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Appeal by Dr Muhammad Rashid Masood against the GMC (Court of Session) [2024] CSIH 27 (17 September 2024)
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[2024] CSIH 27
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 27
XA53/23
Lord Justice Clerk
Lord Malcolm
Lord Tyre
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Appeal
by
DR MUHAMMAD RASHID MASOOD
Appellant
against
THE GENERAL MEDICAL COUNCIL
Respondent
Appellant: Party
Respondent: Byrne KC; Anderson Strathern LLP
____________________
17 September 2024
Introduction
[1]
This is an appeal under section 40 of the Medical Act 1983. The appellant is a
registered doctor. He was the subject of fitness to practise proceedings raised by the General
Medical Council arising from allegations made by his ex-wife, Ms A, that between
November 2016 and November 2017, he emotionally, physically and sexually abused her.
The proceedings contained allegations set out over 43 paragraphs and a greater number of
2
sub-paragraphs. In addition to the allegations of abuse, it was alleged that the appellant had
attempted to interfere with the fitness to practise process and that he was convicted on a
domestically aggravated offence under section 38(1) of the Criminal Justice and Licensing
(Scotland) Act 2010 which resulted in his being made subject to an order for absolute
discharge. The complainer in respect of the latter offence was Ms A.
[2]
On 20 October 2023 the Medical Practitioners Tribunal (MPT) issued its decision. It
found the majority of allegations, including all the sexual allegations, not to be proved.
Certain allegations of emotional and physical abuse were established, together with the
additional allegations mentioned above. The Tribunal found that, with the exception of the
limited emotional abuse, the appellant's conduct amounted to serious misconduct, that his
fitness to practise was impaired as a result, and ordered that his name be erased from the
medical register.
[3]
The appellant appeals against that decision. He contends that certain aspects of the
Tribunal's findings were perverse and that the sanction imposed was disproportionate.
Background
[4]
The appellant qualified with MBBS in 1997 in Lahore, Pakistan. He has worked in
the UK since August 2003. In November 2016, whilst visiting Pakistan, he married Ms A,
who was at the time living in Pakistan and working as an engineer. Ms A joined the
appellant in the UK on a spouse visa in March 2017. They resided together in Glasgow until
November that year before returning to Pakistan via Turkey. Whilst in Pakistan the
appellant instructed Ms A to go to stay with her parents while he dealt with private matters.
Without Ms A's knowledge he returned to the UK and arranged to have divorce papers
served upon her. Ms A's spouse visa was revoked.
3
[5]
With the assistance of her brother Ms A returned to the UK in July 2018. She
reported the appellant to the police in August 2018 and first raised concerns with the GMC
in September 2018. She also obtained a non-molestation order from a Family Court in
England and Wales in August 2018. In December 2019 the appellant was found to have
committed an offence against Ms A, receiving an absolute discharge.
The findings
[6]
Whilst the allegations contained 43 paragraphs, only those found proved are of
importance in the present appeal. These are as follows:
Paragraph 5 Part (b)(iii)(1) stated that the appellant emotionally abused Ms A during a
visit to Pakistan in or around January/February 2017 in that he told her that her job was
worth nothing in his eyes.
Paragraph 8 Part (a) was that the appellant emotionally abused Ms A on 18 March
2017 by checking her mobile phone and social media. Part (c) was that he called Ms A
and/or her family an offensive name, namely "bitch".
Paragraph 33 Part (a), to the extent proven stated that on or around 25 September 2017
the appellant physically abused Ms A, in that he pushed her against a wall, grabbed her
arms, put his hand over her mouth, put his finger into her mouth and pulled onto the side of
her cheek, pulled the chain she was wearing around her neck and head-butted her on one or
more occasion.
Paragraph 39 Part (a), to the extent proven, was that on 4 November 2017 the
appellant physically abused Ms A whilst in a hotel room in Turkey in that he punched her
face.
4
Paragraph 42 On a date between around 18 March 2019 and 10 June 2020 the
appellant instructed a lawyer in Pakistan to write to Dr F in terms designed to interfere with
the GMC fitness to practise process by stopping Dr F from providing information in support
of Ms A. Dr F had produced a report summarising her assessment of Ms A in Pakistan
which contained a diagnosis of temporomandibular joint dislocation. The closing section of
the letter from the appellant's lawyer was in the following terms:
"in view of the foregoing facts and circumstances, you are hereby called upon to
verify whether the document has been issued by you. You are further solicited to
forthwith withdraw the document and the contents thereof by unambiguous written
declaration and issue an unconditional apology to my client, in the event that the
document is, indeed genuine. Failure to comply and make the foregoing
clarifications(s) pertaining to the document my client shall be constrained to invoke
his legal rights and initiate necessary actions against you in the Court(s) of law and
requisite medical practitioner's regulatory forums including and not limited to
PMDC and Sindh Health Care Commission."
