Baldar, R (on the application of) v General Medical Council [2007] EWHC 2054 (Admin)

Case No CO/9088/2006[2007] EWHC 2054 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 17th August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF DR JUAMER IBRAHIM AMIN BALDARClaimantv
Between
GENERAL MEDICAL COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The claimant appeared in person for in personMs Fenella Morris (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: Dr Baldar, the appellant, was ordered by the relevant committee of the General Medical Council to be erased from the Register. This resulted from his admission that he had been convicted of a number of charges and as a result of those convictions the Committee decided that that was the appropriate sanction to impose. Dr Baldar appeals against that, submitting that not only was it too severe but that, in imposing it, the Committee failed to have regard properly to certain matters that were put before it and acted unfairly in preventing him properly putting forward the matters that he wished to put forward in explanation of the offences which he admitted that he had committed.[2]He represented himself before the Committee, as he has before me, and he has set out his submissions in a detailed skeleton argument, supported by documents which have been placed in a folder, and has expanded upon the written submissions in the course of his argument before me this morning. I have no doubt that he has put before me all material matters and has explained why he asserts that the sanction was too severe. In particular, he submits that it was, as he puts it, discriminatory in as much as he has made reference to at least 14 other cases, all decided in the year 2006, in which doctors who have been convicted of various offences were subjected to lesser sanctions, whether a suspension or conditions, and he submits that the misconduct, the offences committed, in some of those cases appear certainly to be more severe than the misconduct that he was guilty of and in those circumstances he submits that there is an inconsistency in sentencing. There ought to be a consistency, and that is a matter which can properly be taken into account on the appeal.[3]Dr Baldar is Iraqi by origin. He came to this country originally in 1994 and he sought and obtained asylum and he is now a British citizen. His medical qualifications were achieved in Iraq and one thing that is clear is that he is a thoroughly competent surgeon, being a fellow of the Colleges in, I think, Scotland and in Ireland, and no suggestion is made that he is other than competent and he produced a number of references from colleagues which showed that his abilities were respected in the work that he did. So this is not a case where it can be said that there was any danger to the public from a lack of competence. Danger to the public may exist in many cases involving conduct but in cases involving convictions it may well be a less important aspect. However, the Panel, as it now is, was bound to follow the Indicative Sanctions Guidance and it is that approach which is designed to try to achieve a degree of consistency so that those who are interested in the way in which the Panel will carry out its functions can know what the approach is and any doctor will know what he may face if he commits offences and what will be the approach of the Panel when it comes to consider the question of what sanction is necessary.[4]At paragraphs 12 to 15, the guidance deals under the heading of "The Public Interest" with the approach that should be taken. In paragraph 13, this is said:
"The question of whether the Fitness to Practise Panels should consider only 'the protection of members of the public', or whether they could also consider the wider 'public interest' in determining sanctions arose in the 1998 Bristol case. Counsel for the GMC drew attention to a number of relevant Judgments by the Judicial Committee of the Privy Council which illustrate, that in addition to the protection of the public, the public interest includes, amongst other things: a. Protection of patients b. Maintenance of public confidence in the profession c. Declaring and upholding proper standards of conduct and behaviour." "15. The panel must keep the factors set out above, and confirmed in the Judgments ... at the forefront of their mind when considering the appropriate sanction to impose against a doctor's registration. The public interest may, on occasion, also include the doctor's return to safe work but the panel should bear in mind that neither the GMC nor the panel has any responsibility for the rehabilitation of doctors. 16. In deciding what sanctions to impose the Panel should apply the principle of proportionality, weighing the interests of the public with those of the practitioner, which could include returning immediately, or after a period of retraining, to unrestricted practice. In addition the Panel will need to consider any mitigation in relation to the seriousness of the behaviour in question. The extent to which mitigation should influence judgment on a finding of impaired fitness to practise is then on sanction, is dependent on the individual circumstances in the case. The Court of Appeal has made it clear that mitigation will normally be more relevant to sanction."
That is dealing with the approach to conduct and, of course, conduct is separate from conviction but clearly the same principle applies to conviction cases and it is in that context important that the aspects of maintenance of public confidence in the profession and upholding the proper standards of conduct and behaviour are borne in mind.[5]The relevant convictions in this case were one of assault arising out of a road rage incident in, I think, 2004 and the others were offences of dishonesty. They arose largely because Dr Baldar had the misfortune to break his ankle in the course of involvement in some charity sporting event on behalf of Broomfield Hospital. This injury meant that he was unable to work for a time and he received sick pay. Unfortunately, he, he says erroneously, believed that when he was on half sick pay he was entitled to work and he sought employment at a number of different hospitals and obtained various employments for short periods of time. He was not entitled to work whilst receiving sick pay. Indeed, he recognises now, and he recognised once proceedings were bought, that he should not have done that because, as is perhaps obvious, sick pay is provided on the basis that there is an inability to carry out full time work. In any event, there were charges of obtaining by deception the pay from the relevant trust which amounted, it seems, to something in the order of £15,000 over all and that was one of the elements of his dishonest activities.