Neutral Citaion Number: [2013] EWHC 3865 (Admin)
Case No: CO 9059/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Date: 05 December 2013
Before :

HIS HONOUR JUDGE BIRD
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Between :

	Dr FAZAL HUSSAIN
	Appellant	
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	GENERAL MEDICAL COUNCIL	Defendant	

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Barbara Hewson (instructed by DAC Beachcroft LLP) for the Appellant
Simon Phillips QC (instructed by GMC Legal) for the Defendant

Hearing dates: 10th September, 11th, 28th, 29th October 2013
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Judgment
His Honour Judge Bird : 

1.	This is an appeal brought by Dr Fazal Hussain under section 40 of the Medical Act 1983 against a decision of the Fitness to Practise Panel of the Medical Practitioners’ Tribunal Service (“the Panel”). The Panel determined on 26th June 2013 that Dr Hussain’s fitness to practice was impaired as a result of certain findings that were made against him and that his name should be erased from the register. It was determined that the erasure would take effect 28 days after notification of the decision unless an appeal was lodged in the meantime. This appeal was lodged on 22nd July 2013. Dr Hussain’s erasure has not therefore taken effect. He continues to work as a Doctor in a busy Accident and Emergency department.

2.	The Panel heard evidence over eleven days from eleven witnesses. It had one day of submissions on the Appellant’s submission of no case to answer, three days of final submissions on the facts and on impairment and gave its determination over parts of three days. The Panel spent some 16 days in total dealing with the hearing. 

3.	The Panel comprised two lay members, Mr Spafford and Dr Okitikpi and a medical member Dr O’Connor. The Legal Assessor was Mr J Whitfield Q.C. Miss Hewson of counsel appeared for Dr Hussain and Mr Phillips Q.C. appeared on behalf of the General Medical Council. Both counsel appeared on the appeal.

The Allegations

4.	The allegations made against Dr Hussain which proceeded to a final determination were:

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”

5.	Each of the allegations I have set out was accepted by the Panel. 

The Submission of No Case to Answer

6.	On 17th June 2013 the Panel determined Dr Hussain’s application under rule 17(2)(g) of the Fitness to Practise Rules 2004 that there was no case for him to answer. The application was made after the GMC’s witnesses had given evidence, but before Dr Hussain’s case had been heard.

7.	For the purposes of the application, the Panel had the benefit of legal advice from Mr Whitfield. It rightly considered whether the GMC’s evidence was sufficient to make it possible for a Panel, properly directed, to find the alleged facts proved. The Panel was advised that the exercise required “an assessment of Dr Hall’s credibility as a witness since he is at the heart of the GMC’s case and is a witness whose evidence, integrity and approach is strongly challenged”. The Panel made it clear in its determination that it “distinguished between its approach to the evidence at this stage and the approach to be taken at the end of the fact finding stage”. It went on to determine that Dr Hall’s evidence was both credible and reliable. 

8.	In its final determination, having heard evidence from Dr Hussain, the Panel noted that its “opinion of Dr Hall as a credible and reliable witness was confirmed”. 

The Background

9.	Dr Hussain was born in 1954, he came to the United Kingdom at the age of 9. In 1978 he was awarded a Bachelor of Science degree in applied chemistry from Leicester Polytechnic as it was then known. Leicester Polytechnic became De Montfort University in 1992. In 1981 he was awarded a Master of Science degree in medicinal chemistry and drug metabolism by Loughborough University of Technology. In 1985 he received a Ph.D from the University of Bath. 

10.	Between 1987 and 1990 he was involved in post doctoral research and was a tutor in pharmacology at Liverpool University. From 1991 to 1992 he held a similar post at Manchester University. In 1999 he graduated from the University of Warsaw with a degree in Medicine. Between 2001 and 2002 he passed the GMC’s Professional and Linguistic Assessment Board, and between 2003 and 2007 he worked in hospitals as a House Officer and Senior House Officer. From 2008 to 2009 he worked as a clinical fellow at the Manchester Royal Infirmary and at Tameside General Hospital. 

