Sherif, R (on the application of) v General Medical Council [2008] EWHC 1554 (Admin)

Case No CO/1870/2007[2008] EWHC 1554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 11th June 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OF NASHWA SHERIFClaimantv
Between
THE 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)
David Morris appeared for ClaimantGemma White (instructed by the General Medical Council) appeared for Defendant
J U D G M E N T

LORD JUSTICE STANLEY BURNTON:

[1]This is a statutory appeal by Dr Nashwa Sherif against the decision of a Fitness to Practise Panel of the General Medical Council ordering her erasure from the medical register. Such cases are often tragic for the doctor involved. I have no doubt that this too is one such case.[2]Dr Sherif is now 50 years old. She qualified in Egypt. During the relevant period she was working at so-called slimming clinics, which were owned by Dr Abu Romia and his wife. So she was his employee. He, at the time in question, had been suspended from the register, and therefore was not entitled to work as a doctor providing medical services, as Dr Sherif came to know. Neither of the clinics at which she worked was duly registered.[3]The allegations against Dr Sherif were numerous. Some were disputed. Many were admitted. I do not propose, in this judgment, to set them all out individually. They included continuing to work at the clinics, knowing that they were unregistered, according to the unchallenged evidence before the Panel, when she had been told that they were unregistered, and when she had agreed not to work at them because they were unregistered. They included the prescription of inappropriate drugs for the treatment of obesity; the provision of drugs to patients in circumstances where Dr Sherif knew that the general practitioner of the patient would be unaware that his patient or her patient was taking the drugs in question and was receiving the treatment in question; the signing of treatment cards, where she was not the treating physician, but Dr Abu Romia was; wholly inappropriate care and custody of drugs, drugs which were subject to the Misuse of Drugs (Safe Custody) Regulations; a failure to take a proper and appropriate history from a patient before deciding on that patient's treatment; and an important act of dishonesty, now admitted to be so, which arose out of the Professional Conduct Committee's proceedings against Dr Abu Romia himself.[4]He was, at the relevant time, suspended. If he was providing medical services while suspended, that itself would be a disciplinary offence, it would be a very good reason for his suspension to be continued, and it might have led to his erasure. Dr Abu Romia gave Dr Sherif's name as someone to whom they could write to obtain information as to his conduct since June 2003, when his case had last been considered by the Professional Conduct Committee, as it was then known. She replied at follows:
"I know Dr Abo-Romia since September 2004, I can not recollect the exact number of times I have seen him, but it would be approximately 10- 15 times. He attended the clinic and his participation during this time was totally administrative with no medical or clinical participation. I found him co-operative, polite and reliable."
Leaving aside the error as to the year in question, it is accepted that the remainder of that letter was untrue and known to be untrue. She had seen him a lot more than 10 or 15 times, and he was not working in a totally administrative capacity with no medical or clinical participation.[5]The wording of the letter itself shows that Dr Sherif must have been aware of the purpose for which the information was being sought by the General Medical Council and the purpose in her writing this letter must have been, as she knew, to lead the GMC to believe that Dr Abu Romia was not in breach of his suspension. The Panel in Dr Sherif's case regarded this as a serious incident of professional dishonesty. I entirely agree.[6]When one looks at the totality of the allegations which were proved or admitted, in my judgment they justified a conclusion, looked at not solely individually but in their total effect, as being fundamentally incompatible with continuing to be a registered medical practitioner.[7]The conclusion and the determination as to sanction of the Panel, it is submitted on behalf of Dr Sherif, was unjustified as being excessive, disproportionate and unnecessary. The function of the court in a case such as the present is well known. The function of the court is a review function. The court must take into account the fact that the Panel is professionally qualified, that it is, in particular, qualified to assess both the requirements for proper practice of a registered medical practitioner, the seriousness of any misconduct which is established or admitted, and whether that misconduct can appropriately be dealt with by some lesser sanction than erasure.[8]In particular, challenge has been mounted against the finding of the Panel that Dr Sherif had not demonstrated full insight into her conduct or, as put in another part of the recent decision, that she had shown a persistent lack of insight into the seriousness of her actions and their consequences, and into their finding that it followed from her lack of full insight that there was a significant risk of her repeating her behaviour. On such a challenge, the court must bear in mind that it has not heard the oral evidence, particularly the evidence of the appellant herself, and is not in as good a position as the Panel to assess issues such as insight and risk of repetition. In my judgment, therefore, there is a very significant hurdle faced by an appellant in a case such as the present, where it is said that the Panel were not entitled to, or wrongly made, such an assessment.