you did not think you would get a job if you declared everything. The Panel has found that you had an obligation to disclose previous and ongoing GMC proceedings and that you failed to do so was deliberately dishonest."
It is the third sentence about which complaint is made.
19.2 This was the subject of submissions on Day 3 of the hearing (reference Day 3/1-3). Notes were checked, and the passage was amended so that it read as I have already cited in paragraph 12 above in the finding under paragraph 4(a) (dishonesty) (reference Day 3/4 and Day 3/7).
19.3 Dr Hosny accepts that the FTPP corrected the matter, but complains that they still persisted in finding dishonesty, regardless of the fact that they had changed the evidence they initially relied on for basing their finding of dishonesty.
19.4 The fact of an error such as this may potentially undermine a finding. However, it is clear from the correction and determinations then made that the FTPP found it did not do so. They were not wrong in so finding. This complaint falls well short of any valid challenge to the decision of the FTPP.
21.1 There are a number of matters to which Dr Hosny says the FTPP did not give sufficient weight or consideration. These include:
(i) the fact that she was permitted to work post-December 2010, and, being overwhelmed by the decision after a very long period of unemployment from clinical practice, this could have masked her vision as she was still subject to proceedings through lodging an appeal; also that she would not have filled in a number of forms with the same information, which could, and she says would, be easily checked online by prospective employers.
(ii) evidence that she gave as to her communications with representatives on her appeal (see cross-examination Day 1/32C-E).
(iii) the matters in paragraphs 32 to 38 of her skeleton argument, which she expanded on orally and which are as follows:
"32..Dr Hosny further explained that her passion for her job would have made her very careful particularly in this critical period of her career ,she would never harm herself
33..Dr Hosny was contented by the December 2010 decision and by the great chances she presumed she had post lodging the Appeal which might have overshadowed her thoughts that she could still be the subject of any proceedings.
34. The Panel did not accept any evidence provided by Dr Hosny and did not concede any explanation she had submitted though it appeared that they accepted the admissible evidence however they did not put any weight into it.
35.Though it was conceded that there were language problems by the December 2010 panel 'The Panel appreciates at times during this hearing ,evidence of cultural differences ,for ex it was evident throughout proceedings both in your oral statements and written material that you submitted ,that there were language problems .it further noted that you are not always capable of comprehending complex written documents' this was not conceded by the present Panel nor Dr Hosni's personal circumstances and her many positive references
36. The Panel Failed to consider the negligible effect on the public and the need for public protection, the Dishonesty had it been the case was not sustained over a lengthy period of time, it was short lived in the early few weeks after the Panels determination when Dr Hosny started applying for Jobs when she was still recovering from the lengthy hearing she faced on her own and very happy having had the chance to work again after a long period of unemployment
37.Dr Hosny is being thought very highly of as was demonstrated by her colleagues in loads of the testimonials displayed before the Panel both in the UK and overseas
38.,Dr Hosny was allowed to work again, Dr Hosny was fully aware that all the details of her registration status was available to everybody at the GMC web site and confirmed to the Panel that she signed the declaration form stating and consenting that her application could be rejected if anything was falsified or was wrong"
(iv) The fact that she had put Dr Andrew Webb as a referee should she be short-listed for interview, he having been a key witness in the 2010 FTPP hearing, who according to Dr Hosny was obviously going to explain Dr Hosny's status should he be asked.
21.2 As to paragraph 35, the 2010 FTPP did make these points in dealing with the issue of sanction, and there is no apparent reference to similar points by the 2012 FTPP. However, I do not adjudge that this suggests there is anything wrong with the 2012 decision, because:
(a) Dr Hosny was represented throughout and was given a free rein by her counsel, Mr Wells, to put before the FTPP anything she saw relevant. There was no suggestion by Dr Hosny or her counsel that language problems or cultural issues had any relevance in relation to the matters which they had to decide.
(b) In any event, there were important differences between the 2010 and 2012 hearings, in that the 2010 hearing lasted 23 days, involved amongst other things complex clinical issues, and Dr Hosny was unrepresented throughout. The 2012 hearing lasted three days, dealt with the issues set out in the judgment, and Dr Hosny was represented.
21.3 The difficulty with the remainder of these submissions is that they were matters for the FTPP to take into account. They heard the evidence and submissions made. There is no suggestion that they did not listen and take note of the points made to them. Indeed, when the Chairman had difficulty following Dr Hosny because of her speed of delivery, he told her (Day 1/24D-H). They gave brief, but I find cogent, reasons. They applied the correct burden of proof and test of dishonesty.
"The information in this section is true and complete. I agree that any deliberate omission, falsification or misrepresentation in the application form will be grounds for rejecting this application or subsequent dismissal if employed by the organisation. Where applicable, I consent that the organisation can seek clarification regarding professional registration details."
