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
		20 March 2012

Mr Justice Eady :

1. Following the hand down of my earlier judgment in this matter on 13 March 2012, counsel took the further opportunity to make submissions in relation to two outstanding issues, namely (a) whether the Appellant's fitness to practise was still to be regarded as impaired at the conclusion of the Panel hearing in December 2010 and (b) whether the sanction of suspension imposed at that time was itself wrong. I shall not repeat the factual background set out in the first judgment: [2012] EWHC 580 (Admin).
2. I referred at paragraphs 29 to 31 to the matter of the Appellant's "insight", as perceived by the Panel. I had also mentioned the court's approach on appeals of this kind from a professional body. A degree of deference is due to the experience and professional knowledge of the members of the Fitness to Practise Panel: see e.g. Cheatle v GMC [2009] EWHC 645 (Admin) at [12]-[15] and Ghosh v GMC [2001] 1 WLR 1915. The Panel was clearly entitled to make an assessment of the Appellant and of any attitudes displayed in the course of his evidence or in the presentation of his case during the hearing in December 2010.
3. Mr Bebb QC referred to the considerable time lag between the events complained of and the hearing itself. He emphasised the need to have regard to everything which had taken place in the interim when making an assessment of the extent to which the Appellant's fitness to practise continued to be impaired two to three years later. The Panel recorded that all those matters drawn to their attention had indeed been taken into account. But Mr Bebb suggests that, in reality, the Panel can only have been giving a formal "nod" towards the evidence and did not accord it appropriate weight.
4. He suggested that the allegations of sexual harassment involving Dr Pennington (January 2008), Dr Priestman (March 2008) and Nurse Hudson (October/November 2008) could properly be regarded as a series of events "never to be repeated", the significance of which should be judged in isolation. This was, he submitted, borne out by the Appellant's record both earlier and later. Between April 2006 and April 2007, there was nothing to suggest that his record had been other than exemplary. Moreover, from December 2008 until July 2009, when he was serving as a registrar GP in Derbyshire, there was no suggestion of inappropriate behaviour.
5. There was a period, I understand, between July 2009 and February 2010 when the Interim Orders Panel had suspended the Appellant, having regard to the disciplinary complaints outstanding against him, although I was told that little was known about the reasons for this and that, in any event, there had been no evidence before the Panel in December 2010 as to why that earlier period of suspension had been imposed. Ordinarily, it was submitted, it would be right to assume that the Interim Orders Panel was concerned with different criteria from those later addressed by the Fitness to Practise Panel. It would be concerned with its own perception as to any risk in the intermediate period, rather than with imposing a sanction for the reasons taken into account by the later Panel. It would be undoubtedly right that the suspension it imposed should be borne in mind as part of the background circumstances, but it would certainly be inappropriate to regard it as analogous to a period of imprisonment served while on remand (which would normally be deducted from any custodial term imposed by the sentencing court). This is reflected in the GMC Indicative Sanctions Guidance, at paragraph 22, where it is said:

" … 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. … "

6. Between February and July 2010, the Appellant completed his period of training. Thereafter, such information as there was about his conduct, submitted Mr Bebb, strongly suggested that he had learned from his mistakes and that his conduct was once again beyond reproach.
7. Mr Bebb again drew my attention to a number of positive references that were before the Panel. There was one from Dr Geoffrey Glazer, the Medical Director of the Wellington Hospital, where the Appellant had worked between April 2006 and July 2007. He spoke well of his professional abilities and recorded that there had been no complaints against him. That was dated 24 November 2010.
8. On the same date, a reference was provided by Dr G M Harvey, who had been a GP trainer at the Dronfield Medical Practice where the Appellant was under his supervision from December 2008 to July 2009 and again (following the period of suspension to which I have referred) from February to July 2010. He recorded that " … there were no issues around fitness to practise whilst under my supervision" and stated that the Appellant had "demonstrated that he had reflected significantly on the issues that led up to his referral to the GMC".
9. Also dated 24 November 2010 was a reference from Dr S H Saunders, a partner at the Dronfield Medical Practice. He spoke positively in very similar terms, as did Dr A Barr in a reference dated 26 November 2010.
10. There was also a substantial reference from Dr Chima Alexander Oti, who had known the Appellant for 19 years, having started out at medical school with him and then come to England at the same time for specialist training. They had been flatmates. He spoke well of the Appellant both personally and professionally. This contained a paragraph in the following terms:

"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."

