Scottish Sheriff Court Decisions

Sheriffdom of South Strathclyde Dumfries and Galloway at Ayr

Decision of

Sheriff Alastair Carmichael

Sheriff of South Strathclyde, Dumfries and Galloway

in causa

Doctor AB,

PETITIONER

against

The General Medical Council

RESPONDENTS

McSherry, solicitor, for the Petitioner

Watt, solicitor, for the Respondents

26 July 2013, the Sheriff having resumed consideration of the case;

grants the Petitioner's appeal to the extent that the Registration Appeal Panel decision is quashed, refuses to grant the Petitioner a certificate of fitness to practice, directs that the matter be remitted to the Registrar per paragraph 5(4)(b) and (d) of schedule 3A of the Medical Act for reconsideration of the Petitioner's application for registration and orders that the case be put out for a hearing on expenses on a day to be fixed by the Sheriff Clerk.

NOTE

[1] This case is a summary application brought under the Medical Act 1983 ("the Act"). The Petitioner petitions the court to, "grant an order ordaining the Registration Appeal Panel of the General Medical Council to grant the petitioner a certificate of fitness to practice." That is expanded in the Petitioner's plea-in-law by the addition of the words "or do otherwise as it seems fit to the Court appropriate." In effect this means that this court would quash the Respondents' Registration Appeal Panel ("RAP") decision of 11 October 2012 that the Petitioner had failed to satisfy the registrar that his fitness to practice is not impaired, and thereafter substitute a finding that the Petitioner had satisfied the Registrar that his fitness to practice is not impaired - or do otherwise as seems fit.

[2] The case called before me over two days. There had been answers launched to the summary application and a record had been produced for the hearing. There were also written notes of arguments for the Petitioner and the Respondents, lists of authorities for both of the parties, the productions that the RAP had considered and a transcript of the Petitioner's evidence at the RAP hearing on 25^th of September 2012.

BACKGROUND

[3] There was little of the background to this case that was in dispute. While there was no issue about what may constitute "impairment" of fitness to practice, I include information about that at the outset in order to put matters into context.

[4] The Respondents are the General Medical Council (GMC) which is statutorily responsible under the Act for the process of registration of doctors in the United Kingdom. Section 1 (1A) states that the main objective of the GMC in exercising its functions is to protect, promote and maintain the health and safety of the public.

[5] Part II of the Act makes it clear that a person who holds a recognised UK medical qualification is entitled to be registered as a fully registered medical practitioner as long as he or she satisfies the conditions laid out in section 10 of the Act. Those conditions include that the person must have then worked for a period of time at an approved medical institution and been granted a certificate that his or her service while so employed had been satisfactory. If a doctor wishes to practice as a registered medical practitioner in the UK then he or she must apply to the GMC for such registration. The application for registration is made by the applicant doctor to the GMC. That application is considered by the Registrar or an Assistant Registrar of the GMC, and if the doctor is dissatisfied with that decision then he or she can apply by way of appeal to the RAP.

[6] If the applicant doctor has an overseas qualification the process is governed by Part III of the Act (sections 19 to 29) entitled 'registration of persons qualifying overseas'. That registration will not be achieved unless the applicant doctor can satisfy the Registrar of the things that are listed in section 21B(1) (a) to (e). It is the requirement in section 21B(1)(c) that is at the heart of this case.

[7] Section 21B (1)(c) requires the applicant overseas doctor to satisfy the registrar 'that his fitness to practice is not impaired'. The Registrar (and, at an appeal the RAP) therefore cannot decide the matter of registration without first considering whether the applicant doctor has satisfied them that his fitness to practice is not impaired.

[8] What constitutes impairment of fitness to practice is defined for the purposes of the Act at section 35C(2). This states that a person's fitness to practice shall be regarded as 'impaired' for the purposes of the Act by reason only of five matters that are listed in subsections (a) to (e). For the purposes of this appeal it is the reason given in subsection (a) that is relevant, and that is, "misconduct".