Paragraph 43 On 16 December 2019 at Paisley Sheriff Court the appellant was found
to have committed a domestically aggravated offence under section 38(1) of the 2010 Act, for
which he received an absolute discharge. That offence arose from an incident of emotional
abuse of Ms A on or around 8 October 2017.
[7]
Having made these findings, the Tribunal then considered the question of
impairment. It concluded that the relatively low level emotional abuse did not amount to
serious misconduct, but that the remaining allegations did so. Whilst the conduct was
capable of remediation, there was no evidence of this, and there was minimal insight, such
that it could not be said that there was little risk of repetition. The Tribunal thus found that
fitness to practise was impaired. As to sanction, the Tribunal reflected on all the
circumstances, including mitigation, and considered whether suspension would meet the
case, before concluding that a sanction of erasure was necessary.
5
The Tribunal's assessment of the evidence in respect of the established allegations
General
[8]
The Tribunal noted that Ms A had throughout given a generally consistent account
but was unwilling to make concessions when faced with documents which challenged her
account. It noted a tendency to exaggerate. The appellant was prepared to make
concessions regarding documentation but reluctant to expand on issues raised, relying on
bare denials. It was suggested that during cross examination he introduced a new reason for
the bruising in Turkey (a clash of heads) which had not been put to Ms A. The Tribunal
proceeded to consider each allegation separately, setting out directions to itself as to how to
proceed.
Paragraph 5
[9]
The appellant did not deny that he spoke about Ms A's job in negative terms. Social
media messages were produced in which the appellant spoke dismissively about Ms A's job
calling it inter alia "shit". The appellant had accepted that conversations surrounding Ms A's
job took place at the relevant date. The Tribunal concluded that to undermine Ms A's
confidence or self-worth by disparaging her job in this way amounted to emotional abuse.
Paragraph 8
[10]
(a)
The evidence was that the parties shared their device passwords from
January 2017. Ms A continued to have access to the appellant's passwords following her
arrival in the UK and this was only removed once the relationship deteriorated. The
Tribunal deduced that the appellant would have had access to Ms A's passwords. The
evidence was that both had significant insecurities, manifesting in signs of jealousy and
there was a developing lack of trust between them. Controlling reactions by the appellant to
6
Ms A's use of Facebook in February 2017 were noted. The Tribunal was of the view that it
was more likely than not that he would have accessed Ms A's passwords from time to time,
and with the purpose of monitoring or controlling her activity. This had the same effect as
the conduct in paragraph 5. Ms A gave evidence that she found it emotionally distressing.
[11]
(c)
Ms A had said from an early stage that the appellant insulted her and her
family. This was referred to both in support of her application for the non-molestation order
and within her initial complaint to the GMC. There was no evidence to support Ms A's
allegations about most of the derogatory terms she said the appellant used, but there were
WhatsApp messages in which the appellant called her a "bitch". The Tribunal found the
allegation proved to this extent, and that this amounted to emotional abuse undermining or
eroding Ms A's confidence and self-worth.
Paragraph 33
[12]
Ms A produced a photograph which she took of herself, which showed around four
small red injuries to her bottom lip and redness in the middle and on one side of her lip. A
number of other photographs were produced, date stamped 26 September 2017 at 12:39pm,
showing evidence of marks and bruises on her body. The appellant relied on a video dated
26 September 2017 in which Ms A could be seen smiling and talking to the appellant who
was behind the camera. The Tribunal found that the injury to Ms A's lip was seen in the
picture and the video, documenting facial trauma. In the absence of an accident, which was
not suggested, the photographs showed injuries of a physical assault. The appellant's
evidence that he had not noticed the injuries to Ms A was not credible. They shared the
same bed and continued to have sex. The Tribunal found the physical abuse proved insofar
as consistent with the injuries shown in the photographic evidence. However, the Tribunal
was not satisfied as to the other allegations of physical abuse, which had included
7
attempting to suffocate her with a scarf, in respect of which Ms A was not an entirely reliable
witness. Ms A had a tendency on occasions to exaggerate or embellish her accounts of her
injuries. She had suggested the injuries were so severe that she was unable to get out of bed
for two days. This was not borne out by the video evidence.
Paragraph 39
[13]
The appellant gave evidence that their time in Turkey was not pleasant. Ms A had
been making continuing allegations about his ex-wife (he described her as obsessed) and
insisted he should not see his children. By the end of the trip it was clear the marriage
would not work. In her police statement Ms A described verbal abuse in the lobby of a hotel
in Istanbul and thereafter physical abuse in the hotel room. The contents of her police
statement were consistent with her statement to the Tribunal, save that the latter contained
additional allegations of biting her cheek and all over her body. Ms A relied on
photographic evidence and a letter from Dr F dated 10 November 2017. Dr F examined
Ms A in Pakistan and diagnosed her with a dislocated jaw. The appellant relied on
unchallenged evidence from a maxillofacial surgeon that there was no dislocation.
