England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2015

Mr Justice Collins:

1. The appellant is a consultant cardiologist who practises both in the National Health Service (NHS) and privately. Following a lengthy hearing before a Fitness to Practise Panel (FTPP) of the Medical Practitioners Tribunal Service (MPTS), his fitness to practise was found to have been impaired by reason of misconduct and it was ordered that he be suspended from practice for a period of 6 months. He appeals, pursuant to Section 40 of the Medical Act 1983 against the findings by the FTPP that he had been guilty of misconduct, against the finding that his fitness to practise was impaired and against the sanction imposed.
2. The appellant faced a total of twelve allegations, some of which were subdivided. They all relate to what he said or represented in connection with matters raised at meetings with the then Medical Director of the NHS Trust by which the appellant was employed in the Spring and Summer of 2008. The issue which was being considered related to the appellant undertaking private work during hours when it was said he should have been working for the trust. This as was accepted by both parties before me concerned private work carried out during weekdays between the hours of 9am to 5pm since, it was said, between those hours he had to be working for the NHS unless he had proper authorisation to undertake private work. Broadly speaking, it was said that he did not have any such authority but had carried out such private work and falsely stated that he had not. He did say in evidence that he had had authorisation but that was said to have been untrue.
3. He denied that he had made any statements which were false. He further denied he had said what he was alleged to have said about his private work. The FTPP decided that he had made the statements in question and that he had been dishonest. In this appeal he has challenged the findings of fact that led to the conclusion that he had made the alleged representations. It is further submitted that, even if the FTPP had properly decided that he had made the representations which he denied making, it was wrong to decide that he had acted dishonestly. Mr Booth QC recognised that if I were to uphold the findings of fact made by the FTPP and the further finding of dishonesty, he could not seek to persuade me that the findings of impairment and the sanction imposed were wrong. But if I decided that the FTPP's decision could not be upheld in respect of the findings of fact or dishonesty, it would be wrong to uphold the finding of impairment. Even if the findings that wrong statements were made is upheld, if dishonesty is not, neither that there was impairment nor the sanction of suspension should stand.
4. The hearing before the FTPP took some seven weeks between January 2014 and March 2015. In January 2014 an application was made to stay the proceedings on the ground that there had been undue delay and a failure to give proper disclosures. This application failed, but the matter was adjourned because of the appellant's ill health. It resumed before a differently constituted panel in September 2014. There was a renewed application to stay on the ground of further failures of proper disclosure and prosecutorial misconduct. That failed. I do not need to go into the details since it does not form any ground of appeal, albeit delay is relied on as a reason for challenging the findings of fact.
5. The FTPP commenced hearing evidence over three weeks and adjourned for a further thirteen days of hearing in March 2015. I am bound to say that it is difficult to follow why the hearings were allowed to go on for so long since the factual issues were not so complicated as to justify such lengthy hearings. But there can in the circumstances be no doubt that the FTPP was able to give consideration to the allegations which had been investigated in the greatest detail.
6. Before going to the details of the allegations against the appellant and the grounds relied on in support of the appeal, I should set out the principles upon which I should act in dealing with this appeal. These are not in issue between the parties. But they are important in setting out the approach which I must apply in dealing with this appeal. In Meadow v GMC [2007] QB 462 at p.526 in paragraph 197 of the judgments, Auld LJ with whom Thorpe LJ agreed said this:-

"On an appeal from a determination by the GMC….it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers".

7. Proposition (i) above is material in relation to impairment and penalty but not in relation to findings of fact which do not depend upon any medical expertise. It is to be noted that when Meadow was decided a FTPP was, as Thorpe LJ observed in paragraph 280 on p.544, "substantially comprised of doctors". But there is still at least one doctor included and the FTPP has obviously considerable expertise in setting the appropriate standards, assisted by the GMC's Indicative Sanctions Guidance. The test to be applied by this court is to decide whether the decision of the FTPP was wrong.
8. In Raschid and Fatnani v GMC [2007] 1 WLR 1460, which were appeals against the sanctions imposed, Laws LJ said in relation to the 'clearly wrong' test that it was "not helpful or adequate, at least unless it is very clearly understood" in the context of the need to preserve and maintain public confidence in the profession and to give particular force to the need to accord special respect to the judgment of the professional decision making body (p.1472). Meadow was not cited although decided in October 2006: Raschid was decided in January 2007. The judgment to be exercised on appeal must, Laws LJ said, be 'distinctly and firmly a secondary judgment'. Those observations are not generally speaking directly applicable to findings of fact.
9. Recently in Oluwashegun v GMC [2015] EWHC 2146 (Admin) there has been a helpful restatement of the established principles by Sir Stephen Silber. These can be summarised in addition to those I have already referred to as follows:-