[9] The GMC booklet Good Medical Practice contains information encouraging doctors to stay up-to-date with developments and contains a section on probity. That section on probity contains the quote, 'probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism'. That is linked with the general information in the booklet that patients should be able to trust doctors with their lives and health and in order to justify that trust doctors must show respect for human life and must....be honest and open and act with integrity... (and be) personally accountable for their professional practice and must always be prepared to justify their decisions and actions.

[10] The GMC Registration Decisions Guidance of June 2008 gives some pointers about the questions of fitness to practice and what may amount to misconduct. Under the heading 'medical professionalism' it refers at paragraph 196 to the GMC publication Good Medical Practice and underlines that probity is important for registered doctors and that "probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.' It stresses at paragraph 197 that doctors must make sure that their conduct at all times justifies their patients trust in them and the public's trust in the profession. Paragraph 198 refers to a Table 1 identifying factors that the registrar may wish to consider when dealing with matters relating to the applicant's conduct, property or integrity.

 

Table 1 includes;

Issue on which our advice is sought

1 Whether, in the light of a conviction or caution or misconduct, the applicant's fitness to practice is considered to be impaired.

Factors to consider

2 Whether it is a single occurrence or there is a pattern of dishonesty

3 Whether the applicant declared the matter when applying for registration

4 If not, whether his or her explanation for not doing so is reasonable or whether it suggests that he or she was intending to mislead

5 The seriousness of the offence and the extent to which it brings, or could bring, the profession into disrepute

6 whether the applicant has shown remorse

7 whether the applicant has shown insight into the seriousness of his or her behaviour and how it reflects on the profession

12 where appropriate, whether the doctor's actions and/or omissions were:

a. dishonest and sufficiently inappropriate and/or serious to warrant a finding that the applicant's fitness to practice is impaired

b. Misleading and whether that was due to miss understanding or lack of care rather than dishonesty

[11] The Petitioner is a doctor of medicine who now resides in Scotland. He holds the degree of Bachelor of Medicine and Bachelor of Surgery from a Nigerian University, awarded on 4 July 2005. The governing body for medical practitioners in Nigeria - and in some respects the equivalent of the GMC - is the Medical and Dental Council of Nigeria (MDCN). He was issued with a provisional registration certificate by the MDCN on 12^th of September 2005. He then undertook his internship training between 6 March 2006 and 6 February 2007 in Nigeria. A certificate of full registration was required for a doctor to work in other than an internship capacity. The Petitioner applied 3 months late to the MDCN for his full registration on 23 August 2007 - and it was granted the same day. He was fined what appears to have been a fixed penalty sum for this late application. Meanwhile the Petitioner worked as a locum doctor between 6 February 2007 and 1 October 2007 without holding full registration. Specifically, he did not have a full registration between 6^th of February 2007 and 23^rd of August 2007. This period of unregistered practice was at the Z (private) Hospital in Nigeria. The MDCN issued the Petitioner with a Certificate of Good Standing dated 14^th of December 2011 but this was done in ignorance of the fact that he had worked at the Z Hospital as a locum doctor without full registration. The MDCN would not have issued that certificate of good standing if it had known he had practised in a non-internship post without holding full registration.

[12] On 15 December 2011 the Petitioner submitted online the GMC application form applying for registration under section 21B of the Act. The Petitioner submitted the certificate of good standing from the MDCN in support. The Petitioner answered 'no' to all of the questions regarding fitness to practice and by ticking the relevant box, including the question 'have you ever been fined, given a warning or reprimanded by any medical, health, social care or any other regulator in the UK or another country?' In a declaration section at the end of the form he confirmed that the information that he had provided in this application form was correct and true. In this form the Petitioner stated inter alia that he had completed his internship in Nigeria on 5 February 2007, had been registered with the MDCN since 12^th of September 2005 and had worked as a medical officer from 2^nd of October 2007. This left a gap in his medical work between 5^th of February 2007 and 2 October 2007. The Petitioner did not mention his period of employment (without being fully registered) as a locum doctor at the Z Hospital during that period.

[13] The Registrar sought further details for this period of time and the Petitioner responded saying that during this time he had worked as a locum doctor in Nigeria and that he had been fined for his late application for full registration with the MDCN. The Petitioner was also asked by the Assistant Registrar for his reflections on the relevant parts of Good Medical Practice (mentioned above) and how they might have any bearing on the information that he provided in his application form to the GMC.