[14]
The Tribunal reasoned that there was no dispute that the parties were rowing on
arrival to the hotel. The photographic evidence showed visible injury to Ms A's body on the
relevant date, but did not support the ferocity of the attack she described. The Tribunal
placed little weight on Dr F's letter, which was written in an unusual manner. The Tribunal
rejected a belated explanation offered by the appellant during his evidence that the injury
was caused by an accidental clash of heads as he lent in to kiss Ms A during intercourse.
This was not consistent with the injury evidenced in the photographs. Further, because it
was not raised earlier, Ms A did not have the opportunity to challenge it. Ms A's evidence
that the injury was caused by a punch to the face, insofar as it was supported by the extrinsic
8
photographic evidence, was preferred. However the Tribunal again noted that there was
insufficient evidence to support the physical abuse by the other means specified in the
allegation. Some of it, such as that the appellant head-butted Ms A, was not introduced by
her until some time after her initial statement to the police. Whilst delays in disclosure
might be explained by trauma, the Tribunal referred back to its earlier finding that Ms A was
prone to embellishing her account.
Paragraph 42
[15]
The appellant gave evidence that he was concerned that Dr F was not qualified to
prepare a medical report and was doing so for reasons which were inappropriate and
unethical. He feared not being able to practise medicine in Pakistan again. He instructed
the lawyers in Pakistan to write the letter to Dr F. He had no influence over or input into its
terms, but had seen a draft and instructed that it be sent. In addition to the closing section of
the letter quoted above, it asserted that the report "concocted .... heinous allegations
against" him, "defamatory and libellous information" and had caused "severe irreparable
miseries and physical mental and societal losses to him". It suggested that the fitness to
practise proceedings were concocted and initiated by Ms A on the strength of Dr F's letter.
The appellant said in evidence that at the time of doing so he was not thinking of the GMC's
investigation, but about protecting his interests in Pakistan. Ms A notified the GMC that
Dr F had received the intimidating letter. Dr F responded to the GMC that it was never her
intention that the letter be part of a fitness to practise investigation and advised that she had
no interest in the matters in dispute and wished to take no part.
[16]
The Tribunal found that the letter was written in clear and unambiguous terms and
with a clear purpose. The appellant accepted its tone was threatening and intimidating. The
9
letter only arose as part of the GMC investigation given its proximity to the investigation. It
was not credible that the appellant had not thought about the investigation at the time.
Paragraph 43
[17]
The extract conviction was produced. There was no detail as to the nature or extent
of the abuse involved, but counsel for the appellant advised that it involved "words not
actions". The appellant accepted that he had been found guilty, but at the same time said he
intended to explore his options for challenging the court's decision.
Impairment
[18]
Counsel for the appellant made no submission on the question of impairment. The
Tribunal observed that the first issue was whether the proven allegations amounted to
serious misconduct. The emotional abuse was relatively low level and did not. However
the physical abuse took place in the context of domestic violence. This was an aggravating
factor - society had become increasingly intolerant towards violence perpetrated in the
domestic setting. The appellant's conduct did not ensure public trust in the profession and
had the clear potential to bring the profession into disrepute. Fellow practitioners would
regard it as deplorable and not befitting of a medical practitioner. The appellant's attempts
to interfere with the fitness to practise process also amounted to serious misconduct. It
demonstrated disregard for the role and responsibility of the GMC as the regulator and
breached the appellant's professional requirement to cooperate with complaints procedures.
Taken together the conduct fell so far short of the standards of conduct reasonably expected
of a doctor as to amount to serious misconduct.
[19]
Turning to the question of remediation, the Tribunal applied a "three-fold test":
(i) was the conduct remediable; (ii) had it been remedied; and (iii) was it highly unlikely to
reoccur (Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council and Paula
10
conduct was capable of remediation. However the appellant had not produced evidence of
remediation. The Tribunal referred to: the positive testimonials provided by colleagues and
neighbours; the appellant's appraisals which contained limited reference to the nature of the
allegations, showing a degree of openness; the appellant's oral and written evidence in
which he made concessions regarding the intimidating letter; and that he had otherwise
shown an appropriate level of recognition for the role of the regulator by complying with
conditions placed upon his registration and engaging with the proceedings.
[20]
There was however minimal evidence of insight. There was no insight as to how his
behaviour had brought him before the regulator, nor was there evidence of steps he might
have taken to understand how his behaviour could impact upon others including the public
and the profession. The appellant sought to excuse the interference allegation and he did
not accept that the conviction on the section 38(1) offence was correct. The level of insight
shown was not sufficiently developed to indicate there was little risk of repetition of the
behaviour, notwithstanding the fact that there had been no repetition in the intervening six
years. A finding that the appellant's fitness to practise was impaired was required to
promote and maintain public confidence in the medical profession and to promote and
maintain proper professional standards and conduct of that profession. A member of the
public would consider that a finding of impairment should be made.