(i) Following observations of Ward LJ in Assicurazioni Generali SPA v Arab Insurance Group [2003] 1 WLR 577, an appeal judge would not conclude a decision was wrong simply because he would not have made the same decision but must be persuaded that a finding of fact was against the evidence because it 'exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible'.

(ii) The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow.

(iii) As Leveson LJ observed in Southall v GMC [2010] EWCA Civ 407 at paragraph 47, "it is very well established that findings of primary fact particularly if founded upon an assessment of the credibility of witnesses are virtually unassailable".

10. The allegations were as follows:-

"That being registered under the Medical Act 1983, as amended:

1. As part of your employment you were issued with a job plan which committed you to work at Queen Mary's Hospital, Sidcup (QMS) on Tuesday afternoons and Wednesdays;

2. You did not fulfil adequately the commitments referred to in Paragraph 1, above;

3. On 28 April 2008 you represented to the Trust that you

a. were at QMS on Tuesday afternoons assisting and/or supervising Dr A in the Rapid Access Chest Pain Clinic,

b. were at QMS all day on Wednesdays including assisting and/or supervising Dr A in the Stress Echocardiography Clinic on those Wednesday mornings when it was held,

c. did not undertake any private work at the London Bridge Hospital (LBH),

d. did not undertake any private work between 9am and 5pm Monday to Friday;

4. On 30 April 2008 you represented to the Trust that you

a. were at QMS on Tuesday afternoons assisting and/or supervising Dr A in the Rapid Access Chest Pain Clinic,

b. were at QMS assisting and/or supervising Dr A in the Stress Echocardiography Clinic on those Wednesday mornings when that clinic was held;

5. On, or around, 30 April 2008 you approached Dr A and asked him to inform the Trust that you

a. were at QMS on Tuesday afternoons assisting and/or supervising Dr A in the Rapid Access Chest Pain Clinic,

b. were at QMS assisting and/or supervising Dr A in the Stress Echocardiography Clinic on those Wednesday mornings when that clinic was held;

6. On 12 May 2008 you represented to the Trust that you did not undertake any private work between 9am and 5pm Monday to Friday;

7. On, or around, 10 June 2008 you approached Dr A and asked him to inform the Trust that you

a. were at QMS on Tuesday afternoons assisting and/or supervising Dr A in the Rapid Access Chest Pain Clinic,

b. were at QMS assisting and/or supervising Dr A in the Stress Echocardiography Clinic on those Wednesday mornings when that clinic was held;

8. On, or around, 11 June 2008 you approached Dr A and asked him to inform the Trust that you

a. were at QMS on Tuesday afternoons assisting and/or supervising Dr A in the Rapid Access Chest Pain Clinic,

b. were at QMS assisting and/or supervising Dr A in the Stress Echocardiography Clinic on those Wednesday mornings when that clinic was held;

9. You undertook privately paid work on the dates set out in schedule 1 when you should have been working for the Trust;

10. Your actions in paragraphs 3, 4, 6, were misleading;

11. Your actions in paragraphs 2, 5, 7, 8, 9 were inappropriate;

12. Your actions in paragraphs 2, 3, 4, 5, 6, 7, 8, 9 were dishonest;"

Allegation 9 was amended at the hearing with no objection from the appellant to read:-

"a You undertook privately paid work on the dates set out in schedule 1.

b When you should have been working for the Trust."

Schedule 1 set out a list of dates and times when the appellant was said to have been carrying out private work at the London Bridge Hospital (LBH). There were thirty-five separate occasions between 11 March 2007 and 22 July 2008. These were mainly on Tuesday afternoons: there were three on Wednesday mornings, two in May 2007 and one in November 2007. There were only two occasions after 28 March 2008, namely one on 27 May and one on 22 July. The appellant admitted that the schedule had accurately recorded the occasions on which he had carried out private work in what were described as NHS hours.

