England and Wales High Court (Administrative Court) Decisions

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

		Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		13/07/2016

Mrs Justice Andrews:

INTRODUCTION

1. The Appellant, Dr Robert Jenyo, a General Practitioner, appeals under s.40 of the Medical Act 1983 against the decision by a Fitness to Practice Panel of the Respondent ("the GMC") to erase him from the medical register.
2. At the conclusion of a 19-day hearing, in a determination made on 9 July 2015, the Panel found that the Appellant had acted dishonestly in retrospectively altering the electronic surgery records of his patient, Mr A, who died of cancer in July 2007. The Appellant accepted that he had made the alterations, and that he had done so at times when he was on notice of concerns raised by Mr A's family that his symptoms of back pain had not been properly investigated. However, he denied that the alterations were made with the intention of deceiving anyone; he claimed that they were made to clarify his past treatment of the patient.
3. The key issue for the Panel to determine, therefore, was whether the Appellant acted dishonestly in making the retroactive amendments. It decided that he did, and went on to find that his fitness to practice was impaired by reason of this misconduct, and that he should be erased from the medical register.
4. Although the grounds of appeal included an appeal against sanction, Mr Beaumont, (who appeared on behalf of the Appellant with Mr Sood, who had represented him before the Panel), realistically accepted that if the Panel was entitled to make the finding of dishonesty, he could not justifiably take issue with the sanction that was imposed. His primary submission was that the Panel failed to lend any, or any sufficient weight to certain factors which, on the balance of probabilities, were more consistent with the Appellant's innocence than with the finding of subjective dishonesty which the Panel made. He submitted that the Panel failed to address this issue in its reasoning, or to address it satisfactorily, which meant that its decision was fundamentally flawed.
5. His secondary and related submission was that the Panel failed to provide any or any sufficient reasons for its rejection of the innocent explanation given by the Appellant for making the alterations.
6. The GMC's response, succinctly advanced on its behalf by Mr Cross, is that there were ample grounds for the Panel to conclude that the Appellant was dishonest, and it was entitled to do so. Put simply, it did not accept his claimed explanation for the changes. It heard and saw the Appellant give evidence: it did not consider him to be a reliable or credible witness, for objectively justifiable reasons that were adequately explained.

THE LEGAL FRAMEWORK

7. An appeal of this nature will be allowed if, and only if, the court reaches the conclusion that the decision was wrong or unjust because of a serious procedural or other irregularity: CPR r. 52.11. The governing legal principles were helpfully set out by Hickinbottom J in Siddiqui v GMC [2015] EWHC 1996 (Admin) at [25]-[30]. There was no dispute about them between Counsel, and it is unnecessary to repeat them here. I have borne them well in mind.
8. Suffice it to say that in a case such as the present, where the key issue is one of disputed fact which is dependent upon the assessment of oral testimony, considerable deference must be afforded to the decision of the Panel, which had the advantage of seeing and hearing the witnesses, including the Appellant himself. The court will be slow to interfere, and will only do so if the decision is plainly wrong. The Court of Appeal has described findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, as "virtually unassailable": Southall v GMC [2010] EWCA Civ 407 at [47] per Leveson LJ (with whom Waller and Dyson LJJ agreed.) If the court is asked to draw an inference, or question any secondary finding of fact made by a Panel, it will still give significant deference to the Panel's decision, and will only find it to be wrong if there are objective grounds for that conclusion.
9. The court will not conclude that a finding of fact was against the evidence unless it exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible. It is insufficient that the court might have drawn a different conclusion. As Laws LJ put it in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]:

"The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category." (emphasis in the original).