Sanction
[21]
Counsel for the GMC submitted that the appropriate sanction was one of erasure.
Counsel for the appellant submitted that suspension would be an appropriate sanction.
There was no evidence to demonstrate that remediation would prove unsuccessful. The
conduct although serious and wholly unacceptable, was at the lower end of the scale. The
11
behaviour had not been repeated. The testimonials provided evidence of character. He was
effectively the sole practitioner at his surgery between Wednesday and Friday, thus erasure
would have a knock on effect for the wider community. The appellant's wider family would
also face significant hardship as a result of erasure.
[22]
The Tribunal identified the mitigating factors: a good work record; positive
testimonials, appraisals and patient feedback demonstrating competence as a doctor; the
significant lapse in time since the events; and the lack of evidence of repetition. The
aggravating factors included: lack of insight into the impact of his actions; the lack of
apology or remorse for interfering with the GMC investigation; and that the abusive conduct
was perpetrated in the domestic setting.
[23]
The Tribunal thereafter considered the available sanctions beginning with the least
severe. There were no exceptional circumstances which would justify taking no action; and
the imposition of conditions on the appellant's registration would be disproportionate to the
gravity of the conduct.
[24]
Suspension could have a deterrent effect. Whilst recognising that the appellant was
entitled to maintain his denial, the Tribunal noted that he had continually failed to
acknowledge or take any responsibility for the part he played in coming before the
regulator. The interference and conviction allegations were indisputable facts. The
appellant had been aware of his wrongdoing in this regard since 2020 and 2019 respectively,
yet failed to address either of these matters. He did not instruct a letter of retraction or
apologise for the consequences of his actions in seeking to interfere with the investigation.
Although the appellant had expressed shame in relation to the language he used towards
Ms A, he also suggested that the professionally translated words had a different meaning in
his language. There was an extremely poor level of insight. Accordingly, the Tribunal could
12
not be satisfied that there was a low risk of repetition. Lack of repetition to date might be
explained by the fact that no situation had arisen in which the appellant felt the need to
protect his interests. Despite the time he had to address his conduct he had not done so. It
was of minimal relevance to the fitness proceedings that the violence was at the lower end of
the scale standing the psychological impact spoken to by Ms A in her evidence.
The appellant's conduct was incompatible with continued registration. Although it might
have been remediable, it had not been remedied. He had shown a deliberate and reckless
disregard for the principles set out in GMP (Good Medical Practice, (2013)); his conduct
involved an abuse of position/trust; and the offences involved violence.
[25]
It was clear that the appellant was a good doctor held in high esteem by patients and
colleagues and that erasure would have a severe impact on his family. However the
Tribunal noted that it was neither his clinical practice nor relationship with his colleagues
that brought him before the regulator. His actions seriously undermined the reputation of
the profession. It followed that only erasure was appropriate.
Submissions for the appellant
[26]
There are five grounds of appeal.
Grounds 1 and 2
[27]
These contend that the Tribunal's findings in relation to paragraphs 33 and 39 were
perverse. The findings relative to paragraph 33 did not reflect the available evidence.
Ms A's evidence in relation to this matter was inconsistent in various ways internally and
with other evidence. The Tribunal's approach to the evidence was also inconsistent. The
Tribunal rejected significant parts of Ms A's evidence, but had not explained why it felt able
to accept other parts despite finding her, at least in part, not to be a credible witness. Clearer
13
reasons were required (R (on the application of Mohammad) v General Medical Council
[28]
In relation to paragraph 39, the bruising shown on the video evidence was not
commensurate with the ferocity of the attack Ms A had described. It was consistent with an
accidental clash of heads, which suggestion was put to Ms A despite the Tribunal finding to
the contrary. Ms A's evidence was largely inconsistent with a punch as the cause of her
injuries.
Ground 4
[29]
It is convenient next to mention this ground which asserts that it was perverse for the
Tribunal to prefer Ms A's evidence over the appellant's evidence, having regard to the
various adverse credibility findings against her. Over 92% of her allegations against the
appellant had been rejected due to contradictions, inconsistencies and discrepancies in her
account. It was incumbent on the Tribunal to explain why, notwithstanding these findings,
it felt able to accept her evidence and find certain paragraphs proved (R (on the application of
Mohammad) v General Medical Council (supra)). It had not done so.
Ground 3
[30]
This contends that certain mitigating factors were not advanced on the appellant's
behalf in relation to paragraphs 42 and 43, despite being provided to counsel. Instructing
the sending of the notice to Dr F had been the sort of reasonable mistake anyone under the
stress experienced by the appellant might make. This was a mitigatory factor not taken into
account by the Tribunal. The appellant was not afforded the opportunity at the end of his
evidence to express his unconditional regret and shame for using inappropriate language
towards his ex-wife and to apologise for contacting the witness. The appellant had
14
otherwise fully cooperated and supported the GMC's investigation. There was substantial
mitigation which should have been taken into account.
