England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		23 July 2012

MR JUSTICE SINGH:

Introduction

1. This is an appeal under section 40 of the Medical Act 1983 (as amended) from the decision of the respondent's Fitness to Practise Panel ("the Panel"). The Panel conducted a hearing into this case lasting 23 days in total. The first part of the hearing, days 1 to 11, took place in June 2010. The second part of the hearing, days 12 to 23, took place in March 2011. The Panel gave its determination on the facts on 17 March 2011 and its determination on the issues of impairment and sanction on 20 March 2011. A letter dated 21 March 2012, setting out those determinations and the reasons for them, was sent to the appellant.
2. There were many grounds of appeal originally, but they have been amended by a substituted set of grounds. No objection was taken before me and so I gave permission at the beginning of the hearing to substitute those amended grounds. Although even the amended grounds ranged over a wide area, and none has been abandoned, the appellant realistically focused on five findings of dishonesty which were made by the Panel.
3. On the appellant's behalf, it was submitted that if those findings of dishonesty, or at least a substantial number of them, could be successfully challenged then the appeal should be allowed. Conversely, it was realistically accepted that if those findings of dishonesty were unimpeachable, the appellant was unlikely to be able to succeed in her appeal on her other grounds, although they were not abandoned. It was nevertheless submitted that even if the findings of the Panel were upheld, the sanction of erasure from the register was too severe and a lesser sanction of a suspension would have sufficed in this case.

The court's role on this appeal

4. It was common ground before me that this appeal not only lies by way of right but is an appeal by way of rehearing. A helpful summary of the approach which the court should take with citation of relevant authorities can be found in the judgment of Langstaff J in Bhatt v General Medical Council [2011] EWHC 783 (Admin) at paragraphs 4 to 9. As Langstaff J observed at paragraph 4, this court will allow an appeal where the decision of the Panel was either wrong or unjust because of a serious procedural error or other irregularity in the proceedings before it (see Civil Procedure Rules rule 52.11). At paragraph 9, Langstaff J said, after citing relevant authorities:

"I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:

i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;

ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;

iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;

iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;

v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the [Panel], the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair..."

5. Both parties also drew my attention to the decision of the Court of Appeal in Southall v General Medical Council [2010] EWCA Civ 407, in which the main judgment was given by Leveson LJ, with whom Waller LJ, Vice President of the Court of Appeal Civil Division, and Dyson LJ agreed. In summarising earlier authorities of the Court of Appeal on the duty to give reasons, Leveson LJ at paragraph 54 cited the following passage with approval from the judgment of Sir Mark Potter P in Phipps v General Medical Council [2006] EWCA Civ 397 at paragraph 106.

"...the so-called 'duty to give reasons', is essentially a duty which rests upon judicial and quasi-judicial tribunals to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost. This requirement will be satisfied if, having regard to the issues as stated and decided and to the nature and content of the evidence in support, the reasons for the decision are plain, whether because they are set out in terms, or because they are implicit i.e. readily to be inferred from the overall form and content of the decision. I do not think that there is any real difference or substantial inconsistency, other than one of emphasis, between that principle and what was stated in Gupta [[2002] 1 WLR 1691], namely that there is no general duty on the PCC of the GMC to give reasons for its decisions on matters of fact, in particular where the essential issue is one of credibility or reliability of the evidence in the case, whilst at the same time recognising that there are cases where the principle of fairness requires reasons to be given 'even on matters of fact': see paragraph 14 of Gupta. It seems to me that such cases are those where, without such reasons, it will not be clear to the losing party why he has lost. It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious."

6. Leveson LJ continued at paragraph 55 of Southall:

"For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter."

7. At paragraph 56, he continued:

"When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex..."

8. Leveson LJ went on to find on the facts of the case before the court that the reasoning of the Panel had been inadequate in that case. In particular, at paragraph 59 he observed that the Panel did have to say something about Dr Southall who had given evidence for some days in that case. If, as must have been the case, the Panel disbelieved Dr Southall, in the context of that case and his defence he was entitled to know why, even if only by reference "to his demeanour, his attitude or his approach to specific questions". At paragraph 62, Leveson LJ observed that there may well be cases where the Panel's conclusions can be regarded as being sufficiently explained both by the reasons it has given and the detailed scrutiny of the transcript that the court has been invited to undertake. However, he continued:

"It is unnecessary for the purposes of this judgment to decide how far such an exercise can go although, without the panel identifying which arguments in a complex case it accepted, however briefly that exercise is undertaken, it does not appear to me that an assumption can be made that all the submissions advanced by one side found favour with the panel simply because it concluded in favour of that party. The difference between this case and that of a criminal trial is that the judge's summing up is an impartial analysis of fact and argument for both sides; submissions by the parties are not."

Factual background

9. In 1993, the appellant commenced work as a general practitioner at Shotfield Practice. In September 2004, a company called Diplotec (owned by the appellant and her husband, Dr Sondhi) purchased Ingleside Care Home. This had been owned by a Dr Michael Sturgess. Under relevant employment legislation, employees including Alison Hepburn were transferred to the employment of Diplotec. Diplotec became the registered owner of Ingleside, and Alison Hepburn was the registered manager.
10. In September 2004, Margaret Lynes became the care home inspector for Ingleside. On 14 December 2004, the appellant wrote to Alison Hepburn regarding her behaviour and accounting procedures. On 7 January 2005, there was a suspension meeting held with Alison Hepburn.
11. On 10 January 2005, Alison Hepburn and Dr Sturgess produced, as was later found, a bogus contract dated 1995. On 4 April 2005, Alison Hepburn resigned her employment at Ingleside, giving three months' notice. On 25 April 2005, as an employment tribunal later found, Dr Sondhi summarily dismissed Alison Hepburn. The tribunal was also to find that that dismissal was unfair. On 4 June 2005, Linzi Prendergast wrote a letter to the Protection of Vulnerable Adults (POVA) section of the Department of Health. This letter appears to have been received by POVA on 12 July 2005, the date of the stamp which appears on that letter. The letter said:

"Following a conversation held with our CSCI [Commission for Social Care Inspection] inspector, Ms Lynes, I feel necessary to inform you of my concerns relating to the behaviour of Mrs Alison Hepburn.

