England and Wales High Court (Administrative Court) Decisions

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

		CO/6546/2015 Royal Courts of Justice Strand London WC2A 2LL
		5 May 2016

1. MR JUSTICE CRANSTON:

Introduction:

2. This is an appeal by Dr George under section 40 of the Medical Act 1983 against the sanction which a Fitness to Practise Panel ("the panel") imposed on him in light of his conviction for harassment in 2011.
3. In November 2015, the panel found that Dr George's fitness to practise was impaired because of his conviction and ordered his erasure from the register. Originally there were various grounds of appeal but sensibly and realistically Mr Jenkins, who has appeared for Dr George before me, has abandoned them to concentrate on the one point he has identified as arguable.

Background:

4. The background is as follows. In November 2009, Dr George's son-in-law, also a registered doctor, allegedly assaulted Dr George and his wife following what was supposed to be mistreatment of his daughter and grandson. Dr George and his wife suffered cuts and bruises set out in a police report. Also in that police report is a reference to alleged threats from the son-in-law to Dr George's daughter and his grandchild.
5. After that incident, between November 2009 and December 2010, Dr George sent a number of faxes to the General Medical Council concerning his son-in-law. They contained allegations that the son-in-law had TB, possibly HIV, had a criminal record in India and was receiving state benefits. One fax said that the son-in-law had been prosecuted for the assault, omitting the fact that he had been acquitted of the allegation.
6. As a result of sending the faxes, Dr George was convicted on 9 June 2011 at Waltham Forest Magistrates' Court of harassment contrary to section 2(1) and 2(2) of the Protection from Harassment Act 1997. In July he was sentenced to 12 weeks' imprisonment, suspended for 24 months. There was also a two-year restraining order coupled with an 18-month suspended sentence supervision order. The record from the magistrates' court states that:

i. "Reason: Offence so serious. Reason for custody: prolonged nature of harassment and significant impact on victim of family dispute."

7. Dr George appealed to the Crown Court. In February 2012 the Crown Court upheld the conviction. In the course of evidence before the Crown Court judge and the magistrates, Dr George's son-in-law accepted that he had been tested for TB and HIV. Her Honour Judge Kamill in her ruling referred to the assault and accepted that it had occurred, before turning to the nature of the faxes. She also referred to the threat by the son-in-law that he would twist the neck of the grandchild of Dr George. HHJ Kamill said that although those words were spoken, Dr George's daughter spoke about the son-in-law's depression and said that in her view the threat was not said in a way she took seriously. HHJ Kamill commented that not only did she not take it seriously, neither did the police. In referring to the faxes, the judge described them as malicious. As regards sentence, the Crown Court substituted an order of 60 hours of unpaid work for the supervision order, whilst upholding the suspended sentence of imprisonment.
8. In February 2004 there was an appeal against conviction by way of case stated to the Divisional Court. In the course of the argument Moses LJ and Silber J, constituting the court, were recorded as commenting sotto voce that the offending should not have led to a criminal prosecution but that all the parties should have been bound over by the magistrates. In the judgment of the Divisional Court, reported as Plavelil v Director of Public Prosecutions [2014] EWHC 736 (Admin), Moses LJ set out the faxes and concluded that to his mind these were untrue, malicious allegations and constituted oppressive conduct:

i. "The appellant must have appreciated that they would be discovered by his son-in-law and that he would have to deal with him. Indeed that was the whole point of their being sent by his father-in-law. Not only in my view was it open to the court to find that they were oppressive, in my view, it was the only possible conclusion on those facts."

9. At the conclusion of the judgment, Dr George's counsel did not pursue any appeal as regards sentence.
10. The matter was heard by the panel over a week in November 2014. Dr George did not attend, nor was he represented. Nonetheless, there was a detailed statement by him and detailed written submissions prepared by an experienced firm of solicitors. After setting out his own background, Dr George explained the assault on him and his wife, and his concern about his daughter and grandchild. He said that the content of those faxes and the message he was trying to convey may not always have been completely clear. He continued that had the GMC contacted him to seek clarification of what he was saying and for his reasons for raising particular concerns, anything which could not be sustained would have come to light.
11. In his statement, Dr George referred to the professional obligation that he had to report on the assault and on his son-in-law's conduct. He said that the GMC should have made it clear to what extent it had accepted that the faxes he had sent constituted legitimate reporting of his concerns and how far they did not. He also stated that there was, in his respectful view, a real danger of hypocrisy on the part of the GMC if they criticised him for sending that material, given that they had relied on it in relation to investigating the son-in-law. Dr George said this:

i. "Whilst I accept the fact of my conviction, it would be misleading of me to say that I accept the particular finding that I was malicious. Had I been malicious, I could have made up concerns about [the son-in-law]'s competence ... but I did not."