FACT FINDINGS

10. The following relevant fact-findings were made by the Panel, which were not challenged on this appeal. Indeed, Mr Beaumont expressly relied upon paragraphs [60]- [94] of its determination.
11. Mr A and his wife began consulting with the Appellant at his practice at a Health Centre in December 2004, when they both presented with depression due to financial difficulties and stress. Mr A continued to consult with the Appellant for low mood.
12. In December 2006, Mr A first complained of mid-back pain. He was still continuing to complain of mid-back pain on 26 February 2007, when the Appellant referred him for physiotherapy. On 1 May 2007, the physiotherapist noted recent weight loss, and pain which appeared not to be mechanical. Mr A was referred for a chest X-ray and blood tests.
13. The first set of amendments to the medical records was made by the Appellant at 5pm on 9 May 2007. He knew at this point that Mr A's back pain and weight loss were related to a suspected tumour. The amendments followed his seeing the X-ray results, which were abnormal, and what became a heated telephone conversation with the patient's wife, during which she reminded the Appellant of the dates when Mr A had complained to him of back pain, and made criticisms of his management of Mr A's condition.
14. These amendments were to entries first made on 27 December 2006 and 26 February 2007. The Appellant added to the former entry: "no chest or abdomen pain, no hx (history) of wt (weight) loss". He added to the latter: "no red flag sxs ...symptoms)" and "Review sos".
15. The second set of amendments was made on 11 May 2007 following a further telephone call with the patient's wife, during which the Appellant spoke to Mr A's son, also a medical doctor, who was also critical of the Appellant's care of his father. The entries that were amended on that occasion were originally made on 10 January 2007 and 13 February 2007. The Appellant added to one entry for 10 January the words "no cervical spine tenderness". The remaining alterations to both entries added references to low mood, anhedonia (the inability to experience pleasure), and Mr A's inability to eat and sleep properly.
16. On 14 May 2007 Mr A was found to have a tumour which was later diagnosed as an undifferentiated large cell carcinoma. He died on 15 July.
17. The third and most extensive set of alterations to the records was made three years later, on 27 May 2010, by which time Mr A's family had commenced a medical negligence claim against the Appellant, a fact of which the Panel found he was "well aware". The amendments consisted of both additions and deletions. A variety of entries were amended, beginning with an entry for 14 August 2006, which was changed to include a reference to "anhedonia". The entries for 27 December 2006 and 26 February 2007 which had first been amended on 9 May 2007 were amended for a second time. On the entry for 27 December the Appellant added that pain was "in lumbar region only" (i.e. the lower back – it was common ground that the tumour was between the 8^th and 9^th rib on the patient's right hand side, therefore in the middle of the back, near the cervical spine). On the entry for 26 February 2007 he deleted a reference to "still c/o ...complaining of) back pain, no red flag sxs will refer for physio" and replaced it with "still low no red flag sxs of his back pain but would like to try physio as well."
18. Significant amendments were made to the entries for 17 and 30 January 2007, 1 May 2007 and 11 May 2007. References to "cold/cough" and a chest examination on 17 January 2007 were removed and replaced by references to "sore throat" and an examination of Mr A's throat and ears. The 30 January entry which originally stated "depressive episode still feeling low" was amended to read "depressive episode back and muscle pain much better now, but still feeling low."
19. The additions to the entry for 1 May 2007 included "pain now in mid back" and a reference to "telephone encounter with Physio at AGH" (an abbreviation for the relevant hospital) was altered to "telephone encounter," which the Panel found created the impression that the telephone conversation had been with the patient himself. The record of the telephone encounter on 11 May 2007 with the patient's wife and son was enlarged by adding, among other matters, that the Appellant explained to Mr A's family that "he did not c/o pain whilst being on analgesics, pain mid-back only occurred recently and there was no bony tenderness when I examined him…" To the extent that they indicated that the patient's complaint of mid-back pain was something recent, those two amendments were factually incorrect. They were inconsistent with the Appellant's own evidence that Mr A had been complaining of mid-back pain since December 2006, which the Panel found as a fact he had.
20. The Panel found that the amendments created a significantly different clinical picture of Mr A's health from that originally recorded, and that that picture would have improved the Appellant's position in response to criticism or a claim for medical negligence. The Appellant did not clearly date the amendments or put any reason for making them. His failure to do so would lead any person reading them to assume that the final entries were written on the date of consultation, when they were not. They would only show up on audit. None of those findings is challenged.