[14] The Assistant Registrar decided that he was not satisfied that the Petitioner's fitness to practice was not impaired and by letter of 14 May 2012 refused the Petitioner's application for registration.

[15] The Petitioner exercised his right of appeal to the RAP.

[16] The RAP held a hearing on 25^th of September 2012 in Manchester in which evidence was given by the Petitioner and legal arguments were heard. The RAP had access to all of the documentation that had been considered by the Assistant Registrar.

THE RAP DECISION

[17] The RAP issued its judgement dated 11 October 2012. The RAP decision stated that 'the Panel has considered all oral and documentary evidence and used by both the appellant and the....GMC."

[18] The RAP gave the reasons for its decision in section 9 paragraphs (a) to (k) as follows (note that it erroneously uses MCDN for the MDCN in places);

(a)    Applicants for full registration under section 21 (b) Medical Act must satisfy the Registrar they meet the relevant criteria including that their fitness to practice is not impaired. Fitness to practice can be impaired by reason of misconduct. By an application dated 15^th of December 2011 the Appellant asserted he had never been fined, warned or reprimanded by any medical, health, social care or any other regulator or in the UK or another country.

(b)    Arising from the application the GMC made further enquiries of both the Appellant and the Medical and Dental Council of Nigeria (MDCN) which disclosed that the Appellant completed his internship on 5^th of February 2007; was granted full registration with MCDN on 23^rd of August 2007; was fined for late application in respect of the application for full registration which was about 3 months late and had practised as a doctor between 6^th of February 2007 and 2 October 2007 (a period including 6 months unregistered and therefore illegal practice).

(c)     Applying the appropriate legislative provisions and taking into account Registrations Decision Guidance (para 15 of the Assistant Registrar's decision - Page A1 of the bundle prepared for this hearing) the Assistant Registrar determined that collectively the issues emerging during the application process led him to conclude that he was not satisfied that the appellant's fitness to practice was not impaired.

(d)    We have reviewed the material before the Assistant Registrar and have taken into account the appellant's written statement dated 18^th of June 2012, his 2^nd bundle of references and certificates submitted at the hearing and his oral evidence.

(e)    The Appellant's account is broadly consistent. In terms of the unregistered practice he believed his provisional registration with the MDCN entitled him to practice between 6^th of February 2007 and 2 October 2007 and that he travelled to Lagos in August 2007 to complete the full application for registration prior to undertaking National Service as a doctor. During the application process he was told he was late and 'fined' a comparatively small amount. There was no bar to his full registration although he confirms the MCDN was not told of his period of unregistered practice. He believes the payment to MCDN was not a fine but rather a late registration fee which is why he did not disclose it on his application to the GMC. He very much regrets what has happened but points to the Certificate of Good Standing issued by MDCN, professional and character references and recent courses attended as evidence of unimpaired fitness to practice.

(f)     If the complaint against the Appellant was limited to the penalty for late registration alone we suspect a fairly generous view could have been taken, but emerging from that issue is the period of unregistered practice which is markedly more serious. Paragraphs 13 and 56 - 57 of Good Medical Practice requires doctors to keep up-to-date with and adhere to laws and codes of practice relevant to their work and emphasises the need for and importance of probity and justifying trust in the profession. The Appellant's argument that he believed his provisional registration covered the period of unregistered practice is not acceptable. He had a duty to confirm the position before taking on what has been described by the employing hospital as a Medical Officer/locum Doctor, even if under supervision. He admits that he did not enquire whether or not he was covered.

(g)    It is telling that the Appellant neither informed the MCDN of the relevant employment nor did he include that employer in his application to the GMC despite the period being within the preceding 5 years requested in the application. We believe both omissions were intentional because the appellant realised he would be in difficulty as a result of a period of unregistered practice. Although the MCDN is not taking any proceedings in respect of the unregistered practice nor is it withdrawing the certificate of good standing it has confirmed the certificate would not have been issued had the facts of the unregistered practice been known. When asked by the GMC to revise his original application the Appellant did include the previously omitted post from 5^th of February 2007 to 2 October 2007 and stated he acted as a locum consultant (part time) in outpatients. This conflicts with his statement in the appeal in which he implies he was looking after inpatients as well as attending clinics. Furthermore, if he was acting as a consultant he was likely unsupervised and thus should have been well aware that this was unacceptable for a doctor without full registration.

