QUEEN'S BENCH DIVISION
B e f o r e :
| Dr FAZAL HUSSAIN
|- and -
|GENERAL MEDICAL COUNCIL
Simon Phillips QC (instructed by GMC Legal) for the Defendant
Hearing dates: 10th September, 11th, 28th, 29th October 2013
Crown Copyright ©
His Honour Judge Bird :
a. Allegation 2: "in your cv submitted to the Townhead Surgery between February and March 2010 you falsely stated that you had completed (a) an M.Sc in Pharmacy and Pharmacology at the Loughborough University of Technology (Loughborough University) (b) a B.Sc in Pharmacy and Pharmacology at the University of Leicester."
b. Allegation 4: "In respect of a Multi Source Feedback Form ("the Form") dated 2 June 2010 timed at approximately 09.31: (a)… (b) you inputted all of the contents on behalf of healthcare assistant Lesley Wilson (c) the view and/or knowledge of healthcare assistant Lesley Wilson that you inputted was, in part, false (d)…."
c. Allegation 5: "On or around 19th March 2010 during the course of your training in your reflective learning log you plagiarised: (a) the NHS Education for Scotland website (b) the University of Southampton NHS Trust Website"
d. Allegation 6: "On or around 11th May 2010 during the course of your training in your e-portfolio you plagiarised a publication of the "California Chlamydia Action Coalition"
e. Allegation 7: "On or around 19th July 2010 during the course of your training in your reflective learning log you plagiarised (a) reviews of the novel "The Citadel" from the Amazon website (b) a review of the novel "The Citadel" from the "enotes.com" website"
f. Allegation 9: "the conduct referred to [in the allegations set out above] was dishonest and that in relation to [the above facts] your fitness to practise is impaired by reason of your misconduct"
The Submission of No Case to Answer
a) Use an "e-portfolio". It seems that the e-portfolio was a web based forum where thoughts and reflections on training were to be recorded. Those involved in GP training were able to read the doctor's entries if they were "shared" and if appropriate comment on them. The eportfolio is intended to be used by trainees to show satisfactory learning and, development and reflection. It clearly forms part of a trainer's assessment of a trainee.
b) Provide "multi source feedback" ("MSF") from clinician and non clinician colleagues on his clinical performance and professional behaviour. It seems that the feedback ought to have been provided by the relevant colleague without reference to Dr Hussain. In other words the feedback would be freely given and so (one would hope) honest and reliable. It was also to be provided anonymously and would be used to assess the trainee.
The Panel's Findings and the Evidence
||Place of Study||Date Obtained|
|University of Bath, UK||1986|
|M.Sc||"||Loughborough University of Technology, UK
|B.Sc (Hons)||"||University of Leicester, UK||1980|
a. The cv contained a representation that Dr Hussain had an M.Sc in Pharmacy and Pharmacology from Loughborough University of Technology (Loughborough University) and a B.Sc in Pharmacy and Pharmacology at the University of Leicester. In so concluding, it rejected Dr Hussain's evidence that the quotation marks (") were not intended by him to be read as ditto marks to be replaced, in the eye of the reader, by the text immediately above with the effect that the batchelor's and master's degrees were represented as being in Pharmacy and Pharmacology.
b. Dr Hussain did not have a B.Sc or an M.Sc from these institutions in Pharmacy and Pharmacology.
c. There was a dispute between Dr Hussain and Dr Hall as to the circumstances in which the cv was requested. Dr Hussain's evidence was that Dr Hall had asked him for an informal note setting out his hospital experiences which lead to Dr Hussain offering a cv; Dr Hall says he asked for a cv.
d. The Panel rejected Dr Hussain's "argument that the cv was being used solely for the purposes of a discussion with Dr Hall". It seems to me that this conclusion is a clear rejection of Dr Hussain's evidence that he was asked for an informal note but chose to proffer a cv.
e. The Panel in any event appears to have concluded that the background against which the cv was provided was not determinative. It concluded that Dr Hussain was aware that the cv contained false information and that it would be relied upon. It emphasised the obligation on any doctor (recorded in Good Medical Practice) to be honest about their qualifications in any circumstance.
a) The Panel noted that Dr Hussain's evidence was that part 2 had been completed by him but using Mrs Wilson's words and that she had returned to his room and confirmed what he had written and then submitted the form.
b) It noted that Mrs Wilson's evidence was that part 2 was not expressed in her words, that she had no knowledge of the matters there set out.
c) The Panel rejected Dr Hussain's evidence and accepted Mrs Wilson's noting that it was incredible that she "dictated to you what you should input on the form and that you remembered the words verbatim"
d) The Panel found the allegation proved.
Allegations 5, 6 and 7
a) On 19th March 2010 Dr Hussain made an entry under the heading "what did you learn" apparently concerning his thoughts on a talk he had attended on the subject of "Spirituality in Palliative Care". The entry was shared with Dr Sides. She made no comment on it. It is clear that the vast majority of the entry has been copied from the NHS Education for Scotland website and from the University of Southampton NHS Trust website.
b) On 11th May 2010 Dr Hussain made an entry under the same heading on the subject of "taking a sexual health history". The entry was shared with Dr Sides. It was in large part copied from information published online by the "California Chlamydia Coalition".
