England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 March 2012

Mr Justice Eady :

1. On 28 February 2012 I heard an appeal by Dr Chukwugozie Ujam under s.40 of the Medical Act 1983 against the direction of a Fitness to Practise Panel of the General Medical Council, dated 20 December 2010, to the effect that he should be suspended from the Medical Register for a period of six months. I understand that the hearing took place over eleven days and evidence was taken from a number of witnesses, of which I have been supplied with transcripts.
2. The procedure before the Panel was governed by the General Medical Council (Fitness to Practise) Rules Order of Council 2004, which require such hearings to be addressed in stages. It is necessary for three issues to be addressed and for decisions to be announced sequentially. First, there should be findings of primary fact. Secondly, it is necessary to determine whether the practitioner's fitness to practise is impaired. Finally, where appropriate, it has to be decided what sanction, if any, should be imposed. These matters are engaged respectively by Rules 17(2)(i), 17(2)(k) and 17(2)(n).
3. There are various options available to the High Court upon hearing and determining an appeal under s.40 of the 1983 Act. The court may

"(a) dismiss the appeal;

(b) allow the appeal and quash the direction or variation appealed against;

(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or

(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court."

4. On any such appeal, the issue for the court is whether the relevant Panel's determination was "wrong": see CPR 52.11(3). The nature of the appeal is by way of rehearing, although that is not strictly true in the sense that the appellate court does not ordinarily rehear the witnesses giving evidence or have the opportunity to form a view, directly, as to an individual witness's credibility. Accordingly, care needs to be taken where the High Court is invited to characterise a Panel's conclusions of fact as wrong, given its opportunities to make a direct assessment as to reliability and truthfulness of the witnesses who came before it. It is also true that the court should ordinarily accord some deference to the Panel in relation to issues turning upon professional judgment, for example in making an assessment as to the seriousness of any misconduct found. My attention was drawn to the analysis of relevant authorities by Cranston J to be found in the decision of Cheatle v General Medical Council [2009] EWHC 645 (Admin) at [12] to [15].
5. As to the appropriateness of any particular sanction imposed by a Panel, Ms White for the Respondent referred to the summary of relevant principles by Laws LJ in Fatnani and Raschid v General Medical Council [2007] EWCA (Civ) 46, 1 WLR 1460 at [16]-[20]. It is important to recognise that a Panel is not primarily concerned with punishment and that matters of personal mitigation are, correspondingly, likely to play a less significant part in fixing upon any particular sanction than might be the case in a criminal court. As was observed by Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 519, albeit in the context of solicitors:

"The reputation of the profession is more important than the fortunes of any individual member."

6. Secondly, it has been emphasised in a number of authorities that the relevant appellate court needs to afford the appropriate measure of respect to the judgment of the relevant professional disciplinary body not only in determining whether the practitioner's failing amounts to serious professional misconduct, but also with regard to the measures necessary to maintain professional standards and provide adequate protection to the public. Much will, however, depend on the circumstances: see e.g. Ghosh v GMC [2001] 1 WLR 1915, 1923 (per Lord Millett).
7. In the present case, not much of the factual background was significantly (if at all) in dispute. The primary complaint of the Appellant is that too much significance was attached to what he (still) considers to be relatively minor transgressions. He suggests that what he did should not have been characterised as serious misconduct, such as to impair his fitness to practise. Alternatively, he argues that the sanction of suspension was excessive. It has been suggested to me by counsel that it would be convenient, and fair to all concerned, if I reach a conclusion first as to the substantive decisions on misconduct and later address, if necessary, any outstanding question of sanctions after hearing further submissions. I will adopt that course.
8. It is convenient at this stage to set out the relevant charges before the Panel and the outcomes (as they had already emerged by the time of the hearing):

"That being registered under the Medical Act 1983, as amended,

'1. Between August 2007 and November 2008 you were employed by the Chesterfield Royal Hospital NHS Foundation Trust on a GP training programme;

(Admitted and Found Proved)

'2. a. In or around August 2007 you submitted a Criminal Records Bureau certificate to the Trust dated 15 October 2006 which contained no discretionary information,