11.	In August 2009 he started to train as a General Practitioner. On 3rd February 2010 he took up an ST1 placement for 6 months at the Townhead Surgery in Settle. This was his first placement with a surgery. The organisation at the time responsible for postgraduate training in medicine in the region was the Yorkshire and Humberside Deanery. Dr Hussain had an educational supervisor Dr Elizabeth Sides, a GP in Haworth, and a clinical supervisor Dr William Hall who was a partner in the Settle practice. Shortly after Dr Hussain started this placement his father died. As part of his training as a GP Dr Hussain was required to:

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

Allegation 2

12.	The cv presented to the practice contains three entries relevant to the allegation. They are set out in tabular form, so far as relevant, as follows:

Qualification	Subject
	Place of Study	Date Obtained	
Ph.D	Pharmacy
+ Pharmacology
	University of Bath, UK	1986	
M.Sc	“	Loughborough University of Technology, UK
	1982	
B.Sc (Hons)	“	University of Leicester, UK	1980	

13.	The Panel’s final determination of allegation 2 may be summarised as follows:

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.

14.	It is clear that by 24th March 2010 (about 7 weeks from his start at the Settle surgery) Dr Hall and Dr Davies, the GP trainers at the Settle practice, had very real concerns about Dr Hussain’s abilities, performance and probity. In a memorandum compiled on that date it is noted under the heading “probity issues” that “inaccuracies had been uncovered in [Dr Hussain’s] cv which we intend to investigate.”

15.	On 26th March 2010 following a meeting, Dr Hussain’s independent appointments with patientswere suspended whilst investigations into his cv were carried out. Dr Hussain freely agreed to co-operate with the investigation. 

16.	On 29th March 2010 Dr Hall, Dr Davies and Dr Hussain met at the surgery. Dr Hussain was upset because he had been suspended. He accepted that there were errors in his cv but maintained that these were honest mistakes brought about because he and his wife had prepared the cv “in a rush” and that he had not intentionally misled the surgery. A note of the meeting records that Dr Hall “accepted that Dr Hussain had done this mistakenly” but went on to explain that it was “an issue of probity”. The note records also Dr Hall’s concern that Dr Hussain “didn’t seem to understand why his cv was a probity issue and that perhaps another learning point was to look at the GMC documents on probity”.

17.	When cross examined Dr Hall accepted that when the discrepancies were raised with Dr Hussain, that Dr Hussain “made no attempt at all to conceal the truth”

18.	The surgery concerns about Dr Hussain’s clinical abilities were so great, that on 30th March 2010 Dr Hall told Dr Hodgson, the director of GP training at the Yorkshire and Humberside Deanery, that he had asked the Sheffield selection centre where Dr Hussain had taken certain examinations to look for a digital photograph of the person who took the examinations to ensure that it was in fact Dr Hussain who attended on the day. In the same email Dr Hall noted “it looks like there are no substantial mis-representations in his cv.” On the following day Dr Hall emailed all the GP partners at the practice (and others) and noted that “it looks as if [Dr Hussain’s] credentials all check out and he is who he says he is”. Dr Moakes responded to the email on 1st April 2010 expressing concern about Dr Hussain seeing patients – she asked “what does he have to do to be dismissed or for there to be any disciplinary procedure?”. Dr Hall’s response of the same date begins with the words: “we don’t currently have legal grounds for dismissal …we have to let the educational process take place….I don’t know that we can definitely say that he is not capable of improvement yet”.

Allegation 4

19.	The MSF feedback online forms are in at least 2 parts. The second is to be completed by clinical staff only. There is one question: “please provide your assessment of this doctor’s overall clinical performance”. The giver of feedback is invited to leave comments and to express “highlights in performance (areas to be commended)”. There is then an opportunity to suggest “possible areas for development in performance”. 

20.	On 2nd June 2010 Dr Hussain asked Lesley Wilson, a health care assistant at the practice, to provide some MSF feedback for him. It appears that he asked if she was happy for him to fill out a form for her, asked her if he was good with people and pleasant and helpful and nice to patients and inserted that information into the MSF form. There was a dispute in evidence as to the circumstances in which part 2 of the form came to be completed.

21.	On 3rd June 2010 Dr Hussain’s progress was considered at an “annual review of competence progression” (“ARCP”). I am told that the panel was requested by Dr Sides. A panel of 6, chaired by Dr Adrian Dunbar considered Dr Hussain’s progress with the benefit of documents submitted by Dr Hall and documents submitted by Dr Hussain. There are 9 possible outcomes of the review. The outcome in Dr Hussain’s case was that Dr Hussain was considered to be making inadequate progress and additional training time was required (outcome 3). The panels comments were as follows: “the panel have concerns in all areas including medical knowledge, consultation skills, examination skills. Also the trainee’s ability to learn either from study or experience seemed to be in doubt. There were also major concerns about probity including inappropriate methods of collecting evidence for the portfolio (MSF…..) He also claimed at times to have done preparation and reading and this turned out not to have been the case….”