Paragraph 2(d) and 4: Issues
"If you have any gaps within your employment history, please state below.
from April 2008 to present, I have been doing two months locum consultant posts in different hospitals all over the country including lincoln conty hospital, royal black burn hospital, royal cainthness hospital, bermingham city hospital, and in the british version Islands as well, in between doing some research being a member of the university for CPED. However, my love to cardiac anaesthesia outweighs my enjoyment in doing the above posts."
(i) She reiterates her evidence that the FTPP rejected relating to her understanding of the question. The relevant section is at Day 1/17F - Day /18F.
(ii) She says it was "quite unreasonable" for the FTPP to reject her explanations.
I have carefully read her evidence and considered her submissions. I do not accept that the FTPP were wrong. I therefore reject this basis of appeal.
The New Allegations: Paragraph 3: Finding and Issues
"Paragraph 3 --
Since 10 March 2011, having been required to do so by the GMC, you failed to provide a completed Employer Details Form;
- has been found proved.
The panel has noted the email correspondence between you and the GMC, dated 22 March 2011. The first email from the GMC stated that a completed form had not been received and asked you to provide one. You replied and informed the GMC that you had not completed a form because you were not employed. The GMC's reply confirmed that you were still required to provide a completed form. You informed the Panel that you did not see the GMC's second email.
You have admitted that you did not provide a completed Employer Details Form. You have stated that you did not look past page one of the form because you did not think that you needed to complete it since you were not working at the time. The form included a section for any non-NHS work, and a section to be completed if self-employed or not currently employed.
The Panel is satisfied that you had an obligation to provide a completed Employer Details Form whether or not you were in paid employment, and that you would have been aware of this obligation, as drawn to your attention repeatedly, if you had read the form properly and read your emails."
27.1 The basis of this allegation was contained in a statement from Claire Henesy, a GMC employee, dated 13 June 2011. This said at paragraphs 2-4:
"Part of my role is to disclose to the doctor the information that the General Medical Council has received that may raise concerns over their fitness to practice in accordance with Rule 4 of the General Medical Council (Fitness to Practise) Rules 2004. Disclosure of the application form from Cambridge University Hospital was issued on 10 March 2011 to Dr Hosny under cover of the notice of hearing from the Interim Orders Panel. Dr Hosny was asked to complete and return the Employment Disclosure Form by 17 March 2011. I attach marked as Exhibit CH/1 my letter dated 10 March 2011.
3. On 22 March 2011 I emailed Dr Hosny as I had not received her completed Employer Disclosure Form. I attached to the email the Employer Disclosure Form and asked that it be completed and provided to me by 23 March 2011. Dr Hosny replied to my email on the 22 March 2011 stating that '...... this means that I will remain jobless. thats why I did not fill employers details because I am not employed'. I replied to Dr Hosny on 22 March 2011 asking that she complete the form. I attach marked as Exhibit CH/2 my email exchange with Dr Hosny dated 22 March 2011.
4. Dr Hosny has not completed and returned the Employer Disclosure Form."
In her letter of 10 March 2011 to Dr Hosny is the following paragraph:
"As part of our standard enquiries, I need to contact your employers to provide them with a copy of the complaint and ask them to provide any further information they have on these or any wider issues. To do this, I need you to complete and return the attached form, giving details of all your current employers. If you work within your own private clinic, we also ask that you provide details of all complaints you have received in the last 6 months."
Dr Hosny's email to Ms Henesy dated 22 March 2011, 12.19, says:
"... so long as the GMC issue is still going on, there will be no chances whatsoever to find any work,
this means I will remain jobless. thats why I didnt fill employers details because I am not employed."
Ms Henesy responded on 22 March 2011, 15.12:
"Thank you for your response.
I must ask that you complete and return the employer disclosure form even it if means you stating n/a to all the sections. It is a requirement that you complete and return the form to the GMC."
It is this last email that Dr Hosny says she did not receive.
27.2 The form headed "Employer Details Form" asks on page 1 for details of current employment in the NHS. Later, other details are requested: e.g. details of non-NHS work and "if you are self-employed or not currently employed, please provide details of the last employer or agency you were contracted to or with whom you had working arrangements if in the last five years."
28.1 Dr Hosny's evidence-in-chief to the FTPP is at Day 1/19. She said this:
"I was overseas at that time. I was not employed at all so I was not -- I did not know what to do. I did not want to write something which is not correct. I could not say that I am registered with this person when I am not or I am not sure of, so I could write something except I am dead sure about. As a result I told Claire Henesy I am not employed. This is called an employment form, so as a result I did not fill it."
28.2 In cross-examination she was asked about this. The reference is Day 1/33 to Day 1/35. I shall read only the evidence on the email from Miss Henesy on 22 March 2011 at 15.12:
"Q: What is there not to understand about that?
A: This email from Claire, I have just seen it when it was submitted by the bundle to the GMC. At that time I did not read this email. I wish I read it, I would have written 'not available', but it was only -- I only seen this e-mail when it was sent to me in this bundle, so I have not seen it at the time when the communication between me and Claire at that time.
