QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GENERAL MEDICAL COUNCIL
The Respondent did not appear and was not represented
Hearing date: 21 June 2017
Crown Copyright ©
THE HONOURABLE MR JUSTICE LEWIS :
THE FACTUAL BACKGROUND
"That being registered under the Medical Act 1983 (as amended):
1. On 18 March 2015 the GMC sent you an email confirming that:-
a. your application for restoration to the register with Full registration without a licence to practice had been granted from 18 March 2015;
b. you must make sure that your status on the register is appropriate for the type of work or post in which you are planning to practice;
c. you must be registered and licensed to work as a doctor in the UK.
2. On a date between 18 March 2015 and 14 July 2015 you:
a. accessed your certificate of proof of entry on the register ("the Certificate") from your GMC online account.
b. amended the Certificate so that it stated that you had "Full registration in APS with a licence to practise" from 18 March 2015 ('the Amended Certificate');
3. On 14 July 2015 you provided a copy of the Amended Certificate to locum agency, ID Medical;
4. You submitted the Amended Certificate to ID Medical despite knowing that:
a. you did not have a licence to practise;
b. the Amended Certificate was falsified.
5. Your actions as described in paragraphs 2 to 4 were:
The Tribunal's Hearing and Determinations
"36. In respect of sub-paragraph 2(b), the tribunal found that between 18 March 2015 and 14 July 2015 Dr Theodoropoulos amended the Certificate so that it read 'with a licence to practise' instead of 'without a licence to practise'. The tribunal was satisfied that amending the Certificate in that way was misleading because by doing so anyone reading the Certificate would be under the impression that he had a licence to practise when he did not. In his written representations, dated 10 August 2015, Dr Theodoropoulos made no admission that he had amended the Certificate. The tribunal did not accept that. The tribunal has found that an amendment was made and that the amendment was made by Dr Theodoropoulos. The tribunal was satisfied that there could have been no other intention behind the amendment other than a deliberately dishonest intention to procure himself a job for which, in the absence of a licence to practise, he was not eligible. It therefore found paragraph 5 as it relates to sub-paragraph 2(b) proved.
"37. In respect of paragraphs 3 and 4, the tribunal found that on 14 July 2015 Dr Theodoropoulos submitted the Amended Certificate to ID Medical by email, despite knowing that the did not have a licence to practise and despite knowing that the Amended Certificate was falsified. By doing so, Dr Theodoropoulos sent a healthcare recruitment company responsible for placing locum doctors, a document which stated the opposite of the truth in respect of him having a licence to practise. He knew this to be untrueand he also knew that the Amended Certificate was falsified. The tribunal was satisfied that it was perfectly apparent that Dr Theodoropoulos's actions in his respect were both misleading and dishonest. It therefore found paragraph 5 as it relates to paragraphs 3 and 4 proved."
" 9. Having considered the facts found proved in light of the principles contained in [Good Medical Practice], the tribunal was satisfied that by submitting the Amended Certificate to ID Medical in order to gain employment for which he was not eligible, Dr Theodoropoulos breached a fundamental tenet of the medical profession, namely to act with honesty and integrity at all times. The tribunal was satisfied that the public must have trust in doctors and the Dr Theodoropoulos's actions undermined that trust. The tribunal also takes the view that there is a public interest in maintaining the integrity of the medical register. By submitting a falsified certificate of proof of entry on the register to a healthcare recruitment company, Dr Theodoropoulos's actions could have led to a doctor without a licence to practise medicine in the UK, practising when he was not eligible to do so.
"10. The tribunal was more than satisfied that such a course of action breached the principles of the GMP set out in full above, and would be considered deplorable by the public and fellow practitioners. In sum, it concluded that Dr Theodoropoulos's dishonest actions were serious and unequivocally amounted to misconduct."
"11. The tribunal next considered whether it would be appropriate and proportionate to suspend Dr Theodoropoulos's registration. The tribunal acknowledged that a sanction of a suspension does have a deterrent effect and can be used to send a signal to Dr Theodoropoulos, the profession and the public about what is regarded as behaviour unbefitting a registered doctor. It also acknowledged that suspension is an appropriate response to conduct which is sufficiently serious that action is required in order to protect members of the public and maintain public confidence in the profession but falls short of being fundamentally incompatible with continued registration.