Ground 5
[31]
This relates to the sanction imposed. Erasure was wholly disproportionate. The
appellant had not been suspended during the investigation. Most of the allegations against
him were found not proved. The testimonials spoke to his good character, a factor to be
taken into account in assessing credibility and propensity (Donkin v Law Society
account in determining whether the allegations were proved. It was dismissed at the
hearing on sanction. The context of the complaint that there was no clinical concern for or
risk to patients was important. The length of time the investigation lasted, the quality of the
evidence, the appellant's unblemished record, the lack of risk to patients or anyone else and
the appellant's right to earn a livelihood were not taken into account. The imposition of
conditions on the appellant's registration or suspension would not have been regarded by a
reasonable and informed member of the public with knowledge of the facts as too lenient,
nor would this level of sanction diminish public confidence in the profession.
[32]
Ex hypothesi the two allegations involving physical domestic violence were not
proved, the remaining issues did not justify erasure. The emotional abuse did not amount to
serious misconduct. Under the GMC's guidance a conviction resulting in a conditional or
absolute discharge may not be considered as a conviction for the purpose of fitness to
practise proceedings. The Tribunal would have come to a different conclusion had the
mitigating factors relating to the interference allegation been highlighted. Evidence of
remediation had now been produced. The appellant has lodged various certificates of
courses which he had undertaken in relation to inter alia domestic abuse awareness and
15
anger and conflict management. He has also prepared a reflective statement and produced
an email in which he apologises to Dr F. Erasure would deprive the NHS and the
community of an experienced clinician and would in effect amount to collective punishment
of the appellant's children due to the appellant's role as the breadwinner of the family.
Submissions for the GMC
[33]
The Tribunal's decision as a specialist Tribunal was entitled to respect. It was for the
Tribunal to assess the seriousness of the misconduct. The court could only interfere where
there was a "serious flaw in the process or the reasoning" or where the decision could be
said to be plainly wrong or "manifestly inappropriate" (Professional Standards Authority for
Health and Social Care v Nursing & Midwifery Council 2017 SC 542; Mallon v General Medical
Council 2007 SC 426). It had not been shown that the decision was plainly wrong. The
decision was careful, reasoned and detailed, running to 167 pages. It followed a lengthy
hearing at which the MPT had the very substantial advantage of hearing the evidence.
[34]
The reasoning in relation to paragraphs 33 and 39 was clear and logical. The weight
to be attributed to particular factors was a matter for the Tribunal, which was entitled to
place weight on the factors it did. The allegations insofar as proved were supported by
extrinsic objective evidence. The position adopted by the appellant in his third ground of
appeal was inconsistent with his position during the fitness to practise proceedings, and in
his other grounds, that the allegations against him were false and Ms A was not a credible
witness. It was not for this court to determine whether or not Ms A was credible. That was a
matter for the Tribunal. The appellant's submission that she was not was simply an assertion
and not a basis upon which to challenge the Tribunal's decision.
16
[35]
The decision on sanction is a multi-factorial one, akin to a jury question, on which
reasonable people may differ. It is pre-eminently a matter for the Tribunal's expertise and
judgement. As such, there was similarly limited scope for the appeal court to intervene; it
could only do so where the decision contains an error in principle or is plainly wrong
(General Medical Council v Bawa-Garba [2019] 1 WLR 1929, paragraphs 60-68). The appellant
had not demonstrated that this was the case. The Tribunal was entitled to take into account
the domestic context of the assault and the increasing intolerance within society towards this
type of violence; and to give considerable weight to the appellant's attempt to interfere with
a witness. The Tribunal carefully balanced the factors in the appellant's favour. There was
little insight and the Tribunal could not find that there was little risk of repetition. The
Tribunal was entitled to give weight to the need to promote and maintain public confidence
in the medical profession and to promote and maintain proper professional standards and
conduct of that profession.
[36]
The court should not consider the new evidence upon which the appellant had
sought to rely, which failed most if not all of the limbs of the test for admission (Chowdhury v
General Medical Council, 2023 S.L.T. 4, 04paragraphs 27-28). It could have been obtained
earlier and there was no reasonable explanation why it had not been. It sat uneasily with the
appellant's continued denial of the allegations throughout the proceedings. The importance
in finality of lengthy proceedings meant that it would not be in the interests of justice to
have regard to the new material. In any event it was unpersuasive and immaterial.
Analysis and decision
General
[37]
This is an appeal from a specialist, regulatory Tribunal. As such the role of the court
17
is a limited one, as identified in Professional Standards Authority for Health and Social Care v
Nursing & Midwifery Council 2017 SC 542 (Lord Malcolm, delivering the opinion of the court)
at paragraph 25:
"In respect of a decision of the present kind, the determination of a specialist
Tribunal is entitled to respect. The court can interfere if it is clear that there is a
serious flaw in the process or the reasoning, for example where a material factor has
not been considered. Failing such a flaw, a decision should stand unless the court
can say that it is plainly wrong, or, as it is sometimes put, "manifestly inappropriate".