(h)    Re-applying the Registration Decisions Guidance we find that there are 2 separate incidents of failure to disclose relevant material i.e. on application for full registration with the MCDN in August 2007 - a failure which resulted in the inappropriate issue of a Certificate of Good Standing and then in his original application to the GMC. The information was not volunteered on the original application but only came to light following diligent enquiries by the GMC. Together this points to a pattern of an absence of candour. A period of unregistered practice in the circumstances described would bring the profession into disrepute.

(i)      We acknowledge the Appellant has shown remorse for his admissions and from the content of the references appears well regarded. We are not similarly convinced he understands the seriousness of his behaviour, either in practising whilst unregistered or in failing to disclose the fact, preferring to emphasise his belief that he had the right to work.

(j)      Practising whilst unregistered in Nigeria and failing to declare the fact to his home authority or to the GMC at the first opportunity together with his failure to not disclose the penalty for late registration, amount in sum to misconduct for the purposes of the Medical Act 1983 Sec 35C (2).

(k)    A finding of impairment of fitness to practice is not to punish further an intended practitioner for past misdoings but to protect the public against acts and omissions of those who are not fit to practice. Fitness to practice findings look forward not back and are directed to the need to protect the public and declare and uphold proper standards of conduct. The Appellant in this case has demonstrated an unwillingness to be candid in respect of his professional practice. Proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in this case.

 

 

THE COURT'S POWERS

[19] These are contained in paragraph 5 (4) of schedule 3A of the Act. The Sheriff court is a 'relevant court' for these purposes. It is set out as follows;

(4) on an appeal under this paragraph from a Registration Appeals Panel, the relevant court may-

(a) dismiss the appeal;

(b) allow the appeal and quash the determination appealed against;

(c) substitute for the determination appealed against any other determination which could have been made by the Registration Appeals Panel;

(d) remit the case to the Registrar for him to refer it to a Registration Appeals Panel to dispose of the case in accordance with the directions of the relevant court,

and may make such order as to costs (or, in Scotland, expenses) as the relevant court thinks fit.

The Act does not, however, define or give guidance about what grounds of appeal may be taken nor does it specify what factors the relevant court may take into consideration when coming to its decision.

THE PETITIONER'S SUBMISSIONS

[20] The issue taken by the Petitioner was succinctly focused by Mr McSherry as follows; the RAP made an error of fact and that has, in turn, led to an error in law. He argued that the mention of the Petitioner having worked as an unregistered consultant in the RAP's decision demonstrates that there is an error of fact in the body of the decision, and, because it is impossible to tell from the decision how much that element influenced that final decision, the decision is vitiated. He said that we cannot 'salami slice' the various elements of the RAP's decision and we cannot remove the 'consultant salami slice' and still be left with a valid decision.

[21] Mr McSherry referred the court to Wordie Property Co-Ltd v Secretary of State for Scotland 1984 SLT 345 and to South Bucks District Court and Another v Porter (No. 2) 2004 1 WLR 1953. He argued that these cases both show that the written reasons for a decision must be clear and intelligible and must enable the reader to understand why the matter was decided in the way that it was.

[22] He said that the Petitioner had told the RAP in his evidence that he believed his provisional registration following upon the completion of his internship was valid until September 2007 and therefore covered him to work as a locum doctor at the Z Hospital as long as he was supervised. He argued that the Petitioner's failure to apply for registration as from February 2007 was simply a mistake. He said that the Petitioner had never claimed - either in his written application forms for registration to the GMC or in his evidence to the RAP - that he had worked as a consultant during that period at the Z Hospital. Mr McSherry asserted that on the contrary, the Petitioner had even told the RAP in a letter to them dated 18^th of June 2012 that he worked under the supervision of a specified doctor when he was working at the Z Hospital.