[6]The second arose from the obtaining of the various employments whilst he was recovering from his ankle injury. What he did was to fail to disclose the true nature of his CV. In particular, he falsified his age by asserting that he was five years younger than in fact he was and, secondly, and perhaps more importantly, he indicated that he had passed the necessary tests which are imposed upon a doctor from overseas at first go (that is what is called the PLAB examination). In truth, he had not passed it at first go but had had to take it on three occasions before he passed. That, as perhaps is obvious, was capable of indicating that his experience or ability was not as great as he was asserting. Secondly, so far as the age is concerned, that again is capable of implying to those who receive the information that he had achieved the necessary status at an earlier age than in fact was the case and thus was capable of indicating that his abilities were greater than they were.[7]In the course of the criminal proceedings at the Crown Court, he made certain admissions and what was stated in relation to the various deceptions (the charges being obtaining pecuniary advantage in the obtaining of employment and the remuneration which went with that employment by deception) he claimed that he had passed the PLAB in London in 1996 on the first attempt. In reality, he failed it twice in 1995 and finally passed it in early 1996. He indicated that he had graduated from a college in Iraq, which he had not graduated from, although he asserted that in fact there was no material difference in as much as the one that he had indicated was a sister college of the one from which he had in fact graduated. It is difficult in those circumstances, I am bound to say, to understand why he thought it necessary to make that particular deception. He claimed that he was employed as a Senior House Officer in general surgery between August 1999 and February 2000. In reality, he in fact was, or had been during that period, unemployed. There were various other, perhaps not so material, false indications.[8]So far as the assault is concerned that was, it seems, an incident of road rage. Fortunately the assault produced no substantial or real injuries in the victim, who was a lady. Of course, if there had been injuries, there would have been a charge of the more serious offence of assault occasioning actual bodily harm, whereas the charge was one of common assault. The circumstances, as relied on by the prosecution and reported accordingly to the Panel, were that in early 2004 the lady was waiting to do a U-turn into the westbound carriageway of the Uxbridge Road, Dr Baldar approached from the westbound carriageway in his car and gestured to her and made some comment to her which reflected upon her driving ability and also made a rude remark to her, calling her later an "ugly bitch" and an "ugly fat cow". She apparently retaliated at least verbally and spat at him, he having spat, she said, at her, whereupon he punched her on the back of her head and at some stage hit her on the right side of her face. He was arrested at the scene. At that stage the lady was, according to the police, shaking and very distressed and there was some swelling. He denied the allegation when interviewed, said he had never hit her and all the struggle was about was pulling her away from him:
"... she started swearing at me first and all that happened was just a response..."
[9]He disputed the charge but was convicted. He appealed against conviction to the Crown Court but he abandoned that appeal, he says, because he was informed that he ran the risk, if the appeal was dismissed, of being sent to prison, or rather of a more serious penalty being imposed than that which had in fact been imposed by the Magistrates. What the Magistrates had done was to sentence him to pay costs and to be the subject of community service for 240 hours, which was a substantial penalty for a first offence of common assault. This was obviously a serious matter and was dealt with as such by the Magistrates. So far as the dishonesty offences were concerned, which eventually were tried before the Crown Court, he pleaded guilty, somewhat at the last moment. He informs me that he took advice from his legal representative, in particular in relation to the sickness offences, on the basis that he was advised that his account that he was not acting dishonestly was not likely to be believed and that he would face a greater punishment if he fought and was convicted than if he pleaded guilty. So, although he did not entirely accept that he had knowingly acted dishonestly, he pleaded guilty.[10]The judge, in sentencing, having set out the pleas to nine counts of obtaining pecuniary advantage and one count of obtaining the money by deception, indicated that the period of time covered was December 2001 to June 2002, the loss involved was some £15,000-odd and the judge accepted that no patient was put at risk by his conduct, which in the context of these proceedings is a not unimportant factor. The judge went on:
"The obtaining of these hospital appointments over a period of three years following the submission by you of those documents riddled with lies is an extremely serious matter. The proper and honest completion of occupational health questionnaires and CVs in order to obtain posts within the National Health Service in essential in order to ensure that those employed in that service are of the highest calibre, not only in terms of medical ability but also in terms of the kind of people who are employed and the honest completion of such forms is an essential and integral part of assuring the public that those employed in our hospitals are of the highest calibre with the highest standards. Equally, a hospital is entitled to expect that an employee such as yourself in a trusted position will not submit medical certificates which the employee knows to be false and thereafter dishonestly obtain monies from that employer."