This is because the Tribunal is experienced in the particular area, and has had the
benefit of seeing and hearing the witnesses. It is in a better position than the court to
determine whether, for example, a nurse's fitness to practise is impaired by reason of
past misconduct, including whether the public interest requires such a finding. The
same would apply in the context of a review of a penalty."
[38]
In assessing whether there is any compelling reason to disagree with the findings
and determination of a specialist Tribunal, the court must look at the whole circumstances of
the case, bearing in mind that the primary purposes of the Tribunal lie in the protection of
the public, the maintenance of proper professional standards of conduct, and the
preservation and maintenance of public confidence in the profession. Where the
determination follows the leading of evidence, the court must also recognise that it does not
have the same advantages as the Tribunal which saw and heard the witnesses. This is a
relevant consideration in the present case where so much hinges on the Tribunal's
assessment of evidence led before it. The appellant himself referred to Khan v General
para 32:
"It is plain that where the conclusion of the FTP is largely based on the assessment of
witnesses who have been "seen and heard", this court will be very slow to interfere
with that conclusion. Nonetheless, the court has a duty to consider all the material
put before it on an appeal in order to discharge its own responsibility, appropriate
deference being shown to conclusions of fact reached on the basis of the advantage of
having seen and heard the witnesses. Where this court does not feel disadvantaged
18
by not having heard the witnesses, and the issues can be addressed with little
emphasis on the direct assessment of the evidence by the Panel, it is in a position to
take a different view in an appropriate case."
[39]
It is important to recognise that at the outset of its assessment the Tribunal took care
to set out the approach which it understood it should follow. In doing so the Tribunal
correctly identified:
(a)
the correct standard and burden of proof;
(b)
how it should deal with inconsistencies in the evidence, by application of its own
judgement on issues of credibility and reliability; and
(c)
that it required to exercise caution in its assessment of the issues arising.
[40]
In this latter respect the Tribunal acknowledged that it required to exercise care in
the assessment of sensitive issues such as arose in the case, especially in the absence of
documentary or supporting evidence; that it required to look at all the circumstances; that it
should not proceed merely, or even mainly, on demeanour of witnesses, which can be
misleading; that it could not speculate; and that it had to consider each allegation separately.
[41]
In short, the Tribunal proceeded exactly as it should, and reminded itself fully of the
principles upon which it should proceed. The Tribunal proceeded to address each
individual allegation; examined the evidence relevant thereto; considered whether there was
supportive or objective evidence available; and reached a conclusion in respect of each. We
can detect no flaw in the Tribunal's approach.
[42]
Contrary to the assertion of the appellant, the Tribunal did not merely accept the
evidence of Ms A in preference to that of the appellant. In some instances, indeed, it
preferred the evidence of the appellant. What the Tribunal did was examine the evidence
regarding each allegation separately, taking a discerning approach. In circumstances where
19
it accepted evidence of Ms A it did so because it was supported by other, objective, evidence
and having regard to its likelihood when considered in light of the whole evidence. As the
rather than the demeanour of a witness, a far more reliable indicator of truth lies in the
extent to which an account fits with contemporaneous material. In his oral submissions the
appellant drew attention to numerous contradictions which he submitted arose between
Ms A's evidence and statements she had made; within her evidence generally; and between
her evidence and the photographic or video evidence, submitting also that the Tribunal did
not consider or address these. There is no doubt that there were numerous inconsistencies
and embellishments in Ms A's evidence but it is equally clear that the Tribunal recognised
these and took them into account in reaching its conclusions. For example, in
paragraph 371, specifically referred to by the appellant, the Tribunal stated:
"The Tribunal found that whilst the video clip did show evidence of marks on
Ms A's face and mouth it did not demonstrate injuries that would have been
commensurate with the ferocity of the attack which she described. The Tribunal
found Ms A, on occasions, had a tendency to exaggerate or embellish her accounts of
her injuries, as previously found. Whilst once again Ms A had challenged the
authenticity of the video clip, there was no evidence that it had been falsely created
or edited."
[43]
The Tribunal noted various other inconsistencies: see for example paragraphs 372;
405; and 415. At paragraph 417 there is an example of Ms A's evidence simply being
rejected as untruthful.
[44]
It is clear that the Tribunal had some concerns about the reliability of Ms A's
evidence, given her tendency to exaggerate and her unwillingness to make obvious and
necessary concessions. It did not conclude however that she was thereby an incredible
witness. Without considering itself as requiring to find corroboration of her account, it is
apparent that the Tribunal accepted her evidence only where there was some additional
20
evidence, for example photographic or video evidence, or social media messages, which
allowed it to accept her evidence as both credible and reliable; and where the account given
was not inconsistent with its assessment of the evidence as a whole. In the course of its
assessment of evidence and statement of findings the Tribunal reminded itself both of the
standard and burden of proof. For example at paragraph 439 it stated:
"The Tribunal reminded itself that it was not required to make a finding that
something `could' have happened. The standard required is that it was more likely
than not that it `did' happen."