Q: It was sent to you on the same day?
Q: You have seen the other one sent earlier that day?
A: Yeah, because she sent it and I responded, but I have not seen -- have I to say I have not seen this email. Had I seen it there was no problem writing "not available" at all -- she would have made my job very easy -- but I was not sure what to write. Had I read this email, it would have been very easy to write "not available" and resubmit it.
Q: You are lying, are you not?
Q: You are lying. You saw this email?
A: I have not seen this email except when I saw the bundle.
Q: You are, as demonstrated on many occasions, thoroughly dishonest, and you are being dishonest now.
A: No, I am not dishonest. I have not seen this email except when it was sent in the bundle -- at all.
29.1 In paragraphs 34 to 37 of ground 3 of her appeal (there is a numbering error, there being two paragraphs 37 and 38), Dr Hosny says:
"34. The Panel didn't accept Dr Hosny's explanation and even repeated their false determination that Dr Hosny was working in Egypt, however they were later corrected with regards their mistake that Dr Hosny was not working at all, they accepted that they were wrong and corrected it, still their determination did not change as a result.
35. In fact it was clear throughout the proceedings that the Panel were mistaken on various occasions, and in spite of admitting that they were wrong in their interpretation to which they based the decision of dishonesty, still persisted nevertheless that Dr Hosny was dishonest and misleading.
36. The Panel did not put any weight to the fact that Dr Hosny was submitting her evidence whilst in the Witness box.
37. The Panel looked at every evidence Dr Hosny had submitted as limited and reflected any interpretation as poor."
29.2 The point about not working arose from cross-examination (reference D1/33), where Dr Hosny said she was doing charity work in Egypt from June 2011 to date, but added that she was getting no money and it was just for charity rather than proper working. The FTPP, Day 2/19, said:
"You have admitted that you did not provide a completed Employer Details Form. You have stated that you did not look past page one of the form because you did not think that you needed to complete since you were not working in the UK. The Panel notes from your evidence that you were working in Egypt at the time. The form included a section for any non-NHS work and a section to be completed if self-employed or not currently employed.
The Panel is satisfied that you had an obligation to provide a completed Employer Details Form whether or not you were in paid employment, and that you would have been aware of this obligation, as drawn to your attention repeatedly, if you had read the form properly and read your emails."
After hearing representations from Dr Hosny's counsel that Dr Hosny had said that as at the relevant time (March 2011) Dr Hosny had said that she was not working in the UK or any other country and had reminded the Panel that her charity work in Egypt did not start until some months after the date by which the form was requested to be filled in (reference Day 3/1), this was corrected by the FTPP (Day 3/3) and the finding and reasons were those I have set out above.
29.3 Dr Hosny's complaints in her grounds of appeal, amplified in her submissions, are not sustainable as valid bases for finding that the FTPP's determination on this point was wrong. They considered her evidence. They clearly did not accept her explanation (which they were entitled to do), and as regards the factual error: (a) they corrected it; and (b) the basis of their reasoning was unchanged throughout, namely that she had an obligation to provide a completed employer details form "whether or not you were in paid employment". The FTPP's decision not being wrong, the appeal on this point is dismissed.
29.4 I should add that the findings on paragraph 3 were not relied on for findings of impairment and sanction of erasure, to which I now turn.
"The Panel has considered the question of impaired Fitness to Practise in relation to both the new and review elements of your case.
In doing so, it has considered the evidence adduced, Mr Atherton's submissions on behalf of the General Medical Council (GMC) and Mr Wells's submissions on your behalf. Mr Atherton submitted that, in the light of your lack of insight and repetition of dishonesty, your fitness to practise remains impaired by your previous misconduct and is impaired by the new findings of misconduct. Mr Wells submitted that you have complied with the requests of the previous Panel and have demonstrated some insight.
The Legal Assessor referred to relevant case law, including the cases of Zygmunt v GMC  EWHC 2643 (Admin) and Cohen v GMC  EWHC 581 (Admin).
In December 2010, a Fitness to Practise [FTP] Panel found that, between March 2008 and July 2009, you sent a reference to five healthcare agencies and that you represented to those agencies a reference which was dishonest. The Panel found that your representations were false and dishonest, in that you had written the reference yourself.
The December 2010 Panel also found that, in respect of written applications for employment to the Bart's and London Hospitals NHS Trust and the North Devon Healthcare Trust, you failed to disclose that you are currently the subject of General Medical Council Fitness to Practise proceedings and that your registration was subject to conditions imposed by a GMC Interim Orders Panel (IOP). It found that your conduct was dishonest and that you had breached a condition imposed on your registration by the IOP.
