QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE GENERAL MEDICAL COUNCIL||Respondent|
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Mr I Hare (instructed by GMC Legal) appeared on behalf of the Respondent
Hearing date: 17 July 2012
Crown Copyright ©
MR JUSTICE SINGH:
The court's role on this appeal
"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..."
"...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 [ 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."
"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."
"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..."
"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."
"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."
"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."
"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..."
"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..."
"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."
"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."
"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."
The decision under appeal
"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."
"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."
"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.'"
"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."
"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."
"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..."
"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."
"Thereafter, despite requests, you did not provide evidence to substantiate the claims made against AH in your referral."
"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."
"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."
"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."
"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."
"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."
Paragraphs 12(a) and (c)
"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,
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."
"The Panel has had regard to the POVA Final Submission document in respect of Mrs Hepburn's referral, dated 19 June 2006."
"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."