[45]
Similar statements, reflecting also the burden on the GMC may be found at
paragraphs 209; 224; 235. See also paragraphs 252; 285; 293; 343; 352; 370; 373; 390; and 396.
It is clear that the Tribunal retained these principles at the forefront of its consideration of
the allegations.
Grounds 1, 2 and 4
[46]
This issue is well illustrated by the Tribunal's approach to paragraphs 33 and 39
which it found proved only insofar as the injuries were vouched by extrinsic evidence and
insofar as the abuse alleged was commensurate with those injuries. It may be that the
Tribunal erred in saying that the parties shared a bed, but in our view this does not
undermine the Tribunal's findings, particularly since the injuries in question were
essentially facial ones, for which there was no other apparent explanation. A minor error
was made by the Tribunal in stating that the appellant's late explanation of an accidental
clash of heads to account for the injuries was not put to Ms A: it was put in cross-
examination. However, the alleged failure to put the point was only one aspect of the
Tribunal's reasoning, which noted further that this explanation was not consistent with the
photographic evidence. In any event, the Tribunal would have been entitled to consider that
21
little weight should be accorded to an explanation offered at such a late stage in the
proceedings.
[47]
The Tribunal was entitled to accept the evidence of Ms A on certain issues, especially
where supported aliunde, and to reject it in other respects. There is nothing unusual,
inconsistent or notable in such an approach, which is illustrative of a careful and considered
approach.
Ground 3
[48]
The appellant made no submissions on the issue of impairment. The issue of
whether the behaviour amounted to misconduct, whether it was serious, and whether
fitness to practise was thereby impaired is quintessentially one for the specialist Tribunal to
assess using its own expertise. The Tribunal noted that the appellant "did accept that the
language he used to Ms A was unacceptable and he expressed shame in respect of the
same". However, as per the sanction decision, any contrition appears to have been
equivocal, the appellant having attempted to suggest that the professionally translated
words had a different meaning in his language. The appellant had ample opportunity to
express remorse for having sent the intimidating letter. He accepted that the terms of the
letter were threatening and intimidating. He had accepted from the outset in his statement
that he instructed the letter be sent and then instructed the Pakistani lawyers to cease further
action once he was given advice on how the letter could be perceived. It is almost
inconceivable that had the appellant expressed such remorse, this would not have been
raised by counsel at the hearing on sanction where matters such as insight and remediation
were central. Moreover, the Tribunal's finding that the appellant could have but did not
retract the letter or apologise to Dr F would have remained.
22
[49]
The Tribunal approached the matter correctly by stages: was there misconduct; was
it serious; could it lead to a finding of impairment; was the Tribunal satisfied that there was
impairment as at the date of assessment. We can find no error in the Tribunal's approach.
We are satisfied that it was entitled to conclude that there was serious misconduct and to
make a finding of impairment.
Ground 5 sanction
[50]
In order to succeed under this ground the appellant must show that the sanction
imposed, erasure, fell outside the range of reasonable sanctions which the Tribunal could
properly and reasonably decide to impose (General Medical Council v Bawa-Garba
[2019] 1 WLR 1929, paragraph 67). The court affords the Tribunal a significant margin of
appreciation in this regard (Professional Standards Authority for Health and Social Care v
Nursing and Midwifery Council (supra,)), although it can more readily interfere where the
misconduct, as here, does not relate to professional performance (Habib Khan v General
[51]
The terms of the Tribunal's decision on sanction demonstrate that it took the proper
approach, including reference to the overarching statutory objectives, namely
"to protect, promote and maintain the health, safety and well-being of the public, to
promote and maintain public confidence in the medical profession, and to promote
and maintain proper professional standards and conduct for members of the
profession."
[52]
The Tribunal noted that the appellant's interests were to be balanced against the
public interest. The mitigating and aggravating factors were identified including those
which the appellant asserted that the Tribunal either failed to take into account or dismissed.
The mitigating factors included: the appellant's previous good record; appraisals and patient
feedback results which indicated that he was a competent and conscientious doctor;
23
testimonials speaking to the high regard in which he was held by colleagues; and that there
was no evidence of repetition of the conduct since. Collectively, these factors can be
regarded as comprising the appellant's otherwise good character. In its decision the
Tribunal gave reasons for determining that erasure was appropriate notwithstanding the
evidence of previous good character:
"[It] is not Dr Masood's clinical practice or his relationship with work colleagues that
has brought him before his Regulator. It is his conduct that has not been in
accordance with paragraphs 65 or 73 of GMP and the gravity of the same. Even if
there is no risk to patient safety, the public must be able to have confidence in the
mechanisms in place to ensure that a doctor is fit to practise, which in turn will
uphold the reputation of the profession."