THE APPELLANT'S EXPLANATION

21. There were two competing explanations for the alterations. The GMC's case was that the Appellant made them in order to strengthen his position in the face of criticism, by deliberately making entries that would show his behaviour in a better light. There was no dispute that if that was why he did it, he was acting dishonestly. The Appellant's explanation for making the alterations was set out in paragraphs 5.40 to 5.42 of his witness statement. He said that he was deeply sorry for his actions, and that the amendments, particularly the ones made in 2010, were a "chance to clarify past events that had occurred in this patient's case". He expressly refuted the allegation that he intended to deceive, stating that "as far as I am concerned I had only sought to update the records in order to assist the investigation, having recalled additional facts which I thought were pertinent." There were repeated references to "assisting the investigation" in his evidence.
22. As the Panel recorded in its decision at paragraphs 60 and 61, the Appellant's evidence was that he remembered the consultations and that he made the amendments in order to provide a more accurate record of them. So far as the 2010 amendments were concerned, his evidence was that his memory was jogged by the action the patient's family was taking against him. That evidence was expressly rejected by the Panel, which considered it more likely that the passage of time would have had the usual diminishing effect on memory and adversely affected his ability to recall such details. The Panel found that it was unlikely that he could have accurately recollected the details of the consultations, and that even the relatively short passage of time between the consultations and the first set of amendments in 2007 would have made details difficult to recall, given the frequency of Mr A's consultations with him.
23. The Panel made its assessment of the Appellant's credibility as a witness in paragraph 22 of its decision:

"You gave oral evidence to the Panel. The Panel assessed your evidence and credibility as a whole. The Panel found that you were often evasive when questions were put to you, even when the questions themselves were quite clear. The Panel considers that you were not open at all times. Many of your explanations were not persuasive, and some of your evidence was inconsistent, shifted over time, and lacked cogency. The Panel often found that your explanations were often not as detailed as they could have been. The Panel did not find you to be a credible or reliable witness."

Even a brief perusal of the transcripts is sufficient to demonstrate why it was that the Panel reached those conclusions.

24. There is and can be no dispute that the Panel received correct advice from its Legal Assessor as to the two-stage test it must apply when considering whether conduct was dishonest, and that it directed itself in accordance with that test. It was not contended by Mr Beaumont that there was anything wrong with the finding that the Appellant's conduct would objectively be regarded as dishonest, judged by the ordinary standards of reasonable and honest clinicians. The issue on this appeal relates solely to the finding of subjective dishonesty.

WAS THE DECISION AGAINST THE WEIGHT OF THE EVIDENCE?

25. Against this somewhat unpromising background, Mr Beaumont submitted that there was a fundamental flaw in the findings of the Panel because it failed to lend any, or any sufficient weight to the following matters:

i) The records were electronic;

ii) The surgery's software was set up to reveal all and any subsequent amendments to original records;

iii) The software treated and reproduced the original patient record as indelible;

iv) The date and author of all or any material amendments to the records were indelibly recorded on the system;

v) The Appellant made no irrevocable changes to the original patient records, and could not have done so.