22.	On 11th June 2010 the Settle GP partners met and discussed Dr Hussain. Their discussions covered the circumstances in which the MSF feedback from Lesley Wilson had been collected. The conclusions reached and recorded in a note, were that Dr Hussain had committed a number of “misdemeanours” including collecting Lesley Wilson’s comments “in an entirely inappropriate fashion” with the second part of the feedback bearing “no resemblance to the comments made by Lesley about [Dr Hussain] and is entirely fictitious”. It is notable that the partners reached the view that “a referral to the GMC should be made”. 

23.	On 13th June 2010 Dr Hall sent an email to Dr Dunbar, who had chaired the ARCP review 10 days earlier and to Dr Moulton the deputy director of postgraduate GP training for the Deanery and to Mark Purvis. The email attaches the note of the meeting of 11th June 2010. Dr Hall notes that he has not yet “confronted Dr Hussain with the full extent of our knowledge about what he has done”. He continues “I would ideally like to combine the confrontation with immediate suspension”. 

24.	It is clear from emails sent by Dr Hall on 13th June 2010 to David Geddes, the PCT medical director and Jim Bold a Human Resources consultant that the Settle practice had reached the view that it wished to dismiss Dr Hussain. It is equally clear that the advice received was that dismissal was not a sensible option. On the same date Dr Hall sent an email to the practice in which he listed what he described as “some of the areas [in which] I feel we may be vulnerable if sued for wrongful dismissal”.  

25.	Dr Hussain’s opportunity to comment on the circumstances surrounding the MSF feedback came on 14th June 2010. On that date Dr Hussain, Dr Harris and Dr Hall met. Notes were kept and a minute has been produced. Dr Hussain was questioned about the circumstances in which he had obtained Lesley Wilson’s feedback. He told Dr Hall and Dr Harris that Mrs Wilson had started to type part 2 but had had to leave and that he had finished it off using “the words [Mrs Wilson] had said herself”. The minute records that Dr Hussain admitted that he had “made a mistake with regards to how he obtained MSF” and that he had failed to read the guidance on how to obtain MSF feedback issued by the Royal College of General Practitioners. Dr Harris suggested that Dr Hussain make entries in his eportfolio to show he had reflected on the MSF issue. 

26.	On 20th June 2010 Dr Hussain made such an entry. It dealt with some of the issues raised in the 14th June meeting but not all of them. It dealt with errors made in dealing with MSF but did not touch on the circumstances in which Lesley Wilson’s feedback had been collected.

27.	Dr Hall responded to the entry in strong terms on the same day. He expressed astonishment at the brevity of Dr Hussain’s comments and continued: “you have only told part of the story. Instead of confronting what you have done and using the eportfolio to reflect on this and think about what you have learned from it, you have dissembled and tried to paint yourself in a better light than the facts allow. Why have you not reflected on the fact that you completed an MSF which purported to be from someone else yourself? I did expect that you would describe your serious breach of probity…”

28.	On 21st June 2010 Dr Hall wrote in the ePortfolio and described Dr Hussain’s Lesley Wilson MSF entry as an “illegal and immoral falsification”.

29.	Dr Hussain wrote another entry on 22nd June 2010 he wrote this: “I admit that it was wrong of me to complete the part of the MSF when asked to do so by [Lesley Wilson]. I was under a lot of stress due to sudden death of my father and did not realize I was making a grave mistake.”

30.	Dr Hall’s response was “thanks Fazal for confronting the issue. It does seem as if you have learned from the experience and will be more careful from now on.”

31.	The Panel heard evidence from  Lesley Wilson. The thrust of the evidence is this: Dr Hussain asked Lesley Wilson to come to his room. She was busy but went. He asked her to fill out a form. She said she did not have the time. Dr Hussain then asked “do you mind if I fill it out myself?” She agreed. He asked if she thought he was a nice person and good with patients. She agreed he was and left. It was put to Mrs Wilson in cross examination that she later returned to the room, checked what Dr Hussain had written and transmitted the form. Her response was “absolutely not”.

