QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Judge of the High Court)
| GENERAL MEDICAL COUNCIL
|- and -
Crown Copyright ©
"The Tribunal's view was that you were a willing and forthcoming witness, keen to assist the Tribunal by telling your version of events. However, the Tribunal noted that on a number of occasions you did not directly answer the questions that were put to you. The Tribunal could not be certain whether this was as a result of you being nervous, or because you were deliberately avoiding answering those questions."
"The Tribunal has considered your evidence in which you said that the emails sent by you on 7th and 9th March 2015 were referring to your NHS work and not your private locum cover. However, for the reasons set out above, it does not accept your explanation that you were not referring to private work in the email correspondence. It was clear to the Tribunal that you were offering yourself the private shifts and that, in fact, you were not formally booked for the private shifts, you believed yourself to be so. When asked by the Tribunal about your use of the word 'booked' you accepted that you would not use this word in relation to your NHS work. You said that you believed you had not been booked for private work that weekend but the Tribunal's view was that this assertion was not borne out by the documentary evidence."
"12. It has found proved that you agreed to provide locum cover to the private until at Charing Cross ('the private unit') on 7, 8 and 9 March 2015 when you were already contracted to work for the NHS on those dates.
13. It has been found proved that you did not work on 6 March 2015 and you knew that you had not worked in the private unit on 6 March 2015. You also knew that you had worked overlapping shifts for the NHS and the private unit on 7, 8 and 9 March 2015. On 10 March 2015 you subsequently submitted a claim form for the private locum work; this contained a false claim for payment which you knew to be false. Your actions in this regard were found to be misleading and dishonest.
14. In the Tribunal's view you breached the principles of probity contained within the GMP as outlined above. You behaved dishonestly twice and could have profited personally from your dishonest claim for payment if it had been processed. The Tribunal was in no doubt that this falls seriously short of the standards of conduct that the public and patients are entitled to expect from all registered medical practitioners. It concluded (and it was accepted by you) that the matters admitted and found proved were sufficiently serious to amount to misconduct."
"The Tribunal considered the oral evidence you gave on answering questions from the Tribunal members. It noted that even though you were not intending to give evidence at this stage of the proceedings, you were willing to answer questions which the Tribunal had for you. The Tribunal considered your answers to be truthful, credible and open. It found you to be full of remorse for your actions and shameful about your misconduct. It was satisfied that although you denied some allegations at the outset, you fully accepted the Tribunal's findings in relation to these. It recognised that you were humbled by the findings made at the first stage of the proceedings and by the entire regulatory process."
"The Tribunal acknowledged that reasonable and fully informed members of the public would be aware that you have taken considerable steps to satisfy this Tribunal that you will not repeat your repeat your misconduct. However, its view was that your actions fell so far short of expected standards, given that you behaved dishonestly twice and may have profited from your dishonest behaviour, the Tribunal was satisfied that this was not an exceptional case which would justify a finding of no impairment. It decided that public confidence in the profession would be seriously damaged and proper professional standards would not be maintained if a finding of impairment was not made. It therefore found your fitness to practise impaired on that basis."
"• Your dishonest actions were premeditated. A number of months in advance, you agreed to provide locum cover in the private wing of the hospital for a number of days, full in the knowledge that you were contracted to work in your NHS post on these days;
• Patients were placed at risk of harm by your actions."
"The Tribunal balanced those with the mitigating factors in this case:
- Your high level of insight into your misconduct as demonstrated in your evidence and reflective logs, and your extensive remediation;
- You have apologised for your actions and expressed genuine remorse and shame;
- You have taken this opportunity to develop yourself both professionally and personally. You have undertaken coaching training and have now developed those skills so that you take a more 'holistic' approach to your role as a doctor; you actively support to your colleagues as a consequence of your personal development during this process. The Tribunal noted that you were nominated as the 'best individual coach amongst the students present' on the coaching course;
- Your previous good character and that you are held in high esteem by patients and your colleagues both senior and junior, including your Assistant Postgraduate Dean who has been very supportive of you;
- You have been open about this hearing with colleagues, you have had full and frank discussions with many of them as demonstrated by their comments in the testimonial documentation adduced;
- It has been over two years since the events explored in this hearing and the Tribunal has been presented with no evidence of repetition of similar actions."