11. There was a positive reference dated 14 December 2010 from Angel Human Resources Ltd who had placed the Appellant in various practices as a locum during the previous three month period. There had been a total of twelve different NHS practices or prisons in which he was placed. All feedback had been positive.
12. Mr Bebb submits that it is rather surprising that the Panel should have concluded, having regard to all this material, simply that the Appellant still had, at December 2010, only "limited insight". I must therefore focus on exactly what the Panel had to say in its Determination on Impairment dated 17 December of that year:

"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.

13. Mr Bebb submits that the Panel was simply wrong to conclude that the passage of time had not significantly reduced the relevance of his misconduct to the question of impairment.
14. The Panel was clearly entitled to make an assessment of the Appellant and of any attitudes displayed in the course of his evidence and in the presentation of his case. In the light especially of the matters referred to in my earlier judgment at paragraphs 29 to 31, I see no reason to interfere with the Panel's assessment of the Appellant's fitness to practise at the material time.
15. The role of the Panel in such circumstances was identified by Silber J in Cohen v GMC [2008] EWHC 581 (Admin), where he said that:

"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."

16. My attention was drawn also to paragraphs [47]-[51] in the decision of Sales J in Yeong v GMC [2009] EWHC 1923 (Admin), where not dissimilar criticisms were levelled at the Panel in relation to the test for impairment of fitness to practise – albeit in a case concerning much more serious misconduct, where the doctor concerned had been involved in a long term sexual relationship with a patient. The case is of some interest, however, since the learned judge focused on the distinction between clinical incompetence and other forms of misconduct. He made clear that in relation to cases of clinical errors or incompetence the question of remedial action, taken by the doctor concerned to address his areas of weakness, may be highly relevant to the question of whether his fitness to practise remained impaired at the date of the relevant Panel hearing. On the other hand, where the case concerns conduct of a sexual nature, which is such as to undermine public confidence in the medical profession, "a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession", ibid at [48]. As the judge went on to point out:

"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 [50]-[51] 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 [51] (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)."

17. Of course, I emphasise again that conduct of the kind being discussed in those cases would be far more serious than that with which I am concerned here, but the distinction remains important, as between clinical incompetence and misconduct by way of "crossing boundaries", in relation to the relative significance of remedial action.
18. It is for reasons of this kind that the Panel thought it right to give relatively little weight to the "remedial" factors in this case and, in particular, to statements from fellow practitioners to the effect that the Appellant had effectively "turned over a new leaf" or was being more guarded in his conduct.
19. Because of the importance attached in this context to maintaining the confidence of the public, the Panel was entitled to come to the conclusion that the Appellant's fitness to practise remained impaired as at December 2010.
20. I turn now to the separate and third stage of sanction. I accept at the outset that a six month suspension may appear harsh to the lay observer, when the instances of misconduct are taken into account together with the significant lapse in time which has subsequently occurred. Nevertheless, it is necessary to remember that it is primarily for the professionals on the Panel to assess and measure the gravity of the misconduct before them and the steps necessary to reflect its disapproval and the need to restore public confidence.
21. It is probably fair to say that the only alternative for which Mr Bebb had contended was that the Appellant be subjected to complying with certain conditions. This is what the Panel said in its Determination on Sanction dated 20 December 2010:

"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.

22. Having considered the evidence that was before the Panel and its carefully reasoned conclusions, from which I have quoted at some length, I find it impossible to say that the Panel fell into error or was "wrong".
23. In the circumstances, I can see no alternative to dismissing the appeal on the sanction imposed.