England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		29th April 2016

MR JUSTICE KERR:

1. Dr Selim, the appellant, is a qualified general practitioner. He qualified in Egypt in 1988 as a doctor and became a member of the Fellow of the Royal College of Surgeons in Dublin in 1995. He holds other medical qualifications including a diploma in pharmacy from Newcastle University Medical School and he qualified in this country as a general practitioner in 2000. In 2005 he began a GP practice in Brierley and about five or six years later took in two other partners to that practice who were also doctors, Dr I and Dr J.
2. In 2010, around the time when he was setting up his partnership with the other two doctors, a disciplinary matter arose concerning an official form that he had completed relating to a patient's travel to New Zealand, and amendments to that patient's records. In fitness to practise proceedings in 2010, that was found to have been done in a misleading and dishonest way, and the panel on that occasion found that his fitness to practise was impaired but decided, after considering steps taken by him to remedy the misconduct, to take no further action on his registration.
3. In 2013, further disciplinary matters arose from certain conduct in August 2010. In that matter, Dr Selim admitted that he had in August 2010 submitted documentary portfolio, as evidence in support of an interim "membership by assessment of performance" application to the Royal College of General Practitioners; and that the content of that documentary portfolio was inaccurate and misleading. In that matter, the panel subsequently found in 2013 that the alterations to the portfolio had been "targeted, focused and systematic" and that they had been made for "professional gain".
4. That matter was adjudicated upon in March 2013. As a result, Dr Selim was suspended from practice for six months commencing on 4 April 2013. I am not, in this appeal, directly concerned with those two prior disciplinary matters but I mention them as part of the chronological history and because they become relevant later to the question of sanction.
5. In May 2013, written complaints were made against Dr Selim by his two partners in the GP practice at Brierley. It is clear from the documents that I have been shown that there has been a serious falling out between, on the one side, Drs I and J and, on the other, Dr Selim.
6. On 3 September 2013, a fitness to practise panel hearing took place and was in the nature of a review hearing. That review hearing went in Dr Selim's favour. The panel noted that there had not then been any repetition of his dishonest behaviour, and he had kept his knowledge up to date. It concluded that his fitness to practise was not impaired by reason of his misconduct; but that his then current suspension would last until 3 October 2013, when the six month period was due to expire.
7. Following the expiry of that suspension period an assessment exercise took place at a Holiday Inn hotel from 4 to 6 November 2013. That was for the purpose of assessing Dr Selim's levels of performance. It was conducted in a manner, the details of which I need not go into, which involved an assessment process by reference to comparisons with other doctors.
8. The result was that although Dr Selim achieved a relatively good score for operative and technical skills (60.75%) by reference to "simulated surgery", the overall finding was that his performance was "unacceptable" in five areas giving "cause for concern". In one other area - operative and technical skills - his performance was found to be "acceptable". The decision to that effect was recorded in a document signed on 28 January 2014 by the doctor whom I assume was the lead assessor, Dr Parsons.
9. The outcome of that exercise led to the imposition of an interim suspension on Dr Selim, with the consequence that he was not able to return to his medical practice. Over the following year or so, there was a process of correspondence and investigations, the detail of which I will not recite. It included allegations and counter-allegations as between Dr Selim and Drs I and J, leading ultimately to the formulation of charges against Dr Selim in a document not dated but, I am told, produced in around the start of 2015.
10. The investigation phase was thus concluded, and charges laid against Dr Selim. They were lengthy and quite detailed. The first group of charges centred on allegations of pressurising a dispenser of pharmacological products at the practice into signing a written testimonial for Dr Selim, prepared by him, which she allegedly signed reluctantly and under pressure. There were multiple allegations of wrongful access to medical records including those of Drs I and J, and the children of one of them, during a period of suspension. There were allegations of words spoken to the practice manager, known as "colleague H", to the effect that Dr Selim would "bring Dr I down" or "get Dr I and Dr J out" and other intemperate accusations against them of lying and the like.
11. There was an allegation of misleading colleague H about Dr Selim's reason for gaining access to the medical records I have already mentioned, by saying, allegedly falsely, that it was at the request of the General Medical Council (GMC). There was an allegation that Dr Selim had wrongfully given colleague H a written warning arising from her involvement in the GMC's investigation into Dr Selim's conduct. There was an allegation of writing, for selfish reasons, a callous and inappropriate letter to the bereaved parents of a deceased daughter, in which blame was laid at the door of Dr J; and there were other allegations concerning unauthorised use of the deceased girl's medical records.