32.	The Panel’s determination of allegation 4 may be summarised as follows:

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

33.	These allegations relate to plagiarism. The verb to “plagiarise” is defined in the concise Oxford dictionary as: “take and use another person’s (thoughts, writings, inventions or abs.) as one’s own”. Plagiarism concerns the impression conveyed to the reader. It is not directly concerned with the wrong done to the original author. It therefore seems to me that the willingness of the original author to share his work does not prevent plagiarism. 

34.	On 21st September 2010 a Code of Conduct panel was convened to investigate various matters arising out of Dr Hussain’s use of the e-portfolio. The panel, which I was told was the first of its kind in the Yorkshire and Humber Deanery, was convened (as far as is relevant) to consider the manner in which Dr Hussain had collected MSF (including from Mrs Wilson) and to consider an allegation of plagiarism now set out in allegation 7. 

35.	In the course of questioning by the panel Dr Pittard asked about the novel; “did you read it all?”. Dr Hussain’s answer was “Yes. My wife is reading it now.” The panel concluded that there had been misconduct but that there were mitigating factors. It warned Dr Hussain that his conduct had been inappropriate and must not be repeated. GMC guidance was sought but no further action was recommended. It is clear that the Panel proceeded on the basis that Dr Hussain had read the book.

36.	The Code of Conduct Panel did not investigate, and knew nothing about, the elements of plagiarism set out in allegations 5 and 6. This matter came to light only on investigation by Dr Rose at a time a little before 3rd May 2011. 

37.	On 26th November 2010 Dr Hussain underwent a further ST1 ARCP. Again it was concluded that he was making inadequate progress. The panel noted that there would be a further ARCP panel in February 2011 and recorded its understanding that “a line has been drawn under the issues discussed in the code of conduct meeting in September.”

38.	The final ARCP panel met on 1st February 2011. The recommendation on that occasion was that Dr Hussain be “released” from GP training (“outcome 4”). It was found that Dr Hussain required a high level of supervision because of concerns over patient safety. 

39.	Dr Hussain appealed the “outcome 4” and his effective expulsion from GP training. Dr Rose refers to two distinct steps of the appeal process, step 1 being an informal meeting and step 2 a formal appeal. The step 2 appeal appears to have been held and concluded on 3rd May 2011. The decision of the ARCP appears to have been upheld. Dr Rose describes the formal appeal as the panel interviewing a representative from the Deanery and then the panel interviewing the Appellant. I am not directly concerned with the outcome of that appeal in any event or with its procedural fairness. I must however note that the process bears none of the hallmarks of a fair hearing at which important rights are determined. I do not know how such appeals are conducted now, it may be that procedures have changed. Dr Rose chaired the appeal. In his preparation for it he undertook certain investigations of his own. His evidence was that he felt that “probity issues were of such concern that I needed to make a referral to the GMC”. In an email to the GMC sent on 19th May 2011 Dr Rose notes that he found two entries in the e-portfolio where Dr Hussain had cut and pasted paragraphs from external documents. In his evidence to the Panel he said: “I was looking at Dr Hussain’s eportfolio very carefully as preparation for the step 2 appeal panel and I noticed that in certain areas of the eportfolio there was a complexity of prose that did not fit with some of the other prose within the e-portfolio. So what I did was, I cut and pasted sections of complex prose into Google and found that they matched areas of prose on websites and from this I concluded that there had been plagiarism”.

40.	Dr Rose’s evidence included this: “I think that if you share something [on the eportfolio] then you are attesting that this is your work because if you look at the headings on the portfolio [what did you learn?] you are telling your supervisor about what you learnt”. 

41.	The allegations deal with 3 specific entries onto Dr Hussain’s e-portfolio. Two of them were uncovered by Dr Rose:

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”. 

42.	The third related to reviews of the novel “the Citadel”. On 19th July 2010 Dr Hussain posted an entry under the general heading of “reading”. In answer to the question “what were you reading?” he answered “I read Cronin’s Citadel as part of a tutorial”. In response to the question “what did you learn” he copied large tracts of book reviews from the Amazon website and the enotes.com website. The entry was shared with Dr Hall.

43.	Before the Panel, in cross examination, the following exchange appears:

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

44.	The Panel’s finding on these allegations can be summarised as follows: 

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”.