12. Later in the statement, Dr George said that he had been convicted of a single allegation of indirect, non-violent harassment and that the sentence imposed on him had been imposed by a "hostile" magistrates' court.
13. Dr George also referred to the sotto voce statements of Moses LJ and Silber J in the course of the Divisional Court case. He said that the appeal against sentence had been abandoned by his counsel so that the Divisional Court did not have the opportunity to consider whether it was appropriate. In conclusion, he stated that he believed that the faxes sent raised legitimate concerns about his son-in-law's behaviour and that:

i. "... I cannot in all conscience give an unreserved apology for my actions, I have learned lessons from them and from the consequences which followed. It is unlikely that I will ever again be in a position of needing to report a practitioner to the GMC."

14. He continued that should the circumstances arise, he would endeavour to ensure that, in future, faxes and other communications sent would be clearly identifiable from him, clearly expressed and he would carefully set out the basis of the concern.
15. The written representations on his behalf before the panel referred to Dr George's mixed motives in sending the faxes. They also underlined the point that when he sent the faxes to the GMC he was raising legitimate concerns about his son-in-law. Dr George could not, the written submissions said, provide in all conscience an unreserved apology for raising the concerns, which he still believed. However, he had learnt his lesson from them and from the consequences which followed.
16. The panel found that Dr George's fitness to practise was impaired. He had embarked, the panel concluded, on an oppressive and criminal course of conduct of sending malicious untruths about another registered doctor to the GMC. That went to the seriousness of the offence. The panel noted that Dr George considered himself to be a victim, did not accept the seriousness of his offending and how it undermined the standing of and trust in the profession, and sought to blame the GMC and to undermine its procedures.
17. The panel said it was not convinced that Dr George would not repeat the offending behaviour. As a result of his lack of insight into the offence, the panel said, Dr George had failed to remediate his conduct. As a result, the panel concluded, public confidence in the profession would be undermined if a finding of impairment were not made.
18. Turning to sanction, the panel recalled at the outset that it had given careful consideration to Dr George's written submissions. It referred to its impairment findings. It identified the nine mitigating factors advanced on Dr George's behalf: first, his long and successful career; second, the assault which made him angry and led to his sending the faxes; third, the lapse of five years since he had been convicted; fourth, that this was his only conviction; fifth, that there was no allegation of repetition; sixth, that the harassment was not violent; seventh, that he had dealt with his community sentence expeditiously; eighth, that he had identified the lessons that he had learnt, albeit that they did not address the issues of malice which the court had found; and ninth, that he had testimonials which attested to his previous good character and abilities as a doctor.
19. The panel identified five aggravating factors: the seriousness of the offence; the fact that a suspended sentence of imprisonment had been imposed; the malicious and untrue nature of the faxes; the course of conduct was intended to cause distress; and finally, the lack of insight which Dr George exhibited.
20. The panel then proceeded in accordance with the GMC's sanctions guidance, considering possible sanctions from the least to the most serious. Taking no further action was neither sufficient nor appropriate given the seriousness of the offending. By reference to the sanctions guidance, the panel rejected imposing conditions on Dr George's practice. The panel then rejected a suspension in light of the conviction together with Dr George's subsequent behaviour and attitude:

i. "15. The panel considered that a conviction for harassment is not, in itself, incompatible with continued registration. However, it considered that the conviction taken together with Dr Abraham George's behaviour and attitude since, does amount to conduct which is not compatible with continued registration. The panel has taken a serious view of Dr Abraham George's behaviour towards a fellow doctor and his regulator, and is concerned that he has taken little responsibility for his actions despite the clear findings of the Court. Dr Abraham George continues to blame others for the consequences of his actions. The panel considered this attitude to be deep-seated and entrenched. Although the panel noted that there has been no repetition of the conviction or the specific behaviour that resulted in it, it considered that Dr Abraham George's attitudinal problem has persisted. Given the lack of insight that Dr Abraham George has demonstrated during the five years since his conviction, and the lack of remediation, the panel considered that a period of suspension would not be appropriate. Furthermore, suspension would be insufficient to maintain public confidence in the profession in the particular circumstances of this case."

ii.