Mrs Hepburn was, until very recently, the manager of Ingleside Residential home in Kenley, Surrey. She had been the manager of this home for a number of years prior to the home been being taken over by the current proprietors [in] the latter part of 2004. There were a series of events that gave the proprietors cause for concern in regard to Mrs Hepburn's aggressive manner and working practices. It was for this reason that I was employed as Regional Manager in order to bring documentation, etc, up to the national minimum standards together with dealing with the issues raised on the previous NCSI [National Care Standards Inspectorate] inspection report...

Despite trying to work with Mrs Hepburn she actively worked against not only my intentions for progress but also at proprietors. Making a difficult atmosphere for residents to reside in and staff to work. The following details aspects of my concerns..."

There then followed a large number of bullet points, which included as the fifth bullet point:

"Inadequate staff files which she refused to do anything about. This included not sending off staff CRB [Criminal Records Bureau] forms."

They also included as the penultimate bullet point:

"Reduced residents' food significantly, implying that it was a decision made by the proprietors."

12. On 3 July 2005, there was a letter written to Ms Lynes which bears the name at the bottom, although the letter is not signed, of Linzi Prendergast. This letter stated:

"I write to advise you that I have serious concerns in respect of Mrs Alison Hepburn and as such am seeking to have her placed on the POVA list.

She has admitted to me that she falsified staff training dates. Staff confirmed they had never had staff training. She admitted to falsifying clinical supervision records. Staff were never given mandatory training. She threw my files on the floor and tore up documentation that I had given her. She shouts at me in front of staff and residents. She has taken down memos in respect of training from the notice board that I had displayed.

I am extremely concerned about serious short-comings in respect of medication and record keeping. There were no photographs on the MAR [medication administration record] sheets and CSCI regulations were not implemented until I took over this responsibility. I was shocked to learn that Alison Hepburn had allowed staff, whom had no training, to administer drugs, even when she was not on the premises!

I can confirm that Mrs Hepburn resents my presence at Ingleside Residential Home and continues to make life very difficult for me. We are so concerned about Mrs Hepburn that we will not allow her to work unsupervised any longer."

13. On 18 July 2005, Mrs Hepburn presented her claim to an employment tribunal. The employment tribunal hearing took place in January and March 2006. On 7 December 2005, Dr Uddin submitted to POVA a referral form about Mrs Hepburn. This observed in section 1 that Mrs Hepburn had resigned, but that she would have been dismissed had she not done so. It also enclosed three pieces of information considered relevant to the referral in response to section 6 of the form. Those three documents were the letter dated June 2005 (that would appear to be the letter of 4 June 2005 which I have already quoted); a document headed "Analysis of working practices within Ingleside Residential Home"; and also a CSCI action plan. That would appear to be a reference to an action plan following a CSCI report of summer 2004, which was written and discussed with Mrs Hepburn at the meeting in January 2005. Paragraph 29 of that action plan identified the problem as being "Not all employer records are complete". The action identified was "Each employer file will contain CRB check, references, photograph, employment history, training and appraisals. These files will be regularly updated." The review date was said to be 30 April 2005. The person responsible for this action was said to be "AH" (ie Alison Hepburn). The outcome was said to be "New format to be implemented".
14. On 4 February 2006, Alison Hepburn received notification that she had been placed on the POVA list and was suspended by her new employer. On 12 February 2006, Mrs Hepburn wrote to POVA expressing her outrage at being placed on the list. She emphatically denied ever putting a vulnerable adult at risk.
15. On 16 March 2006, the appellant wrote to POVA in response to a letter dated 4 March 2006. Her letter was signed by Sonya Murphy, her secretary, and pp'd on her behalf as the proprietor of Ingleside. The letter observed that it had been dictated by the appellant and signed in her absence. The letter set out over some four pages numerous allegations which were made in respect of Alison Hepburn.
16. On 22 March, POVA wrote to the appellant in response to her letter of 16 March. This letter said, so far as material:

"Whilst we appreciate the time you have taken to provide us with written comment, a large number of the points you raise are not underpinned with appropriate evidence. At the present moment the information regarding the allegations is not sufficiently detailed and does therefore not satisfy the requirements of the Care Standards Act. We therefore require more information concerning the allegations of misconduct against Alison Hepburn if we are to proceed with this case further. For example, in your comments, on a number of occasions, you suggest that staff can confirm that incidents took place as alleged. In some instances individuals are named (eg Wendy Capel), however, at present we have no witness statements and a lack of supporting documentation. I would therefore be grateful if you could endeavour to provide us with the further information which will enable us to continue action on this particular case. If we are unable to receive these additional details we may be forced to remove Alison Hepburn from the list due to a lack of supporting evidence..."

17. The appellant replied to that letter on 27 March 2006. Again, that letter was signed in her absence by Sonya Murphy and pp'd on her behalf. In that letter, the appellant said:

"We...have approached the appropriate staff for statements, etc.

