Fatnani & Anor v General Medical Council [2007] EWCA Civ 46

“This is a second appeal which raises important points of principle on the approach by the High Court to appeals from decisions of the General Medical Council (Fitness to Practise Panel) on sanctions to be imposed for serious professional misconduct.”

“The Panel has heard that between 28 July 2003 and 18 February 2004 you were employed as a Locum Consultant Psychiatrist by the Buckinghamshire Mental Health NHS Trust based at the Tindal Centre in Aylesbury, Buckinghamshire. On 21 December 2003, Miss R, a young lady with a history of psychiatric problems, was admitted to the Tindal Centre under your care, and you remained responsible for her care over the next few weeks. “Following Miss R’s discharge home on 3 February 2004, you were telephoned at home by Miss R’s mother, who was concerned that her daughter might fail to comply with the agreed treatment. On 9 February 2004 you undertook a consultation with Miss R at the Tindal Centre. You have admitted to the Panel that during this consultation, you told Miss R that she was attractive, that she would make a good companion, and that ‘you could live with me’. You then went on to touch Miss R down the right side of her face with one hand, and kissed her on the head. “You admitted at the outset of the hearing that your actions in the consultation on 9 February 2004 were inappropriate, unprofessional, and not in the best interests of Miss R. You explained in your evidence that you were trying to help Miss R by being kind to her, and that the practice of a patient living with his/her therapist occasionally happens in psychotherapy. However, the Panel does not accept your explanation, particularly as you have also admitted that you told Miss R not to repeat your comments to her mother. You have offered no explanation for touching and kissing Miss R other than that you were ‘momentarily distracted’ by her. Miss R was[sic] vulnerable patient whose medical records contained references to alleged sexual abuse, and you should have been aware of this. “Following that consultation, you called Miss R’s mobile telephone on several occasions between 11 and 14 February 2004. You suggested meeting her at a hotel for her next consultation. You have told the Panel you believed that Miss R would benefit from a different environment to that of the hospital. During the same series of telephone calls you have admitted asking Miss R to be your Valentine, although you have told the Panel that this was meant as a joke. You also told her that had the telephone lines to the florist not been busy you would have sent flowers for Valentine’s Day. You immediately said that it was just as well that the lines had been busy as this behaviour would not have been appropriate, and it would have alarmed the family if flowers had arrived from you. You have subsequently admitted to the Panel that these actions were inappropriate and unprofessional. The Panel has also found that they were not in Miss R’s best interests. “The family complained to your employing Trust on 16 February 2004, and you met Dr Sheena Dykes (acting Medical Director) the next day, when you were relieved of your duties and responsibility for Miss R’s psychiatric care was transferred to another consultant. DrDykes advised and instructed you not to have any further contact with Miss R or her family. Nevertheless you rang Miss R’s family home and spoke to her grandmother, and at a later date also sent a card to the grandmother. In that card you wrote, ‘I’m sending [Miss R’s] art book’. Subsequently, under separate cover, you sent an art book to Miss R’s grandmother. Although you have told the Panel that you did this because you felt morally obliged to uphold an earlier promise to Miss R, the Panel found that your actions with regard to these matters was inappropriate, unprofessional and not in her best interests.”

“(1) Where a fully registered person - (a) is found by the Professional Conduct Committee to have been convicted in the British Islands of a criminal offence or have been convicted elsewhere of an offence which, if committed in England and Wales, would constitute a criminal offence, whether while so registered or not; or (b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not; the Committee may, if they think fit direct - (i) that his name shall be erased from the register; (ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirement so specified as the Committee think fit to impose for the protection of members of the public or in his interests.”