In relation to your dishonest conduct, the December 2010 Panel concluded that your fitness to practise was impaired by reason of your misconduct and determined to suspend your registration for a period of twelve months. You lodged an appeal against the decision, which was dismissed, and the period of suspension took effect on 17 May 2011.
The December 2010 Panel stated that the panel reviewing your case would be assisted by
Evidence of the steps that you have taken to keep your professional knowledge current and to keep your professional skills up to date.
Any current testimonials from people of standing and potential employers.
Evidence of relevant courses attended. This Panel recommends that you undertake a course in medical ethics.
The Panel has noted your evidence and the documentation submitted on your behalf. In particular, on 23 May 2011, you completed an online 'Fundamentals of Medical Ethics' course and, from 30 July to 1 August 2011, you attended a 'Medical Ethics Course'. You also submitted testimonials and drew to the Panel's attention that, on 30 March 2012, you were promoted to an Assistant Professor in Anaesthesia Faculty of Medicine, Ain Shams University, and that since July 2011 you have been involved in clinical practice in Egypt.
The Panel is satisfied that you have taken the steps directed by the December 2010 Panel. Nonetheless, it is concerned that you have repeated the very behaviour which resulted in a finding of impaired fitness to practise within two months of the end of the previous hearing. You once again omitted relevant material from job application forms, despite telling the last Panel that you had learnt to be vigilant in reading documents that you receive and send out, that you understand the role and purpose of the GMC and that you would be personally accountable should problems arise in the future. The Panel is satisfied that this repetition of dishonest conduct does amount to misconduct.
In considering whether your misconduct amounts to impairment of your fitness to practise, the Panel has had regard to paragraph 29 of the Zygmunt judgment which refers to paragraph 25.50 of Dame Janet Smith's fifth Shipman Report, where she identified recurrent features of cases in which impairment of Fitness to Practise had been found to exist:
'(a) that the doctor presented a risk to patients.
(b) that the doctor had brought the professional into disrepute.
(c) that the doctor had breached one of the fundamental tenets of the profession.
(d) that the doctor's integrity could not be relied upon.'
It has also had regard to paragraph 65 of the Cohen judgment, which states that:
'...It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated.'
In reviewing the findings of the previous FTP Panel, the panel has noted paragraph 116 of the GMC's Indicative Sanctions Guidance, which states that:
'... The Panel will also 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 and knowledge ...'
The Panel considers that your dishonest conduct breached a fundamental tenet of Good Medical Practice, which states that 'Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism'. It considers that dishonesty is not easily remediable but, in any event, your repetition of such conduct just two months after your first FTP hearing raises serious concerns.
You stated to the December 2010 Panel that you were reckless when you applied for the NHS posts and admitted that it was wrong to do so without updating your particulars. However, your evidence to this Panel was that you did not accept the findings of the December 2010 Panel, that their findings were only on the balance of probabilities and that you have evidence to disprove their finding of dishonesty even though this was not accepted by the Administrative Court. The Panel considers this to demonstrate a complete lack of insight.
The Panel is satisfied that your conduct has brought the profession into disrepute, that you have breached one of the fundamental tenets of the profession, and that your integrity cannot be relied upon. It has determined that your Fitness to Practise is impaired by reason of your misconduct.
The Panel will now invite further evidence and submissions as to the appropriate direction, if any, to be made in relation to your registration."
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of—
Impairment is not defined in the Act. As Mitting J said in Zygmunt (paragraph 6):
"On a natural reading section 35C(2) introduces a test with two elements: first, fitness to practise must be impaired; secondly, by reason of one of the five circumstances set out in subsections (a) to (e)."
(i) that the 2012 FTPP were prejudiced by the 2010 FTPP's findings, and did not look at the new allegations on their own, and that she was prejudiced because she was not able to explain the evidence before the 2010 FTPP.
(ii) that the 2012 FTPP did not acknowledge that she had demonstrated appreciation of the consequences of her actions, but while she accepts that remediation can be more difficult to show in non-clinical situations, her case was one where remediation could be demonstrated.
(iii) that the 2012 FTPP dismissed any insight, whereas she showed full insight when she addressed them at the beginning and end (reference Day 1/15 D-E, D3/13). She also relies on other statements she made to the Panel, the details of which are in paragraph 77 of her skeleton argument.
34.1 They were fully entitled to take into account the findings of the 2010 FTPP in the way they did. Their concern, as they stated, was that it was within two months of the 2010 hearing she had repeated the same conduct despite her stated assurances to the 2010 FTPP. This was a proper factor to take into account in assessing her present impairment, and her insight. They were entirely correct in not going behind or reopening the findings of the 2010 FTPP.
34.2 They accepted that dishonesty could be remediable, whilst stating that it was not easily remediable. They were also fully entitled to find that Dr Hosny's case fell within paragraph 25.50(c) and (d) of Dame Janet Smith's 5th Shipman Report, referred to in paragraph 29 of Zygmunt, i.e. breach of a fundamental tenet of the profession and that the doctor's integrity could not be relied on.