Allegation 9

45.	The Legal Assessor advised the Panel on the meaning of dishonesty. He said this: 

“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”.

46.	The Panel’s finding was that Dr Hussain’s conduct as found was dishonest. The reasons given are shortly stated. 
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

47.	Allegations 2(a), 2(b) and 4(c) include the word “false”. It was alleged that Dr Hussain falsely stated that he had been awarded certain degrees and that he submitted false information on a feedback form. 

48.	In advising the Panel on the law, Mr Whitfield Q.C. noted on 20th June 2013 that in the context of the allegations “false” denotes: 

“the deliberate and intentional making of a statement which was known to be incorrect knowing that it would, and intending that it should, be relied upon by others. It is not sufficient that a statement is an untoward error or a sloppy mistake, however foolish or discreditable such conduct may be”. 

49.	He continued: 

“If you are satisfied the disputed act or omission occurred…..you should then go on to consider whether the GMC have proved that the error was false, ie intentionally wrong and not just a misunderstanding, a mishearing or a silly mistake borne from sloppiness. Both of these two latter matters fall under the main heading of dishonesty in count 9”.

In their determination of the facts the Panel recited that part of the advice set out at paragraph 48. 

50.	No point was taken before the Panel on the phrasing of the allegations. It does however appear to me that the addition of allegation 9 to allegations 2(a), 2(b) and 4(c) may give rise to difficulties. It is difficult to see how, in the context of the present allegations, making an untrue statement intending that it should be relied upon could be anything other than dishonest. If that be right then allegation 9 appears to add nothing to these allegations. 

51.	Taking the advice given by the legal assessor as a whole, one can readily see why no point was raised in respect of it. The advice set out at paragraph 49, when carefully considered, seems to me to set out the sensible way for the Panel to approach the matter. That advice amounts to this: first, ask if the allegation is proved. If it is go on to consider if dishonesty is established. In other words, the advice was that the word “false” in the relevant allegations simply means “incorrect”.

52.	It may be that the GMC would in the future wish to ensure that there is no doubling up of allegations of “falsity” in the paragraph 7 sense and “dishonesty”. The difficulty would disappear if the word “falsely” in allegation 2 was replaced by “inaccurately” and the word “false” in allegation 4(c) was replaced by the word “untrue”.

The Law

53.	This appeal takes the form of a rehearing. The power to allow the appeal arises where the decision of the Panel is “wrong or unjust because of a serious procedural or other irregularity”. 

54.	I am reminded that in conducting that “rehearing” (without, it must be emphasised any oral evidence) “findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable” (Southall v GMC [2010] EWCA Civ 407 at para.47 and Bhatt v GMC [2011] EWHC 783 (Admin.) at para.9). 

55.	It seems to me that the findings of primary fact made by the Panel can only relate to the purely factual matters set out in the allegations. For the purpose of determining what those facts are, in my judgment I should treat the words “false” and “falsely” in allegations 2(a), 2(b) and 4(c) as meaning “inaccurate”. That, after all, was what the panel were directed to do by the Legal Assessor (paragraphs 49 and 48 above). 

56.	A finding of dishonesty is not a finding of primary fact. I was referred to a number of decisions relied upon to show the general approach to appeals in this context. It seems to me none of those decisions was of any real assistance. The legal principles to be applied are clear and agreed between the parties.

Grounds of Appeal

57.	On behalf of Dr Hussain, Miss Hewson submits that the Panel:

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

58.	Miss Hewson submitted also that there ought to be a different test for dishonesty in these proceedings. She referred to Derry v Peek [1886-90] All ER Rep.1. 

Dishonesty

59.	I must ask myself: was the Panel’s finding of dishonesty “wrong or unjust because of a serious procedural or other irregularity”?

60.	The test applied is as set out in the case of R v Ghosh [1982] QB 1053. The legal Assessor’s advice in respect of dishonesty was (as set out above): 

“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”

The Submissions in respect of dishonesty

61.	Miss Hewson submitted on behalf of Dr Hussain that 

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.

