QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| PROFESSIONAL STANDARDS AUTHORITY FOR HEALTH AND SOCIAL CARE
|- and -
|(1) GENERAL MEDICAL COUNCIL
(2) PARVAN KAUR UPPAL
Fiona Horlick (instructed by Gordons Partnership LLP) for the Second Respondent
The First Respondent did not appear and was not represented.
Hearing date: 28 April 2015
Crown Copyright ©
Mrs Justice Lang:
a) The Panel's findings and analysis of Dr Uppal's misconduct were inadequate (Ground 3);
b) The Panel erred in concluding that Dr Uppal's fitness to practise was not impaired and it failed adequately to address her misconduct (Ground 4);
c) In the alternative, the Panel ought to have issued a warning in respect of her misconduct (Ground 5);
d) The Panel failed to give adequate reasons for its decision (Ground 6).
Allegations and findings
"Allegation and Findings of Fact
That being registered under the Medical Act 1983, as amended:
1. Between December 2011 and January 2012, you were employed as a GP Registrar at the Birchwood Medical Practice.
Admitted and found proved
2. On 13 December 2011, you had a telephone consolation with Baby A's mother following which Baby A was taken to A & E and was admitted to hospital.
Admitted and found proved
3. On 30 December 2011, you informed your GP Trainer that you had spoken to Baby's mother following Baby A's discharge from hospital when you had not in fact done so.
Admitted and found proved
4. Your action as set out at paragraph 3 above was:
Admitted and found proved
Admitted and found proved
And by reason of the matters set out above, your fitness to practise is impaired because of your misconduct. Found not proved"
"(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both
and that it would be desirable for the protection of members of the public for the Council to take action under this section."
"73. What are the criteria to be applied by the Court when deciding whether a relevant decision was "wrong"? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed its task so as to reach a correct decision as to the imposition of penalty. Is that different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached had due regard for the safety of the public and the reputation of the profession.
75. The reference to having regard to double jeopardy when considering whether a sentence is unduly lenient is not, as we have already indicated, really apposite where the primary concern is the for the protection of the public. More apposite is this passage in . Attorney General's Reference (No. 4 of 1989) (1990) 90 Cr App. R. 266:
"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased with all the anxiety that this naturally gives rise to merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."
76. We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of disciplinary proceedings, could reasonably have imposed
77. In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public.
78. Where all material evidence has been placed before the disciplinary tribunal and it has given due regard to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed."
Ground 3 inadequate findings of misconduct
"26. The Panel heard how on 13 December 2011, Baby A's mother telephoned Birchwood Medical Practice for a consultation as her baby had been diagnosed with a viral illness the previous day and his situation appeared to have worsened. You took the call and provided advice to the mother, informing her that there were no routine appointments available, but that if she continued to have concerns she could take the baby to A&E. At no time thereafter did you call Baby A's mother to enquire as to his condition. On 19 December 2011, you received a letter from the hospital informing you that Baby A had been admitted to hospital and had required intubation and ventilation. This was confirmed in a later letter to the practice received by Dr Baur dated 28 December 2011, who discussed the matter with Dr Nelstrop. On 30 December 2011, you told Dr Nelstrop that you had spoken to Baby A's mother following the letter from the hospital which was not true. You said that the mother had told you that baby A's condition had deteriorated after you had provided the on-call advice, and that this had made you feel relieved.
27. On 13 January 2012, you had a meeting with Dr Nelstrop and Dr Vijaykumar, GP Partner at Birchwood. At this point, Dr Vijaykumar had been informed that Baby A's mother had not spoken with you. You still maintained that you had spoken to Baby A's mother. On being told that the practice telephone records could be checked, you suggested that you may have used your mobile telephone to make the call. Dr Vijaykumar suggested that the records for this could also be checked. At the conclusion of the meeting when you and Dr Nelstrop were alone, you admitted that you had never called Baby A's mother.
28. As a result, the practice initiated an investigation followed by a disciplinary process at the conclusion of which you received a final written warning. Both yourself and Dr Nelstrop discussed the matter with representatives of the Deanery, who did not progress the matter further. This matter came to the attention of the GMC when you submitted your completion of training form, indicating thereon that you faced disciplinary proceedings."
"56. Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.
57. You must make sure that your conduct at all times justifies your patients' trust in you and the public's trust in the profession."
(a) the misconduct related to an isolated incident over a short period of time more than two years previously;
(b) in terms of the seriousness of the misconduct, the dishonesty did not impact upon patient care, was not for financial gain and did not seem to benefit her personally in any way;
(c) when confronted with her behaviour, she admitted lying and immediately apologised to her GP Trainer and since then had always accepted full responsibility for her actions.