"12. Having had regard to all the circumstances in this case, the tribunal was satisfied that Dr Theodoropoulos's misconduct, although serious, is not fundamentally incompatible with continued registration and that erasing his name from the medical register would be disproportionate, punitive, and otherwise not in the public interest. The tribunal therefore determined that a period of suspension would be an appropriate and proportionate sanction that would maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour.
"13. The tribunal carefully considered whether erasure was the more appropriate sanction. It acknowledged that Dr Theodoropoulos's dishonesty was a serious departure from the principles set out in the GMP and constituted a deliberate disregard for them. However, the tribunal noted that his dishonest behaviour was an isolated incident and did not take place in a clinical setting. The tribunal has noted that it has no evidence of insight or remediation on the part of Dr Theodoropoulos. Dr Theodoropoulos has not communicated with the GMC on this matter since July 2016. However, neither does the tribunal have any evidence that he is incapable of developing insight and of remediating his behaviour, albeit it recognises that this may be a significant challenge. In these circumstances, the tribunal determined that although Dr Theodoropoulos's behaviour breached a fundamental tenet of the medical profession, it is not fundamentally incompatible with continued registration and it would be disproportionate to erase his name from the medical register at this time.
"14. In concluding that suspension was the appropriate and proportionate sanction, the tribunal took into account the impact that suspension may have upon Dr Theodoropoulos. However, in all the circumstances the tribunal concluded that his interests are outweighed by the need to maintain public confidence in the profession, to declare and uphold proper standards of conduct and behaviour, and to send out a clear message to him, the profession and the wider public that the dishonest behaviour he has exhibited is behaviour unbefitting of a registered doctor and will be dealt with severely."
The Hearing of the Appeal
" Dear sirs/madams
I am writing this letter on behalf of Dr Theodoropoulos parents. Dr Theodoropoulos had a car crash accident end of June last year (2016). He was hospitalised in the Intensive Care for more of 4 months and during that time he was in a coma.
After that, he was hospitalised in different Rehabilitation Centers in Europe but with poor results.
Enen now, he has a lot of problems with his health, many disabilities and he is not in a position to communicate, because he had severe traumatic brain injury.
I managed to open his email two days ago, after his parents request and informed them, about some e-mails which came from you.
(GMC, MPTS, Administrative Court, e.t.c…)
His parents don't know English and don't know how to use the internet (elderly people) and they asked me, to send you this e-mail and TO EXPRESS THEIR INDIGNATION AND THEIR ANGER.
"Since you didn't have any news of him, WHY you didn't call in the phone number of his next of qin, that you have in your file for those cases??????" This is their obvious question.
Conversely you started a litigation against him (mainly from the GMC), like he was a criminal and during that time Dr Theodoropoulos was fighting for his life.
You sent all your letters at the address, in which Dr Theodoropoulos used to leave, before the accident and that time their son was or unconscious in the Intensive Care Unit or in different Rehabilitation Centers in Europe.
You didn't think at all, since you didn't have any response from him, that something could happen to him.
THIS IS SOMETHING UNBELIEVABLE FOR AN EUROPEAN COUNTRY. LIKE U.K, WITH SO HIGH STANDARDS IN HIS SERVICES.
His parents want to inform you that they are looking for an international law office, to undertake the case and to launch a lawsmit against GMC, which did this terrible mistake.
Please do not use this e-mail address, to send any further e-mails, because Dr Theodoropoulos is not in a position to communicate and his parents don't know English. (Moreover you know that, for the last one, year, you didn't have any news from him)
On behalf of P and S Theodoropoulos, parents of Dr E. Theodoropoulos"
"Our ref: CO/710/2017
Your ref: 25 July 2017
Dear Dr Theodoropoulos, or the person managing Dr Theodoropoulos' affairs,
Re: GENERAL MEDICAL COUNCIL v THEODOROPOULOS CO/710/2017
The judge responsible for dealing with the above appeal, the Honourable Mr Justice Lewis, has asked that we write in connection with the hearing of the appeal in the case of General Medical Council v Evangelos Theodoropoulos. The hearing was scheduled to take place on 21 June 2017. Notice of that hearing was sent to Dr Theodoropoulos in accordance with a court order dated 23 February 2017. No response was received. At the hearing the judge checked that notice had been sent and, on being re-assured that it had, the hearing continued in the absence of Dr Theodoropolous. The judge has not yet given his decision on the appeal.