(Admitted and Found Proved)

b. At the time of submitting the certificate at 2a above you were aware of the existence of a second Criminal Records Bureau certificate that you received in or around February 2007 which contained details of an allegation made against you in 2003 the nature of which is set out in Annex A,

(Admitted and Found Proved)

c. You did not submit the second certificate to the Trust,

(Admitted and Found Proved)

d. You did not inform the Trust that

i. the CRB certificate dated 15 October 2006 was incomplete,

(Admitted and Found Proved)

ii. an allegation had been made against you the nature of which is set out in Annex A;

(Admitted and Found Proved)

'3. a. Between August and October 2007 whilst working at the Moss Valley Medical Practice, you made numerous private telephone calls from a practice telephone to various Nigerian telephone numbers,

b. On 14 November 2007 you attended a meeting with your educational supervisor and practice manager to discuss your use of the telephone, during which you

i. were confrontational with your supervisor,

ii. shouted at her;

'4. In or around December 2007 you made the acquaintance of the following two female doctors who were working at the Chesterfield Royal Hospital NHS Foundation Trust,

a. …,

b. Dr Pennington,

(Admitted and Found Proved)

c. Dr Priestman;

(Admitted and Found Proved)

'5. …,

'6. a. Between 6 January 2008 and 9 January 2008 you spoke to Dr Pennington whilst working a nightshift,

(Admitted and Found Proved)

b. i. you told her of your past infidelity,

(Admitted and Found Proved)

ii. you questioned her as to her current relationship status,

(Admitted and Found Proved)

iii. you questioned her as to her sexual history,

(Admitted and Found Proved)

c. On 8 January 2008 you sent her a text message timed at 11:48:43,

(Admitted and Found Proved)

d. On 10 January 2008 you sent her a text message timed at 19:30:30,

(Admitted and Found Proved)

e. On or about 10 January 2008 you complained to her that she had failed to respond to your text;

'7. a. On various occasions between 6 March 2008 and 10 March 2008 you spoke to Dr Priestman,

(Admitted and Found Proved)

b. i. you questioned her as to her current relationship status,

(Admitted and Found Proved)

ii. you repeatedly commented upon her body language,

(Admitted and Found Proved)

iii. you informed her that you had "marital difficulties" or words to that effect,

(Admitted and Found Proved)

iv. you sent Dr Priestman a text in which you invited her for coffee;

(Admitted and Found Proved)

'8. a. On or around 31 October 2008 you made the acquaintance of Nurse Hudson,

(Admitted and Found Proved)

b. On 31 October 2008 you

i. invited Nurse Hudson out for the evening,

(Admitted and Found Proved)

ii. told her that "a bit of fun was harmless" or words to that effect,

iii. provided her with your telephone number,

(Admitted and Found Proved)

iv. requested her telephone number.

c. On a day in November 2008 you approached Nurse Hudson and asked her why she had not called you,

(Admitted and Found Proved)

d. On or about 24 November 2008 whilst you were assisting in a delivery suite where Nurse Hudson was observing, you winked at Nurse Hudson;

'9. Your actions described at 2a, 2b, 2c and 2d above were misleading;

'10. Your actions described at 3bi and 3bii above were intimidating;

'11. Your actions at 6bi, 6bii, 6biii, 6c, 6d, 6e, 7bi, 7bii, 7biii, 7biv, 8bi, 8bii, 8biii, 8biv, 8c and 8d above were

a. Inappropriate,

b. Sexually motivated;'

And that in relation to the facts alleged your fitness to practise is impaired because of your misconduct."