Ground 4 impairment of fitness to practise
"The Statutory Scheme for Misconduct by Nurses and Midwives
64. This Scheme is set out in the Nursing and Midwifery Council (Fitness to Practise) Rules 2004 [2004 SI No. 1761] and in particular Rule 24, which provides for staged hearings addressing the factual findings, impairment of fitness to practise and finally, as appropriate, sanctions.
65. The term "impairment to fitness to practise" has not been defined in these rules, and this is also the position in relation to those schemes which apply to other, medical practitioners. Thus, as Dame Janet Smith pointed out in her Fifth Report from The Shipman Enquiry (9 December 2004), the concept has the advantage of flexibility, being capable of embracing a multiplicity of problems, but also the disadvantages that flow from a lack of clarity and definition. Further, recognising impaired fitness to practise inevitably involves making a value judgment (see paragraphs 25.42 et seq).
66. Judicial guidance as to how the issue of impairment of fitness to practise should be approached now appears in a number of authorities. The Committee in this case were referred to the decision of Silber J in R (on the application of Cohen) v. General Medical Council  EWHC 581 (Admin), and that of Mitting J, more recently in Nicholas-Pillai v. General Medical Council  EWHC 1048 (Admin).
67. In Cohen Silber J was concerned with serious professional failings by a consultant anaesthetist, on an isolated occasion, in relation to a patient undergoing major surgery. There was little dispute as to the facts, most of which appear to have been admitted.
68. Against that background the judge said as follows, in relation to impairment of fitness to practise:
" Any approach to the issue of whether a doctor's fitness to practice should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the' (sic). In my view, at stage 2 when fitness to practice is being considered, the task of 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 practice has been impaired. It must not be forgotten that a finding in respect of fitness to practice determines whether sanctions can be imposed: s 35D of the Act.
 I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage1 must automatically mean that the practitioner's fitness to practice is impaired.
 There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner's fitness to practice has been impaired. Indeed s 35D (3) of the Act states that where the Panel finds that the practitioner's fitness to practice is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'.
 Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the appellant were 'easily remediable'. I concluded that they did not consider it relevant at [that] stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor's fitness to practice is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so."
69. It is clear, notwithstanding the references in those passages to whether fitness to practise "has been" impaired, that the question is always whether it is impaired as at the date of the hearing, looking forward in the manner indicated by Silber J in his judgment. The question for this Committee as at 21 April 2010 was therefore "is this Registrant's current fitness to practise impaired?"
70. An assessment of current fitness to practise will nevertheless involve consideration of past misconduct and of any steps taken consequently by the practitioner to remedy it. Silber J recognised this when referring, at paragraph 65, to the necessity to determine whether the misconduct is easily remediable, whether it has in fact been remedied and whether it is highly unlikely to be repeated.
71. However it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of his judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.
72. This need to have regard to the wider public interest in determining questions of impairment of fitness to practise was also referred to by Goldring J in R (on the application of Harry) v. General Medical Council  EWHC 3050 (Admin) and by Mitting J in Nicholas-Pillai, where he held that the panel were entitled to take into account the fact that the practitioner had contested critical allegations of dishonest note-keeping, observing that:
" In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him."
73. Sales J also referred to the importance of the wider public interest in assessing fitness to practice in Yeong v. GMC  EWHC 1923 (Admin), a case involving a doctor's sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:
" Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining 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. In such as case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very less weight than in case where the misconduct consists of clinical errors or incompetence."
74. I agree with that analysis and would add this. In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.
75. I regard that as an important consideration in cases involving fitness to practise proceedings before the NMC where, unlike such proceedings before the General Medical Council, there is no power under the rules to issue a warning, if the committee finds that fitness to practise is not impaired. As Ms McDonald observes, such a finding amounts to a complete acquittal, because there is no mechanism to mark cases where findings of misconduct have been made, even where that misconduct is serious and has persisted over a substantial period of time. In such circumstances the relevant panel should scrutinise the case with particular care before determining the issue of impairment.
76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dames Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in my view that test would be equally applicable to other practitioners governed by different regulatory schemes.
"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, convictions, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:
a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk or harm; and/or
b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or
c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession: and/or
d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.""
"21. There is clear authority that in determining impairment of fitness to practise at the time of the hearing regard must be had to the way the person has acted or failed to act in the past. As Sir Anthony Clarke MR put it in Meadow v General Medical Council [ 2006] EWCA Civ 1390;  1 QB 462:
"In short, the purpose of [fitness to practise] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past" (para 32).