11. Allegation 1 was also amended at the hearing without objection so that it read "As part of your employment you had a job plan…." Instead of "you were issued with a job plan". Whether the appellant had a job plan and what it may have required of him was very much in issue at the hearing, but the FTPP found allegations 1 and 2 not proved. Those findings are relied on by Mr Booth as undermining the FTPP's conclusion that allegation 9 was proved.
12. Allegations 5, 7 and 8 were obviously very serious since they stated that the appellant had attempted to persuade a fellow doctor not to tell the truth in order to support him. The FTPP did not find these allegations to have been proved. It was clear as the FTPP accepted that regrettably relationships among practitioners in the Trust at the material times were, as it was put, difficult. There were in addition problems in the management of the Trust which faced hospital closures. There was, as the FTPP put it, "a general sense of dysfunction within the department in which you worked". Furthermore, the panel accepted that human resource procedures were not always correctly applied. There were failures in the job planning process and delays and a lack of adherence to proper procedures in carrying out and investigating the appellant's case. The Trust appointed Dr Palin to investigate to see whether disciplinary action against the appellant should take place. He was a Clinical Director at Queen Mary's Hospital (QMH), the hospital at which the appellant was chiefly working as an employee of the Trust. Dr Roger Smith had become Medical Director of the Trust in 2009. Since both Dr Palin and Dr Smith were engaged in the meetings in 2008 at which the appellant was said not to have told the truth about his private work, Mr Booth made the point that they were not independent and there was a conflict of interest. But no disciplinary action was taken and in September 2011 the appellant was informed that the matter was closed from the Trust's point of view.
13. In the meantime, it seems some time in 2010, the GMC had received a complaint about the claimant. It appears that the GMC was informed that a disciplinary hearing would take place. This was said to have been arranged for July 2010. Having heard nothing, in June 2011 the GMC wrote asking Dr Smith to indicate what was happening. Dr Smith informed the GMC in a letter of 13 July 2011 that, due to delays and deficiencies in the Trust, no hearing could take place and the appellant was to be informed of that. All material information, said to be vast, was in due course sent to the GMC. It was not until December 2013 that the allegations were served on the appellant.
14. The case against the appellant essentially depended on what had been said at meetings held on 28 April, 30 April and 12 May 2008. The case against him depended largely on the evidence of Dr Smith and Dr Palin. It was said he denied undertaking any private work at LBH between NHS hours (9am to 5pm). It was further said in allegation 9b that he should have been working for the Trust during those hours; in essence, he had no authorisation to do private work during those hours. The appellant not only denied that he had said that he did not do private work during those hours but asserted before the FTPP that he had had proper authorisation to do so. In argument, he said it was known that he did on occasions do private work and so it was absurd to think that he would have denied that he did.
15. It must be made clear that it was accepted that not only had he always worked the hours which he was required to work for the Trust but had exceeded those hours. Thus he had not in any way defrauded the Trust. Counsel appearing for the GMC at the hearing had submitted that the appellant had been guilty of a pre-planned brazen fraud. This the FTPP rejected since, as I have said, the appellant had regularly worked in excess of the hours for which he was paid. Mr Booth submitted that in the circumstances it was wrong for the FTPP to have found that the appellant had acted dishonestly.
16. That the FTPP gave very careful consideration to the evidence and their findings of fact there can be no doubt. As I have said, allegations 5, 7 and 8 concerning attempts to suborn Dr A were rejected since it was clear that Dr Das Gupta (Dr A) held ill-will against the appellant and the FTPP was not impressed with him as a witness. His evidence was unreliable and lacked credibility. In addition, allegations 1 and 2 were found not to have been proved. This was because there was no job plan which the Trust could produce which covered the relevant period and in any event the job plans which do exist for 2002 and 2004 did not commit him to work at QMS in the clinics which formed the basis of the allegation. The FTPP found allegation 9b proved: Mr Booth has submitted that there is a discrepancy between those findings so that the FTPP erred in finding 9b proved.
17. The appellant's appointment as consultant in General Medicine and Cardiology commenced on 2 September 2002. Clause 5 of his contract dealt with Private Practice and stated that it should 'in no way diminish the level of services' he was to provide for the Trust. A fresh contract was provided on 14 December 2004. Paragraph 7.5 provided under the heading "Extra programmed Activities and Spare Professional Capacity":-

"Where you intend to undertake private professional services other than such work carried out under the terms of this contract, whether for the NHS, for the independent sector or for another party, the provisions in Schedule 6 of the Terms and Conditions will apply".

