England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
SITTING AT LEEDS COUNTY COURT

		Court Number: 19 The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		23 February 2018

 


MR JUSTICE LAVENDER:

1. This is an appeal by Dr. Dominic Arul Soosai Rajkumar against the sanction imposed on him by a medical practitioners tribunal on 6 October 2017. The tribunal decided that Dr Rajkumar should be suspended for 12 months. Dr Rajkumar accepts that he should be suspended, but contends that the period of suspension should have been shorter.
2. The sanction was imposed by reason of misconduct in 2015. Dr Rajkumar practiced at Hessle Grange Medical Centre in Hull. Between 10 June and 25 August 2015 he did so without indemnity insurance cover. This followed the termination of his membership of the Medical Defence Union in consequence of the issue to him of a warning. The termination was effected by letter dated 18 June 2015, but was effective from 10 June 2015. From on or around 18 June to 25 August 2015 Dr Rajkumar knew that he did not have cover in place, but he failed to inform the partners in his practice that he did not have cover in place. This was misleading and dishonest.
3. Dr Rajkumar denied that he had been dishonest. The first tribunal to consider his case found in November 2016 that it was not proved that he had been dishonest. The GMC appealed against that finding. That appeal was resolved by consent. The issue of dishonesty was remitted to be considered by a freshly constituted tribunal. That tribunal decided on 31 August 2017 that Dr Rajkumar had been dishonest. It went on to impose the suspension which is the subject of this appeal.
4. In its determination on sentence, the tribunal considered the purpose of sanctions, the issue of proportionality, the sanctions guidance, the parties' submissions, the prolonged period of Dr Rajkumar's dishonesty, the fact that he exposed his patients to risk, its finding that his insight was poor, his efforts to remediate (which the tribunal found to be limited, although the tribunal said that remediation was likely to be successful), the testimonial relied on by Dr Rajkumar, the absence of evidence of similar behaviour since the incident, the tribunal's finding that he posed a risk of repeating behaviour, but not a high or significant risk, and the absence of concerns about Dr Rajkumar's medical practice.
5. The tribunal concluded as follows in paragraphs 28 to 31 of its determination:

'28. The tribunal further noted that you are a successful GP and that there are no concerns regarding your clinical practice. They concluded that the public interest will be served by having you return to practice after you demonstrate that you are fit to do so. The [inaudible] will be disproportionate despite the seriousness of your misconduct and prolonged dishonesty. These circumstances the tribunal determined to suspend your registration.

29. The tribunal was of the view that only suspension for a maximum period of 12 months would send out a sufficiently strong message to you, the profession and the public regarding your dishonesty and the risk you posed to patients. This length of time will also give you an opportunity to develop insight and demonstrate remediation.

30. The tribunal has directed a review hearing as it would not be appropriate for you to return to unrestricted practice without significant evidence of your further progress.

31. Shortly before the end of the period of the suspension your case will be reviewed by a medical practitioner's tribunal. The tribunal consider that a future tribunal review in this matter may be assisted by the following: reflective statements to demonstrate that you have reflected on your misconduct and have developed insight, training courses relating to probity and dishonesty, evidence of your progress from any supportive professional colleagues eg. from a mentor, evidence on how you would cope with stress in future, evidence that you have kept your clinical skills and knowledge up to date eg. CPD appraisal, anything else you feel may assist the tribunal'.

6. It is not contended that the tribunal was wrong to direct a review. It is relevant to note that the effect of the review process may be, depending on how things turn out, either to shorten or to lengthen the period for which Dr Rajkumar is in fact suspended.
7. The parties agree that I should not allow this appeal unless I consider that the tribunal's decision was wrong. Appropriate respect is due to the views of the tribunal as an expert professional body, but that is more limited in a case of dishonesty than in other cases: see General Medical Council v Jagjivan & PSA [2017] EWHC 1247 Admin at paragraph 40 (vi). I was referred to many other authorities in which this issue has been discussed, but it is unnecessary to recite them all.
8. By his grounds of appeal, Dr Rajkumar submits that the tribunal was wrong because, as he contends:

1) the tribunal failed to take adequate account of the warning which was issued to him by the first tribunal in December 2016;

2) the tribunal failed adequately to appreciate that the purpose of the sanction was limited;

3) the tribunal erred in its consideration of the issue of remediation;

4) the tribunal failed to provide proper reasons for its decision; and

5) the tribunal failed adequately to consider the effect of the sanction on Dr Rajkumar and the issue of proportionality.