22. In my judgment this means that the context of the doctor's behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both at the time of the misconduct and to the present time, is such as to mean that his/her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, the panel is persuaded that the doctor is simply not fit to practise medicine, without restrictions or maybe at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, the fitness to practise panel could conclude that, looking forward, his/her fitness to practise is not impaired, despite the misconduct."
"In considering the question of impairment, the Panel has taken account of all the evidence, both oral and documentary, and the submissions made by Counsel The issue of impairment is one for the Panel to determine exercising its own judgment. The Panel has taken into account the public interest which includes the need to protect patients and the public, to maintain public confidence in the profession, and to declare and uphold proper standards of conduct and behaviour."
"In the circumstances, the Panel finds that your fitness to practise is not impaired by reason of your misconduct. In reaching its decision, the Panel has taken account of the public interest, and has determined that insofar as the issue of impairment of fitness to practise is concerned, the public interest will be satisfied by the finding of misconduct, which is serious in itself."
Ground 5 - warning
"The purpose of warnings
10 The power to issue warnings, together with other powers available to the GMC and to MPTS panels, is central to their role of acting in the public interest which includes protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.
11 Warnings allow the GMC and MPTS panels to indicate to a doctor that any given conduct, practice or behaviour represents departure from the standards expected of members of the profession and should not be repeated. They are a formal response from the GMC and MPTS panels in the interests if maintaining good professional standards and public confidence in doctors. The recording of warnings allows the GMC to identify any repetition of the particular conduct, practice or behaviour and to take appropriate action in that event. Breach of a warning may be taken into account by a panel in relation to a future case against a doctor, or may itself comprise misconduct serious enough to lead to finding of impaired fitness to practise.
12 If any individual allegation is serious enough to amount to a finding of impairment, if proved, then more serious measures are likely to be required at the outset. These more serious measures include undertakings and conditions which restrict the doctor's practice. A warning will not be appropriate where there is a requirement to restrict the doctor's future practice in any way, following a finding of impaired fitness to practise. Warnings are not available in cases which have resulted in, or in which there is a realistic prospect of a finding of impairment, and the GMC is not able to actively monitor how the doctor responds to a warning.
13 Although warnings do not restrict a doctor's practice they should nonetheless be viewed as a serious response, appropriate for those concerns that fall just below the threshold for a finding of impaired fitness to practise.
14 Warnings should be viewed as a deterrent. They are intended to remind the doctor that their conduct or behaviour fell significantly below the standard expected and that a repetition is likely to result in a finding of impaired fitness to practise. Warnings may also have the effect of highlighting to the wider profession that certain conduct or behaviour is unacceptable.
The test for issuing a warning
16 A warning will be appropriate if there is evidence to suggest that the practitioner's behaviour or performance has fallen below the standard expected to a degree warranting a formal response by the GMC or by the MPTS panel. A warning will therefore be appropriate in the following circumstances:
- There has been a significant departure from Good Medical Practice ; or
20 The decision makers should take account of the following factors to determine whether it is appropriate to issue a warning:
a. There has been a clear and specific breach of Good Medical Practice or our supplementary guidance;
24 There is a presumption that the GMC should take some action when the allegations concern dishonesty. There are, however cases alleging dishonesty that are not related to the doctor's professional practice and which are so minor in nature that taking action on the doctor's registration would be disproportionate. A warning is likely to be appropriate in these cases. An example of this might include, in the absence of any other concerns, a failure to pay for a ticket covering all or part of a journey on public transport.
25 In deciding whether to issue a warning the decision maker should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. It is important to bear in mind, of course, that warnings do not restrict the practitioner's practice and should only be considered once the decision maker is satisfied that the doctor's fitness to practise is not impaired.
32 If the decision makers have concluded that the doctor's fitness to practise is impaired or that the realistic prospect test is met they cannot then take account if personal mitigation to decide that a warning is appropriate. As explained above, warnings may only be issued where the decision makers have concluded that the doctor's fitness to practise is not impaired or that the realistic prospect test is not met.
33 However, if the decision makers are satisfied that the doctor's fitness is not impaired or that the realistic prospect test is not met, they can take account of a range of aggravating or mitigating factors to determine whether a warning is appropriate. These might include:
- The level of insight into the failings,
a. A genuine expression of regret/apology
b. Previous good history
c. Whether the incident was isolated or whether there has been any repetition;
d. Any indicators as to the likelihood of the concerns being repeated;
e. Any rehabilitative/corrective steps taken;
f. Relevant and appropriate references and testimonials."
Ground 6 - failure to give adequate reasons