That has not been helpful since the schedule in question has not been provided. But it is accepted that the appellant should have had authorisation to do private work in NHS hours.

18. Paragraph 6.1 of the contract deals with job planning. It records that a prospective job plan had been agreed setting out "your main duties and responsibilities, a schedule for carrying out your programmed activities, your managerial responsibilities, your accountability arrangements, your objectives and supporting resources". The paragraph then provides:-

"You and your clinical manager will review the job plan annually in line with the provisions in Schedule 3 of the Terms and Conditions".

Either he or his clinical manager could suggest amendments. Again, the absence of any document identifying the terms and conditions has not helped.

19. Two job plans have been produced. The first appears to cover 2002 to 2003 from the appellant's appointment. It is virtually illegible but does not indicate any private work in QMH hours. The second appears to cover 2004. It does not specify any private work but does indicate that he is only in NHS on alternate Wednesday mornings. There is a box asking in what non-NHS hospitals he enjoys practising privileges and admitting rights. Three private hospitals are specified including LBH. There is no subsequent job plan despite the requirement for an annual review.
20. There is an appraisal dated 25 January 2007 which does no more than indicate the appellant had practising privileges at four private hospitals. One is added to the previous list. No document indicates that private practice was in NHS hours. Letters to the appellant from LBH dated 7 March 2007 and 30 May 2007 respectively show that he had been working there on Friday mornings but that that was changed to Tuesday afternoons. A record of the appellant's working timetable dated November 2007 shows him working at LBH on Fridays. That was erroneous since in May 2007 his work at LBH had been changed to Tuesday afternoons. However, it is clear that it was known that he was working at LBH during NHS hours and no concern was then raised albeit there is no indication that it had been specifically authorised. It was raised on his behalf before the FTPP that he had never sought to hide his private practice work.
21. The first meeting was attended by the appellant, Dr Smith, Dr Palin and Sandy Spencer, a nurse who was Director of Operations at QMH. In the light of the submission that the FTPP failed properly to take account of the delay so that witnesses had to give evidence of what was said over 6 years ago, contemporaneous records are of obvious importance. As will become clear when I refer to the contemporaneous material, the FTPP in reaching its decision paid considerable attention to it. Mr Booth criticises it for not expressly referring to delay. The reality is that it is not necessary to do so since the FTPP was well aware from the abuse of process submissions coupled with those made in relation to deciding whether the GMC case on what was said by the appellant was made out. The submission that the failure to refer to delay in terms was a fundamental error which undermined its findings regarding all charges found proved is, I am afraid, not accepted.
22. The notes provided by Dr Smith and Dr Palin of the material meetings are criticised as not having dealt with all the matters raised in the meetings. It is also said that they should have been put to the appellant to enable him to comment on them. But they were not intended to be formal records of what was said. As will become apparent, the FTPP concluded that although Dr Smith and Dr Palin had difficulties in recollecting specific matters, they both were doing their best to assist the FTPP. It therefore 'exercised particular caution concerning the accuracy of their evidence', but it 'did not conclude that they were dishonest or conspiring in a false accusation against' the appellant. Those observations clearly show that the FTPP did have regard to delay. It accepted the accuracy of the records made by Dr Smith and Dr Palin of the meetings albeit it recognised that those records, particularly of the 28 April 2008 meeting, were not complete.
23. The contemporaneous material was very damaging to the appellant's case which amounted to an allegation that there had been deliberately false statements of what he was alleged to have said at the meetings. There can be no doubt that the appellant, probably with good reason, believed that Dr Smith was hostile to him. Dr Smith admitted that he did get angry and made some unpleasant comments. In his notes of the meeting of 28 April 2008, Dr Smith referred to appraisals of 25 January 2007 and a job plan of 22 January 2007. That is inaccurate since it is signed on 2 January 2005 and is in reality the 2004 plan. The appraisal is not a job plan.
24. Dr Smith's note records the appellant going through his weekly work. He stated that he worked for the Trust and did NHS work every day during NHS hours and that, so far as private practice was concerned, he said that it was all done in the evenings save for some private angiography at King's College Hospital on a Friday morning and that he conducted 'non-invasive tests privately at both QMH and Blackheath Hospital on an ad hoc basis'. He said that he did not undertake any private practice at LBH.
25. In the meeting on 30 April 2008 the appellant, according to Dr Smith's note, said that on Tuesday afternoons he carried out a clinic with Dr Das Gupta and that on Wednesday mornings he was at QMH doing stress echo-cardiography with Dr Das Gupta. This was denied by Dr Das Gupta in a meeting with Dr Smith on 1 May 2008. He said the appellant was to his knowledge not at QMH on either Tuesday afternoon or Wednesday morning. At the meeting on 12 May 2008, Dr Smith in a letter to the appellant which he admitted having received, stated that the appellant had stated that he did not undertake private practice during NHS hours. The appellant did not respond to challenge this.
26. Dr Palin confirmed Dr Smith's record of the meeting of 28 April 2008 in a letter of 2 May and so did Sandy Spencer in a letter of 8 May 2008. By letter of 29 May 2008, Dr Smith told the appellant that because of 'worrying differences between your description of your clinical activities given to me in those job planning meetings and what exactly takes place', he was instigating a formal investigation with Dr Palin as investigator and Dr Smith as case manager. On 28 July 2008, following the sight of the notes left in the appellant's car which related to LBH, Dr Smith wrote to the appellant stating:-