"...any suspension in these proceedings, for any length of time, will result in the loss of your national training number. The Tribunal carefully considered the email from Dr Shannon dated 11 May 2017. She confirmed that once the training number is lost, you may be able to apply to re-enter the training programme, but only with the support of your Postgraduate Dean, and even then, you would be obliged to re-enter the programme at the level of ST3 (whereas you are currently at ST7 level).
24. The Tribunal was aware that suspension is frequently considered to be an appropriate and proportionate sanction in a case of dishonesty where there has been insight and remediation. Further, it was aware that many doctors in these Tribunals will suffer the loss of [their] national training number if their registration is suspended. However, its view was that the position in which you will find yourself, should a suspension be imposed in this case, was unusual and uncommon. This is because you have undergone many years of training in the anaesthetics training programme. You are now in your final year of training and will be eligible to apply for a consultant post relatively soon. Should your registration be suspended, you may not be able to return to the training programme at all; if you receive the requisite support and are permitted to reapply, you will then have to compete with others nationally to regain a place and can only apply for a place which is five years behind where you are now in your training. In the Tribunal's view, this means that you would be in a worse position than, for example, a trainee doctor at the ST2 or ST3 level, who (if given an opportunity to reapply) would not have to regress 5 years in their training programme. The Tribunal was in no doubt that whilst you have acted dishonestly, and behaved in a premeditated way in the past, such a consequence, should it occur, would be wholly disproportionate because a suspension, even if short, could effectively ruin your career. It was evident, from the documentation before the Tribunal, that you are a competent and trusted trainee who has a promising career ahead of you."
"It was acutely aware that the fortunes of an individual doctor must not be given more weight than the need to maintain the reputation of the profession. However, it was similarly aware of the public interest in ensuring that the career of a competent doctor is not ended (Giele v GMC  EWHC 2143 (Admin). It was evident to the Tribunal from the testimonials provided that your colleagues held you in high esteem" and they then referred to a number of them.
"Overall, the Tribunal had regard to the far-reaching effects of the remediation undertaken by you, and the inevitable loss of your training number and its allied consequences if your registration was suspended. Its view was that the loss of your training number in the event of a suspension and the connected consequences was a powerful and persuasive argument when deciding the proportionality of any sanction. It concluded that this was a case in which exceptional circumstances prevailed which would justify it in taking no action. In relation to paragraph 63 of the SG, this states that the Tribunal should consider:
(a) What the exceptional circumstances are:
The far-reaching impact that these proceedings and the remediation undertaken have had on your abilities as a professional and an individual. Also, the potential loss of your career as a consultant anaesthetist should your registration be suspended.
(b) Why are the circumstances exceptional:
This is because in the Tribunal's view, it is uncommon for a doctor who has acted dishonestly in a case where there were no clinical issues to take such significant steps to remediate his practice that they have led to an improvement in his overall abilities and qualities as a person and as a professional. In relation to your national training number, your position is exceptional because given your current seniority in the training programme, the loss of the number (if you were suspended) would set your career progression back by at least 5 years and could your damage your opportunities to become a consultant at all in the future.
(c) How the exceptional circumstances justify taking no action:
The exceptional circumstances identified have persuaded the Tribunal that given your insight, remediation, current skill level, ability to lead teams and the high esteem in which you are held by your colleagues, the public interest would be best served by allowing you to return to practice. The Tribunal concluded that conditions would serve no useful purpose, given that there is low risk of repetition, and a suspension would have far-reaching adverse consequences for your career which would be disproportionate in all the circumstances and particularly serious for you at such an advanced stage in your career.