The judge went on:

"I furthermore bear in mind that you have lost your good name and, indeed, that you are likely to be struck off... that being a matter which no doubt was put forward as mitigation on the basis that the doctor would suffer very considerably because his ability to continue his career would be effectively bought to an end and indeed, as he points out, since 2004 he had been suspended so in effect he has been unable to practise as a doctor since then. But, nonetheless, the judge took the view that the offences were so serious that a substantial prison sentence was the proper outcome and the sentence imposed was one of 15 months' imprisonment and that was upheld by the Court of Appeal in that an application for leave to appeal was refused.[11]That then was the nature of the offending. When the matter came before the Panel, the convictions were inevitably and naturally accepted and admitted and, equally inevitably (and Dr Baldar does not seek to dispute this) the decision was made that this amounted to serious professional misconduct which justified the imposition of a sanction. The only question then was what was the appropriate sanction. One of the points raised in his grounds is that the Panel ought not to have considered the offences together. He seeks to distinguish between the violence offence and the dishonesty offences, submitting that different panels should have considered those. That is, I am bound to say, I am afraid, a hopeless submission because it was incumbent upon the Panel in deciding what was the appropriate sanction to consider the whole of the offending of which Dr Baldar was guilty. Any other approach would have been wholly artificial and wrong because what the Panel had to do was to look to see what the individual before them had done and to see whether the whole of that conduct, in this case conduct resulting in convictions, justified a particular sanction.[12]There are one or two other matters of procedure of which complaint is made by Dr Baldar. He was advised, and properly advised, by the chairman before he came to give evidence to put forward his mitigation so that the Panel could consider what was the appropriate sanction that he would start by reminding Dr Baldar that they were not sitting as a Court of Appeal nor were they inquiring into the convictions again and what concerned them was the one issue, whether as a result of the admissions that he had made and the facts that the Panel had heard his fitness to practise was impaired and they would then go on to consider what sanction was to be imposed. As I say, they clearly, and properly, decided that the fitness to practise was impaired and then Dr Baldar was told that he had the opportunity to give evidence and he choose so to do. Early on, really right at the outset of his evidence, the chairman said this:
"I remind you once more, Dr Baldar, of the nature of the inquiry we are conducting at this stage, which is of limited scope. It is not our purpose to act as a Court of Appeal for any form of conviction. Do you understand that?"
Dr Baldar then said yes. He was then asked what he would like to say. He started by indicating that he wished to apologise to the GMC and to the hospitals for his actions but he went on to say that there were lots of things that had been exaggerated in the Crown Court case against him and in one instance there had been, as he put it, an obvious and deliberate lie which he could prove to have been a lie and over all there was a general exaggeration. He went on:
"Obviously I have mentioned that this does not excuse the offences that I have committed of dishonesty and obtaining a money transfer by deception."
He then went on to deal with the point that he has made that the university was a sister university to that from which he had actually graduated. The chairman then said:
"I hesitate to interrupt you, Dr Baldar, but you are doing the very thing I said we were not going to do. We are not going to investigate the rights and wrongs of your conviction. The fact of the conviction is on the record."