Q But at the time of making the eportfolio entry ….. you had not even looked at the book had you?
A No I did not. No. No. No.
Q So why not tell [the code of conduct panel] that?
A I have not read at that time, my wife read it, and I read it afterwards, day or so
Q You had, when this entry was made, no knowledge whatsoever of the contents of the book, did you Dr Hussain, you had not read it?
A At that time I read a few pages. Like I said at the beginning, I did read a few pages, but then I went, after one day or something, I read most of it
a) Substantial parts of the entries had been copied without attribution.
b) Dr Hussain was attempting "to pass off the ideas and words of other people as [his] own knowing that [he] would be assessed on this material",
c) Dr Hussain would have known that by actively "sharing" entries he was inviting assessment on them.
d) The Panel concluded that this was not "behaviour befitting an honest person".
"The Panel must first of all decide whether according to the standard of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards that is the end of the matter and the case fails. If the GMC have not satisfied you on the balance of probabilities that reasonable and honest people would consider an act to be dishonest then that is the end of the matter. If you are so satisfied then you move to the second question: if it was dishonest by those standards then the Panel must consider whether Dr Hussain must himself have realised that what he was doing was by those standards dishonest".
a) First it was noted that Dr Hussain had sought to justify the matters found against him. The following were cited and rejected:
• the cv was prepared for "another purpose",
• others collated MSF information in an improper manner,
• his wife completed the Citadel entry
b) The Panel noted that Dr Hussain's father had died shortly after his placement at the Settle surgery and that he was under pressure, stressed and had health problems. It went on to find that the provision of Good Medical Practice "apply to doctors at all times irrespective of personal circumstances".
c) In respect of dishonesty the Panel determined that Dr Hussain "acted dishonestly in that according to ordinary standards of reasonable and honest people, such conduct would be regarded to be dishonest. Further….on each of those occasions [Dr Hussain] must have realised that what [he was] doing was dishonest by those standards".
The form of the allegations
Grounds of Appeal
a) erred in its assessment of the evidence in relation to dishonesty
b) incorrectly applied the test to determine dishonesty
c) wrongly approached the issue of plagiarism
d) wrongly concluded that Dr Hussain's current fitness was impaired
e) applied a disproportionate sanction
The Submissions in respect of dishonesty
a) On the evidence it heard, the Panel could not properly have concluded that "according to the standard of reasonable and honest people what was done was dishonest".
b) The Panel "elided the issue of whether false statements were made with the further issue of whether, even if false, they were made dishonestly"
c) and failed to take into account the key concepts of materiality and reliance.
a) The acceptance by the Settle practice, after an investigation into the accuracy of the cv that:
• Dr Hussain had made a mistake
• there were "no substantial misrepresentations in his cv"
• when the discrepancies were put to him he "made no attempt at all to conceal the truth" and
• Dr Hall had said in an email "I don't know that we can definitely say that he is not capable of improvement yet"
• Dr Hussain co-operated when invited to assist in the making of enquiries into his cv.
• Dr Hussain's evidence was that the mistakes were neither intentional nor material.
b) The acceptance by the Settle practice, after an investigation that:
• Dr Hussain accepted that he had "made a mistake with regards to how he obtained MSF"
• Dr Hall commented in the e-portfolio that Dr Hussain had confronted the issue and noted "it does seem you have learned from the experience and will be more careful from now on"
• The system was relatively new and Dr Hussain was used to a more relaxed system used in hospitals
c) There is no policy about plagiarism from which the clear position of the Deanery can be ascertained.
d) Dr Hussain was under tremendous pressure at the Surgery and was under similar pressure at the Panel hearing. Miss Hewson submits that the full details of how he was in fact regarded by the Settle practice was an enormous and hurtful shock to Dr Hussain, and that it was perhaps forgivable that he reacted by attacking his accusers in his own evidence.
a) I should not expect of the Fitness to Practise Panel of the MPTS the same level of explanation and expression of conclusion that I would expect of a Judge.
b) The cv was not one prepared in a rush but, as the Panel saw, one that had been altered following an earlier version presented to Dr Sides in 2006.
c) As to the plagiarism, Mr Philips points out that Dr Hussain clearly represented the views recorded in the e-portfolio as his own and shared them as his own. He points out that Dr Hussain told the Panel (see paragraph 43) that he had not read the book when the entry was made, but told the Code of Conduct Panel on 21st September 2010 that he had read it.
d) The MSF allegation is described by Mr Phillips QC as the most serious allegation. He reminded me that here there was a straight conflict on the evidence between Dr Hussain and Mrs Wilson, and that the Panel believed Mrs Wilson.
e) He reminded me that the Panel were properly advised on the law and that no objection was taken to the advice given.
Findings of fact
a) the Panel understood the need for cogent evidence to establish a serious allegation
b) took account of the fact that Dr Hussain was a man of good character
c) took account of the fact that he was under pressure at the relevant time, had a strained relationship with Dr Hall and was affected by the death of his father
Conclusions on dishonesty