34.3 They were also fully entitled to regard Dr Hosny's continuing challenge to the 2010 FTPP findings as lack of insight, for the reasons they gave. Dr Hosny has continued to try to reopen those findings before me, and I have refused to permit her to do so. This is germane to the consideration in paragraph 65 of Cohen v GMC  EWHC 581 (Admin), which says that it is highly relevant to impairment that the conduct is easily remediable, has been remedied and is highly unlikely to be repeated. There is no basis also for saying that the FTPP were looking backwards, not forwards, on the issue of impairment.
"In reaching its decision, the Panel has exercised its own professional judgment. It has taken account of the GMC's Indicative Sanctions Guidance and has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. It has had regard to the principle of proportionality and has balanced your interests with the interests of the public. The public interest includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour in the medical profession.
In the light of your dishonest conduct, which was serious and repeated, the Panel has determined that to take no action would not be proportionate or sufficient to mark the gravity of your misconduct. It has also determined that conditions could not be formulated to effectively address your dishonesty, and, in any event, would not be sufficient to maintain confidence in the profession and its effective regulation, nor proportionate to mark the gravity of your misconduct.
The Panel has considered whether a period of suspension would be sufficient. The Indicative Sanctions Guidance states at paragraph 75 that the suspension may be appropriate when, among others, some or all of the following factors are apparent:
- A serious breach of the GMC's 'Good Medical Practice' where the misconduct is not fundamentally incompatible with continued registration and where, therefore, complete removal from the Register would not be in the public interest, but which is so serious that any sanction lower than a suspension would not be sufficient to serve the need to protect the public interest.
- No evidence of harmful, deep-seated personality or attitudinal problems.
- No evidence of repetition of similar behaviour since incident.
- The Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.
The Panel has referred to the relevant paragraphs of the GMC's Good Medical Practice in its previous determinations, and has found that your dishonest conduct breached a fundamental tenet.
A Fitness to Practise Panel in December 2010 found that you had fabricated a reference and dishonestly failed to disclose information in applications for employment. Despite the findings of that Panel, and its decision to suspend your registration for the maximum period of twelve months, and your assurances to that Panel that you had learnt from your experiences, you again dishonestly failed to disclose information in applications for employment submitted in February 2011.
As set out in its previous determinations, the Panel is not satisfied that you have demonstrated insight. You have given evidence at this stage that you are sorry, and you understand the issues. However, only two days ago, you stated you did not accept the findings of the previous Panel and did not accept that you had acted dishonestly in the matters before this Panel.
In your evidence to the Panel, you stated that your 'passion for being a doctor outweighs anything else'.
In his letter dated 23 March 2012 Dr James Anderson, Consultant Psychiatrist, stated 'Her self-esteem [is] determined by her professional identity as a doctor. If that role is threatened, I think she can act impetuously without careful consideration to the implications and consequences of her actions.' The Panel considers that your repeated dishonest conduct, your lack of insight and your propensity to act recklessly, may amount to an attitudinal problem.
The Panel has weighed the gravity of your misconduct and the risk to the public interest with your own interests, and with the public interest in not depriving patients of someone who may otherwise be a valuable doctor. In this respect, it has noted the positive testimonials submitted on your behalf, your oral evidence and Mr Wells' submissions.
In the case of Bolton v The Law Society  EWCA Civ 32, the Master of the Rolls, Lord Bingham, stated:
'The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price.'
Paragraph 108 of the GMC's Indicative Sanctions Guidance states that:
'Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor's clinical responsibility, e.g. providing false statements or fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession.
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.' [Dey v General Medical Council (Privy Council Appeal No. 19 of 2001]
In light of your repetition of dishonesty and lack of insight, the Panel is not satisfied that a further period of suspension would be sufficient to maintain public confidence in the medical profession, or to declare and uphold proper standards of conduct and behaviour. Accordingly, it has determined that your name be erased from the Medical Register."
37.1 First, she states that she did not repeat the dishonesty, making a distinction between her recklessness on the first occasion and submitting applications in 2011 based on misunderstanding. This is not only invalid, since it is the fact of dishonesty found subsequent to the 2010 hearing that is important, it also highlights the lack of insight which the 2012 FTTP referred to and which she also challenges. For reasons I have already stated, I regard the findings on lack of insight to be entirely correct.
37.2 Next, Dr Hosny relies on the case of Whitefield v GMC  HRLR 243 (Privy Council), which requires the Panel to have regard to the principle of proportionality, weighing the interests of the public with those of the practitioner. This the Panel expressly did, as is clear from their reasons set out above. They took account of the positive testimonials, her oral evidence, and her counsel's submissions, as well as Dr Anderson's report. Dr Hosny refers to specifics in those submissions and evidence and says these were not considered. However, the Panel was not required to set every single point out in full in their determination.
