QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (Manchester CJC)
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| YOGENDRA DUTT SHARMA
|- and -
| GENERAL MEDICAL COUNCIL
Mr Hugh Davies (instructed by GMC) for the Respondents
Hearing dates: 2 May 2014
Crown Copyright ©
HH Judge Pelling QC:
The FTPP's Findings and Conclusions
The admission relating to ECNHST might more accurately have been to the effect that he was employed to provide such services but did not in fact provide them and had not done so for some years for the reasons that I have set out above. However nothing turns on the scope of this admission.
" you stated in your evidence that you thought "everyone knew" that you had a warning. The Panel has considered the context of the warning. You are a doctor of some experience, and you received this warning in writing. It states very clearly what your responsibilities are. The Panel rejects your assertion that you informed consultant colleagues, because if you had, the Panel considers it highly probable that at least one of the consultants would have informed the medical director, and some action would have been taken. The Panel considers that this was dishonest and intended to fit your own purpose.
The Panel is of the view that at the time you saw a substantial risk to your professional standing and your career, which served as your motivation in not informing others. On the balance of probabilities, the Panel considers that objectively a reasonable and honest person would consider this to be dishonest, and subjectively, you must have known that this was dishonest In these circumstances, dishonesty is found proved."
This finding of dishonesty is challenged on this appeal. I refer to this issue hereafter as the "2007 Warning Issue"
" the Panel is not satisfied that on the first occasions, on 15 February 2006, your failure to disclose your employment was either deliberate or dishonest.
By the time you came to submit a similar form on 22 January 2010, and in circumstances where you would have been reminded of your obligations in relation to submitting full and accurate information to the GMC, the Panel has concluded that you must have been aware that you should disclose all employment and that you deliberately failed to do so. The Panel rejects your suggestion that on this occasion it was a misunderstanding or misconception on your part as to the necessity to provide details of your employment not related to general practise. The Panel formed the view that you are an intelligent man and given that this was the second occasion that you were the subject of an investigation by the GMC, you could not have failed to understand the clear instructions on the EDF or the importance of complying with them. Therefore the Panel finds your conduct to be both deliberate and dishonest in failing to provide the relevant employment details "
This conclusion is challenged in this appeal. I refer to this issue hereafter as the "2010 EDF Issue"
5.a. You must confine your medical practise to general practise posts where your work will be supervised by a named GP Principal;
6. You must cooperate fully with any formal enquiry into the treatment of any patient, any audit of your practise and with any complaints procedure that applies to your work. You must disclose to anyone entitled to ask for it any information relevant to an investigation
7. You must inform the following that your registration is subject to conditions
a. Any organisation or person employing or contracting with you to undertake medical work "
It was alleged and admitted by the Appellant that in breach of Condition 5a, the Appellant continued to perform his once weekly session for SNHSFT at Stepping Hill and that in breach of Condition 7a, he failed to inform SNHSFT that he had become subject to these conditions. He further accepted that by failing to inform SNHSFT that his registration had become subject to conditions, he had acted in a misleading manner. The GMC also alleged that the failure to inform SNHSFT of the imposition of conditions was dishonest. That was disputed by the Appellant before the FTPP but was found proved. In relation to this finding, the FTPP's reasoning was:
" your evidence and that of Mrs Sharma, was that she faxed a notification of your conditions to the foundation trust, but that this failed. The Panel heard Mrs Sharma's evidence of how the fax was mistakenly sent to a telephone number erroneously printed on the Foundation Trust's stationary. The effect of your evidence was that whereas she had placed the fax onto the fax machine, it had not gone through as the machine had been set to send to a telephone as opposed to a fax number.
The Panel was unimpressed by the evidence in this regard and was concerned that, even if a truthful account, there is no explanation as to why no one in the practise had appreciated that the fax had not been sent, why Mrs Sharma had not supervised the transmission nor requested a transmission receipt. Neither was a hard copy of this letter subsequently sent to, or any acknowledgement of receipt sought from, the trust. The Panel found that given previous difficulties you had with the Foundation Trust regarding notification of GMC matters, you must have appreciated the importance of this communication and, if you had intended to notify the Foundation Trust of the interim order you would have done more than you did.
The Panel rejects the evidence that any attempts were made to send the fax. The Panel is of the view that on the balance of probabilities, you deliberately failed to inform the Trust, as you were obliged to do, as this suited your interests. The Panel finds that such conduct was plainly dishonest, by both objective and subjective standards. "
This finding is challenged in this appeal. I refer to this issue below as the "Interim Order Information Issue"
" your failure to cooperate with a request for a PCT Audit is a serious matter. PCT Audits are fundamental to protecting patients and improving standards. By not cooperating, your behaviour fell seriously below the standard expected of a registered medical practitioner.