28. The Tribunal was also mindful that a finding of impaired fitness to practise had been made, and that whilst the Tribunal has decided to take no action, this finding will remain with you. The Tribunal was satisfied that public confidence in the profession and the need to maintain proper standards of conduct and behaviour would not be undermined by its decision to take no action. Fully informed and reasonable members of the public would know about your misconduct but equally, they would know about the steps you have taken to put things right, the positive impact of these steps on your skills and abilities as a doctor, and the devastating consequences for you and your potential patients, if your national training number was removed."
"(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."
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 CPR 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 CPR 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 Electronics 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 over-arching objective of the General Council in exercising their functions is the protection of the public.
(18) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession."
"62. Where a doctor's fitness to practise is impaired, it will usually be necessary to take action to protect the public (see paragraphs 14-16). But there may be exceptional circumstances to justify a tribunal taking no action.
63. To find that a doctor's fitness to practise is impaired, the tribunal will have taken account of the doctor's level of insight and any remediation, and therefore these mitigating factors are unlikely on their own to justify a tribunal taking no action.
64. Exceptional circumstances are unusual, special or uncommon, so such cases are likely to be very rare. The tribunal's determination must fully and clearly explain:
(a) what the exceptional circumstances are
(b) why the circumstances are exceptional
(c) how the exceptional circumstances justify taking no further action."
"114. Good medical practice [which is a reference to other guidance] states that registered doctors must be honest and trustworthy, and must make sure that their conduct justifies their patients' trust in them and the public's trust in the profession.
115. In relation to financial and commercial dealings, paragraph 77 of Good medical practice also set out that:
'you must be honest in financial and commercial dealings with patients, employers, insurers, and other organisations or individuals.'
116. Paragraphs 78-80 of Good medical practice and the separate guidance on Financial and commercial arrangements and conflicts of interest, further emphasise the duty to avoid conflicts of interest."
"You must be honest in financial and commercial dealings with patients, employers, insurers and other organisations or individuals."
"Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.
86. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession). "
"1. If NTN was removed, Dr Patel could only reapply with the support of the Postgraduate Dean. It is likely (but not guaranteed), that that would be granted given the good progress he has made and the support offered by his local trainers."
1. . If NTN was removed and condition (1) occurred Dr Patel would be able to reapply for an NTN but this would be in open competition.
3. It is difficult to say for sure what the future competition ratios would be but past recruitment processes have generally been in the order of 1 post for each 2-3 applicants.
4. The recruitment process is an annual National process with a recruitment window usually for anaesthetics in December to January, for a start date the following August.
5. Dr Patel would be reapplying for entry at ST3 which is 3 years lower than his current grade [I think that should be 5 years lower] than his current grade. Occasionally if a trainee is judged to have appropriate competencies they can be accelerated through training, but this is not guaranteed, is unpredictable and depends on gaps further along the training programme.
Entry at ST3 is likely to prolong his training by around 3 years."
"The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the Tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the Tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely to be, so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
"50. First, in my judgment, the overarching function of the GMC as set out in s. 1(1A) of the Act informs the meaning of impairment of fitness to practise by reason of misconduct in s. 35C(2), so that under s. 35C(2) and s. 35D the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public's confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
51. Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at  (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving "a rape or misconduct of that kind", in relation to which - by implication - such evidence might be less significant)."
"...Dishonesty and the maintenance of clinical records does go to the heart of the public's trust in medical practitioners. It is, as Mr Spencer acknowledges, a very serious matter for a doctor to be found to have prepared clinical notes with a view to misleading, and dishonestly.
26. Under the heading 'Suspension', in paragraph 27 the Indicative Guidance notes that it can be "used to send out a signal to the doctor, the profession and the public about what is regarded as unacceptable behaviour", especially in circumstances where the incident is unlikely to be repeated.
27. "In this case, the panel made no express finding whether this instance of dishonesty was or was not likely to be repeated. I am content to proceed on the basis that there is no reason to believe that it will be. But it remains a serious act of misconduct on the part of Dr Nicholas-Pillai.