[53]
The appellant's good character was not "dismissed" at the sanction stage. Rather,
the import of the Tribunal's decision is that it was not of sufficient weight, in light of the
other factors, to render suspension appropriate in the circumstances of the case. The fact
that there had been no repetition to date did not preclude the Tribunal from finding that it
could not conclude that there would be no repetition in the future. The Tribunal reasoned
that there may have been no repetition of the conduct involved in the interference allegation
standing there being no need for the appellant to protect his interests.
[54]
Other factors mentioned by the appellant in his submissions were also taken into
account by the Tribunal. The Tribunal noted the submission of counsel for the appellant as
to the effect of erasure on the wider community. The impact on the appellant's family was
expressly considered when the Tribunal gave its reasons for the decision.
[55]
By the time of the decision on sanction the appellant had had ample opportunity to
develop insight and remediate his conduct, having regard to the timetable of events.
Despite this, at the hearing the appellant continued (as he still does) to deny the allegations
of physical abuse, attempted (as he still does) to challenge his conviction and repeatedly
24
claimed that sending the letter had nothing to do with the fitness to practise investigation.
Each of these were factors to which the Tribunal properly attributed weight in concluding
that the appellant lacked insight. The Tribunal was entitled, as it did, to rely on the length of
time he had yet failed to do so. In common with the submissions made on behalf of the
appellant, the Tribunal properly considered both suspension and erasure. It noted the
domestic aggravation to the physical assaults. The Tribunal did not place any emphasis on
the conviction which resulted in an absolute discharge, seeming to treat it as part of the
emotional abuse which did not amount to serious misconduct. Their decision was not
contrary to GMC sanctions guidance. As to the letter to Dr F, as counsel for the GMC
submitted, the Tribunal was entitled to conclude that it was an attempt to subvert (in fact a
successful one) the legitimate work of the FTP Tribunal. In this regard, a critical passage in
the reasoning of the Tribunal appears at paragraph 45 on page 159:
"It further noted the allegation of interfering with the GMC investigation. The
Tribunal found that the role of the GMC in carrying out its regulatory function is an
integral part of maintaining public confidence in the profession and protecting the
reputation of the profession. The public need to have confidence that when a doctor
is subject to complaints, the GMC will be allowed to investigate such complaints
without the doctor being able to ensure that evidence is withheld or witnesses
deterred from giving evidence. This gives the public the confidence that a thorough
process will be followed and a doctor's fitness to practise will be carefully examined.
The Tribunal was in no doubt from the wording of the letter that was sent to Dr F by
Dr Masood's lawyer, that it was done with the express intention of making her
withdraw her evidence. The Tribunal find that this [is]conduct that is incompatible
with continued registration."
[56]
This is a finding which it was open to the Tribunal to make.
The appellant now seeks to rely on fresh evidence comprising various certificates indicating
domestic abuse, management and conflict awareness and an emailed apology to Dr F.
There is no reasonable explanation why this material was not available in the original
proceedings (Chowdhury v GMC 2023 SLT 404, paragraph [45] endorsing the approach in B v
25
HM Advocate 2014 SCCR 376). The courses could have been taken, and the apology issued,
earlier, whether by email or via the lawyers previously instructed. It is not reasonable for
the appellant, as a professional man, to assert that he was not aware of the importance of
insight and remediation.
[57]
Moreover, the appellant continues to assert that Ms A is lying. The certificates have
to be viewed together with the appellant's reflective statement, which makes plain that it is
the emotional abuse allegations, which did not feature in the sanction decision, which he is
seeking to address. In any event, it is difficult to square this with the appellant's continued
denial of the fairness of his conviction for emotional abuse.
[58]
The Tribunal was entitled to reach the conclusions it did regarding insight and
remediation. It approached the issue of sanction in an appropriately graduated way,
considering whether lesser sanctions would meet the case, and giving a reasoned
explanation for rejecting each option short of erasure. Having regard to the severity of the
allegations it was open to the Tribunal to proceed as it did.
[59]
In essence the appellant's submissions invited this court to re-open the findings
made by the Tribunal in respect of those instances where it accepted the evidence of Ms A;
and to re-assess the conclusions on misconduct, impairment and sanction. As we have
already noted, in appeals of this kind the court may only interfere with the decision of the
specialist Tribunal if it is seriously flawed or manifestly wrong. The court may correct
egregious errors of fact, or errors of law; it may interfere if important evidence has been left
out of account; or misinterpreted in a significant way; or where the reasoning cannot be
defended according to the principles applicable. What it cannot do is simply remake the
decision according to its own views of the case. The appellant has established no basis upon
26
which we could justifiably interfere with the decision of the Tribunal and the appeal must
therefore be refused.