21. The panel ordered that Dr George be erased from the register and said this:

i. "17. The panel is satisfied that the factors listed above apply in this case. Taken together, Dr Abraham George's conviction and behaviour since his conviction represents a serious departure from the principles set out in Good Medical Practice; in particular, the overriding duty to ensure that conduct justifies patients' trust in doctors and the profession. Dr Abraham George has demonstrated a concerning and persistent lack of insight over an extended period of time about the effect of his actions on the profession. The panel considered that Dr Abraham George has had ample time since the incident to remediate his conduct and behaviour, but has chosen not to do so. His position has not changed since his conviction, and the panel is concerned that a registered medical practitioner has displayed such an entrenched and inflexible attitude."

ii.

The appeal:

22. On Dr George's behalf, Mr Jenkins submits that the decision of the tribunal to order erasure was wrong, wholly disproportionate and unnecessary for public protection or to maintain public confidence in the profession. Firstly, he submitted, the panel was at a disadvantage in not having the opportunity to hear and see Dr George in person. Consequently, they were not in a good position to examine his insight. Secondly, the panel's finding gave insufficient weight to the mitigating features of the case as well as to the length of time that had passed since the conduct giving rise to the conviction during which there had been no repetition of wrongdoing. Thirdly, the panel was wrong and unfair in the way that it set out the mitigating factors, in particular in its finding that Dr George lacked insight. It was clear that Dr George accepted that he had mixed motives in sending the faxes, but that of itself demonstrated that he had acted, at least in part, correctly.
23. Fourthly, Mr Jenkins submitted, Dr George was not simply angry about the assault but also about the position of his daughter and the threats to his grandchild. The faxes were in part accurate; Dr George's son-in-law had been tested for TB and HIV. Mr Jenkins cited the Core Guidance for Doctors, 2006, which sets out the positive duty on doctors to report concerns even if subsequently they may prove to be groundless, so long as they are honestly done. It was clear, Mr Jenkins submitted, that Dr George accepted blame and also had learned lessons from what had happened. That was strengthened because his position had changed over the substantial period from when the matter first came to light to the time of the panel hearing.
24. Finally, Mr Jenkins submitted that in relation to remediation the panel had not given any indication of what Dr George was supposed to do given the continued estrangement between himself and his son-in-law. He had given an apology, albeit not full, and it was difficult to see what more he could do.

Discussion:

25. The relevant legal principles are common ground between the parties. Appeal is under section 40 of the Medical Act 1983 by way of re-hearing, and the court will allow an appeal where the panel's decision was wrong or unjust because of a serious procedural or other irregularity. In Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460 Laws LJ said this at paragraphs 19 to 20:

i. "As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel ... the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case".