12. Those were the allegations subsequently found proven. There were others that were subsequently found not proven, which I therefore need not go into in detail. There was in addition an allegation of deficient professional performance arising from the assessment in November 2013.
13. Eventually the matter came before a panel of the Medical Practice Tribunal Service (MPTS) and the matter was heard over some 16 days in the period from September to December 2015. Dr Selim was represented by counsel throughout although not always the same counsel. In the usual way, the GMC was legally represented and there was a legal assessor available to give advice to the members of the panel.
14. It has been suggested by Dr Selim today that the procedure before the panel and its composition were such as not to amount to a fair hearing. As Mr Ozin QC has for the GMC has pointed out, the procedure is well recognised as compliant with ordinary standards of fairness and I am confident that there is nothing in the complaint that the process was in a general sense flawed whether by reason of the composition of the panel or otherwise.
15. The panel heard evidence from a number of witnesses: including Dr Parsons, the lead assessing doctor; Dr Clowes, another performance assessor; the dispenser, known as colleague A; Dr I; Dr J; colleague H and others, and not least from Dr Selim himself. After hearing, in the usual way, submissions from each of the parties in relation to the charges, the panel gave its written determination on the facts on 17 November 2015.
16. After recording areas of factual common ground and its assessment of the witnesses, the panel proceeded to record its findings and reasons for them. I should say that the panel's assessment of Dr Selim was that he was a disingenuous witness whom they found evasive and who (it was said in paragraph 25 of the first determination) had developed his "own interpretation of events and documents over time and many aspects of [his] evidence were neither credible nor reliable."
17. The panel, it is sufficient to say, preferred the evidence of other witnesses to that of Dr Selim on all matters where there was a factual conflict. Thus it accepted, for example, the evidence of colleague A that she had not written the testimonial and that she had signed it under pressure from Dr Selim, who denied writing it and pressurising colleague A to sign it. In relation to disclosure of the medical records of Drs I and J, the panel rejected Dr Selim's assertion that he made those disclosures out of a genuine public health concern, arising from an allegation by him that one of his two colleagues had attempted to cover up diagnosis of a particular dangerousness illness.
18. The panel found that Dr Selim did not have any genuine public health concern and had made the disclosures for the improper purpose of discrediting his colleagues rather than protecting the public. The panel preferred the evidence of colleague H to that of Dr Selim on the issue whether he, Dr Selim, had used words to the effect that he would "bring Dr I down", which Dr Selim denied having used. The panel went on to find against Dr Selim on the issue of having given colleague H a written warning by reason of her involvement with the General Medical Council's investigation, and on the issue of having written an inappropriate letter to the bereaved parents of the deceased girl, known as "Patient L" for selfish reasons.
19. After finding certain other matters not proved, the panel went on to decide that on the basis of the assessment exercise in November 2013, it was proved that Dr Selim's professional performance was unacceptable, as found in that exercise.
20. At a reconvened hearing on 1 December 2015, it was not disputed by Dr Selim through his counsel, Mr George Hugh-Jones QC, that Dr Selim's fitness to practise was impaired. The panel, not surprisingly, recorded in its written decision, exercising its own judgment, that it shared that view and reached the same conclusion.
21. Two days later, on 3 December 2015, the panel reconvened to consider the question of sanction. The contest was between suspension or erasure. It was not suggested by Mr Hugh-Jones that a sanction less serious than suspension was realistic, but he submitted that erasure would be disproportionate and placed reliance on Dr Selim's past medical achievements and the oral and testimonial evidence of ten character witnesses on his behalf.
22. In its written determination of the sanction, the panel, in the usual way and in accordance with the relevant guidance, considered the question by reference to the available sanctions in ascending level of gravity and reached the point where it had to consider the question whether suspension was sufficient or whether erasure was the only appropriate and proportionate sanction.
23. In reaching the latter conclusion, the panel effectively accepted the submissions of Ms Baxter, counsel for the GMC, took into account the seriousness of the findings, both of dishonesty and deficient performance, took into account also the previous disciplinary matters recorded against Dr Selim, which I have mentioned earlier in this judgment, and at the point of rejecting the sanction of suspension said this at paragraph 35 of the determination:

"The panel considered that your dishonest actions had been serious and recurrent, and therefore significant weight should be given to the public interest in this case. The panel determined that the nature and scope of your dishonesty, the absence of any demonstrable insight into the wider public interest, and the absence of any evidence of remediation of your misconduct mean that the maintenance of public confidence in the profession and the need to uphold proper standards of conduct and behaviour would not be satisfied by a period of suspension in this case."

24. In considering the issue of erasure, the panel in paragraphs 39 through to 42, which I will not set out, explained that Dr Selim's actions had been serious and recurrent, deceitful, manipulative, self-serving, not embarked upon out of naivety or accident, and dishonest; and that there was "no evidence of any change in this underlying attitudinal problem". They concluded that there was a risk of repetition and no significant evidence of efforts to remedy the dishonest behaviour; that the behaviour had been such to as undermine public confidence in the profession, had brought the profession into dispute and was fundamentally incompatible with continuing to be a registered medical practitioner.
25. The next day, the panel reconvened and decided that there should be an immediate interim suspension for the 28 day period during which an appeal can be brought.
26. Those then are in brief the facts. Dr Selim appeals against the erasure decision. The correct approach of the court in an appeal such as this is found in many different cases, and I record that among those mentioned in Mr Ozin QC's skeleton argument were Gosalakkal v General Medical Council [2015] EWHC 2445 (Admin), Dowson v General Medical Council [2015] EWHC 3379 (Admin).
27. I do not propose to embark upon an examination of the case law. It seems to me convenient and sufficient to refer to what was said by Mostyn J in Khan v General Medical Council [2015] EWHC 301 (Admin) and I quote from paragraph 6 onwards:

"6. The decisions from this court have demonstrated that a very strict line has been taken in relation to findings of dishonesty. This court and its predecessor, the Privy Council, has repeatedly recognised that for all professional men and women, a finding of dishonesty lies at the top end of the spectrum of gravity of misconduct; see Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 at paragraph 13

....

9. Where proven dishonesty is combined with a lack of insight (or is covered up) the authorities show that nothing short of erasure is likely to be appropriate. As Sullivan J put it in R(Farah) v GMC [2008] EWHC 731 (Admin), a case which involved the theft and forgery of prescription forms in order to obtain drugs, at paragraph 21:

'... given the nature of the appellant's dishonesty and given the Panel's finding that there had been a persistent lack of insight into that dishonesty, whatever the mitigating factors were, the inevitable consequence was that erasure from the register was an entirely proportionate response to the appellant's conduct. The Panel was entitled to come to the view that where a doctor had engaged in deliberate dishonesty and abused his position as a doctor and then had shown a persistent lack of insight into that conduct, he simply could not continue to practise in the medical profession. Thus, the Panel's conclusion as to sanction was in practical terms inevitable once it had reached the conclusion it did about the appellant's lack of insight into his dishonest conduct...

10. This appeal is governed by CPR 52.11(3) which provides:

'The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.'.

11. The principles in play on such an appeal have all been succinctly expressed by Laws LJ in the decision of Raschid v GMC [2007] 1 WLR 1460. Taking the reasoning of Laws LJ in combination with CPR 52.11(3), the governing principles are:

(i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings.

(ii) In determining whether the decision was wrong, I must pay close regard to the special expertise of the FTPP to make the required judgment.

(iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession and the protection of the public rather than the punishment of the doctor.

(iv) The High Court will correct material errors of fact and of law and it will exercise a judgment, although distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.

(v) Where the appeal is against a sanction, my decision must not constitute an exercise in resentencing or the substitution of one view of the merits for another."