37.3 Each case is fact-specific. The question I have to consider is whether, in the circumstances of this case, the 2012 FTPP was wrong. I am entirely satisfied that the answer is "No".
37.4 Dr Hosny says that the FTPP had not given sufficient weight to mitigating personal circumstances in her case. This is not in the grounds of appeal, apart from a brief mention in paragraph 59, which is in fact factually incorrect. In any event, there is nothing that I can see which Dr Hosny's representative put on her behalf (reference Day 3/14 – Day 3/16) which were not taken into account in the determination by the FTPP. Dr Hosny says that her counsel did not put all the points but it is, unfortunately for her, too late to raise this. The FTPP were not wrong on this point either.
"The decision to erase Dr Hosny from the medical register would deprive totally Dr Hosny from working anywhere in the world who all fully respect the GMC as a regulatory body and would respect their decision, and this is applied not only in the UK but also every other country including Egypt, the fact that she was staff member of the university and Associate professor is purely academic and is a charity when coming to clinical practice, Dr Hosny doesn't earn any money from this Job she is being prevented from earning a living in this active stage of her career was an interference with the appellant's right under Article 8(1), a right to respect [for] family and private life. Being a single mother and carries the load of fully supporting her son any interference with Article 8 (1) must be justified as necessary pursuant to a legitimate aim and proportionate. In all the circumstances the decision was unnecessary and/or wholly disproportionate and hence unlawful."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public."
Mr Atherton: My Lord, thank you. I wonder whether your Lordship may feel it more appropriate to deal with the question of costs after the short adjournment?
Judge Stewart: I think that is up to Dr Hosny. Do you want to deal with it now, or do you want to come back after a break?
Dr Hosny: It does not matter.
Judge Stewart: I will let you make the decision. It is up to you.
Dr Hosny: It does not matter, anything. I would not mind anything.
Judge Stewart: Do you think you might be in a better state to deal with this issue at 2.00 p.m. than now?
Dr Hosny: I do not think I could leave it, either now or 2.00, nothing will be different to me.
Judge Stewart: Okay. We will deal with it now, then.
Mr Atherton: I hope your Lordship has a copy of the schedule of costs.
Judge Stewart: I do.
Mr Atherton: A copy has been provided to Dr Hosny. Your Lordship will see that there is a supporting annex which details each of the items in the schedule, and perhaps the most obvious correction that would need to be made relates to my instructing solicitors' attendance for today which, in anticipation of presenting is five hours. Clearly, that needs to be corrected in this --
Judge Stewart: That is down to two, yes. So three hours come off at £118.
Mr Atherton: Yes.
Judge Stewart: So that is £354 to come off.
Mr Atherton: Yes, it is. Otherwise, I respectfully invite your Lordship to make an order for costs as claimed.
Judge Stewart: Dr Hosny, costs normally follow the event. There are essentially three things. First, should an order for costs be made. Secondly, if so, what is the amount of those costs? Is there anything that you say is too high on this schedule? But thirdly, the actual payment of costs is not a matter for this court. Whether you can afford to pay, will pay, will not pay, is not a matter for this court. The only matter for this court is to decide whether it is appropriate to make an order, and whether people can afford to or not afford to is not a factor that is taken into account on that.
Dr Hosny: Yes, I'm just surprised in the first place that the GMC, after being erased, and they know very well that there is not any option, and they know very well how much I paid throughout the whole hearings going to and fro, and in great depth, they are asking for this. I am really quite surprised. Yes, it is right that I was not working since a very long time, and I'm living on my parents just to eat, but I am not having any luxurious things or doing anything. I am really struggling, and £20,000 in debt, so I will be surprised that --
Judge Stewart: If they get it. As I say, that is a separate matter. The question I have got to decide is whether it is appropriate to make an order for costs, and the general rule, unless there are particular circumstances --
Dr Hosny: Yes, I think these circumstances, it is very difficult to put an order, because I will not be able to, and you need, the GMC, I told them, I have no money whatsoever to give you if I lost, and informed them --
Judge Stewart: I am sorry, Dr Hosny, as I said before that is not a reason for not making the order. That is a matter between you and the GMC about enforcing the order. Let me just explain to you what the rules say again, because I have to follow this book, okay?
Dr Hosny: Yes, that is right.
Judge Stewart: The only factors I can properly take into account, apart from the general -- let me just read it to you. I have a discretion to make whether to make an order, but that discretion has to be exercised according to principles. If I decide to make an order, the general rule is that the unsuccessful party will be ordered to pay the costs, but the court may make a different order. And I can have regard to all the circumstances, including the conduct of the parties, whether a party has succeeded in part, or any offer to settle the case. Essentially, that is it. Whether or not you can afford to pay in the future is not a matter I can take into account. And it seems to me at the moment, unless you have any specific point, that the general rule should apply that there is an order to pay the costs of the successful party.