26. What this amounted to was an argument that the impossibility of permanently covering up the changes, coupled with the fact that any audit trail would easily show up what had been amended, when and by whom, were factors pointing against the Appellant having a dishonest intent when he made them. In other words, he was unlikely to have made the alterations in order to deceive, because his behaviour was bound to come to light if anyone did not take the altered records at face value and carried out an audit. The argument is premised on the basis that the Appellant knew all those things; for the purposes of the appeal I am prepared to make an assumption that he did.
27. Mr Beaumont also relied on the evidence given by Dr Kissen, who carried out the audit, that the Appellant had been "perfectly open" with him about the fact that he had altered the records. Dr Kissen told the Panel that he thought the Appellant came across to him as being honest when he "very much wanted [Dr Kissen] to understand that he amended those records because he was trying to improve the clarity of the records".
28. Mr Beaumont submitted that if there were a number of factors that were "so antithetic to dishonesty", the Panel should have referred to them, if only to discount them. In support of that proposition he relied upon the case of GMC v Soni [2015] EWHC 364, another case in which the issue was whether on a fair view of the evidence as a whole it was open to a fitness to practice panel to infer that a doctor had acted dishonestly. That was an exceptional case in which the judge, Holroyde J, took the view that the finding of dishonesty was one that no reasonable panel could make on a fair evaluation of the evidence before it.
29. On the facts of that case, that conclusion was understandable: the doctor had been charged with deliberately failing to account to the relevant NHS Trust for payments due for the use of its facilities for his consultations with five private patients. The panel had drawn an inference of dishonesty purely from the absence of certain records relating to those patients which were a necessary precursor to the invoice being raised. In doing so, it paid no regard to a body of evidence (given by witnesses other than the doctor himself) as to various deficiencies in the system of recording private patients, which provided a more likely or at least an equally likely explanation for the fact that their treatment had not been recorded. When considering whether or not to remit the matter to a different panel, Holroyde J concluded at [69] that the evidence taken as a whole made it impossible to conclude that the probable reason for the Trust's having no record of the five private patients was that the doctor had been deliberately dishonest.
30. Mr Beaumont relied in particular on the observations of the judge in paragraphs [61]- [63] as well as in [69]. He submitted that these passages laid down the general principle that a panel must always consider and eliminate alternative explanations before it can conclude, or infer, that a doctor had behaved dishonestly. In my judgment, Holroyde J was not purporting to lay down any principle to that effect; he was simply explaining why it was unfair to the doctor in that case for the panel to have drawn an inference that he had deliberately withheld money from the Trust solely from the absence of the patient records, without at least considering other viable explanations for their absence. That was not a case in which the doctor had admitted that he had deliberately failed to keep the patient records, but provided some alternative innocent explanation for that failure, which the panel disbelieved. If it had been, it is highly unlikely that the appeal would have succeeded. As Mr Cross pointed out, the doctor in that case did not even give oral evidence.
31. The present case was of a different nature from Soni, in that it was accepted that the alterations were made deliberately and that it was the Appellant who made them. There were two competing explanations for those alterations, and the only person who was able to give direct evidence as to his intention in making them was the Appellant. Therefore, his credibility was at the heart of the issue that the Panel had to decide.
32. Mr Beaumont submitted that it follows from the burden and standard of proof that where a doctor raises an alternative explanation for his conduct, the panel must consider it in the light of factors for and against it, before giving its reasons for rejecting it. No-one would quarrel with the proposition that it is incumbent upon a panel to consider an alternative innocent explanation given by the doctor for his behaviour, and that it should do so by reference to the probabilities, bearing in mind the context of the behaviour and all of the evidence; but that is a very different matter from requiring it to recite in its decision every factor he relies on in argument as pointing towards his version being the truthful one.
33. The Panel did consider the explanation that the Appellant gave, which was the same explanation that he volunteered to Dr Kissen. It was not bound to take the same view of his honesty, and Dr Kissen's evaluation of that was of marginal, if any, relevance, since the members of the Panel had to make up their own minds. Unlike Dr Kissen, they saw his evidence being tested under cross-examination; and Dr Kissen's view was formed before the audit commenced, and therefore at a time when the nature of the changes and the impact of their overall pattern would not have been apparent. In assessing subjective dishonesty, the Panel looked both at the overall picture of the alterations and at each of the alterations in turn. In respect of each change it considered its nature and timing, and compared it with the previous version of the records to assess the picture painted by the changes. It carefully considered the specific reasons given by the Appellant for making the changes, and what other reasons there might have been; and it gave clear and cogent reasons for reaching the conclusions that it did.
34. The Panel did not ignore or overlook the argument that the five factors adumbrated by Mr Beaumont favoured the explanation given by the Appellant. In paragraphs [63] and [64] of the determination the Panel said this:

"You deny that your conduct was misleading, asserting that any changes could easily be shown up by an audit trail. You also stated to the Panel that the making of such retrospective changes was commonplace in the Practice at that time, an assertion that was supported by Dr Pye during her evidence.