62.	I will deal with the last point first. This, in essence is that the wrong test was applied. It is tempting to say that materiality and reliance are irrelevancies when considering if a person is dishonest – after all, the Ghosh test makes reference to neither. It seems to me however that the concepts may well have a part to play in determining dishonesty. If a statement is made to a third party which is known to be false and is relied upon by the third party in some material way, it seems to me that there is almost certainly dishonesty (see para.47 above). The presence of these factors of materiality and reliance can therefore assist a tribunal to conclude that there is dishonesty. However they are not in my view pre-requisites to establishing dishonesty – particularly where, as here (and by virtue of Good Medical Practice) there is a general obligation to be honest. To take an example, if a young Doctor born and brought up in Manchester, the child of shop workers, claims to have been born and raised on a Caribbean Island the child of a rock star father and a film star mother it is unlikely that his claims would be material to his medical practice or relied on by anyone, nonetheless he may well be dishonest. I am not persuaded that the wrong test was applied by the Panel. The relevance of materiality and reliance is evidential.

63.	As to the failure to distinguish between inaccuracy and dishonesty Miss Hewson submits that the Panel have simply stated the test without applying its twin limbs to each allegations.

64.	Miss Hewson relied on the following in particular when dealing with the evidence:

The cv

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.

The MSF

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

The Plagiarism

c)	There is no policy about plagiarism from which the clear position of the Deanery can be ascertained. 

Generally

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.

65.	The position of the GMC, advanced by Mr Phillips QC can be summarised as follows:

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

66.	The Panel carefully considered the credibility of witnesses. 

67.	In doing so it expressed a balanced view of the evidence heard from Dr Hall. It concluded that whilst there were some reservations about Dr Hall’s training style, including his use of forthright language to describe Dr Hussain and his conduct, he was entirely an entirely credible witness. I can see no fault in the Panel’s approach to the exercise of assessing his credibility.

68.	The reasons for preferring Mrs Wilson are sparsely but clearly expressed. The Panel notes that her evidence was consistent and clear. 

69.	In looking at Dr Hussain’s evidence the Panel considered a number of factors. It is important when assessing evidence to remember that giving evidence is a stressful experience. The Panel therefore was prepared to make allowances to Dr Hussain. The Panel considered 12 distinct examples of how Dr Hussain’s evidence was inconsistent and self contradictory and why it concluded he was evasive. In my judgment those findings need to be considered in context. They go to credibility and stand as examples of why the Panel felt able to reject Dr Hussain’s evidence. It must be remembered that the Panel had found Dr Hall and Mrs Wilson to be credible. 

70.	The Panel clearly had in mind that it was important to consider evidence in context. In particular:

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 

71.	In my judgment the Panel was entitled to make each of the findings set out. Having made those findings the Panel was entitled to conclude, when weighing Dr Hussain’s evidence against that of other witnesses that his evidence should be rejected. 

72.	In my judgment the findings of fact made by the Panel should not be disturbed. The Panel had the benefit of hearing the evidence at first hand and were, without doubt, in the best position to judge which version of events in respect of each allegation they preferred. Whilst a different Panel might have come to a different conclusion, I am unable to conclude that the findings made in respect of allegations 2, 4, 5, 6 and 7 are wrong or should be upset for some other reason.

73.	The real thrust of the appeal is that the Panel was wrong to find Dr Hussain dishonest. It does seem to me that the relatively perfunctory manner in which the Panel chose to deal with allegation 9 means that I ought to consider with a little more care the proper approach. 

Conclusions on dishonesty

74.	Was the Panel wrong to conclude that according to the standard of reasonable and honest people what was found to have been done by Dr Hussain was dishonest? If it was entitled to reach that conclusion, was it wrong to conclude Dr Hussain must himself have realised that what he was doing was by those standards dishonest?

The cv

75.	For my part and considering the totality of the evidence before the Panel on this issue, I doubt that reasonable and honest people would regard what Dr Hussain did as dishonest. It was certainly wrong, careless and regrettably misleading, but in my judgment not dishonest. The Panel rejected Dr Hussain’s assertion that the cv was put together in a “rush”. It therefore took away the factual basis on which the Settle practice had been willing to conclude that Dr Hussain had made a simple mistake. However, the fact that the qualifications were awarded many years ago and that Dr Hussain had a Ph.D in the relevant subject are in my judgment strong indicators of a lack of dishonesty and simple carelessness. The rejection of Dr Hussain’s version of events and the finding that he was not generally a credible witness, as Miss Hewson submitted, is not sufficient on its own to warrant a finding of dishonesty. 