[23] Mr McSherry underlined that the RAP decision states at paragraph 9(g) that the Petitioner, "had stated he acted as a locum consultant (part-time) in outpatients", and even goes on to say that that, "this conflicts with his statement in the appeal in which he implies he was looking after inpatients as well as attending clinics", and, "Furthermore, if he was acting as a consultant he was likely unsupervised and thus should have been aware that this was unacceptable for a doctor without full registration". When taken together, he argued, these show that the RAP had laboured under a factual misunderstanding that the Petitioner had been working as an unregistered consultant. Mr McSherry said that this was an erroneous assertion by the RAP. He argued that we do not know, and cannot tell, what weight the RAP gave to this erroneous, and material, belief that the Petitioner had worked as a consultant without full registration.

[24] He argued that the RAP had only two choices; to either allow the appeal or reject the appeal. The Petitioner had presented information to the RAP to show that he was a good candidate for registration. He had supplied a large number of references, the RAP had had the opportunity to hear him in person in his evidence, the RAP had documentary evidence about his professional history that showed him to be a qualified doctor from Nigeria who had also obtained a master's degree in Public Health Medicine at a British University. Mr McSherry argued that in the face of so much positive evidence pointing towards registration being granted, there had to have been strong reasons to consider him not to have satisfied the RAP that he was not impaired to practice. How, asked Mr McSherry, can we tell whether or not the 'consultant' element was a material part in the RAP's decision making process, and may even have been the element that tipped the balance against him?

[25] He argued that there had been a gross error of fact that had led to a gross error of law.

[26] He argued that the court should therefore quash the RAP's decision. Mr McSherry argued that it would not be appropriate to ask the same members of the RAP to reconvene to reconsider this matter. Mr McSherry added that if the matter requires to go back to a RAP then that should be to a freshly constituted RAP in order that fresh minds are brought to bear to decide the Petitioner's application on non-erroneous information.

THE RESPONDENTS' SUBMISSIONS

[27] Mrs Watt helpfully took the court through the background to this case, the role of the General Medical Council as well as the procedures and requirements to be followed when considering an application for registration to practice in the UK that has been made by a non-UK and non-EU national. I have included much of this in the 'Background' section above.

[28] She accepted that the Petitioner had not worked while not fully registered as a consultant in Nigeria and nor had he ever stated that to the Registrar or to the RAP. The Respondents conceded that the RAP's assertion that the Petitioner had stated such a thing had been in error of fact. However, the Respondents maintain that it is obvious that this error of fact was not the conclusive element that led the RAP to decide against the Petitioner, that this court can remove or ignore that element from the decision and still be left with a valid decision. In support of that contention Mrs Watt referred the court to various authorities.

[29] Mrs Watt referred the court to the comments of the Lord Justice Clerk in McMahon v the council of the Law Society of Scotland SC 2002 475, and in particular to the comments at paragraphs 14 and 16 to the effect that appellate courts in cases such as these should have respect for the expertise and views of the members of specialist tribunals. She reminded this court that the expertise and views of the members of the RAP should be respected.

[30] Mrs Watt also referred to Gupta v General Medical Council 2002 1WLR 1691, and to the comments at paragraph 10 of Lord Rodger of Earlsferry, 'in this respect these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses.... In many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body." In this context Mrs Watt reminded the court that the RAP had heard evidence from the petitioner at the appeal and that the court should think hard before interfering with decisions on fact arising from that evidence.

[31] She pointed out that working as a doctor of medicine without full registration would amount to misconduct whether that work had been in the capacity of a doctor or that of a consultant, and the reference to 'consultant' was therefore a red herring as far as the validity of the decision is concerned. In other words, she argued, working without full registration per se is enough to constitute "misconduct" and this court need look no further than that in order to refuse the appeal.

[32] Mrs Watt stated that the reference to 'consultant' in the RAP's decision was simply an error. She reminded the court that the RAP had considered all of the oral and documentary evidence that had been put before it and the Registrar. She said that it is clear from the documentary evidence - such as the application forms completed by the Petitioner - that he had not worked as a consultant and had never claimed to have done so. She pointed out that the Petitioner's evidence at the appeal hearing also made it clear that he had not claimed to have worked as a consultant. She added that it was obvious from the Petitioner's application forms that he had only just finished his internship prior to working at the Z Hospital, and it is common knowledge that a doctor cannot go straight from an internship to being a consultant. When all that is taken into consideration, argued Mrs Watt, the only reasonable conclusion is that the reference to 'consultant' in the RAP written decision was a slip of the pen and could not have been something that the RAP had taken into consideration when coming to its decision.