“The Panel first considered whether to conclude this case by taking no action or by issuing a reprimand. The Panel has decided, in view of the serious nature of its findings, that it is necessary to take action against your registration. The findings against you represent a serious breach of the principles of Good Medical Practice (May 2001), which states (paragraph 20) that ‘you must not allow your personal relationships to undermine the trust which patients place in you. In particular, you must not use your professional position to establish or pursue ... [an] improper emotional relationship with a patient or someone close to them’. For these reasons, the Panel have concluded that a reprimand would be wholly insufficient. “The Panel then went on to consider whether to impose conditions on your registration. You proposed a condition that you would work solely in old-age psychiatry, and therefore not come into contact with young female patients. However, the Panel considers that the imposition of conditions would not be sufficient to protect patients and the public interest. “The Panel then went on to consider whether it would be sufficient to direct that your registration be suspended, or whether it is necessary to direct the erasure of your name from the Register. The Panel considered that this was a serious instance of misconduct for which a lesser sanction was not appropriate but that in the circumstances of this case, it was not incompatible with your remaining a registered medical practitioner. It has considered that in order to protect patients, maintain public confidence in the profession, and uphold proper standards of conduct, it is necessary and proportionate to suspend your registration. “The Panel has decided that the appropriate period of suspension should be twelve months to allow you to address the deficiencies in your conduct that have been identified. “The Panel then went on to consider whether to review your case at a meeting to be held before the end of the period of suspension. Taking into account the circumstances of your case, the Panel considers it necessary to do so. You will be informed of the date of that meeting which you will be expected to attend. Shortly before the review hearing you will be asked to ^^ the General Medical Council with the names and addresses of professional colleagues and persons of standing to whom the Council may apply for information as to your conduct since this hearing.”

“The General Medical Council’s guidance Good Medical Practice (May 2001) states that ‘patients must be able to trust doctors with their lives and well-being’ and that a doctor must be ‘honest and trustworthy’. The guidance is also very clear on the issue of probity, when it states that doctors ‘must be honest in financial and commercial dealings with employers, insurers and other organisations or individuals.’” 10. Then a little later, this: “The Panel is satisfied that it is not sufficient to conclude this case with a reprimand. The Panel also determined that, given the serious nature of your conviction, the imposition of conditions on your registration would not be appropriate or proportionate. “The Panel then went on to consider whether it would be sufficient to direct that your registration be suspended, a sanction advocated by Mr Kennedy on your behalf. The Panel considered carefully the bundle of testimonials submitted on your behalf which refer to your unquestioned capabilities as a clinician and appreciates that a number of your patients support you despite your convictions. It also considered a letter of support for you from Dr Tony Stanton, Joint Chief Executive of Londonwide LMCs, which states that Camden PCT has chosen to be supportive of you following your convictions. The Panel has also borne in mind your many years service as a medical practitioner, your own strong desire to continue to practise, the fact that there are no previous GMC findings against your registration and the favourable oral evidence of your practice manager, Ms O’Connor, and your former partner in the practice, Dr Nagle.”

“What he was doing, and doing in a thoroughly inappropriate fashion, was trying to maintain a proper doctor-patient relationship with Miss R.”

“36. Before I consider finally whether I am persuaded that the sanction imposed was excessive, I should refer to another matter. Once this complaint was made, Dr Raschid was dismissed from his post by the Trust and an alert letter was sent out to other Trusts. The result of that was that he has found it impossible to obtain employment elsewhere within the National Health Service. The result of that is that he has in fact since March of 2004 been unable to obtain gainful employment as a practitioner, and, although he has not been formally suspended, he has in effect not been able to practice. That has had a profoundly damaging effect upon him, as one might expect. I have to consider whether it is appropriate to take that into account. “37. It was a matter that was before the Panel, of course, in July of last year, but it is not a matter which they have referred to in the reasons which they gave for imposing the sanction. Miss Lee [I interpolate for the GMC] has submitted that it is generally a matter that is not material when considering the appropriate sanction. I disagree. It seems to me that it is as material as any other form of mitigation.”

“42. What I have to consider is whether I can be persuaded, as I say, that the view taken by the Panel was one which in the circumstances was clearly wrong in as much as they were not reasonably entitled to take the view that they did. I observe that if it were left to me I would have no doubt that the sanction was unnecessarily severe. But that is not the test which is the right one for me to apply because it is not for me to override the view of the Panel, who have the expertise and who draw the lines and make the decisions as to what is or is not to be regarded as serious and justifying a particular penalty. “43. On the other hand, this is an appeal, with no limitations beyond those which the Privy Council and this court have indicated are appropriate. I have to consider the matter on the basis of all the material that is before me. I also have to have a particular regard in this context, as it seems to me, for the reasons given by the Panel for proceeding as they did. “44. It is, in my view, difficult to follow why they took the view that this case merited the most serious form of suspension, namely, one of twelve months. It would have been open to them to impose, if they felt a suspension was essential, a lesser period of suspension. “45. Furthermore, it is, in my judgement[sic], difficult to understand why they felt it necessary to decide that there should be a review hearing. I can understand their concern about keeping clinical knowledge and skills up to date, but that could only be done by a suspended doctor by keeping himself up to date through reading and discussion. Indeed there is no reason to believe that Dr Raschid would not do that because he would still maintain and has still maintained his academic interests. Accordingly, that seems to me in the circumstances to be unnecessary so far as the ability to demonstrate the requirement of an acceptable understanding of the principles of Good Medical Practice. Indeed, it is difficult to see what he could do other than read them and appreciate what they said, and that would not take twelve months for him to do. “46. The assertion that an appropriate period of twelve months would allow him to address the deficiency in his conduct really is doing no more than asserting the opinion that the misconduct was serious and that nothing short of the sanction of a period of suspension would suffice. But I have no doubt whatever that to impose that maximum period of suspension was wrong and excessive in all the circumstances of the findings made in this case, having regard to the nature of the misconduct which I have identified.”