9. I will consider each of these five issues, albeit not in the order in which they were raised. First, I see no merit in the allegation that the tribunal did not give adequate reasons for its decision. It seems to me that the reasons given by the tribunal were quite sufficient to indicate why it had decided to impose the sanction which it did.
10. Secondly, as to the effect of the sanction on Dr Rajkumar, I see no reason to believe that the tribunal failed to appreciate the effect which suspension would have on Dr Rajkumar. As for proportionality, it seems to me that the sanction was entirely proportionate. This was, after all, a case of dishonesty.
11. Thirdly, I turn to the warning issued in December 2016, which remained in place until May 2017. It does not seem to me that the warning was, in itself, a significant factor on the facts of this case. A warning is not a sanction. It did not prevent Dr Rajkumar from practising as a doctor without limitation. Moreover, the warning issued in this case followed what is now known to have been an incorrect finding that Dr Rajkumar was not dishonest. In any event, the tribunal did expressly consider what it called the salutory effect these proceedings have clearly had on Dr Rajkumar, and that was a factor which was taken into account in his favour.
12. A more significant feature of this case is that the sanction was being imposed over two years after the misconduct and there had been no repetition of the misconduct during those two years. These are, however, matters which the tribunal expressly considered. Indeed, as I have said, the tribunal considered that the risk of a repetition of the misconduct was neither high nor significant. On the other hand, the tribunal did not conclude that there was no risk of a repetition of the misconduct. This was not surprising, given the tribunal's conclusion that Dr Rajkumar's insight into his behaviour was poor.
13. The evidence supports that conclusion. Dr Rajkumar was dishonest, but he denied this through two tribunal hearings. In his witness statement, he appeared to try to blame the MDU and other defence organisations for his failures, alleging that he had received false reassurances from them. The truth was that he deliberately concealed the fact that he had no insurance because he was concerned about the effect which disclosing the truth would have on his own position. In particular, he was concerned that, especially in the light of previous experiences which had resulted in his being obliged to see female patients with a chaperone, his partners would be concerned with the costs of obtaining locum cover. As the tribunal recognised, he chose to put his own interests ahead of those of his patients.
14. The tribunal said as follows about Dr Rajkumar's insight in paragraph 20 of its determination:

'Although you have accepted wrongdoing the tribunal nonetheless found your insight to be poor. You were not able to provide any in-depth demonstration of understanding of why you acted in this way. You did not appear to have a full understanding of why your actions are being dishonest. The tribunal was also of the view that you still sought to minimise your responsibility to a degree and were not consistent in your acceptance of responsibility'.

15. In support of that last point, the tribunal continued as follows:

'As recently as December 2016 in your last appraisal document provided to the tribunal, you had stated that you do not know a warning would impact on your indemnity cover. That was despite already accepting that this was not the case. You told the tribunal that this was 'not reflective of what happened'. You could not adequately explain why you had written this'.

16. It was submitted that in this passage the tribunal mischaracterised what Dr Rajkumar had stated in his December 2016 review document. However, he was questioned about this by the tribunal, and before the tribunal he accepted that what he wrote was not very accurate, that he did not do his wordings very carefully and that what he wrote looked misleading.
17. The question of insight is closely related to the issue of remediation, to which I now turn. I say this because, although the tribunal found that remediation would likely be successful, the tribunal concluded that the reason why Dr Rajkumar had taken limited steps towards remediation was because his insight was limited. In the same vein, the tribunal also found that Dr Rajkumar was unable to explain what action he might take to prevent a repetition of his actions.
18. It was submitted, at least in the skeleton argument, although this point was not pressed orally before me today, that it was unfair or inappropriate for the tribunal to hold that Dr Rajkumar had made limited efforts to remediate because Dr Rajkumar had only had a limited period in which to undertake suitable training between 31 August 2017, when the finding of dishonesty was made and 6 October 2017 when the suspension was imposed. This is not a compelling argument. By 6 October 2017 Dr Rajkumar had had over two years in which to reflect on and address the reasons for his misconduct. The fact that he chose to deny his dishonesty for much of that period is not a point in his favour. It did not serve to postpone the start of the period within which the tribunal was entitled to consider what Dr Rajkumar had done to understand and address the reasons for his misconduct.
19. Looking in the round at what the tribunal found in relation to Dr Rajkumar's poor insight and his consequently limited efforts to address the reasons for his misconduct, I see no reason for concluding that the tribunal's decision on sanctions was wrong.
20. Finally, I consider the submissions as to the purpose of sanction. Subsections (1)(a) and (1)(b) of the Medical Act 1983 provide that the protection of the public is the overarching objective of the GMC in exercising its functions and that the pursuit of that objective includes the pursuit of the following objectives:

"(a) to protect the health, safety and wellbeing of the public;

(b) to maintain public confidence in the medical profession; and

(c) to maintain proper professional standards of conduct for members of that profession."

21. It is common ground that, as the tribunal expressly recognised, these are all potential purposes for a sanction imposed by a tribunal. It is submitted that because, as the tribunal recognised, there were no concerns about Dr Rajkumar's clinical practice, the sanction in the present case was only really required for the second purpose, ie. to maintain public confidence in the medical profession. I do not accept this. The need to maintain public confidence in the medical profession was an important feature of the present case, but it was not the only factor, given the risk of repetition of, and Dr Rajkumar's lack of insight into the reasons for, his misconduct. In any event, however one puts the matters in terms of the three parts of the overarching objective, this was a case of a doctor who dishonestly preferred his own interests to those of his patients and who has subsequently shown poor insight into the reasons for his misconduct. In all the circumstances, it seems to me that the sanction imposed was not wrong, but was entirely appropriate.
End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com