76.	It is regrettable that the Panel may have dealt with “dishonesty” in respect of the cv under the rubric of “falsity” as it may have considered was legitimate following the advice set out at paragraph 48 above. This possible confusion between falsity and dishonesty alone in my judgment would justify the conclusion that the Panel’s attribution of dishonesty was unsustainable.

77.	The second stage of the Ghosh dishonesty test does not therefore fall to be applied.

The MSF

78.	I agree with Mr Phillips’ classification of this allegation as the most serious. It is clear that Dr Hall had strong views about what had gone on – his description of the entry as an “illegal and immoral falsification” makes that entirely clear. In my judgment, whilst expressed in very strong language, the views of Dr Hall, an experienced GP, cannot easily be set to one side; as Mr Phillips put it, he was “shocked and horrified”. In my judgment, the Panel was entitled to conclude on the evidence it heard that according to the standard of reasonable and honest people, Dr Hussain’s conduct in respect of the MSF was dishonest. 

79.	The fact that the practice accepted that Dr Hussain had learned from the experience in my judgment does nothing to detract from the Panel’s findings. The reflective entries in Dr Hussain’s do not appear to show that he accepted that he had fabricated feedback as the Panel found.

80.	The Panel was in a much better position to determine the factual background against which the MSF was entered. The fact that Dr Hussain was ignorant about the process of collecting MSF is in my judgment also irrelevant. In this instance, the nature of the conduct is so serious that the finding of the Panel was inevitable. 

81.	In my judgment the Panel was also entitled to conclude Dr Hussain must himself have realised that what he was doing was by those standards dishonest. 

The Plagiarism

82.	Despite the absence of any evidence of express guidance on plagiarism, in my judgment the Panel was entitled to conclude that by sharing work entered onto the eportfolio, Dr Hussain knew he would be assessed on it. That was the effect of Dr Rose’s evidence. It is in my judgment important to remember that the plagiarised entries appear under the heading “what did you learn?” The onward transmission of the e-portfolio entries by a trainee GP can in my judgment only be seen as a representation that what they contain is the work of the trainee. To take one obvious example – it is apparent that Dr Hussain had not read A.J. Cronin’s “The Citadel” when he posted his reflections on it. It follows that the reflections there set out were not his. 

83.	I am satisfied that the Panel was entitled to conclude on the evidence they heard that according to the standard of reasonable and honest people, Dr Hussain’s conduct in respect of plagiarism was dishonest. The conclusion of the Code of Conduct Panel that the Citadel plagiarism warranted only a warning, does nothing to detract from that conclusion, not least because the Code of Conduct Panel accepted Dr Hussain’s evidence that he had read the book, whereas the Panel reached the contrary conclusion on Dr Hussain’s own admission.

84.	In my judgment the Panel was also entitled to conclude Dr Hussain must himself have realised that what he was doing was by those standards dishonest. 

Impairment

85.	I am satisfied that Dr Hussain showed before the Panel a complete and total lack of insight into his conduct. I note Miss Hewson’s submission that he could not show insight without admitting the substance of the allegations and the dishonesty. The position is that Dr Hussain wrongly maintained that he was not dishonest. 

86.	I am satisfied that the Panel was entitled to reach the conclusion that there was “serious misconduct” and that Dr Hussain’s fitness to practise was (at the time of the Panel hearing) impaired.  In my judgment the reliance on those parts of Good Medical Practice cited in the determination are well placed. In particular the Panel was right to bear in mind that (paragraph 1 of Good Medical Practice): “Patients need good doctors. Good doctors …. are honest and trustworthy, and act with integrity”. 

87.	The Panel was “of the firm view that any of the instances of dishonesty, when taken individually or collectively, is serious. It regards such conduct as disgraceful and it is in no doubt that your dishonest conduct amounts to serious misconduct”. 

88.	In my judgment my finding that the Panel was wrong to conclude that Dr Hussain had acted dishonestly in respect of the cv does nothing to detract from the finding in respect of misconduct.

89.	I am also satisfied that the Panel was right to conclude that Dr Hussain’s fitness to practice was impaired. 

Sanction

90.	In view of my findings I am satisfied that the Panel’s conclusion that erasure was the proportionate response cannot be criticised. 

Conclusion

91.	For the reasons I have given I dismiss the appeal.

-end-