“27. The question really is: how did the Panel judge her criminal conduct? Of course it was serious. Of course a sentence of 6 months’ imprisonment, albeit suspended, indicates that it was serious, and of course this was an enormous bud m t e d by her daughter. But it is always necessary to remember that she was not convicted of any direct involvement in the fraud. Indeed, there was no evidence that she was in any way directly involved in the fraud. What she was convicted of was assisting in the retention of proceeds, suspecting that they were the proceeds of crime. “28. The Panel then went on: ‘This was a huge fraud perpetrated primarily by your daughter.’ “It was perpetrated entirely by her daughter. Of course, one does not want to read too much into the precise words used by the Panel, nor is it a question of construing it as if it was a statute. But it is a little worrying, in my view, that the Panel used the word ‘primarily’ in connection with the alleged failure to have insight into or accept the enormity of the criminal conduct. It does suggest that the Panel may have taken a rather more serious view of the appellant’s involvement than was justified by the evidence that was before them. It is, of course, easy to say to oneself that she was convicted of offences committed in connection with a most serious and well publicised fraud by her daughter. That, in itself, would no doubt make the public concerned about any sanction which was less than the most severe. But one has to think in terms of the well-informed public, not the public who read the media and do not necessarily follow the full details of any particular matter. In this case, the full details were such as, in my view, did not justify those observations made by the Panel. “29. However, they then went on to consider the impact of dishonesty and indicated (and correctly indicated, in my view) that the dishonesty, whatever level one applies to it, did represent a gross breach of the principles of medical practice and falling short of the standards of conduct the public was entitled to expect from a registered medical practitioner. The Panel determined that the actions were fundamentally incompatible with her continuing to be on the Register and that a suspension was not a sufficient or appropriate sanction, and public trust in the profession and disapproval of the conduct needed erasure. “30. As I said earlier, although I am persuaded that the observations which I have referred to were not entirely justified, that does not mean that the ultimate sanction was not justified. One has to look -- and I now have to look -- at the conduct and decide whether it does indeed justify the sanction that was imposed by the Fitness to Practise Panel. This was dishonest action by the appellant. It was, in my view, serious dishonesty in the sense that it was an involvement in the proceeds, and assisting her daughter in dealing with the proceeds, of what she must have appreciated was a serious criminality, in the sense that she should have suspected that the very large sums of money which her daughter was able to dispense could not conceivably have come from honest sources, however much she was duped by the dishonesty and the lies told to her by her daughter. “31. On the other hand, there were the very favourable reports upon her and the recognition that she has suffered herself very considerably as a result of the conduct of her daughter. She has, to an extent, been a victim of her daughter’s dishonesty. I say to an extent because of the £16,000 which her daughter dishonestly obtained h m her. Once she was aware of her daughter’s dishonesty, she take [sic] steps to try to do as much as she could to repair the damage which had been caused to others. “32. I am bound to say that, having regard to all the circumstances, I do not think that it was necessary to impose the ultimate sanction of erasure. But I would not have thought it right to interfere if the Panel had directed itself in a way which was proper. It is clear that there is what might be described as a ‘grey area’ where a judge may take the view that he would not have imposed a particular sanction but it cannot be said that to have done so was clearly wrong. I must be careful to ensure that I am not applying my views when the views of the Fitness to Practise Panel are what Parliament has decided primarily are the ones that should prevail. As I repeat, that must depend on the individual case and on the Panel having had regard to anything they should not have had regard to or having taken a mistaken view of the evidence before it. “33. For the reasons I have sought to indicate, I take the view that this Panel did, in those respects, take a mistaken view of the seriousness of the conduct of the appellant. For that reason, I feel that I am able to deal with the matter on the basis that the true position is that she was not as seriously involved as the Panel appear to have believed. In all those circumstances, it seems to me that it is not necessary that the end of the appellant’s career should be marked by erasure. Still, the seriousness of what she did will have to be recognised and, as is accepted, nothing short of suspension is appropriate. What I propose therefore to do is to allow this appeal and to substitute for the erasure a period of suspension which will now take immediate effect.” ‘This was a huge fraud perpetrated primarily by your daughter.’ “It was perpetrated entirely by her daughter. Of course, one does not want to read too much into the precise words used by the Panel, nor is it a question of construing it as if it was a statute. But it is a little worrying, in my view, that the Panel used the word ‘primarily’ in connection with the alleged failure to have insight into or accept the enormity of the criminal conduct. It does suggest that the Panel may have taken a rather more serious view of the appellant’s involvement than was justified by the evidence that was before them. It is, of course, easy to say to oneself that she was convicted of offences committed in connection with a most serious and well publicised fraud by her daughter. That, in itself, would no doubt make the public concerned about any sanction which was less than the most severe. But one has to think in terms of the well-informed public, not the public who read the media and do not necessarily follow the full details of any particular matter. In this case, the full details were such as, in my view, did not justify those observations made by the Panel. “29. However, they then went on to consider the impact of dishonesty and indicated (and correctly indicated, in my view) that the dishonesty, whatever level one applies to it, did represent a gross breach of the principles of medical practice and falling short of the standards of conduct the public was entitled to expect from a registered medical practitioner. The Panel determined that the actions were fundamentally incompatible with her continuing to be on the Register and that a suspension was not a sufficient or appropriate sanction, and public trust in the profession and disapproval of the conduct needed erasure. “30. As I said earlier, although I am persuaded that the observations which I have referred to were not entirely justified, that does not mean that the ultimate sanction was not justified. One has to look -- and I now have to look -- at the conduct and decide whether it does indeed justify the sanction that was imposed by the Fitness to Practise Panel. This was dishonest action by the appellant. It was, in my view, serious dishonesty in the sense that it was an involvement in the proceeds, and assisting her daughter in dealing with the proceeds, of what she must have appreciated was a serious criminality, in the sense that she should have suspected that the very large sums of money which her daughter was able to dispense could not conceivably have come from honest sources, however much she was duped by the dishonesty and the lies told to her by her daughter. “31. On the other hand, there were the very favourable reports upon her and the recognition that she has suffered herself very considerably as a result of the conduct of her daughter. She has, to an extent, been a victim of her daughter’s dishonesty. I say to an extent because of the £16,000 which her daughter dishonestly obtained h m her. Once she was aware of her daughter’s dishonesty, she take [sic] steps to try to do as much as she could to repair the damage which had been caused to others. “32. I am bound to say that, having regard to all the circumstances, I do not think that it was necessary to impose the ultimate sanction of erasure. But I would not have thought it right to interfere if the Panel had directed itself in a way which was proper. It is clear that there is what might be described as a ‘grey area’ where a judge may take the view that he would not have imposed a particular sanction but it cannot be said that to have done so was clearly wrong. I must be careful to ensure that I am not applying my views when the views of the Fitness to Practise Panel are what Parliament has decided primarily are the ones that should prevail. As I repeat, that must depend on the individual case and on the Panel having had regard to anything they should not have had regard to or having taken a mistaken view of the evidence before it. “33. For the reasons I have sought to indicate, I take the view that this Panel did, in those respects, take a mistaken view of the seriousness of the conduct of the appellant. For that reason, I feel that I am able to deal with the matter on the basis that the true position is that she was not as seriously involved as the Panel appear to have believed. In all those circumstances, it seems to me that it is not necessary that the end of the appellant’s career should be marked by erasure. Still, the seriousness of what she did will have to be recognised and, as is accepted, nothing short of suspension is appropriate. What I propose therefore to do is to allow this appeal and to substitute for the erasure a period of suspension which will now take immediate effect.”

“On an appeal under this section from [the Professional Conduct Committee the Committee on Professional Performance or the Health Committee] the court may (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by [the committee concerned]; or (d) remit the case to the [committee concerned] to dispose of the case in accordance with the directions of the court and they made such order as to costs (or, in Scotland, expenses) as it thinks fit.”

“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”

“28. In the appellant’s case the effect of the committee’s order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession. “29. That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified.”

“The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner’s failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee’s judgment more than is warranted by the circumstances.”

“this was a huge fraud perpetrated primarily by your daughter”