[13]There is, of course, a line to be drawn on one side in to put forward matters which effectively challenge the correctness of the decision such as, for example, an assertion that, although there was a conviction of an offence of dishonesty, actually the individual was not dishonest for this, that or the other reason. It is another thing to say "yes, I accept that I did what is alleged against me but my reasons for doing it are this, that or the other and that shows that my criminal responsibility is not as serious as might otherwise appear to be the case". As I say, there is a difficult line sometimes to be drawn between those two approaches and what the chairman was doing was to make clear to Dr Baldar that he had to keep the right side of the line. It is plain from the transcript which I have of the hearing that he did go on to explain what Dr Baldar wanted to about the nature of his involvement and he was not stopped from saying what he wished to say. He referred, again, to the different colleges. He made the point that the CPS, he said, was trying to exaggerate the lies, making him look like a big liar. He said:
"While I admit that I lied on a small few facts, they intended to magnify things by putting in these lies."
[14]He then want on to the common assault. He accepted that there was nothing to excuse his behaviour and he was regretful and he made the point that he had not been involved in any sort of violence before and he then sought to explain the situation, that he regretted, and he maintained that he really was not entirely to blame for what had happened and, as he put it, this was regarded as minor violence and was under the heading of petty crime (as indeed it was categorised in the police report). He maintained that he had not done more than push the lady, rather than having hit her, and he maintained that he had not pushed her deliberately but just pushed her away from him. That does go further than might be regarded as permissible because, clearly, if that is all that he had done, it is doubtful whether he should have been convicted of the offence of common assault and the fact that the relatively severe penalty was imposed upon him makes it plain that the Magistrates accepted that the victim's evidence was broadly correct and that the actions of Dr Baldar were much more serious than he was prepared to admit before the Panel.[15]He then went on to seek to put before the Panel an indication of his cultural background, which had led to a somewhat different approach to the putting forward of what otherwise might be regarded as serious lies. What he said was this:
"Coming to the issue of the obtaining the jobs by deception, I would like to just put the Panel in the picture of people coming from other countries, especially from my country, which is not something to be proud of, but we got in the habit of making what we call white lies to the authorities in order to avoid getting into problems with them. The definition of these white lies is quite variable and could involve anything. It is not something only related to me..."
The chairman then interrupted him and said that he might want to consider whether it really was sensible for him to pursue that particular line of argument because it might suggest that he had not told the truth entirely, even, for example, when he had obtained international protection as a refugee. That was a warning which was in my view entirely appropriate and sensible because not only did it go to that but it also went to whether it could be said that the doctor had properly recognised his faults in what he had done and was prepared to accept that he had been guilty of serious misconduct. If he was not able to appreciate the seriousness of what he had done, that was undoubtedly capable of amounting to an aggravating factor and, indeed, that is precisely what the Panel in due course found. In deciding on the sanction, it said this:
"The Panel has listened carefully to your explanation of events and considered your written representations. In relation to the conviction of assault by beating, you have told the Panel that your actions were unacceptable, and that you have not been involved in any violent episodes before or since this incident. In relation to your conviction for deception, you have explained that this amounted to 'small white lies' and that such behaviour is 'acceptable' in your country of origin. You have further explained that, without denying you provided a false date of birth on your application forms, when attending interviews for employment as a doctor/locum at the five hospitals in question, you had your passport and GMC certificate available (containing your correct date of birth) for inspection, if requested. Whilst noting your expressions of regret, the Panel considers that by, amongst other things, attempting to minimise the gravity or your offences, you have little insight into your offending behaviour."