In the Panel's view, these arguments provide no defence to the allegation. The Panel has concluded that your amendments as set out in Schedule 1 were misleading because you did not clearly date the amendments or put any reason for the amendments. By not doing so, you would lead any person to assume that the final entries were written on the date of consultation, when they were not. However, where you have corrected typographical errors, the Panel considers that this is not misleading, as it does not change the substance of the entries." [Emphasis added].

By necessary implication the Panel was accepting that the changes could easily be shown up by an audit. It rejected the argument that this meant that nobody would be, or could have been intended to have been, taken in by them. It took the view that an honest doctor would have flagged up the amendments in some way, so that they would be immediately apparent on the face of the records, obviating the necessity for an audit trail.

35. The Panel's view that the ease with which the changes could be discovered provided no defence to the charges is not particularly surprising, because the argument is self-evidently flawed. I do not accept the premise that those factors are antithetic to dishonesty. The proposition that "the doctor is unlikely to have acted dishonestly because he knew that he was bound to be found out if anybody chose not to take the records at face value" is logically fallacious. The ease with which the alterations could be discovered and attributed to the Applicant if someone decided to carry out an audit is neutral. It tells one nothing about his intention in making them.
36. I disagree with the proposition that it is a pointer, let alone a strong and unequivocal pointer, in favour of an innocent but naïve attempt to clarify. Stupidity and dishonesty are not mutually exclusive. A dishonest person in the Appellant's position might simply take a gamble on the possibility that there might never be an audit; or believe that he could bluff his way out of trouble by giving the "innocent" explanation if an audit did take place. If he knew that it was hopeless to deny making the alterations once an audit was set in train, admitting that he made them would obviously be the only way to convince the auditor, and others, that they were made innocently. If it was impossible for him to cover the changes up permanently and he knew that, the fact that he did not try to do so takes the argument no further.
37. In any event, the Panel did take these matters sufficiently into account. Paragraph 64 was not a perfunctory disposal of a key point in the Appellant's favour, as Mr Beaumont sought to characterise it. The Panel was entitled to take the view of the argument that it did, and to reject it in the succinct but sufficient terms that it adopted. Even if it had accepted the premise that the five factors unequivocally favoured the innocent explanation, there were plenty of other countervailing factors which made dishonesty far more probable, and those were the factors that the Panel relied upon in reaching its overall conclusion. The Panel was entitled to ascribe little or no weight to the factors relied on by the Appellant. It did not need to spell out why it had done so; it was obvious to any reader why the Panel decided there was subjective dishonesty.
38. In terms of the overall picture, the Panel concluded that the amendments were triggered by the Appellant coming under increasing criticism for his care, and then being faced with litigation. It found at [74] that he must have known that his conduct was dishonest by the standards of a reasonable and honest doctor, and it gave as an example the deletion of part of a record to remove any reference to a chest examination being carried out, in order to fit in with the clinical picture that he wanted to present. It considered, as it was entitled to, that the Appellant did not annotate or date the amendments because he did not wish them to be detected. It was satisfied that the Appellant made the amendments knowing that it would give rise to a misleading impression of the patient's health and knowing that it would improve his position and support his defence to the claim of medical negligence that was being brought against him. It said, at [75], that it had "no difficulty" in concluding that the test for dishonesty was satisfied.
39. The Panel went on to explain at [76] that whilst it had seen an overall pattern of dishonest conduct, it had considered each entry carefully, noting the date and nature of the amendment and applying in each case the legal test outlined by the Legal Assessor. That approach is demonstrated by the passages that follow.
40. The conclusion that the Appellant was subjectively dishonest was a long way from being contrary to the weight of the evidence. The Panel's conclusions in respect of each of the alterations, and in respect of the overall picture, were well within the generous ambit afforded to a tribunal of fact with the advantage of having seen and heard the Appellant. The first ground of appeal therefore fails.