[33] Mrs Watt argued that even if the court was not convinced that the reference to 'consultant' was only a slip of the pen, the court should take the view that this is only one strand of the RAP's decision, that the other strands provide more than enough reasons to justify the RAP's decision.

[34] She quoted from the case of South Bucks District Council and another v Porter (No 2) 2004 UKHL 33: the opinion of Lord Brown of Eaton-under-Heywood at paragraphs 35 and 36.

"It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally it's tendency is to discourage such challenges I for one would count that a benefit.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

[35] Mrs Watt argued that the RAP's decision meets the requirements set out by Lord Brown of Eaton-under-Heywood because the several reasons behind the RAP decision were revealed in paragraphs 9(h) and (j). When put together these show, she argued, that the reasons behind the decision were; that the Petitioner's failure to disclose his period of work without full registration in 2007 to the MDCN and the GMC amounted to a pattern of an absence of candour, that the Petitioner's period of unregistered practice at the Z Hospital in 2007 'in the circumstances described' would bring the profession into disrepute', that practising whilst unregistered in Nigeria, failing to declare that fact to the MCDN or to the GMC, and the failure to disclose the penalty for late registration amounted in sum to misconduct. She said that the RAP was clear about the three issues referred to in 9(j), that these reasons allow the reader to understand what considerations led to the decision, that it shows what aspects the RAP looked at and it describes what they thought were the controversial issues. All in all, argued Mrs Watt, even without paragraph 9(g) there is still an intelligible decision. She asserted that this decision therefore meets the requirements laid out in the South Bucks case, with or without any reference to the subject of the Petitioner having worked in a consultant capacity without full registration.

[36] Mrs Watt then referred to a number of cases in order to demonstrate to the court what types of behaviour can amount to 'misconduct' and/or 'impairment'. The Petitioner does not, however, argue this case on the basis that the conduct alleged, even if held to be proved, does not amount to misconduct or impairment. The cases referred to were;

Roylance v General Medical Council 3WLR 1999 541 at page 557 paragraphs D and E

Remedy UK Ltd v General Medical Council 2010 EWHC 1245 (Admin) at paragraph 36

Bolton v Law Society 1994 WLR 512 at page 519 paragraphs B

Raschid/Fatwani v General Medical Council 2007 1 WLR 1460 at pages 1470 to 1472

Cheatle v General Medical Council 2009 EWHC 645 (Admin) at paragraphs 17 to 19

Cohen v General Medical Council 2006 EWHC581 (Admin) at paragraph 62

[37] Mrs Watt said that if the court is minded to quash the RAP decision, the court should not then substitute a decision of its own because the expertise and skills of the members of an RAP are better placed to decide this matter in the context of the standards expected by the GMC.

DECISION

[38] The parties disagreed about whether the decision produced by the RAP was an intelligible one per the South Bucks case. While this is one issue to be considered, it is not the only one.

[39] The critical question for the RAP was whether the Petitioner had satisfied them that his fitness to practice was not impaired. Relevant to this was whether he had done (or omitted to do) anything that could amount to misconduct. The RAP decision sets out and analyses things that are relevant to these two questions.

[40] When the reasons section (paragraph 9) of the decision is looked at by the reader it does present as a cogent piece of decision-making. The decision gives an outline of the procedure followed, it gives an outline of the background to the case, it gives a note of factors presented by the Petitioner in his favour and it gives a note of factors that weighed against the Petitioner. The decision then puts those items together and concludes that he has not satisfied the RAP that his fitness to practice is not impaired. The reasoning appears to be clear from the decision and it appears to be based on several elements (main issues) of the case.

[41] Looking more closely at paragraphs 9(e) to (k) of the RAP's decision these several elements that led to that decision are narrated. These appear to be the "principle important issues" or "the main issues" that were highlighted by Lord Brown in South Bucks.