On 10 July 2013, it was drawn to the judge's attention that an e-mail had been sent to the Appellant (the General Medical Council) and the Administrative Court Office. It was received at the Administrative Court Office at 07.56 on 21 June 2017, that is the morning of the hearing which was scheduled to start at 10.30. The judge was not told of, and was therefore unaware of, this e-mail.
The e-mail is said to be written on behalf of the parents of Dr Theodoropoulos (but the name of the writer of the e-mail is not given). It indicates that Dr Theodoropoulos had a car accident at the end of June 2016 and was in a coma for 4 months and then subsequently in different rehabilitation centres. It requests that this e-mail address (email@example.com) not be used to send any further e-mails because Dr Theodoropoulos is not in a position to communicate and his parents do not know English.
The judge is sympathetic to the position of Dr Theodoropoulos as set out in that e-mail. The position is, however, that there is an outstanding appeal in the High Court of Justice brought by the General Medical Council and there is a public interest in that appeal being resolved and judgment given.
The writer of the e-mail gives no contact details by which communications may be sent to Dr Theodoropoulos or any individual able to manage his affairs. The only contact details that the Administrative Court Office has are the e-mail address firstname.lastname@example.org and an address at Agias Triados 23, Glyfada, Athens 16674, Greece.
The judge, therefore, would be grateful if contact details for Dr Theodoropolous or for a person able to act on his behalf is sent by e-mail to the Administrative Court Office at the following e-mail address email@example.com by the end of Friday 21 July 2017.
If no response is received, the judge will consider giving his judgment on the appeal even though no communication has been received from Dr Theodoropoulos or any person acting on his behalf.
We will copy this letter to the lawyers acting for the appellant (the General Medical Council).
Yours sincerely, "
The letter was signed by an official in the Administrative Court Office. The reference in the second paragraph to Jul 2013 is a typographical error for July 2017.
(1) Does the Court have power to proceed to determine the appeal in the respondent's absence and, if it has, should it do so?
(2) If so, did the Tribunal err in suspending the respondent's registration and should it have imposed a sanction of erasing his name from the register?
THE FIRST ISSUE – PROCEEDING IN THE RESPONDENT'S ABSENCE
The Power to Proceed to Hear an Appeal in the Absence of a Party
"(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
(5) The General Council may not bring an appeal under this section after the end of the period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates.
(6) On an appeal under this section, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,
and may make such order as to costs (or, in Scotland, expenses) as it thinks fit."
A relevant decision includes a direction for suspension (such as the direction given in the present case): see section 40A(1) of the Act.
Should the Power be Exercised in the Present Case?
THE SECOND ISSUE – DID THE TRIBUNAL ERR IN ITS DECISION?
The Nature of an Appeal
"40 In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52 . A court will allow an appeal under COR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in COR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali Spa v Arab Insurance Group (Practice Note)  EWCA Civ 1642;  1 WLR 577, , at paragraphs 15 to 17, cited with approval in Datec Electronic Holdings Ltd v United Parcels Service Ltd  UKHL 23,  1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council  UKSC 64;  1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall  EWHC 579 (Admin);  Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC  UKPC 29;  1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
"The degree of dishonesty here and its nature, affecting not registration but qualification and the integrity of the system of job applications, affects something which is every bit as fundamental to the proper respect for the system, to the proper operation of the system of medicine and of appointments to medical positions, as is the system of registration."
"…the authorities make clear that for a doctor honesty, certainly in the matter here involved, is indeed fundamental and it does not appear to me that the panel acted in any way disproportionately in deciding that, having regard to the mitigating features that I have outlined, nonetheless erasure from the register would be justified".
"21. There is no reason to disbelieve the Panel's assertion that they did consider those mitigating factors, but given the nature of 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 had then 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."
The Present Case
DISPOSAL OF THE APPEAL