26. Laws LJ stated that the court must not engage in a re-sentencing exercise: at paragraph 21.
27. As to Mr Jenkins' first point, the panel clearly had regard to the points which had been made in Dr George's witness statement and also on his behalf by experienced lawyers. In accordance with case law, the panel is best placed to determine what is required to maintain the reputation of the profession and the public interest. It is clear from the impairment determination that the panel understood that their assessment of the seriousness of the offence was not predetermined by the sentence awarded by the criminal courts. They properly reached a conclusion that the gravity of the offence was likely to bring the profession into disrepute, and it is plain that the panel took other factors than the sentence into account when considering Dr George's impairment.
28. Secondly, the submissions Mr Jenkins advanced in relation to personal mitigation come up against the principle stated by Laws LJ, that personal mitigation is of limited relevance in disciplinary proceedings since the overriding concern is the public interest. In any event, it seems to me that the panel took on board the mitigating features in Dr George's favour.
29. Thirdly, I cannot accept the submission that somehow the panel misunderstood, misstated or was unfair in the way they treated Dr George's case. To my mind, the passages I have quoted indicate that in reality Dr George had not made a real apology, had not accepted the findings by the magistrates' court, the Crown Court and the Divisional Court as regards the maliciousness of his offending behaviour, and had certainly not learnt lessons. The lessons which Dr George said he learnt are limited, indeed lamentable.
30. With all his experience as an advocate, Mr Jenkins highlighted the comments of Moses LJ and Silber J in the course of the Divisional Court hearing. That, of course, is an appropriate forensic point but as a matter of law it goes nowhere. What judges say in the course of argument has no relevance when their final judgment makes clear the basis on which they have come to a decision. The passage that I quoted from Moses LJ's judgment in the Divisional Court must take precedence over those comments.
31. To my mind, the panel was perfectly entitled to regard Dr George as lacking insight. An aspect of demonstrating insight entails accepting the seriousness of a criminal conviction (see Karwal v General Medical Council, [2011] EWHC 826 (Admin) at paragraph 11). That Dr George had failed to do. Here the panel carefully considered the evidence. It followed the sanctions guidance, working from the least to the most serious penalty. In the passage I have quoted it found that a period of suspension was not appropriate when Dr George had not demonstrated insight. In keeping with the sanctions guidance, the panel concluded in the second passage from which I quoted that his persistent lack of insight and departure from the principles of good medical practice meant that erasure was the only appropriate sanction.
32. Notwithstanding that Mr Jenkins has made every point that could possibly be advanced in Dr George's case, I cannot see any flaw in the panel's reasoning or ultimate conclusion. For the reasons I have given, I dismiss the appeal.
33. Any submissions?
34. MR HARE: Yes, my Lord. I am sure we are both grateful to your Lordship for dealing with the matter today. I would invite the court to make an order for the GMC's costs for defending the appeal since they have succeeded, and invite an order to summarily assess in accordance with the usual practice after a day's hearing in the Administrative Court. My Lord, I do not know if you want to hear from my learned friend on principle first before I go to the schedule of costs that I hope has reached you?
35. MR JUSTICE CRANSTON: Yes, I have one here. I am not sure whether this is yours. I only have one page, actually. It comes to a grand total of about £300.
36. MR HARE: Perhaps I could just hand up a copy in case that is not ours or our version has not reached your Lordship?
37. MR JUSTICE CRANSTON: Yes. (Handed)
38. MR HARE: My Lord, can I make a general point and then two or three specific points about quantum? The general point that Your Lordship will have seen foreshadowed in my own skeleton argument is that the General Medical Council's skeleton argument -- the original version -- was drafted by me on the basis of the grounds of appeal which had been put in on behalf of Dr George by his solicitors. They were very much more extensive, and as your Lordship will have seen, went so far as to challenge interlocutory decisions made by the panel not to admit certain documents and not to require the attendance of certain witnesses, and also challenged the finding of impairment, the wholesale challenge in relation to that. All of those matters had to be addressed in the original skeleton argument. My learned friend -- this is no criticism of him of course --
39. MR JUSTICE CRANSTON: No, he was not involved.
40. MR HARE: -- was instructed rather later in the day and has very sensibly decided that most of those grounds are not properly arguable. Nonetheless, costs were incurred in addressing those matters. That is the general point.
41. The more specific points are three. First, we say it is entirely appropriate to have the costs of my instructing solicitor attending, who attends from Manchester, and that is why there is travelling time and (inaudible) time. Your Lordship is aware that all of the GMC Legal is now in Manchester.
42. MR JUSTICE CRANSTON: Yes.
43. MR HARE: I have dealt with my own fee, which as I indicated involved responding to the substantially larger number of grounds of appeal and, as your Lordship will have seen, two lever arch files of documents originally created in relation to the appeal. My Lord, there is one error in the final calculation in relation to VAT, because VAT should only be charged on my own fee and so should be £1,400 instead of £1,831.48. That makes the grand total £10,557.04. My Lord, that is all I say about the quantum.
44. MR JUSTICE CRANSTON: Thank you. Mr Jenkins?
45. MR JENKINS: I am going to speak to the principle of costs. Two things. Firstly, the costs that Dr George had to pay in the Crown Court for three days of hearing were £1,240. That is in my Lord's bundle 1B, tab 5. It is in the certificate of conviction. The costs of a similar hearing to the one that we have had today in the High Court before Moses LJ and Silber J were £2,980. I am instructed to question whether it is right that Dr George should have to pay three times that for today's hearing. He is a pensioner, he has not worked for many years and I suggest those are relevant factors to bear in mind when considering what order for costs should be made against him. I would certainly ask for time to pay and I would invite the court to allow three months to pay whatever sum is ordered.
46. MR JUSTICE CRANSTON: What do you say about the specific figures on the schedule? Do you have any submissions on them?
47. MR JENKINS: I do not. It is just the total. How it is broken down, I am neutral.
48. MR JUSTICE CRANSTON: Mr Hare, what do you say about time to pay?
49. MR HARE: My Lord, we would not question that. If it is three months that is required then we would be happy for that to be in the order.
50. MR JUSTICE CRANSTON: Well, I award the GMC the figure of £10,557.04, and Dr George will have three months to pay. Thank you very much.