The panel received, and I have read, testimonials for Dr Nicholas-Pillai, and evidence from Dr Marks, in which he spoke of his long knowledge of
Dr Nicholas-Pillai and of his astonishment that this act of dishonesty had occurred. I proceed on the basis that, apart from this incident, Dr Nicholas-Pillai has had an exemplary professional career, and one which is of great value to his patients, and that in depriving his patients of his services for six months, they will be deprived of something of value to them.
These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty. In this case, the panel, it seems to me, took a merciful course by deciding only to suspend Dr Nicholas-Pillai, and to do so for six months. I find it quite impossible to say that that sentence was disproportionate to the professional misconduct which it found proved, or is in any way open to criticism."
MR HARE: My Lord, we are very grateful for that. The GMC does apply for its costs of the appeal. My learned friend has seen a copy of the cost schedules. I hope they have reached your Lordship, but if they haven't I have brought a spare copy.
THE JUDGE: I was given one on the last occasion. I don't think I've seen one since then.
MR HARE: Well, there was that one, and then there is the further one. Could I just hand them both up; that might be the easiest way. And then your Lordship has them both together. Thank you very much.
So, my Lord, we say obviously we have succeeded in relation to the ground of appeal advanced and therefore in principle we are entitled to our costs. We invite the court to assess them summarily. Obviously the hearing took less than one day, so that is the presumption. Unless you want
THE JUDGE: Can I just ask you: is there any objection to the costs in principle?
MR LAMBIS: My Lord, the only matter that we'd raise, obviously you can appreciate that the cost is having on my lay client (sic). The only issue we would raise is whether it was really necessary, my Lord, forgive my voice, whether it was strictly necessary for two solicitors to be present on the last occasion.
THE JUDGE: Yes. But in principle, you accept?
MR LAMBIS: Yes.
THE JUDGE: Yes. So the only -- there is no issue about the rates. Can the GMC recover VAT?
MR HARE: Yes, just in relation to counsel fees but there is no VAT on there obviously for solicitors' fees because it was dealt with in house.
THE JUDGE: Oh, I see. Attendance at the hearing, it is true: you had two solicitors here. There is no need for that, is there?
MR HARE: Yes. The reason for that, my Lord, I would say quite simply is that there is a solicitor who is responsible for the conduct of the case before the Medical Practitioners Tribunal, who attended.
THE JUDGE: Mmm.
MR HARE: But then also Mr Percival, who sits behind me, is responsible overall as senior legal counsel for the GMC for all its appeals. So that's why both attended. They are obviously slightly different exercises, but we would say it was reasonable to have both, in the circumstances, my Lord.
THE JUDGE: Yes. No, I'm afraid not. It seems to me you could have done with one. So that takes £868 plus VAT, I think, out of the
MR HARE: Just the £868, yes, my Lord. There is no VAT on that.
THE JUDGE: Sorry.
MR HARE: And there is only a claim for one solicitor submitted for today, in the schedule for today, my Lord.
THE JUDGE: Right. Okay. So if we take £868 off the total. Has someone got a calculator?
MR HARE: £11,920, I think, for the main hearing, my Lord. And 50 pence; sorry.
THE JUDGE: £12,954.50.
MR HARE: Yes, I think.
THE JUDGE: I don't have a calculator.
MR LAMBIS: I (inaudible) give my Lord a calculator.
THE JUDGE: No, no, no.
MR LAMBIS: I agree with figure I think.
THE JUDGE: Yes. So I will summarily assess the costs at £12,954.56. Anything else?
MR LAMBIS: Nothing else from us, my Lord.
MR HARE: My Lord, no.
THE JUDGE: Well, thank you both very much for your submissions. I am sorry I didn't manage to get you a draft in advance, but I thought it was better just to give judgment rather than wait for it.
MR HARE: Thank you, my Lord.