[16]I am afraid that I take the view that the Panel was entirely justified in those observations, having regard to the matters that Dr Baldar was putting before it in the course of his evidence. It is, of course, difficult for someone such as he, who is representing himself, and not having the benefit of legal advice and representation, but I have no doubt that had he been represented those matters would not have been put before the Panel in that form. However, as I say, it is a matter that undoubtedly the panel was entitled to take into account as aggravating. I am not in the least persuaded, having read the transcript, that the interventions by the chairman prevented the appellant from putting before the Panel the relevant material that he wished to put before them and the submissions that he wished to make in relation to his explanations for the conduct that had resulted in his convictions and I can see no procedural impropriety and no prejudice to him in the way in which the hearing took place. He was given, as the transcript makes plain, a perfectly fair hearing of the matters that are alleged against him. He does assert that he never said that he wanted to minimise the gravity of the offence, indeed quite the contrary, but, as I have already said, in my view the Panel was entitled to draw the conclusion that it did from what had been put before it.[17]There can be, in my judgment, no doubt whatever that this offending, covering not only dishonesty but two material forms of dishonesty, one directed against the Trust, obtaining money to which he was not entitled, and the other directed to obtaining employment that he might not otherwise have obtained (or rather he believed, one supposes, that he might not otherwise have obtained) and the third relating to an offence of violence, was properly to be regarded as serious. As was put on his behalf before the Crown Court judge, and as the Crown Court judge indicated, it was the sort of situation where erasure was very probable. I recognise, of course, that, as some of the cases to which Dr Baldar has referred indicate, had the Panel decided in all the circumstances, in particular having regard to the fact that he was a good doctor and was no danger to any patient, that it might have been possible to impose a lesser sentence. In addition, they could have had regard to the fact that he has had now some three years suspension income and no doubt has mounting debts and he cannot go back to Iraq for obvious reasons; or even if he could go back, because the regime has changed somewhat since 1994, it is not a place where anyone in their right mind would want to go to set up a new life, as things stand at the moment. So the reality is that he will lose his ability to earn his living as a result of this. All those matters could have persuaded the Panel to impose a lesser sentence and, had they done so, I do not doubt that that would not have been regarded as a sentence that was in any way wrong in principle. But the fact that they could have imposed a lesser sanction does not mean that the sanction that they in fact imposed was one which is wrong or which should result in a successful appeal. Dr Baldar complained that they went straight to erasure but they did in fact do what they should have done and consider all the lesser possibilities before deciding that the conduct in question, as they put it, represented a serious departure from the standards of conduct and behaviour expected of a registered medical practitioner and that his behaviour was fundamentally incompatible with his remaining on the medical register.[18]In the light of the convictions and the circumstances of them, it seems to me that it is quite impossible, I am afraid, to say that that approach by the Panel was one which was wrong and so should give rise to a successful appeal. I am content to approach this on the basis that I have a discretion which I could exercise if I was persuaded that this was a wrong decision. I am aware that the Court of Appeal has recently indicated that it should be rare for this court to allow an appeal against a sanction, bearing in mind the experience and expertise of the panel of the GMC which decides it. I, as I say, would indicate in this case that even if I were to adopt an approach which was more liberal than that which is indicated by the Court of Appeal, still I am afraid this is not an appeal which I would feel able to allow. In those circumstances, I regret to say, Dr Baldar, that this appeal must fail.[19]MS MORRIS: In the light of my Lord's decision, I do have an application for costs.