However, we will not be able to gather this information and send it to you by 31 March 2006 since one of the members of staff, Linzi Prendergast, is on Maternity Leave..."

18. An extension of time was granted by letter dated 28 March until 21 April 2006.
19. On 18 April 2006, again in a letter signed on her behalf by Sonya Murphy, the appellant wrote to POVA and enclosed certain information. The letter continued:

"You will find several statements and copies of correspondence with CSCI in Croydon...

The statements will prove that Alison Hepburn was not a fit Manager and her attitude to her employers left a lot to be desired."

20. From April 2006, Margaret Lynes was no longer the relevant inspector for Ingleside.
21. On 19 June 2006, POVA issued a document called a "final submission" in respect of Alison Hepburn. This recommended that her name should be removed from the list. Paragraph 6 of the submission observed that the allegations against Alison Hepburn "were mainly in the form of a report written by Linzi Prendergast". However, it stated the report failed to provide details of the alleged incidents. There were indications on the file that Alison Hepburn and Linzi Prendergast did not get on well. At paragraph 11, the submission noted that the main evidence in the case came from the report provided by Linzi Prendergast. At paragraph 12 it was noted that, aside from that report, Diplotec had failed "despite requests" to provide any evidence to substantiate their claims regarding Alison Hepburn's conduct as home manager at Ingleside Home. They continued:

"It should be noted that we had considerable difficulties obtaining even basic information such as AH's date of birth and national insurance number from them. In their response to AH's observations, they merely reiterated the allegations and provided a set of witness statements which they claimed substantiated these. On examination, these statements were all typed and dated, however, none were signed and some used similar phraseology and terms. In addition, in her subsequent observations to these, AH provided a signed statement from one [of] these witnesses, Wendy Capel (WC), the cook at Ingleside, which clearly stated that she (WC) had 'no knowledge' of the statement and had 'had no meeting' regarding the matter of AH. I would therefore submit that this, the fact that none of the statements are signed and the similarity in some of the terms used, places a question mark over the validity and therefore the value of all these statements."

22. By a letter dated 21 July 2006, POVA wrote to the appellant. In that letter there was included the following paragraph:

"The difficulty for us in Alison Hepburn's case is proving harm to the standard required by law. We have no investigatory powers and therefore have to rely on the information provided with the referral, supplemented by any information the police, social services and/or regulatory bodies can give us. Having reviewed this case I have found that the evidence supplied does not support the allegations to the required standard and therefore, I can find no legally valid cause to revise the original decision. POVA cases come under the auspices of the Care Standards Tribunal (CST) and it is my view that the evidence in this case would not satisfy scrutiny by the Tribunal and, as a consequence, has been closed."

23. Alison Hepburn returned to work in June 2006. On 19 February 2008, Alison Hepburn referred the appellant to the General Medical Council (the respondent). In October 2009, the company, Diplotec, went into administration. As I have already indicated, the respondent's Panel commenced hearing the case in June 2010 and made its determinations in March 2011.

The decision under appeal

24. The Panel's determinations on the various stages before it were given over a number of days in March 2011 at the end of the hearing before it. The relevant reasons were then set out for convenience in one document by way of a letter dated 21 March 2011. There was a very large number of charges numbering, by the end, 19, with many further individual decisions to be made within them. The stages in which the Panel, as is common practice, determines the issues before it is first to consider whether the charges have been proved as a matter of fact one by one. Secondly, it considers whether those matters amount to misconduct. Thirdly, it considers the issue of what sanctions should be imposed.
25. At the beginning of the decision, the Panel directed itself as to the burden of proof and standard of proof. No complaint has been made about those. The Panel then set out its assessment of the various witnesses from whom it had heard evidence. In respect of Margaret Lynes, David Town and John Shields, it found their accounts of events to be credible. In respect of Linzi Prendergast, it said:

"The Panel noted that the situation at Ingleside at the time of Mrs Prendergast's employment was a difficult one. The evidence the Panel has heard indicates that those involved in the events of the time held strong and contrasting views as to what took place, who was right and who was wrong. Mrs Prendergast was drawn into this conflict from the outset and she was considerably distressed by some of the actions of Mrs Hepburn. The Panel considered it likely that Mrs Prendergast was influenced by this when expressing her opinion of Mrs Hepburn. Nonetheless, the Panel considered Mrs Prendergast gave what she considered to be a truthful version of the facts."

26. In relation to Wendy Capel, the Panel found her to be a straightforward witness and found her evidence to be credible. In respect of Alison Hepburn, the Panel considered that some documents contained descriptions of her behaviour which did not reflect well on her. For that reason, it considered her notes to be generally accurate, but acknowledged that they recorded events as perceived by Mrs Hepburn who saw herself as being targeted. In weighing Mrs Hepburn's evidence, the Panel took account of the fact that she was party to falsifying a contract. It noted that she gave frank and open evidence in respect of this and it did not consider her to be a dishonest witness. It rejected the appellant's suggestion that the evidence of Mr Town and Ms Lynes arose from any deceit or collaboration or ulterior motive.
27. Turning to the appellant herself, the Panel said:

"The Panel noted that you are of previous good character. Nonetheless, it had reservations regarding the credibility of much of your evidence. The Panel found much of your evidence to be evasive and contradictory. It noted that you sought to place the responsibility for many of the events in question on others. During its deliberations, the Panel bore in mind that you were the co-owner of the homes and a director and shareholder of Diplotec."