"I have reviewed the notes of my job planning meetings with you which took place in April and that you did not then tell us about any private work undertaken at the LBH".

27. The appellant did not reply to that and a chasing letter requiring a reply by 10 October 2008 was sent to him. On 7 October 2008 the appellant replied. He confirmed that in a meeting on 6 October he had said that he did not currently do any private work at LBH and had not done so in the last few months. He said that he did some private angiographs at King's College Hospital and he agreed to work in accordance with the private code of conduct and with QM Trust guidelines.
28. On 3 November 2008 Dr Smith wrote to the appellant requesting full details of his private practice commitments at LBH between 1 May 2007 and the end of April 2008. He drew attention to the LBH website which advertised the appellant's outpatient clinics on Fridays in the morning and afternoon. On 18 November 2008 Dr Smith sent a further letter setting out what the appellant had said at the meetings and expressing his concern that the appellant was undertaking private work when contracted to do NHS work.
29. The appellant replied in a letter of 20 November 2008. He stated that in the twelve months between 1 May 2007 and 30 April 2008 he had done 'one or two angiograms during lunch period at LBH' which would last no more than 35 minutes. He had had no commitments at LBH for the last six months.
30. I have gone through this evidence in some detail because if accurate it shows that the appellant never denied saying what he was alleged to have said at the meetings. Furthermore, in the light of his admissions at the hearing of the accuracy of the schedule to the allegations in his letter of 20 November 2008 he had not told the truth about his work at LBH between May 2007 and April 2008. Thus what the FTPP referred to as the contemporaneous material was on its face powerful evidence against the appellant's account.
31. The FTPP had in the circumstances to decide who was to be believed. It was most unimpressed with the appellant as a witness. In paragraph 10 it set out its assessment of the appellant. It said that he was evasive during part of his cross-examination and that as in the meetings at the hearing he had prevaricated and obfuscated to his answers which, at times, never really addressed the question being asked. It referred to the failure to raise matters in the correspondence to which I have already referred. There were real concerns at his assertion in evidence for the first time, since he had not raised it in correspondence or the formal response to the allegations, that he had authorisation from his line manager, Dr Yu. It is in these circumstances not at all surprising that the FTPP found him not to have been a credible witness.
32. In contrast, the FTPP considered that Dr Smith, Dr Palin and Sandy Spencer had all done their best to assist the FTPP and had given honest evidence, to the best of their recollections, supported as they were by the contemporaneous material. Mr Booth recognised the difficulty he would have in persuading me that the FTPP was wrong to assess the witnesses as they did. I should add that having read the transcript of the appellant's evidence, it is clear that he did not answer questions directly. The FTPP was entirely justified in its view of him. It rejected the idea that there had been a conspiracy against the appellant. He had not been honest in the evidence he had given to the FTPP.
33. The FTPP set out its approach to its factual findings in these terms (Paragraph 16):-

"The panel's approach

16.     This case involved the allegation that you undertook privately paid work during times when you were employed and paid by the NHS.  Whilst a contract may allow for flexibility, working in private practice during NHS time must be properly authorised.  The starting point for this panel, in relation to the facts of this case, was whether there was a job plan, what did it contain and what expectation there was upon you to follow any such plan.  It determined that the allegations of dishonesty flow from the central issue relating to the job plan, your lack of adherence to it and your subsequent failure to be open and honest about your work at London Bridge Hospital."

