QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DR CHUKWUGOZIE UJAM
|- and -
|GENERAL MEDICAL COUNCIL
Gemma White (instructed by GMC Legal) for the Respondent
Hearing date: 13 March 2012
Crown Copyright ©
Mr Justice Eady :
" … In making their decision on the appropriate sanction, Panels need to be mindful that they do not give undue weight to whether or not a doctor has previously been subject to an interim order for conditions or suspension imposed by the Interim Orders' Panel, or the period for which that order has been effective. Panels need to bear in mind that the Interim Orders' Panel makes no findings of fact and that its test for considering whether or not to impose an interim order is entirely different from the criteria used by the Fitness to Practise Panels when considering the appropriate sanction. It is for this reason that an interim order and the length of that order are unlikely to be of much significance for Panels. … "
"I have no doubt in my mind that Dr Ujam has taken on board the allegations and fully appreciates the consequences to the people involved. The whole episode has been very difficult but I am confident that Dr Ujam will learn from it. It will definitely make him more careful about the way he interacts with his colleagues in the future and from our past conversations I know that he will ensure that this cannot happen again."
"In reaching its decision, the Panel has had regard to all of the relevant factors and information, including the questions of insight, remediation and the time that has elapsed since the incidents. It has considered the testimonials you have submitted and the oral evidence of Dr Okon.
The most serious of the matters found proved relate to incidents that took place in 2007 and 2008. These are relatively recent events. The Panel has concluded that the passage of time has not significantly reduced their relevance to the question of impairment in the circumstances of this case.
The Panel considers that you have demonstrated only limited insight into the effects your misconduct had on Dr Pennington, Dr Priestman, and Nurse Hudson. You do not appear to appreciate the damage your behaviour would cause to the collective good name of the medical profession.
The Panel notes that the question of remediation is of limited relevance in your case given the nature of your misconduct. Your misconduct arose not from a deficiency in your clinical competence but from a failure to recognise the proper boundaries of professional and social relationships between colleagues.
The Panel does not regard you as presenting a risk to patients, although it notes that your behaviour towards female colleagues was capable of having an adverse effect on patient safety. The Panel finds that your misconduct has brought the profession into disrepute and that you have breached important principles of your profession. In the circumstances, the Panel has concluded that your fitness to practise is impaired by reason of your misconduct."
The reference to Dr Okon was to oral evidence received by the Panel on how much the Appellant had changed since the events in question and as to how careful he then was when in social situations.
"The task for the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct his or her fitness to practise has been impaired."
"In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors or incompetence."
In the one case, it appears that the primary focus will be the protection of patients and, in the other, the maintenance of public confidence in the profession. The point was developed by Sales J at - in these terms:
" … Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting the doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect to it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public's confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
Secondly, where a [Panel] considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on the which the [Panel] considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at  (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving 'a rape or misconduct of that kind', in relation to which – by implication – such evidence might be less significant)."
"In reaching its decision, the Panel took into account all the circumstances of the case. The Panel considered the legal authorities to which it was referred, including the cases of Bolton v The Law Society … and of Gupta v GMC … . The Legal Assessor drew the Panel's attention to features of those cases that might be thought to distinguish them from your case. Bolton relates to dishonesty and Gupta relates to a doctor who allowed her husband, whose name had been erased from the Medical Register, to continue practising medicine.
The Indicative Sanctions Guidance makes clear that the purpose of sanctions is not to be punitive, but to protect patients and the public interest, even though sanctions may have a punitive effect. The public interest includes not only the protection of patients but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.
In considering what action, if any, to take in respect of your registration, the Panel has had regard to the principle of proportionality and has weighed the public interest with your own interests.
The Panel first considered whether to conclude this case without taking any further action. It determined that it would be wholly inappropriate to do so because of the seriousness of your misconduct. The Panel determined that it is important to demonstrate to you, to the profession and to the public that misconduct such as yours will not go unmarked.
Having concluded that it is essential to impose a sanction in respect of your registration, the Panel considered the sanctions available, starting with the least restrictive.
The Panel therefore went on to consider whether it should impose a period of conditional registration.
Paragraph 56 of the Indicative Sanctions Guidance makes clear that conditions are likely to be appropriate:
' … where the concerns about the doctor's practice are such that a period of retraining and/or supervision is likely to be the most appropriate way of addressing them.'
The GMC's Indicative Sanctions Guidance document makes clear that any conditions must be appropriate, proportionate, workable and measurable.
Paragraph 57 of that guidance states that conditions:
'might be most appropriate in cases … where there is evidence of shortcomings in a specific area or areas of the doctor's practice. Panels will need to be satisfied that the doctor has displayed insight into his/her problems, and that there is potential for the doctor to respond positively to remediation/ retraining and to supervision of his/her work.'
Clinical competence was not an issue in your case. Your misconduct in respect of Dr Pennington, Dr Priestman and Nurse Hudson were not an isolated episode but was a course of conduct designed to establish sexual relationships with them, in which you persisted despite their evident discomfort and reluctance to engage with you. You were their more senior colleague and, for Dr Pennington and Dr Priestman, you were the doctor from whom they would be expected to seek advice and guidance regarding patient care. As a consequence of your misconduct they were reluctant to approach you. Dr Pennington sought advice elsewhere.
Your misconduct towards these three women related to your failure to recognise and apply the proper boundaries of professional and social relationships between colleagues. At this hearing, you have demonstrated negligible insight into the consequences of your actions upon these junior female colleagues or into the damage that such behaviour causes to the reputation of the profession.
In the Panel's view, the imposition of conditional registration is insufficient to protect the wider public interest given all the circumstances of this case. Conditions would not be a sufficient or appropriate response to the facts found proved, nor could conditions be constructed that would adequately answer your misconduct. An Interim Orders hearing has different functions from a Fitness to Practise hearing and the order imposed by the Interim Orders Panel was not designed to address the matters that are of relevance to this Panel.
Having determined that a period of conditional registration would be inappropriate and insufficient to protect the public interest, the Panel considered whether to direct the suspension of your registration. … "
The conclusion was reached that the predominant elements in the public interest factors to be considered were the maintenance of public confidence and the declaring and upholding of proper standards of conduct and behaviour.