Concerns had been raised about your clinical care, and rather than assisting an investigation, you deliberately obstructed and prevented the PCT from conducting their audit for some 14 months. You made continuous excuses, and despite several requests, you never gave your written consent for an audit to take place.
the Panel found proved that you failed to cooperate with a PCT Audit in accordance with your Conditions. The Panel considers that your breach of conditions demonstrated a casual disregard for your medical regulator. "
These factors together with (a) continuing to perform the weekly hospital session in breach of Condition 5 of the IOP imposed Conditions (b) the failure to inform SNHSFT of the condition that precluded him from working other than as a GP (c) the failure to disclose the SNHSFT employment on the EDF (Employers Details Form) and (d) the three findings of dishonesty amounted in the aggregate to misconduct. In relation to impairment, the FTPP considered that the Appellant was currently impaired because there was no evidence that he had sought to remedy his actions or had any or any adequate insight into the issues that his misconduct raised and in consequence that the risk of repetition remained high. In relation to the non-medical findings of misconduct, the FTPP said:
" The Panel has concerns regarding the cavalier attitude displayed by you with regard to reasonable requests, requirements and conditions made of you by the PCT and GMC. The Panel is in no doubt that such conduct serves to undermine the trust that the public has in the medical profession and its regulator. Your dishonesty in failing to make full disclosure demonstrates your willingness to cover up matters which put your standing at risk and brings the profession into disrepute.
These matters are not easily remediable. you have shown little change in your attitude the Panel has seen little evidence of real insight the Panel cannot be satisfied that you do not risk repeating such misconduct and has determined that your fitness to practise is currently impaired "
"I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach:
i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practise deserves respect;?
ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;?
iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;?
iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;?
v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practise, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair." ??
I respectfully adopt that summary. In particular in relation to the findings of dishonesty that are the primary focus of this Appeal, paragraphs (iv) and (v) of Langstaff J's summary are of particular importance.
"The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation."
Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so. However, on the facts of this case, in my judgment this might, and I emphasise the word "might", have made a difference in relation only to one of the allegations of dishonesty. In my judgment it was immaterial to the others for reasons that will become apparent.
The 2007 Warning Issue
"If you work in the NHS the name address and postcode of your current employer(s). If you are a GP this should be the PCT with whom you have a contract or for hospital doctors the employing NHS Trust
The Appellant had replied:
"GP Full Time, Stockport PCT
Stockport SK4 1BS"
He did not include SNHSFT in relation to the one session a week that he worked at Stepping Hill Hospital. The FTPP rejected an allegation by the GMC that the omission of a reference to SNHSFT was deliberate or dishonest. The Appellant's case before the FTPP had been that the omission had not been intentional and that he had proceeded on the basis of a misunderstanding as to the need to provide details of his employment that was unrelated to general practise, based on the fact that the allegations being made related to his practise as a GP not as a sessional hospital physician. The effect of the FTPP's decision on this issue was that the GMC had failed to establish on the balance of probabilities that the Appellant had not proceeded on the basis of such a misunderstanding.
"This warning will be disclosed to Dr Sharma's employers and to any other enquirer during the five year period.
Although the warning will not appear on your registration, details of it will be disclosed to your current employer(s) you must also disclose it to any subsequent employers "
The effect of the warning letter in my judgment was clear. The GMC would inform all current employers. The obligation to inform future employers rested on the Appellant.
"You are a doctor of some experience, and you received this warning in writing. It states very clearly what your responsibilities are. The Panel rejects your assertion that you informed consultant colleagues, because if you had, the Panel considers it highly probable that at least one of the consultants would have informed the medical director, and some action would have been taken."
As to this, in my judgment the material that I have referred to shows that this reasoning is mistaken. The warning letter does not state (as the Panel appears impliedly to suggest) that the Appellant is under an obligation to inform anyone of the warning other than " any subsequent employers ". Thus if and to the extent that the Panel is inferring dishonesty from the fact that the Appellant has failed to comply with the terms of the warning letter then it is wrong. Secondly, the effect of the correspondence referred to above suggests that the Appellant did inform the Trust of the warning. If that is the case (and as I say there is some uncertainty about this) that is not consistent with dishonesty unless it had been suggested, and the Panel had found, that he had undergone a change of heart. There was no such suggestion or finding.
The 2010 EDF Issue
I also need to contact your employer(s) to provide them with a copy of the complaint and to ask them to comment or provide any other relevant information. To do this I need you to complete and return the attached form, giving details of all your current employers.
Please note that you have a professional obligation to provide this information in accordance with Good medical Practise. I have enclosed a copy of this booklet for your information. You also have a duty to keep us informed if you change employers while we are reviewing the concerns raised by Dr Bani "
The Interim Order Information Issue
Non-Cooperation - Impairment
Determination of this Appeal