28. At the hearing before me, counsel for the respondent submitted that this was largely sufficient to meet the appellant's arguments in this appeal that the Panel's findings of dishonesty were flawed. I do not accept that submission. First, it can be noted that the Panel states, "it had reservations regarding the credibility of much of your evidence". No specifics are given. The appellant, as is accepted, was a person of previous good character. She may have been an unsatisfactory witness (hence the reference to evasiveness, et cetera) without being dishonest. Still less would it follow that because there were reservations about her credibility in certain respects, the specific findings of dishonesty, to which I will later turn, had been proved.
29. As I have indicated, the focus at the hearing before me was on five findings of dishonesty, which therefore lie at the heart of this appeal. It is important, therefore, to quote in full what the Panel had to say about this:

"In considering the question of dishonesty, the Panel bore in mind that you are of good character. It accepted the advice of the Legal Assessor that, as such, this may mean that you are less likely than otherwise might be the case to have acted dishonestly.

The Panel has applied the test as set out by Lane LJ [that should be a reference to Lord Lane LCJ] in the case of R v Ghosh 75 Cr App R 154. The Legal Assessor summarised this for the Panel as follows:

'...was what Dr Uddin did dishonest by the ordinary standards of reasonable and honest people? You must decide what those standards are. This is known as the objective test. If what the doctor did was not dishonest by those standards you should find the allegations not proved. If, however, you are satisfied that reasonable and honest people would consider the doctor's actions to have been dishonest then you should move to the second question which is: must Dr Uddin have realised that what she was doing would be regarded as dishonest by those standards? This is the subjective test. In other words, you are drawing an inference as to what was the doctor's state of mind. If after taking account of all the evidence you find that both elements of this test are proved then you can conclude that Dr Uddin acted dishonestly whether she personally regarded her actions as dishonest or not.'"

30. In the appeal before me, the advice of the legal assessor, and the Panel's clear acceptance of it, were not in themselves the subject of any challenge. Nevertheless, it was submitted that it might be helpful for this court to make any observations which may be helpful for future consideration by the respondent in its approach to cases that may raise issues of dishonesty. I would tentatively accept that invitation, although it is not necessary for a final decision in this particular case and I have not heard full argument on the points. Nevertheless, in the hope that it may be helpful, I would wish to make two brief observations which I would hope will be considered by the General Medical Council in the future. The first is that care needs to be taken about applying a test which was devised in the context of criminal law. As is clear from the standard of proof which is relevant in the present context, the standard of proof is the ordinary civil standard of a balance of probabilities and not the criminal standard. The question of dishonesty can arise in civil contexts as well as criminal ones. There can be, for example, torts or other civil disputes which raise the question of whether a person did or said what they did or said dishonestly, for example fraudulently as distinct from negligently.
31. The second observation to bear in mind is that even in the criminal context it is not general practice to give the so-called Ghosh two-part direction. In many cases, the advice which is given now by the Judicial College to judges who sit in the Crown Court is that no direction is required on the meaning of dishonesty. One context in which the twofold Ghosh direction may be required is where, on behalf of a defendant in criminal proceedings, an issue is raised whether he or she realised that the conduct charged was dishonest by the standards of reasonable and honest people. In many cases, there will be no such issue of fact raised. It will be perfectly apparent that if the conduct alleged did take place then it clearly was dishonest. The real issue in many cases may be whether the conduct took place and with what state of mind. For example, was a false representation made? But even if it was, was it done knowing that it was false or may it have been, for example, innocent or even a negligent mistake?
32. I will return to the facts of this particular case. Having made the findings of fact which I have summarised, the decision letter of 21 March 2011 noted that the chairman of the Panel then announced the Panel's decision with regard to the appellant's fitness to practise and whether her fitness had been impaired. The Panel concluded that the appellant's fitness to practise had indeed been impaired and that this constituted misconduct; indeed, serious misconduct. So far as material, the Panel said:

"The Panel has also made findings that your conduct in the pursuance of the Protection of Vulnerable Adults (POVA) list referral of Mrs Hepburn was misleading, unprofessional and irresponsible. The Panel considered that you had a duty to ensure that the evidence collected and sent to POVA in your name was appropriate and accurate. The Panel found that, in submitting or permitting the submission of inaccurate information and falsified witness statements as 'evidence' to POVA, your actions were dishonest and carried out in the knowledge that, if Mrs Hepburn were placed on the POVA list, she would no longer be able to work with vulnerable adults."

33. Later, the Panel concluded that the appellant had breached one of the fundamental tenets of the profession, that of probity. It had regard to a document headed "Good Medical Practice" from November 2006, which states at paragraphs 56 and 57:

"56. Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.