MR JUSTICE COLLINS: Yes.

[21]MS MORRIS: And we do propose to make an application for them to be assessed on a summary basis. We have provided --

MR JUSTICE COLLINS: I do not think I have a -- I have had, have I --

[23]MS MORRIS: I can hand it up to you now.[24]MR JUSTICE COLLINS: Dr Baldar, have you seen this? This is the amount of costs that they say that they are asking for.[25]DR BALDAR: Yes, my Lord. I have seen it.

MR JUSTICE COLLINS: Your point, I suppose, is you do not have any money.

[27]DR BALDAR: I am on incapacity benefit at the moment.[28]MR JUSTICE COLLINS: Well, the problem is that, as a general proposition, as you probably know, costs follow the event, that is the general approach that the court has to take. But whether there will be enforcement is another matter and that will be for -- now, the GMC is, I think, on the whole fairly sensible, at least those that I have seen are, and they will not see any point in pursuing costs if it is obvious that they are not going to get anything. It is no good getting blood out of a stone, or trying to, but it is difficult for me to refuse to make an order. As I say, enforcement is a matter for them. But you are entitled to question the amount that they are claiming. They are asking me to make a summary assessment. Now, the amount may seem quite a lot. It is 7,700 or thereabouts.[29]DR BALDAR: My Lord, I do not have any means to --[30]MR JUSTICE COLLINS: No. Well, I follow that.[31]DR BALDAR: I do not know even how to decide whether this is exaggerated.[32]MR JUSTICE COLLINS: You do have the right to ask me to put it to what is called a detailed assessment, that is to say to get a tax judge, someone who does know how to assess these costs, to say what amount is reasonable. The problem with that is twofold: first of all that it can increase the costs, obviously because there has to be a further hearing, but secondly, on the whole, from my experience, the GMC's amounts claimed are not excessive in respect of this. It may seem a lot but they are on the whole not.[33]It is always, I know, difficult, Ms Morris, but I am not sure that counsel's fees are not over all a little bit on the high side.[34]MS MORRIS: I think the difficulty is that Mr Thomas prepared the skeleton argument and then, because of the time that it was listed, I assume, he was not available because of vacation. Then the case had to be prepared by me. I suppose the second difficulty is that Mr Thomas' skeleton was produced before we received Dr Baldar's skeleton and that is the other difficulty.[35]MR JUSTICE COLLINS: But there was nothing surprising in Dr Baldar's skeleton that was not really covered by the --[36]MS MORRIS: Well, there were additional points and it was also necessary for me to wade through all those other cases.

MR JUSTICE COLLINS: Well, was it?

[38]MS MORRIS: I think I would have been negligent, if I had not, that is the difficulty, my Lord, and one can never anticipate completely what is going to happen on the day.

MR JUSTICE COLLINS: True, but you can have some faith in the judge.

[40]MS MORRIS: My Lord, I did not know who the judge might be. The difficulty is that it is always necessary to look at everything --

MR JUSTICE COLLINS: No, that is a fair point.

[42]MS MORRIS: And that is the difficulty and I hope I have not been too labourious about it. It is also difficult, my Lord, because essentially I had to prepare it and duplicate the work that my predecessor did.[43]MR JUSTICE COLLINS: I am not sure that it is appropriate to charge the appellant for the duplication.[44]DR BALDAR: At a point during the criminal trial, the prosecution sought a cost of £20,000 and the judge did not give them anything.[45]MR JUSTICE COLLINS: Well, criminal situations are rather different. This is a civil matter and, as I say, costs normally follow the event. Dr Baldar, at the moment what I am inclined to do is to reduce the amount that they are claiming. It has to be a fairly substantial sum. As I say, that does not mean that you will be pursued, because you must negotiate with them and if you disclose your present means and, where it is clear that there are not any, then I suspect they will not seek to because it will cost them money to try to enforce against you. But I cannot promise anything and it will depend on the circumstances. Of course, if you were, for example, to win the lottery then undoubtedly they would seek. What I think would be a reasonable sum, having regard to the paperwork and having regard to the nature of this, is a total of £5,000.[46]MS MORRIS: I am very grateful.

MR JUSTICE COLLINS: Effectively the claim is 7,693 and I am knocking it down to 5,000.

[48]DR BALDAR: Thank you, my Lord.[49]MR JUSTICE COLLINS: I know that seems an awful lot. I am sorry, Dr Baldar but I am afraid I could not do anything for you. Thank you for your assistance.[50]DR BALDAR: Thank you.