Dr Hosny: Yes, but I am unsuccessful, but I could work, but there is no way to work any longer.
Judge Stewart: I appreciate that, and it may be --
Dr Hosny: And I have no money to pay.
Judge Stewart: It may be they will not actually get the costs out of you, I do not know, but all I am saying is that is not a factor at this point.
Dr Hosny: Yes.
Judge Stewart: All right. The other point is, looking at this schedule, are there any points you want to make about whether you say it is --
Dr Hosny: I have not looked at it, I have to say. I have not looked at it because --
Judge Stewart: Do you want a chance to look at it or not?
Dr Hosny: Even if I looked -- I have no money to pay, this is the problem. Even if it was very limited, I have to borrow from people, and nobody -- I was very hoping on this decision today, but I never imagined that I would be in this situation as a result. I would have not -- if I was told that if you could not pay, do not launch an appeal --
Judge Stewart: Do you want a chance to look at it or not? You have had it, but do you want further time to look at it now or not?
Dr Hosny: Because if I looked at it, I will find payments. I could not afford the payments at all.
Judge Stewart: No, but I am going to make an order that you pay their costs. The question now is how much. Do you want time to look at this and come back at 2 o'clock or not?
Dr Hosny: Well, sir, even it was, I am talking about -- because I have read the end figure, the end result, even if it was £1,000 or £500 or £200, I am already in debt so I could not be in further debt. This is the problem.
Judge Stewart: I know. Look, it is a straightforward question, Dr Hosny. Do you want time to look at this and come back at 2 o'clock and say whatever you want to say about the amount, or do you not want that time? It is up to you, yes or no.
Dr Hosny: I have the time, I just came for the purpose of this hearing, so I could stay until 2 o'clock if you wish. It will not make any difference to me, because I know that I --
Judge Stewart: I do not mind, but if you want time to look at this and then say anything you want to me about the numbers on this at 2 o'clock, I will do that, but if you do not I will deal with it now. It is your decision. Now or 2 o'clock?
Dr Hosny: All right, 2 o'clock, but I do not understand very much what should I say about the numbers.
Judge Stewart: I cannot tell you what to say, it is just if you say if there are any points where you say it is too much, they cannot have done this work, it was unreasonable to --
Dr Hosny: I could not, I do not know how they work, their financial status.
Judge Stewart: I appreciate that, and I appreciate you may be in difficulty to challenge it, but I have to give you the opportunity.
Dr Hosny: Yes.
Judge Stewart: As a judge, I have got to hear anything you want to say that is relevant. So I am just giving you the opportunity.
Dr Hosny: What is relevant in my status is that I am not working, and there is no hope of any work, and there is no source of money from anywhere.
Judge Stewart: I understand that.
Dr Hosny: So how am I supposed to be paying it in the first place if I cannot raise it?
Judge Stewart: I understand that, but I have explained to you that that is not a factor that I can take into account.
Dr Hosny: Yes, but for instance if somebody was suspended, it is different from –
Judge Stewart: But it is no good going back over that. I cannot take that into account.
Dr Hosny: Yes.
Judge Stewart: The question is, do you want me to deal with this now and finish it now, or do you want to come back at 2 o'clock, up to you. Now or 2 o'clock, it is up to you.
Dr Hosny: All right, 2 o'clock.
Judge Stewart: Okay, we will come back at 2 o'clock, and that is just for you to say anything you want about this schedule. Do you have a copy of it?
Dr Hosny: No, I do not have it.
Judge Stewart: Could you give her a copy? Thank you.
(The short adjournment)
Judge Stewart: Yes, Dr Hosny, do you want to say anything about the amounts?
Dr Hosny: Can I just ask a very slight question about something, just for my knowledge and clarification? It has nothing to do with anything.
Judge Stewart: Certainly.
Dr Hosny: When you said in the results and everything, you referred to Zygmunt v GMC, and then you said because it was written accordingly because the appeal has succeeded principally on a ground not raised, and you mentioned if the ground was not raised, then judges could not decide upon grounds which are not raised. So do different judges react to different cases differently, or every situation has its own -- I asked Mr Atherton, but --
Judge Stewart: I am sorry, I am not quite following what you are asking.
Dr Hosny: Yes, because towards the end of your judgment, there was a mitigation thing, and then you said because I did not mention mitigation in the grounds of my appeal, it could not be put into account. But here, the judge while he was saying the decision to Zygmunt, he said the appeal has succeeded principally on a ground not raised, and because on the grounds raised is the appellant has only succeeded to a small extent. This is at the very end of the judgment, in the Queen on the application of Zygmunt v GMC. Just a clarification, nothing else.