57. You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession."

34. The Panel went on to state that any member of the public would be shocked by the appellant's behaviour. It found her misconduct to be so disgraceful that it had the potential to damage the public's trust in the profession and bring the profession as a whole into disrepute. Accordingly, the Panel found that the appellant's fitness to practise was impaired by reason of her misconduct.
35. The Panel then considered the question of the appropriate sanction. It noted that the purpose of a sanction is not to be punitive but to protect patients and the public interest. The Panel also considered the principle of proportionality, weighing the interests of the public with the appellant's interests. The Panel considered that the appellant's misconduct amounted to a serious breach of good medical practice. The Panel again noted that it had made findings of dishonesty in respect of some aspects of her conduct. Its findings did not concern her clinical ability or conduct solely in a clinical environment, but rather her probity and integrity in general. The Panel considered that the issue of the public interest was key in this case. It considered the sanction of suspension, but was concerned in particular about the lack of insight which the appellant had shown. In all the circumstances, the Panel concluded that the appellant's misconduct was fundamentally incompatible with being a doctor and that therefore erasure was the only appropriate and proportionate sanction. It found that her integrity could not be relied upon, and accordingly no lesser sanction than erasure would be sufficient to maintain public confidence in the profession and to declare and uphold the proper standards of conduct and behaviour. In accordance with the relevant rules, the appellant's registration was in fact suspended pending the outcome of this appeal because it had been lodged within the appropriate time of 28 days.
36. Before I consider in detail the appellant's specific grounds of challenge to findings of dishonesty, I would wish to make some general observations as to the approach which it is right to take in this case. First, I have very much in mind the statements of principle as to the court's approach, which I have already cited from relevant authority, in particular the cases of Bhatt and Southall. Secondly, having those principles in mind, I consider that the issues in this case concern questions of evaluation rather than primary facts as such. Next, I accept the appellant's submission that the questions which the Panel had to consider were not particularly within the knowledge, expertise and experience of a GMC Panel as contrasted with, for example, matters of clinical judgment. Next, I have very much in mind that in scrutinising the reasoning given by the Panel, one is not construing a statute or a contract. It has often been observed that in this sort of context the writer of a decision under challenge was not sitting an examination paper. Nevertheless, I must also bear in mind that these were serious findings made against a professional person of previous good character. Although I do not have the advantage of seeing and hearing the witnesses as the Panel did (and that would be a very serious disadvantage, particularly in respect of findings of primary fact) nevertheless I am able to assess the reasoning given. For example, to see if it has logical flaws on a fair and reasonable reading. Furthermore, the appellant is entitled to reasons which are proper, adequate and intelligible. In other words, as the authorities I have already cited make clear, she is entitled to know the essential reasons why she lost.
37. I will now turn to each of the five findings of dishonesty which have been the focus of the appeal before me.

Paragraph 7(d)

38. The relevant charge was that:

"On 7 December 2005, after AH had left the home and prior to the hearing in the Employment Tribunal, you submitted a referral to the Department of Health (Protection of Vulnerable Adults) in which you alleged that, when employed at the Home, AH ...

d. did not send off CRB checks for staff..."

39. Strictly speaking, as a matter of fact this was in fact conceded on behalf of the appellant at the hearing before the Panel, as its reasons note. The Panel also noted that the letter of 4 June 2005, which sets out allegations detailed at paragraph 7, was attached to the POVA referral which the appellant had submitted on 7 December 2005. The Panel later in its reasoning considered whether this charge amounted to dishonesty and said as follows:

"The Panel has heard evidence that Ms Julia Christodoulides was responsible for processing the CRB forms. The Panel heard that the CRB forms had been sent to Ms Christodoulides who had failed to forward them. The Panel has had regard to the letter to Ms Christodoulides from Dr Sondhi dated 24 March 2005 querying the current status of the CRB forms. It has also noted the minutes of the meeting at Hayes Court on 5 April 2005. The Panel concluded that, by December 2005 when you made the POVA referral, it was a known fact that the responsibility for sending off the CRB forms lay with another person and, in blaming Mrs Hepburn, your actions were dishonest as you knew she was not at fault."

40. Having very much in mind the submissions that counsel for the respondent has made and which I have summarised earlier, by reference to the authorities and also by reference to the earlier part of the Panel's reasoning where they made clear their assessment of the appellant as a witness, nevertheless I have come to the clear conclusion that this was flawed reasoning for the following reasons. First, it was not a "known fact" by December 2005 that the responsibility for sending the CRB forms lay, and lay exclusively, with Julia Christodoulides. The evidence which is recited by the Panel in this reasoning relates to dates considerably earlier, namely March and April 2005. Secondly, as the appellant was at pains to point out in her evidence to them, Julia Christodoulides was an employee at another home, not at Ingleside. Thirdly, even if responsibility for physically sending off the forms did lie with Julia Christodoulides, it was at least possible that the appellant genuinely, but perhaps mistakenly, believed that the responsibility in an overall sense lay with Alison Hepburn. For example, in the January meeting to which I have referred and the action plan which followed, it did at least appear that Alison Hepburn had such a responsibility. Fourthly, the appellant may have been mistaken when she referred in her evidence to the tribunal to the question of legal responsibility, but that does not necessarily lead to a conclusion of dishonesty.

Paragraph 10

41. This charge was that:

"Thereafter, despite requests, you did not provide evidence to substantiate the claims made against AH in your referral."

42. The Panel found this charge to be proved. The Panel went on to state:

"The Panel has noted the correspondence from POVA requesting the evidence to support the allegations made in respect of Mrs Hepburn. It has had regard to the email from Mrs Prendergast of 2 November 2005, in which she states that she will chase up the information and ensure it is sent on. It has also had regard to the letter addressed to you from Mr Paul Grief of the POVA office, dated 22 March 2006 [which I have already quoted from]. In this letter, Mr Grief notes the following:

'Whilst we appreciate the time you have taken to provide us with written comment, a large number of the points you raise are not underpinned with appropriate evidence.'

The Panel has also noted the POVA Final Submission document sent by Mr John Shields in respect of Mrs Hepburn's referral, dated 19 June 2006."