[9]The matters relied upon by the appellant as demonstrating her insight and the incorrectness of the findings of the Panel are primarily:(1) her apologies as to her conduct; and(2) the fact that since 2004 she ceased to be an employee at the clinics and she has worked appropriately with no suggestion of misconduct. I bear those in mind, as I have no doubt the Panel did also, but I have to say that far from establishing that the Panel was not entitled to come to its conclusions and make the findings to which I have referred, the evidence amply justified their concerns and their findings.[10]I refer by way of example to the findings of the Panel under allegations 12a and 12b. That concerned the knowledge of the appellant that Dr Abu Romia had indeed been suspended. There was evidence before the Panel of Detective Constable Beard, who said that in April 2004 she had indicated to him that she knew that Dr Abu Romia had been suspended. The Panel found the appellant's evidence in relation to that conversation to be inconsistent and evasive. No challenge has been made before me to that finding.[11]She was examined and cross-examined about the reference given by her about Dr Abu Romia. I have to say, looking at that evidence, I do not find in it a straightforward acceptance of her misconduct, her dishonesty, and of the importance of a truthful answer to the inquiry of the GMC. It is, in my judgment, on an appeal such as the present, for the appellant to demonstrate that the Panel was not justified in making a finding of lack of complete insight, and the material before the court does not justify the court in differing from the conclusion of the Panel.[12]So far as the risk of repetition is concerned, in my judgment the Panel had to bear in mind the fact that there were numerous offences committed over a significant period, that offences were committed in circumstances where the appellant knew, clearly must have known, that what she was doing was wrong. One example only is the fact that, having promised that she would not work at an unregistered clinic, she in fact continued to do so as if she had never given that promise. The number, period and seriousness of the allegations which were established by evidence or admission of itself was capable of giving rise, and in my judgment did give rise, to an inference that there was a real risk of repetition. Having regard to the finding, which was an available finding to the Panel, of a lack of significant insight, it seems to me that, putting those two together, the Panel was entitled to assess that there was a real risk of repetition.[13]Any dishonesty raises a question as to fitness to practise. Here there was not simply dishonesty, there was inappropriate treatment, there was knowing breach of regulatory provisions, there was a complete lack of care as to drugs, there was the lending of the appellant's name to what was being in fact done by Dr Abu Romia, something which was evidently wholly improper. In those circumstances, far from concluding that the Fitness to Practise Panel was not justified in coming to the conclusion it did come to, I see no justification for interfering with this decision. The Panel had regard to the Guidance, the Guidance indicated that erasure might be appropriate in circumstances where there was dishonesty, serious departure from relevant professional standards set out in good medical practice and a persistent lack of insight. The Panel found all three of those indications of erasure to be established. What, in my judgment, is more important is that ultimately the Panel regarded the misconduct of the appellant as being fundamentally incompatible with continuing to be a registered medical practitioner: see the first paragraph after the quotation at page 50 of the core bundle, being part of the decision of the Panel dated 6th February 2007.[14]I fully appreciate, as I indicated at the beginning of this hearing and at the beginning of this judgment, that the erasure of Dr Sherif is a matter of personal tragedy but, having regard to the seriousness of the allegations established or admitted and the evidence before the Panel, my conclusion is that the Panel was justified in making the determination it did, in deciding that a lesser sanction would not be appropriate, having regard to the seriousness of the misconduct in question. In those circumstances, this appeal must be dismissed.[15]MS WHITE: I am grateful, my Lord. I have an application for costs on behalf of the respondent. I believe my Lord ought to have received a schedule from my instructing solicitors.

LORD JUSTICE STANLEY BURNTON: I am sure I did. Whether I can find it --

[17]MS WHITE: My Lord, I have a spare one behind me, if it assists. (Handed).

LORD JUSTICE STANLEY BURNTON: That would be helpful. Thank you.

[19]MS WHITE: I ask my Lord summarily to assess those costs in the sum set out in the schedule. In doing so, and in support of the reasonableness of those costs, I point to a schedule submitted on behalf of my learned friend, which is half again as much. His schedule, despite his previous involvement in the case, comes out at £12,000. My Lord, in those circumstances I submit it would be difficult to suggest that the sum of £8,000 is not appropriate.

LORD JUSTICE STANLEY BURNTON: Mr Morris, do you say anything about, first of all, the principle of costs.

[21]MR MORRIS: No, my Lord.

LORD JUSTICE STANLEY BURNTON: Quantum?

[23]MR MORRIS: No, my Lord.

LORD JUSTICE STANLEY BURNTON: £8,000.28.

[25]MS WHITE: I am grateful, my Lord.

LORD JUSTICE STANLEY BURNTON: Thank you.