ADEQUACY OF REASONS

41. Mr Beaumont's second submission was that the Panel failed to give adequate reasons for finding that the Appellant was subjectively dishonest because it did not clearly explain why it rejected the five factors as indicators of innocence or regarded them as outweighed by the other factors. This point was not raised as a separate ground in the Appellant's Notice, but Mr Cross sensibly took no pleading point. However, he did stress that an argument based on insufficient reasoning is different from, and independent of, an argument that fact-findings were made against the weight of the evidence.
42. The duty to give reasons has been considered by the courts in a number of cases; in Phipps v GMC [2006] EWCA Civ 397, at [106] Sir Mark Potter P described it as a duty on tribunals "to state their decisions in a form which is sufficient to make clear to the losing party why it is that he has lost". He added that: "it is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious".
43. In Southall v GMC ...above) Leveson LJ endorsed those remarks, but put a gloss on them at [55] and [56]. He observed that in straightforward cases, setting out the facts to be proved and finding them proved or not proved will be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. However, where the case can properly be described as "exceptional" the position is and will be different, and will require something more.
44. It is clear from the case law that the duty to give reasons does not oblige a tribunal to make express reference to every matter relied on by the doctor as supporting his version of events and to explain why it has decided that those factors are outweighed by other factors. In a case hinging on credibility, all the doctor needs to be told is why the Panel did not believe him. In my judgment the detailed reasons given by the Panel for finding against the Appellant are more than sufficient. Anyone reading the decision would know why it was that the Appellant's explanation for what he did was not believed, and why the Panel decided that he behaved dishonestly in respect of each of the alterations. This ground of criticism is also rejected.

THE FINDINGS IN PARAGRAPHS 77 AND 78

45. A discrete point arose in relation to a finding made by the Panel that the amendment to the entry of 14 August 2006 made on 27 May 2010 was dishonest.
46. The altered entry pre-dated by some months the first occasion on which Mr A complained of mid-back pain, though the alteration was made when the negligence suit was pending. The Appellant added the word "anhedonia" which did not appear on a contemporary PHQ9 form, a matter to which some relevance was attached by the Panel in its reasoning. Mr Beaumont pointed out that the form indicated a maximum score of "3" meaning "nearly every day" next to "little interest or pleasure in doing things". He submitted that the form described symptoms from which a diagnosis of anhedonia might legitimately be made.
47. That is, of course, true, as Mr Cross very fairly accepted. On the face of it, the finding that this specific change was not by way of clarification may appear a little harsh: but this is a classic example of a matter in which due deference must be paid to a decision made by an experienced medical tribunal, which has the advantage over the court in gauging whether this was a case in which such a diagnosis was likely to have been made by the Appellant at the time of the consultation, not recorded at the time, and yet remembered by him four years later, his memory of it having been "jogged" by the fact that the patient's family were now suing him for negligence. The issue for the Panel to decide was why he made that change at the time when he did.
48. The Panel's evaluation of the motive of the Appellant for adding the word "anhedonia" was made in the overall context of its view that the Appellant was doing his best to play up the mental health issues experienced by Mr A, and its express finding that the claim in negligence brought against him by the patient's family could not have jogged his memory of a consultation which took place almost 4 years earlier, as he claimed it had. All the other changes made to the patient's records on the same occasion in 2010 were found to have been made dishonestly. It is not open to the court to disturb the findings that the Panel made about the motive for that particular addition, irrespective of whether it would have reached the same conclusion.
49. In any event, given the findings by the Panel that the overwhelming majority of the changes were dishonest, an error in relation to that one entry would not suffice to undermine the determination as a whole.

CONCLUSION

50. For all the above reasons, this appeal must be dismissed.