43. The Panel then quote at paragraph 12 of that submission, which I have already quoted earlier in this judgment. The Panel went on to consider dishonesty in the context of paragraph 10 of the charges. It said:

"The Panel noted that at no point did you inform POVA that you were unable to provide appropriate evidence for the allegations made. It has had regard to your letter of 27 March 2006 requesting more time to provide this evidence. You then sent a letter on 18 April 2006, enclosing statements to support the allegations made. At least two of these statements were not written by the purported authors. Mrs Prendergast and Mrs Capel both denied writing these statements. The referral process was an ongoing and lengthy process and at no stage did you acknowledge the lack of information available to you. In pursuing the referral in this manner your actions were dishonest."

44. I regard this finding too as flawed for the following reasons. First, the appellant did send information as she was requested to. The implication of the Panel's reasoning appears to be that the appellant had a further obligation to be able to prove the allegations to POVA's satisfaction. That does not amount to dishonesty. I note in particular the apparent jump in reasoning between the penultimate sentence and the final sentence in the passage I have just quoted. It is one thing to say that a person has failed to acknowledge the lack of information available to her; it is another thing to conclude from that that her actions were dishonest. They could well be, for example, innocent if mistaken; they could even be unreasonable or negligent. Those would not necessarily lead to a conclusion that what was done was done dishonestly. It is also worrying, before I leave this passage, that part of the Panel's reasoning refers to the point that at least two of the statements put forward were not written by the purported authors, something which was in fact part of another charge to which I will return.

Paragraph 11

45. This charge alleged that:

"You submitted misleading letters with respect to AH's conduct, including a letter dated 3 July 2005 in which it was stated that AH was not allowed to work at the home unsupervised any longer

a. at a time when AH had left the home

b. when AH had never worked under supervision as alleged."

46. The Panel found this allegation to be proved and stated:

"The Panel had regard to the letter of 3 July 2005. It noted that, at the time in question, Mrs Hepburn was on 'garden leave' and was not working at Ingleside. The Panel has received no evidence that Mrs Hepburn ever worked under supervision and Mrs Hepburn denied that she had ever been placed under supervision.

The letter of 3 July 2005 has Mrs Prendergast's name typed at the bottom as the author but is unsigned. In her oral evidence, Mrs Prendergast stated that she did not think she had written the above letter because it was not in her style or format, and she would not have suggested that Mrs Hepburn was not allowed to work at the home unsupervised. The Panel noted that this letter was included in the referral documents sent to POVA in your name on 7 December 2005.

In finding paragraph 11 proved, the Panel has also noted the referral letter of 4 June 2005. It considered elements of that letter to be misleading as well."

47. Turning to the question of dishonesty in respect of paragraph 11, the Panel said:

"The Panel accepted the evidence of Mrs Prendergast that she did not write this letter. It has already found that the contents of this letter are inaccurate and misleading. In submitting this false information to POVA, your actions were dishonest."

48. I regard this finding also as flawed for the following reasons. First, the conclusion does not follow from the premise. The fact that the contents of a letter are inaccurate and misleading, and indeed are "false", does not lead to the conclusion that it was submitted dishonestly. This may suggest that the Panel had a fundamentally flawed understanding of the concept of dishonesty, which may well have influenced its approach to this matter in respect of the other specific charges with which I am dealing also.
49. Secondly, the Panel referred, without providing any detail, to the letter of 4 June 2005, of which it said "It considered elements of that letter to be misleading as well." It did not specify in what respects that was so. It is also to be noted that the letter of 4 June 2005 was written by Mrs Prendergast, although of course it was enclosed with the referral to POVA on 7 December 2005.
50. Thirdly, there is this: as the appellant submitted before me, a crucial feature of the reasoning deployed by the Panel was not in fact the subject of this particular charge at all: this is that Mrs Prendergast did not write the letter of 3 July 2005. In that context, it is important to recall that Mrs Prendergast was a witness called on behalf of the appellant, and gave evidence before the Panel after the appellant, at the resumed hearing. It is difficult to see how what she said could have formed the subject of any charge, because of course the charge must be formulated and brought before the appellant has to deal with it.

Paragraphs 12(a) and (c)

51. These charges were as follows:

"The subsequent POVA/POCA [Protection of Children and Adolescents] investigation noted:

(a) you submitted a witness statement from WC the cook at the home in support of your allegation that food was being reduced,

(b) WC provided a letter stating that she had no knowledge of the statement purported to have been made by her.

(c) the validity of the statements was questionable given the fact that they were,

i. unsigned

ii. contained similarities;

(d) CSCI confirmed that when they inspected the home shortly before it was sold to you they had noted only 'a few weak points',

(e) you failed to show that AH, by her actions, had harmed vulnerable patients or placed them at risk of harm,

(f) the investigation above recommended that AH's name be removed from both the POVA and POCA lists."

52. In finding this charge to be proved, the Panel simply stated:

"The Panel has had regard to the POVA Final Submission document in respect of Mrs Hepburn's referral, dated 19 June 2006."

53. I have to say that that reasoning does not tell a reasonable reader what in the final submission document, from which I have quoted, the Panel regarded as relevant and persuasive. It records simply in a very generalised way that the Panel had regard to that document.
54. Before proceeding, it is also important to recall that, as the formulation of the charge itself reflects at paragraph 12(c), POVA in that submission had not said that statements were not genuine documents. They had observed that their validity had a question mark over them, given that they were unsigned and contained similarities. They were focusing, as was natural for them to do at that stage, on the evidential value to them of those statements.
55. Turning to the question of dishonesty in respect of these two charges so far as material (that is paragraph 12(a) and 12(c)), the Panel stated:

"The Panel interpreted the reference to statements in paragraph 12(c) to include the witness statements that were purported to be those of Mrs Capel and Mrs Prendergast.