[42] The first element is mentioned at paragraph 9 (f) and this is the failure to disclose the fine for late registration. The tone of paragraph 9(f) is that this is a minor matter. There is even a strong hint that if this had been the only matter against the Petitioner then it could have been looked at favourably.

[43] The second element also emerges in paragraph 9(f) and this is the period of unregistered practice which the decision describes as 'markedly more serious'. This is then put alongside paragraphs from Good Medical Practice requiring doctors to keep up-to-date with laws and codes of practice and which emphasises the need for, and importance of, probity and justifying trust in the profession. The decision then states 'the Appellant's argument that he believed his provisional registration covered the period of unregistered practice is not acceptable. He had a duty to confirm the position before taking on what has been described by the employing hospital as a medical officer/locum Doctor, even if under supervision.'

[44] The third element emerges in paragraph 9(g) and this was the failure by the Petitioner to inform the MDCN and the GMC of this period of unregistered employment at the Z Hospital. The decision narrates that, 'we believe both omissions were intentional because the Appellant realised he would be in difficulty as a result of a period of unregistered practice.'

[45] The fourth element also emerges in paragraph 9(g). This involves an assertion that the Appellant had, "stated that he acted as a locum consultant (part time) in outpatients. This conflicts with his statement in the appeal in which he implies that he was looking after inpatients as well as attending clinics. Furthermore, if he was acting as a consultant he was likely unsupervised and thus should have been aware that this was unacceptable for a doctor without full registration.' Both parties accept that this is not something that the Petitioner had stated to the GMC or the Registrar at any point and that the Petitioner had not practised as a consultant at the Z Hospital.

[46] The fifth element emerges in paragraph 9 (i) and this is that while the Petitioner had shown remorse for some things, the RAP was not convinced that "he understands the seriousness of his behaviour, either in practising whilst unregistered or in failing to disclose the fact, preferring to emphasise his belief that he had the right to work.'

[47] The above thinking appears to then be pulled together in paragraph 9(j) which states that 'practising whilst unregistered in Nigeria and failing to declare the fact to his home authority or to the GMC at the first opportunity together with his failure to not disclose the penalty for late registration amount in sum to misconduct for the purposes of the medical act 1983 Sec 35C (2).'

[48] Paragraph 9(j) describes (in order) the first, third and second elements that I have listed above. However, the fourth and fifth elements do not feature in paragraph 9 (j). What involvement, if any, did these two elements have in the decision making process? Does this mean that the reference to working as a consultant without a full registration and the Petitioner's lack of understanding of the seriousness of practising whilst unregistered were not main issues in the decision? Looking at paragraph 9(k) it seems that the fourth element is a main issue in the decision because it reads, 'the appellant in this case has demonstrated an unwillingness to be candid in respect of his professional practice". The fourth element is part of this lack of candour because it includes a belief that the Petitioner gave conflicting accounts and suggests that the RAP believed that he had worked in a consultant capacity when he would be well aware that that was unacceptable for a doctor without a full registration. It is not clear what part the fifth element had to play in the decision.

[49] The reference in the decision to the Petitioner having stated that he had worked as a consultant without full registration is at the centre of this petition. The five lines of reference to this subject at paragraph 9(g) suggest that the RAP may well have given some weight to their belief that the Petitioner had given conflicting accounts of whether he had worked as a consultant or not while not fully qualified. It also strongly suggests that the RAP has proceeded on the basis that the Petitioner had worked at the Z Hospital as a consultant without full registration. Equally, it is possible that the RAP gave this little or no consideration. However - and this is the point - it is not possible to deduce from the decision the amount of weight the RAP gave to the fourth (consultant) element in its decision that the Petitioner had not satisfied them that his fitness to practice was not impaired. This is important because it is accepted by both parties that the Petitioner did not tell the Registrar or the RAP that he had worked as a consultant, nor did he in fact work unregistered as a consultant at any point and is accepted by both parties that what he did do was work whilst unregistered as a locum doctor under the supervision of a consultant or qualified medical practitioner.

[50] Paragraph 9(h) states, "A period of unregistered practice in the circumstances described would bring the profession into disrepute." What are those "circumstances described"? The amount of space dedicated in the preceding paragraph 9(g) to the subject of working as a consultant, strongly suggests that the RAP believed that the Petitioner had worked as a consultant without full registration and was referring to that as part of the "circumstances described". Again, it is possible that this was not what the RAP meant but, again, it is not possible to deduce from the decision for certain if that was the case.