9. I need to supplement this information in order to complete the picture. First, I should explain that the "Annex A", referred to as containing the "discretionary information" set out on the CRB certificate in February 2007, gave a brief but graphic description of a complaint of alleged sexual assault. This had been investigated by the police in 2003 and no further action was taken. It included an allegation of digital penetration. The Appellant denied those allegations and, in particular, denied that any physical struggle had been involved. He strongly took the view that they should not have been included by the relevant Chief Constable on a CRB certificate, even on a discretionary basis. I need not take up too much time on this point, since the Panel found that his omission to mention the content of the certificate was misleading, although not intentionally so. This is a little confusing, since it is also suggested that the Appellant chose to withhold the information, notwithstanding that he was acquitted of any intention to mislead. It was, however, simply categorised as an error of judgment. Against this background, I think it is best to put the matter to one side for present purposes.
10. In so far as there were any issues of primary fact left for the Panel to resolve, it seems that it preferred the evidence of the various complainants over that of the Appellant. The Panel had included a general passage on the credibility of the various witnesses, specifically indicating why they found the relevant complainants credible. Criticism is made of this by Mr Bebb QC, for the Appellant, on the basis that, having come to these general conclusions, the Panel then appear to have treated them rather mechanistically as a basis for going on to make findings adverse to the Appellant, even on matters of assessment (rather than determining disputed issues of primary fact). For example, he submitted, even if his client was a less impressive witness on recounting what had taken place, it does not follow that any of the transgressions should therefore be taken as impairing his fitness to practise as a doctor.
11. As a general proposition, of course, that is unassailable. But I see no convincing evidence that the Panel did allow its general view on credibility (or the Appellant's accuracy as a historian) to prejudice the separate task of judging "impairment of fitness to practise". There is, however, an element of overlap and, specifically, in the context of what has been referred to as the Appellant's "insight" or lack of it. If the Panel was of the view that he presented himself as being somewhat insensitive to the effect of his behaviour on other people, it might also take the view, legitimately, that such an attitude would be relevant also to the issues of "impairment" and, if relevant, "sanctions".
12. I turn next to the distinct allegation about telephone usage in 2007. This occurred when he was carrying out part of his GP training in the Moss Valley Medical Practice. This was internally investigated at the time and a line was drawn under it. It was, however, resurrected by the GMC for the 2010 investigation. The underlying facts appear to have concerned a mistake or misunderstanding. The Appellant thought he was being charged (by TalkTalk) a favourable rate for international telephone calls from the practice, but he was mistakenly overcharged. This was later corrected.
13. The disciplinary aspect of the problem arose in relation to the way he treated his (female) supervisor when she questioned him about his use of the practice telephone. She seems to have caused him some offence and this led to an emotional over-reaction on his part. He became angry and tearful and raised his voice (or shouted). She found this rather disquieting, although she was not in fear of physical violence. Nevertheless, it appeared to her that he was blocking her exit from the room and she apparently perceived his behaviour as rather menacing. She told the Panel that she had never experienced anything like it before. The conclusion was recorded that she found his conduct "intimidating".
14. Although this involved an incident in which the Appellant seems to have made a female colleague uncomfortable, by behaving in an uncontrolled way, there is no suggestion that it involved anything of a sexual nature. Regrettable though it was, it is difficult to see that it would (taken by itself) give rise to concern over impairment of fitness to practise or require suspension. It seems to have been taken into account by the Panel as part of an overall picture. At first blush, it may seem to have nothing to do with the primary causes of complaint. But I suppose it could be seen as part of a pattern of overbearing and thoughtless conduct towards colleagues. Not surprisingly, importance is attached in Good Medical Practice to "respect for colleagues" and "working in teams".
15. Undoubtedly, the primary focus of the Panel and of the appeal before me was upon the allegations in relation to Dr Pennington, Dr Priestman and Nurse Hudson at various times in 2008, when the Appellant was carrying out the hospital part of his training programme in Chesterfield. It is fair to summarise the nature of the complaints as being of sexual harassment, although the Appellant would not so categorise his behaviour. Mr Bebb, on his behalf, suggests that the whole thing has been blown out of proportion. His behaviour towards these colleagues may have been "unattractive" and he may have "misread" the situation, but in due course he left them alone. There is no suggestion of physical assault. The Panel clearly, however, took the allegations and the nature of the undisputed or proved conduct more seriously. Ms White submits on behalf of the GMC that it was fully entitled to reach the conclusions it did. They may perhaps be conveniently summarised in the following passage:

"The Panel views your actions in pursuing and harassing professional colleagues for sexual purposes as representing a pattern of behaviour that falls seriously short of the standards expected of a registered medical practitioner. The Panel regards the observance of proper standards of behaviour towards professional colleagues as an important principle of conduct for doctors."