The Panel accepted the evidence of Mrs Capel and Mrs Prendergast that they did not write the statements in question. The Panel noted that Mrs Prendergast stated that the contents of the statement reflected her views, but it considered it wholly inappropriate for this information to be presented as a witness statement, without her knowledge. In the case of Mrs Capel, even if you were confident that a conversation reflecting the content of the statement had taken place, this should have been recorded as such and not falsified in the form of an unsigned witness statement.

The Panel did not find it credible that your secretary put the statements together and sent them off without checking with you. The Panel accepted Mrs Prendergast's evidence that you were a 'hands-on' manager and you had 'proof-read' her referral letter to POVA of 4 June 2005. It noted that the statements were sent to POVA in April 2006 giving you ample opportunity to check them. It was your responsibility to ensure that the information sent to substantiate the serious allegations made by you concerning Mrs Hepburn was accurate and honest."

56. I regard these findings also as being flawed for the following reasons. First, the appellant, on the evidence before the Panel, did believe the contents of the documents concerned to be true. The real burden of its reasoning appears to lie in the fact that the Panel was concerned as to the form of the information put to POVA (see, for example, the sentence which includes the phrase, "even if you were confident that a conversation reflecting the content of the statement had taken place, this should have been recorded as such and not falsified in the form of an unsigned witness statement"). Yet at other times in the very same passage which I have quoted, the Panel talks in terms of the appellant's responsibility to ensure that the contents of the statements were accurate.
57. The second concern is that much of this was not in fact the subject of the charges which I have already quoted and which needed to be looked at carefully and particularly.
58. The third concern is that, in my judgment, the Panel again here discloses a fundamental misunderstanding of the concept of dishonesty. It refers, for example, to the appellant having responsibility to check statements and to ensure, as I have said, that the information submitted was accurate. But, as I have already said, it is perfectly possible for a person to submit a document which turns out to be inaccurate, either mistakenly but innocently; or even, it may be, negligently. That does not lead to a conclusion of dishonesty.
59. The next concern is this: that even if the Panel was concerned in substance about the form and not the content of the witness statements, its reasoning does not demonstrate why that was necessarily the product of dishonesty on the appellant's part. The appellant is not a lawyer or legally trained. The statements concerned were not signed and did not contain a statement of truth in them. It may be that the appellant wrongly, perhaps even unreasonably, believed that that was an appropriate form in which to put forward the information which POVA had requested. That would not amount to putting them forward in a dishonest manner.