Judge Stewart: What I said is that you complained that they had not given sufficient weight to your mitigating personal circumstances. What I said was that you had mentioned that in your ground of appeal that was put before the General Medical Council was dealt with by the General Medical Council, and therefore they took account of the points raised before them, and it is too late for you to raise any further factors in mitigation, because what you raised before the General Medical Council was dealt with by them, and it was too late to raise any further matters, because this is an appeal against them as to whether they went wrong. Of course, in different circumstances, grounds can be raised but they often are grounds of law. This is a factual matter about personal circumstances. So it is not right for this court, when you have your chance to be heard and say, "These are the factors I want to raise" through your barrister, I know you were not happy with that, it is not right for this court to start looking into other factors, other matters that you might want to put about your personal circumstances which they were to take into account everything that was to be stated there and then. Now there can be circumstances where grounds not raised can be dealt with, but this in terms of extra personal circumstances is not one that should be in my judgment.
Dr Hosny: All right.
Judge Stewart: Okay?
Dr Hosny: Yes.
Judge Stewart: Do you want to say anything about this?
Dr Hosny: Yes, as I previously mentioned before to your Honour and to the GMC, that I am not capable of paying any of this. However, I had a quick read just for my knowledge how the thing goes and happens. I was very surprised that the emails and telephone calls and a letter and VAT -- I am not entitled to pay VAT because I am not resident in the UK. All these were included in the amount, because this amount includes VAT as well. I should not be paying VAT because I am not resident. So the combination of all these things as regards email and all these things is --
Judge Stewart: Sorry, what about the emails?
Dr Hosny: Yes, it is written emails, I have to pay sums for emails.
Judge Stewart: It is not the cost of emails, it is the time, it is the lawyer's time in sending it, that is what the cost is.
Dr Hosny: Yes, all right.
Judge Stewart: As regards VAT, I think the only VAT is Mr Atherton's VAT probably.
Mr Atherton: That is correct, my Lord.
Judge Stewart: Because the GMC do not charge VAT.
Mr Atherton: It is a charity.
Judge Stewart: It is a charity. So Mr Atherton does, so it is not the fact that you are not registered, it is the fact that he is registered. He has got to pay VAT to the government on his fees.
Dr Hosny: Yes.
Judge Stewart: So he is entitled to claim VAT as part of the costs. Are there any other points?
Dr Hosny: Yes, because I am not an expert in these matters, so I do not understand. I could not say this is right or wrong, I am not very familiar with these things, I have never seen it before. So all that I can say is that it is very harsh, and especially after the decision was reached (inaudible) is the end of, like a small (inaudible) as if I died, how can I pay the money when I am dead? This is my summarisation of what I want to say, but I cannot understand these things at all.
Judge Stewart: Okay, thank you.
Mr Atherton: My Lord, in actual fact, your Lordship's observation, my instructing solicitor notices that in fact there is not included as there should be a claim for VAT on counsel's fees.
Judge Stewart: Oh, I assumed it was an inclusive figure.
Mr Atherton: No.
Judge Stewart: Right. So they do not get the VAT back on your fee?
Mr Atherton: I am not sure of the machinations of it. I would expect that --
Judge Stewart: Because your charge is to them.
Mr Atherton: Yes.
Judge Stewart: The question is, what happens to them?
Mr Atherton: May I just have a moment. I am told the GMC does not reclaim the VAT it pays.
Judge Stewart: So there is no issue, is there?
Mr Atherton: It has to pay the VAT on counsel's fees. You cannot counterclaim it back.
Judge Stewart: So there is an omission from the schedule.
Mr Atherton: It is an omission.
Judge Stewart: So they say they have omitted to claim by mistake the VAT on Mr Atherton's fee. The schedule was down to £5,683.70, was it not?
Mr Atherton: It was, £5,683.70 yes.
Judge Stewart: And what is the VAT on your fee?
Mr Atherton: It is going to be in the region of --
Judge Stewart: No, I think you need to get it right.
Mr Atherton: Just bear with me, my Lord. My Lord, I make it £770.
Judge Stewart: So it is £6,454,40, is it? Yes.
Mr Atherton: £6,453.70 is what I have.
Judge Stewart: Oh it is £770 is it?
Mr Atherton: £770.
Judge Stewart: Sorry, yes. £6,453.70.
Judge Stewart: Just dealing with costs, the general rule is if an appeal is unsuccessful the appellant pays the costs, and there is no reason to depart from that rule. Dr Hosny says that she cannot afford any money, and she is seriously in debt. But as I have tried to explain to her, that is not a factor I can take into account. I have looked at the schedule, and I appreciate Dr Hosny is not in a position to say, but I have looked at it quite carefully. It seems to me to be reasonable for this type of case and the work that has been done. There are two errors on it. Three hours are coming off the attendance at hearing, but Mr Atherton's VAT has been accidentally omitted.
So the order will be:
(1) The appeal be dismissed.
(2) The appellant do pay the respondent's costs, summarily assessed at £6,453.70.
Could you arrange for those to be taken back? Thank you.
Mr Atherton: Thank you, my Lord.
Judge Stewart: Thank you, Dr Hosny.