[51] I conclude from this that the terms of the RAP's written decision are such that it is not possible to ascertain if, whether, or to what extent, the apparent factual errors (that the Petitioner had worked as a consultant while not full registered and that he had given conflicting accounts about whether he had worked as a consultant while not full registered) were factors that influenced its decision that the Petitioner had not satisfied them that his fitness to practice was not impaired.

[52] The RAP's written decision does meet the requirements set out in the South Bucks case in the sense that it does consider the main issues in coming to its conclusions. It does not formally link the fifth element at paragraph (j), but the logical inference from the written decision as a whole is that this was also a factor leading to that decision.

[53] The decision is flawed not because of its presentation or the manner of considering the main issues. It is flawed because one of the five main issues mentioned was factually incorrect. If that factually incorrect information was a substantial factor in the decision making process, then the final decision must be flawed because it is based, to some extent, on that factually incorrect information. There is nothing in the decision to suggest that it was not a factor that was taken into account. But there is nothing in the decision to suggest the extent to which it was a factor. It is impossible to tell.

[54] Further, the Petitioner gave evidence at the appeal hearing, and the RAP makes it clear that it did not accept him as credible in several respects;

(1)    The RAP believed the Petitioner's failure to disclose his employment at the Z Hospital to the MDNC was intentional.

(2)    The RAP believed that the Petitioner's failure to disclose his employment at the Z Hospital to the GMC was intentional.

(3)    The RAP decided that the Petitioner had given two different versions of events - in his registration form he stated that he acted as a locum consultant whereas in the appeal he said that he was looking after inpatients.

(4)    The RAP decided that the petitioner should have been well aware if he was acting as a consultant that he would have needed full registration to act in that capacity.

(5)    The RAP decided that the Petitioner's behaviour demonstrated a pattern of an absence of candour.

[55] The apparent finding in paragraph 9(g) that the Petitioner had worked as a consultant without full registration at the Z Hospital could well have been part of the evidence that led the RAP to find the Petitioner to be lacking in credibility in some respects. It could therefore have been a destructive and material factor in the RAP's assessment of the Petitioner and his application. It may not have been - but the reader cannot tell from the content of the decision whether this was the case or not.

[56] Where a decision-making body has properly directed itself to the relevant issues on evidence and has made findings of fact that it was entitled to make, the appellate court's judgement is very much a secondary one. In this case, however, the decision-making body has not properly directed itself to the relevant issues because it has incorrectly recorded factual material relating to a main issue or it has reached an incorrect factual finding about a main issue - or it has done both. A sensible reading of the decision strongly suggests that this incorrect information has played a part in the RAP's decision-making process that led it to conclude the Petitioner had not satisfied them that his fitness to practice was not impaired.

[57] It is well-established that where the original decision-making body is an expert body, then it is better placed than an appellate court to decide what standards and behaviours should be expected of its own professional practitioners. The membership of a RAP is an expert body and will have a better understanding of the standards and behaviours that the GMC requires of the Petitioner than this court.

[58] The content of the RAP's written decision strongly suggests that it has been reached on a factually incorrect and potentially material consideration. I therefore direct that that decision is quashed and that the matter should be remitted to the Registrar per paragraph 5 (4)(b) and (d) of schedule 3A to the Act. Specifically, this case should go back to the Registrar for him or her to refer it to a Registration Appeals Panel to consider this application again on factually correct information.

[59] For the avoidance of doubt, this case should not necessarily go to a newly constituted panel. The RAP that has heard this already can decide in the light of this court's decision and on advice from its own legal member whether to reconsider the case or whether to convene another RAP for that purpose. This is in the interests of expense and expedition because it is not appropriate that the Petitioner should be put to the trouble, time and expense of having to make a fresh application.

[60] As requested by the parties I have not considered the question of expenses. The case should be put out for a hearing on expenses.

 

 

Alastair Carmichael

Sheriff of South Strathclyde, Dumfries and Galloway

26 July 2013