Conclusion

60. For the reasons I have given, I have come to the clear conclusion that the five findings of dishonesty on which this appeal has focused made by the Panel cannot stand. In those circumstances, it is not in my view necessary to explore other aspects of this appeal, for example in relation to sanction. However, I would like to say one thing. A submission was made at one stage of the hearing on behalf of the appellant that this could really be regarded as an unusual case which it was suggested was never really appropriate for the GMC in the first place. It was suggested, I think, that this was really to be regarded as what was described as an "employment spat". I do not agree with that suggestion. The matters concerned, even though they arose outside the clinical context, did raise issues of potentially real concern on behalf of the public interest to a body like the respondent. The defects in the Panel's reasoning, in my judgment, go rather to the reasoning which it has deployed, and in particular the five findings of dishonesty which I have already mentioned. I would, therefore, in the circumstances allow this appeal, and I will hear counsel as to the appropriate remedy.
61. MS MOTRAGHI: My Lord, thank you. Firstly, might I say greatest of apologies for arriving a few moments late. I was at another court and unfortunately did not have the message. Secondly, on behalf of Ms O'Rourke, no disrespect is intended to your Lordship in her non-attendance today.
62. My Lord, we invite you to quash the findings of misconduct, impairment and erasure and to remit this back to the GMC. It is clear, my Lord, from your reasoning that the Panel have got it very badly wrong on this occasion and we say that the appropriate remedy --
63. MR JUSTICE SINGH: Do I have to do all of those things? Why can I not just allow the appeal and remit it? Is that not the form in which it is done?
64. MS MOTRAGHI: Well, my Lord, we would ask you to go further than simply allowing the appeal, and that is because it is important to the appellant that this case does not simply go back and be dealt with at stage two, if I can put it in that way, and have the determination of misconduct dealt with again on the basis --
65. MR JUSTICE SINGH: Why not? Why could they not do it at stage two on the basis that the five findings of dishonesty had gone?
66. MS MOTRAGHI: My Lord, you may recall Ms O'Rourke's submission that it may follow that if the findings of dishonesty were quashed then indeed that would have an effect on some of the other findings, namely as to whether or not the matter was misleading or unprofessional, and, my Lord, indeed that is my submission today having heard your reasoning and judgment.
67. So, my Lord, we submit that it is important that the three findings that the Panel have made as to misconduct, impairment and erasure are all quashed so that this matter may be remitted to the GMC and the GMC may then determine how and when it wishes to rerun the case, if at all.
68. MR JUSTICE SINGH: Thank you, yes.
69. Mr Hare, do you want to just deal with that specific submission for now.
70. MR HARE: Yes, of course. My Lord, we submit that this case should follow the ordinary course. What your Lordship has done is to set aside certain of the factual findings. The argument focused on those factual findings for good reason, which was discussed between all the parties and the court at the start. The findings that your Lordship has made in relation to dishonesty do not do what is suggested they do, because they expressly relate to what dishonesty adds to a finding that something was misleading. Your Lordship accepted in the course of giving his reasons in relation to several of the five heads of dishonesty that it may well have been misleading, it may well have been unreasonable, et cetera, and so we say there is no reason to depart from what the ordinary principle would be.
71. MR JUSTICE SINGH: What is the ordinary order?
72. MR HARE: The ordinary order would be simply to say that those findings have been set aside. The appeal is allowed in relation to the findings of dishonesty contained at 7(d), 10, 11 and 12(a) and (c), and the matter is then remitted to the Panel. The Panel would then go back to stage two and decide whether or not, with those matters taken out, it was misconduct and then whether it was impairment and then consider sanction. Those are my submissions on that point.
73. MR JUSTICE SINGH: Do you want to reply?
74. MS MOTRAGHI: My Lord, might it be possible, I am mindful that Ms O'Rourke is not here today and indeed that I have not had an opportunity to have a quick word with my clients regarding this very important matter. Might it be possible to have an adjournment for 10 minutes?
75. MR JUSTICE SINGH: Yes. I will go back to my room, and I will come back into court at 12 pm.
(A short adjournment)
76. MS MOTRAGHI: My Lord, thank you very much for that very helpful opportunity to take instructions. Contrary to what I said earlier, we are content that this matter be remitted to stage two such that the decision as to misconduct and impairment be determined again by the GMC.
77. What we do say is that it is wholly inappropriate for this matter to be remitted to the same Panel. That is for two reasons: firstly, we can see that what happened on this occasion is that the Panel got things very badly wrong and in a number of respects have reached conclusions about the appellant which are simply unsupportable. The second matter is that in any event it may be impossible to remit this to the same Panel, because as of 11 June of this year, the GMC has been reconfigured and the Medical Practitioner Tribunal Service has been set up. So, my Lord, the only way to remit this, as I understand it, would be for this to be remitted to the Medical Practitioner Tribunal Service. That is something that has been done in order to comply with Article 6 of the ECHR. As a result of that, a number of the Panel members who previously sat on FTPP Panels are no longer sitting. It is thought that Miss Goulding and Mr Khan (As heard), who were two of the three members, are no longer sitting. So in any event we say that it would not be possible.
78. Finally, my Lord, it is noted that under the GMC's own rules, it is permitted to change Panel members under its constitution, and so we say that it is appropriate to remit this to a fresh Panel.
79. Finally, my Lord, and for the avoidance of doubt, of course, my Lord, you have not heard all of the grounds of appeal substantively and a number of other matters were subject to challenge. My Lord, we just note that because that is an argument that may be made when this case is remitted. It should not be thought, in our submission, that simply because the findings of dishonesty have been quashed it would not follow that other matters are also unimpeachable.
80. MR JUSTICE SINGH: Well, that causes me a little bit more concern, because either I have to deal with them or I do not have to deal with them. I have certainly taken the view that the appeal has to be allowed, because if I had made findings of, say, one or two errors here or there which did not really go to the heart of dishonesty then I might have been persuaded if submissions had been made that I should not remit. But we are not in that situation and the matter has to be remitted with these findings quashed. I think all I can say is that the position is neutral as to any other matter.
81. MS MOTRAGHI: My Lord, we are content with that.
82. MR JUSTICE SINGH: That will be clear. I have said it in open court and that will be clear from the transcript of this hearing if anyone needs to, but since both parties appear to be content with that approach from the court, I think I need say no more.
83. MS MOTRAGHI: My Lord, thank you.
84. MR JUSTICE SINGH: So subject to anything you have to say, Mr Hare, it would appear that in fact the parties are agreed as to the form in principle of the order. It will be: the appeal is allowed; the five findings of dishonesty, and they can be numbered, are quashed; the matter is remitted to the Panel for reconsideration.
85. The issue then arises as to the composition of the reconvened Panel.
86. MR HARE: Yes, and we do not want to press your Lordship at all hard in relation to that. We accept it is in everyone's interests that this matter comes before a reconvened Panel as soon as possible. Inevitably, and for simple, practical reasons, that means it is much more likely to come on more quickly if it is not confined to these panellists. So we do not want to press your Lordship on that. I do not think I need say any more about that.
87. MR JUSTICE SINGH: Well, I will direct that it should be remitted to a differently constituted panel.
88. MS MOTRAGHI: My Lord, thank you. Finally, the matter as to costs. Neither party has served schedules of costs at this juncture.
89. MR JUSTICE SINGH: It would not be appropriate for me in a case of this length (Inaudible) costs.
90. MS MOTRAGHI: Indeed, but we do say that the appropriate order is that the respondent pay the appellant's costs, to be assessed if not agreed.
91. MR HARE: (Inaudible) in principle. I would just like to say we did submit a schedule of our costs.
92. MR JUSTICE SINGH: All right. I will order that the respondent shall pay the appellant's costs, to be the subject to detailed assessment if not agreed.
93. MS MOTRAGHI: My Lord, I am grateful.
94. MR JUSTICE SINGH: Is there anything else?
95. MS MOTRAGHI: No.
96. MR JUSTICE SINGH: Can you both please agree a draft order for my consideration. I think in the light of this discussion, it is unlikely to be contentious now, but if you can send that through the court office to my clerk, and they can provide the email details for him if necessary.
97. MS MOTRAGHI: Happily, my Lord.
98. MR JUSTICE SINGH: If there are any problems, your clerks can contact my clerk directly.
99. MS MOTRAGHI: I am grateful.
100. MR JUSTICE SINGH: Thank you, Ms Motraghi. Can I please also pass on my thanks to Ms O'Rourke.