The Panel had concluded that he failed to recognise the proper boundaries of professional and social relationships between colleagues. His misconduct had brought the medical profession into disrepute. That decision was reached in the light of the provision in s.1(1A) of the 1983 Act to the effect that the main objective of the GMC is "to protect, promote and maintain the health and safety of the public". There has been no criticism of the Appellant based on clinical incompetence, but it was seen to be important that the public should be reassured that the profession would take all necessary steps to maintain standards of behaviour with regard to the treatment of colleagues and in particular that it takes a serious view of sexual harassment.

16. Again, I need to emphasise that I have in mind the principles to which I referred earlier concerning the nature of a s.40 appeal. I bear in mind that I did not see or hear the witnesses. I also bear in mind the experience and qualifications of the Panel members, which clearly give them a head start when it comes to assessing what is appropriate conduct between medical colleagues and what are the proper standards to maintain in the profession – both in general terms and, specifically, with regard to retaining the confidence of the public it serves.
17. I will first address the complaint of Dr Pennington. She was a house officer who, in January 2008, found herself having to work with the Appellant, who had the slightly higher status of senior house officer. It is, therefore, said that he would ordinarily be someone to whom she could expect to turn for guidance or advice, but I do not believe that much turns on this and its significance should not be overstated. He was also, at 36, significantly older than her.
18. The facts are essentially not in dispute. Nor indeed, in this instance, does the Appellant even seek to go behind the findings that his actions were "inappropriate" and "sexually motivated". That is not surprising in view of the Panel's conclusion that he had told her on first acquaintance that he had been unfaithful to his wife and also of his "recent sexual conquests". He told the Panel that his account to Dr Pennington had been untrue but that it was just "embellishment", as he wished thereby to enhance his reputation with a colleague. ("I was happy to be seen as a sexual person, I guess.")
19. He sent Dr Pennington a text message at 09.17 on 8 January: "Nights make me very horny for some reason! C ya later!" He concluded with a "x" (which he refused to accept represented a kiss). She made it clear that he was "barking up the wrong tree" and that he should rather direct his energies towards his wife and children. But he persisted and responded (as corrected): "Hey marriage counsellor! Wakey wakey, I was teasing ya, besides I know what I want, C ya later".
20. Dr Pennington told the Panel that she found him "creepy" and, when he sent her a message saying how "pretty" she looked (which he regarded as a kind of olive branch), she felt sick. He still persisted, however, and even accused her of being rude for not replying. She said she thought it "a creepy message" to send to someone who had rejected his advances.
21. It must be disconcerting to be harassed by a predatory male in the workplace generally but it is, I imagine, especially concerning to someone who finds herself on night duty and effectively alone with such a colleague. Also, it is capable of distracting attention and affecting concentration on what is supposed to be the task in hand, namely the care of patients. Dr Pennington told the Panel that because of this behaviour, she by-passed the Appellant when communicating about patients and bleeped the registrar instead.
22. She obviously found herself in a difficult position. She said in cross-examination:

" … I was thinking in my head how could I get out of the conversation without completely looking like I was cutting him dead, because he was going to be my colleague for the next couple of shifts and obviously I do not want to destroy that colleague relationship that I have got but, equally, I do not want to encourage him and I do not want to be misunderstood."

23. One of the telling points in Dr Pennington's evidence was that after his first advances to her she was so disconcerted that she went home and made notes of what had happened and telephoned her parents about it. She also wrote down next day that he had said to her, "Oh God, I bet you are still a bloody virgin, aren't you?" The Appellant denied this, but the Panel could not see why she would have invented this jibe.
24. I can see no reason why the Panel erred in reaching its conclusions about Dr Pennington. Using the terminology of the "charges" quoted above, it was entitled to come to the decision that his behaviour was both "inappropriate" and "sexually motivated".
25. It is clearly significant that Dr Priestman too felt the Appellant's behaviour to be "intimidating". It made her feel anxious and on edge. That is not only unacceptable on a personal level but, again, it is plainly undesirable that a doctor's concentration should be impaired by harassment of this kind when she is supposed to be focussing on patient care. She described how he had, on her first night working with him, given her his telephone number. She was surprised and shocked by this, as there was no apparent reason for him to do so. He also pressed for her number, which she only gave him because she wanted to avoid any negative feelings affecting the working relationship on the three nights they were rostered together.
26. It seems that the Appellant nagged Dr Priestman as to why her body language had been so negative when he handed her his number (which obviously in itself is consistent with her account). This continued as they walked along a corridor to see a patient who was suffering from seizures – and even while they were at her bedside. She described it in cross-examination as follows:

"You do not carry on asking someone when you go and see sick patients. That is not normal. It is not normal to stand at the end of the bed when someone is having a seizure and keep persisting, asking you 'What is wrong with you? Why are you being like this?' He did not look at the patient. He continued talking to me. Surely that is not how it should be."

That is obviously quite unprofessional and the Panel was entitled to take a serious view of it. It was clearly "inappropriate".

27. The Appellant probed Dr Priestman about her private life and about a holiday she was shortly due to take with a boyfriend. He asked her how the relationship was going. Rather than telling him to mind his own business, she reluctantly revealed that it was not going too well. The Appellant's response was to say that he would see how things had gone once she returned. She thought he said that he would get in touch "to assess the situation", thus clearly expressing a sexual interest.
28. He asked her to join him for coffee after the night duty session. In itself, that would seem to be of little consequence, but the Panel attached significance to the background context and took it to be a continuation of sexual overtures. This was a reasonable interpretation, not least because of the Appellant's feeble explanation that he asked Dr Priestman for coffee in order to check whether she was fit to drive after night duty. The Panel was thus, in her case also, entitled to come to the conclusion that his conduct was not only "inappropriate" but also "sexually motivated".
29. As I have noted above, the Panel's assessment of the Appellant's "insight" into his behaviour and its impact on the relevant colleague(s) could be a significant factor in making a judgment as to "impairment". It is thus relevant to note that, following his behaviour towards Dr Pennington and Dr Priestman, there was an internal disciplinary hearing in July 2008, following which the Appellant had been given a warning. It could well throw light on his degree of insight to examine how he behaved afterwards. It may be significant that in his evidence in 2010 he referred back to that hearing and seemed to repeat his earlier accusation that Dr Pennington and Dr Priestman had colluded in some way:

"I felt that there was some gossip going on and I felt that they put their heads together (and they agree they did discuss it before making a complaint) so I felt that, at the time I was writing this [i.e. July 2008] that it was more of a moral judgment that they were passing … "

Shortly afterwards, however, he disavowed any accusation of collusion.

30. A few months later, there was the third incident of alleged harassment, involving on this occasion someone even younger. At 19, Nurse Hudson was at an early stage of her training and approximately half the age of the Appellant. She repeatedly made it clear to him that she was not interested in his attentions but she said that, despite this, he "winked and smirked" at her when their paths crossed, including on one occasion winking at her in a theatre in the course of a delivery. This was denied, but the Panel saw no reason to disbelieve her. It is fair to say that she was there on her first visit and only in the capacity of an observer. There was, therefore, no scope for any loss of concentration on her part to have adverse consequences for a patient, but it was nonetheless plainly unprofessional.
31. Despite the warning the previous July, it is quite apparent that the Appellant had learned little, if anything, about the effect of his behaviour on female colleagues. He even went so far as to tell the Panel that he thought Dr Pennington "held me in awe and I felt that I needed to maintain the picture that I am Jack the Lad". When Nurse Hudson said, in contrast, that she felt "harassed" by him, his response was to say that she had been encouraged to use that word by someone else. In these circumstances, it is not surprising that the Panel should have commented on his "limited insight". If anything, its conclusion is reinforced by his dismissive characterisation of his behaviour as mere "attempts to chat up work colleagues" in his submissions for this appeal.
32. I can see no possible basis for ruling that the Panel's assessment of the Appellant's misconduct, as having been serious and such as to bring the profession into disrepute, was wrong. These were conclusions the Panel was entitled to reach on the evidence and in the light of the members' own professional experience and judgment. As suggested by counsel, I will consider any further submissions (orally or in writing) before deciding (a) whether his fitness to practise was still impaired in December 2010 and (b) whether the sanction of suspension was itself wrong.