28. Dr Selim in his courteous and articulate address to me today grouped his arguments into three categories. He said there were errors of fact, errors of procedure and error in relation to sanction. He made a number of observations about the witnesses who had given evidence against him and, in my judgment, these amounted to the contention that it was wrong of the panel to prefer their evidence to his.
29. He referred, for example, to what he said were breaches of the partnership agreement, establishing the GP practice, in that changes to staff terms and conditions had been made without his consent and during his suspension. He suggested that colleague A had been improperly encouraged to give evidence against him and that the evidence of Dr I and Dr J was untruthful and dishonest.
30. He claimed that the GMC had deliberately "swept under the carpet" his, Dr Selim's, complaint of an improper attempt to remove a diagnosis in the case of one of the other doctors, raising a legitimate public health concern, and that the decision of the panel on 3 September 2013, which had gone in his favour, was then overtaken by the November 2013 assessment process which he criticised as biased and unfair.
31. He said it should not have taken place at the Holiday Inn, where he had no access to his normal sources of information and he levelled other criticisms at the process and those involved in it. He suggested that there was something like an attempt to discredit him by his two partners in the practice and insinuated that they had solicited testimony against him through improper use of inducements and incited a patient to complain against him.
32. He submitted that he should have been regarded as entitled to rely on the un-redacted medical records of patient L, which he needed for the purpose of defending himself, that the process was procedurally unfair, that the panel placed undue weight on previous findings against him and not enough weight on his considerable medical achievements in building a high quality practice and on the testimony of his character witnesses.
33. He insisted that the panel's decision was wrong and unjust, that he treated his patients with dignity, respect and honour and that this had arisen as a result of his two medical colleagues turning against him, suborning members of staff to do likewise and setting out to destroy him professionally and in the process destroying the practice as well. That practice is no longer being operated by any of the three doctors previously involved in it.
34. Mr Ozin QC produced a helpful skeleton argument which responded to written grounds of appeal rather than to the much more recent skeleton argument of Dr Selim. He reminded me that findings of fact particularly where founded on an assessment of the credibility of witnesses are "virtually unassailable", the words of Leveson LJ in Southall v General Medical Council [2010] EWCA Civ 407 at paragraph 47. He submitted that large parts of the panel's reasoning were founded on a simple preference for the GMC's witnesses over the evidence of Dr Selim and that it was properly open to the panel to reach that view.
35. As to dishonesty, Mr Ozin submitted that the panel correctly directed itself in terms of the standard Ghosh dishonesty test and was entitled to attribute to Dr Selim, having (unlike this court) heard his evidence and seen his demeanour when giving evidence, the state of mind that fulfils both limbs of that well-known test. Mr Ozin went onto submit that the panel was fully entitled to attribute to Dr Selim the improper purpose of discrediting a colleague, when viewing that colleague's medical records, that the letter to the parents of the deceased Patient L, which he showed me, was such as amply to justify the panel's conclusion that it was inappropriate, written for selfish reasons and lacking in compassion for the bereaved parents.
36. Mr Ozin submitted that the performance assessment findings spoke for themselves, were damning and supported by live evidence from two of the performance assessors.
37. As regards the previous disciplinary findings against Dr Selim, Mr Ozin responded to a ground of appeal, not developed by Dr Selim in oral argument, to the effect that inappropriate use had been made of those previous findings of dishonesty to support what was said to be a propensity to be untruthful and dishonest.
38. Mr Ozin submitted that the legal assessor had properly directed the panel that undue reliance should not be placed upon any such propensity and that it should not be used to bolster a weak case, but that in any event the panel had not on the evidence placed reliance upon those prior disciplinary matters for the purpose of reaching its findings on the issue of dishonesty since they had not mentioned the prior disciplinary matters under that heading.
39. So far as the sanction of erasure was concerned, Mr Ozin submitted that it was well within the scope of the discretion and judgment of a specialist tribunal such as this, to which the court should accord considerable respect and deference if it is not obviously wrong, to take the view that it did that erasure was the only proportionate and appropriate sanction for the findings of dishonesty.
40. Having thus set out the facts and arguments of the parties at some length, I can state my reasoning and conclusions more briefly. Although I have some sympathy for Dr Selim's predicament, and I do not doubt that in his time he has provided good service to this country as a doctor - I am not suggesting otherwise - I am nevertheless confronted with a serious record of misconduct showing a lack of integrity and observance of the standards of probity that are rightly expected and required of doctors in this country.
41. I find no weakness, defect or flaw in the record of findings of wrongdoing against Dr Selim which could begin to justify his contention that he is the victim of an injustice arising from the disciplinary proceedings against him. The charges were serious because they involved the wrongful manipulation of information, the misuse of medical records violating confidentiality, the placing of grossly improper pressure on non-medical staff and the failure to show compassion for the bereaved parents of a deceased patient.
42. I cannot find any fault in the panel's reasoning and conclusion that Dr Selim had not shown any understanding of the gravity of those matters, nor am I entitled to revisit and overturn the findings of fact leading to those conclusions. They proceeded from an assessment of live oral evidence as well as written evidence from witnesses whom I have not seen or heard, nor have I been asked to hear any oral evidence.
43. In sum, I cannot but accept the arguments advanced by Mr Ozin for the GMC, supporting the proposition that its findings of fact, reasoning and conclusions are unimpeachable.
44. I am sorry to say that Dr Selim's contrary arguments at times missed the mark. He advanced matters such as alleged breaches of the partnership agreement which were not relevant to whether he had committed the misconduct alleged against him nor to how serious it was.
45. Although he presented his arguments with skill and courtesy and although I fully accept and understand that he does genuinely and passionately consider himself to be a victim of injustice, I find myself unable to agree with that proposition largely for the reasons given by Mr Ozin in his arguments and those that I have set out in this judgment.
46. For those reasons I find myself unable to see my merit in the grounds of appeal advanced in the skeleton argument and oral argument put to me today and must therefore dismiss this appeal.