34. Allegations 1 and 2 were not proved because there was no job plan for the period in question. The basis of this finding was following the acceptance of both sides of the narrow ambit of the allegation that there was a job plan which committed the appellant to attend particular clinics on Tuesday afternoons and Wednesdays rather than simply a commitment to work within QMH without any further qualification. Neither of the job plans which existed committed the appellant to particular clinics. And there was no job plan provided which did commit him in the way alleged. This finding does not mean that the job plans which had not been reviewed were irrelevant since there was no evidence, other than the appellant's belated assertion which the FTPP disbelieved for good reason, that he had been authorised to carry out private work during NHS hours.
35. Allegations 3a and 4a were found proved. The FTPP relied on the evidence of what had been said at the meetings. Allegations 3b and 4b were found not to have been proved. This was because the evidence did not contradict the job plan which indicated that he was only to be at QMH on alternate Wednesday mornings. Far from as Mr Booth submits being a 'profound inconsistency', those findings were favourable to the appellant since the FTPP was taking a very strict approach to the allegations and, having regard to the narrow compass of the allegations in relation to a job plan, it took what could be regarded as a benevolent view for the appellant.
36. Allegations 3c and d were found proved. Mr Booth attacks these findings on the basis that 3d depended totally on Dr Palin's evidence. But the FTPP referred to a letter sent by Dr Palin to the appellant on 16 May 2008 in which he stated:-

"At the meeting you assured us once again that you undertook no private practice between the hours of 9-5 on Monday to Friday".

This referred to the second meeting and, as the FTPP stated, was entirely consistent with the appellant having said it at the earlier meeting. And the appellant had not at the time or in subsequent correspondence to which I have referred denied it. 3c depended on the FTPP's acceptance of the truthfulness of Dr Smith, Dr Palin and Sandy Spencer and the accuracy of the notes. Allegation 6 follows 3d.

37. Allegation 9b was found proved. Mr Booth attacks the finding because in the first sentence of its reasons, the FTPP says:-

"In reaching the finding at paragraph 9(b), the panel has determined that you had an obligation to undertake NHS work during the times alleged as set out in your job plan".

Mr Booth submits that that is inconsistent with its finding Allegations 1 and 2 not to have been proved since there was no job plan. But, as I have shown, the FTPP was looking at Allegation 1 on a very precise and narrow basis and it did not rule out the relevance of the job plans in general. The point was that the appellant was prima facie committed to the obligations in the existing job plans since there had been no subsequent authorisation of his being able to undertake private work in NHS hours. There is nothing in the criticism.

38. Mr Booth has made the point that it was generally known that the appellant was not at QMH during all NHS hours and was doing some private work. Why then should he have made the statements alleged? It would have been known that they were wrong. It may be that any absences were not necessarily to do private work. The fact is that the FTPP were entitled on the evidence to find that he had made the statements in question.
39. I reject the submissions that the FTPP erred in finding the relevant allegations to have been proved.
40. Mr Booth submits that dishonesty was not properly established. The FTPP decided that the appellant had not been authorised to do the work in question and sought to cover this up. No doubt if he had accepted the lack of authorisation and it was clear that he had not in any way defrauded the NHS nor had he failed to carry out his duties in a competent fashion, at least he was likely at most to have been reprimanded if any proceedings had been taken. But he chose to deny what he had said in an attempt to excuse himself at the time. His denials were considered to be dishonest. That dishonesty was compounded by his lies in the hearing.
41. In the circumstances it is impossible to say that the FTPP's finding of dishonesty was wrong.
42. Mr Booth recognised that, if I found that the FTPP was entitled to find the appellant to have been dishonest, members of the profession would consider dishonesty in statements to superiors in the Trust and more particularly in giving evidence to a Tribunal to be contrary to what was to be expected from a member of the profession. In the circumstances the finding of impairment and the sanction imposed cannot be said to have been wrong.
43. In the circumstances, this appeal must be dismissed.