Atkinson v General Medical Council [2009] EWHC 3636 (Admin)

Case No CO/7308/2009[2009] EWHC 3636 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Thursday, 11 th November 2009
West Yorkshire
LS1 3BG
Before
MR JUSTICE BLAKE
Between
ATKINSONClaimantGENERAL MEDICAL COUNCILDefendant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Gledhill appeared for Claimant.Mr Morgan appeared for Defendant.
Judgment
[1]On 11 June 2009 a Fitness to Practise Panel of the General Medical Council directed that the sanction of erasure from the register be imposed on the appellant in this matter following a hearing conducted over a number of days from 1 June onwards. In the earlier part of that hearing the panel, as is conventional, first made findings of fact; then it concluded that the appellant’s fitness to practise was impaired by reason of misconduct. This is an appeal against the sanction of erasure under the Medical Act 1983 as amended.[2]Originally, eight grounds of appeal had been prepared by Mr Gledhill who appears today on behalf of the appellant who was not legally represented below. Very full and helpful skeletons have been prepared both by Mr Gledhill and Mr Morgan who appears for the respondent panel. However, it was apparent by the start of the oral hearing that a great many of the issues had fallen away, and essentially in my judgment the two interrelated questions were left for determination by the court in respect of the sanction appeal. First, was the panel wrong to conclude that the appellant had been dishonest in her evidence to it, and if so, did such a wrong conclusion impermissibly taint the sanction of erasure? Two, in any event, was the sanction of erasure wrong in all the circumstances? No full exposition of the statutory regime and the extensive case law of this court, the Court of Appeal, and higher courts, is needed to grapple with those two questions.[3]By way of introduction, it should be said the appellant is a Ukrainian national, perhaps even a Russian national by birth and nationality. She says that she was born in 1970, and if so she would be 39 years of age now. She told the police that she has been a resident in the United Kingdom since 1994. The matter is put in those terms because Mr Gledhill and his instructing solicitor felt constrained to put it no higher than that in the light of the fact that the conduct that was the subject of the disciplinary proceedings in large measure consists in fabricating a curriculum vitae and a chronology of events of her life, and it had accepted that on any view of the case she is, and was, an unreliable historian.[4]Mr Gledhill in opening this appeal recognised that on the findings made by the panel, largely on the basis of admission and no contest of evidence, there were some 22 dishonest acts committed on 12 occasions between March 2002 and November 2007. Overwhelmingly, these were dishonest statements as to qualifications and medical experience made for the purpose of obtaining employment and/or training posts in the United Kingdom. She also made false statements in the course of enquiries made by employers and others as to whether she had misstated her position, including whether she had breached the relevant rules by applying for and maintaining two training positions at the same time.[5]The investigations appear to have been running by 2006, and subsequently the police became involved in the course of 2007. Part of the matters put to this appellant were lies that she told to the police when they first investigated the allegations of misconduct, including putting forward a statement known to be false, said to have been made by a friend seeking to explain some of the wrong information in her CV. She subsequently accepted dishonest criminality in the course of her employment applications, and she was cautioned by the police. A more detailed account of the particulars of the findings is in my judgment not necessary in order to engage and determine the submissions made on the topic of sanction.[6]As previously indicated, the determination made by the panel fell into three parts. In respect of part one, when giving its conclusions on which charges were found proved, the panel said as follows:
“As a consequence of your admissions to having been dishonest to your colleagues, the number of documents you have generated bearing false information and your evasiveness at times during your evidence, the Panel finds your credibility as a witness to be diminished. However, the Panel has taken into account the legal advice given on the subject of character that a dishonest witness is not incapable of telling the truth. In relation to the reasons you gave for accepting the two part-time posts the Panel has seen written evidence to support your account which is independent corroboration of that part of your evidence. On the other hand the Panel found your evidence relating to your educational and professional qualifications riddled with inconsistencies and, at times, dishonest.”
The panel then went on to consider, in the light of its findings of fact, whether the fitness to practise was impaired. It is right to record that the appellant fully admitted in writing and orally to the panel that she accepted that it was so impaired, but clearly the ultimate question was for the panel.[7]Having recited the narrative of conduct that was the subject of the investigation on the charges from March 2002 onwards concluding with the caution administered by the Cheshire Constabulary in February 2008, the panel said as follows:
“The Panel has found that your conduct as set out above has been misleading, inappropriate and dishonest. In reaching its decision, the Panel has borne in mind the public interest which includes the protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. The Panel first considered whether your acts and admissions amount to misconduct. It is in no doubt that they do. The Panel takes a very serious view of the fact that you were persistently dishonest over a number of years and on numerous occasions. From the very start of your medical career you lied in your CVs and application forms about the qualifications you held. During your oral evidence you admitted that the purpose of claiming qualifications you did not have was to improve your prospects of succeeding to the applications. In November 2005, your dishonesty led to your telling Dr Kumar, Chair of the North Western Deanery Radiology Specialty Group, that you had not been working in General Practice when you had been. When questioned by the Police and your regulatory body, the General Medical Council, about all of these events you continued to behave dishonestly and initially did not tell the truth.”
A little later, the reasoning continues as follows:
“Your breaches of the principles and standards set out in ‘Good Medical Practice’ demonstrate that your behaviour has fallen far below the standards to be expected of a registered medical practitioner. These breaches have been serious and persistent. The Panel deplores the fact that you continued to lie whilst giving your evidence. During cross-examination you told the Panel that you had a BSc in Physics but were later forced to concede that you do not hold this qualification. Your misconduct undoubtedly compromises the standing of the profession and the regard in which it and its practitioners are held. ‘Good Medical Practice’ (May 2001 edition) states at paragraph 51 that: ‘You must be honest and trustworthy when writing reports, completing or signing forms, or providing evidence in litigation or other formal inquiries. This means that you must take reasonable steps to verify any statement before you sign a document …’”
It was in respect of the finding of lying to the panel about the BSc in physics, that the principal submission as to sanction was based. The panel continued in its deliberation as to impairment of fitness to practise with the following passage:
“As a doctor you occupy a position of privilege and trust in society and are expected to uphold proper standards of conduct. The Panel has concluded that the caution undermines the confidence which the public is entitled to place in the medical profession. Your actions fell far below the proper standards of conduct and behaviour expected of a member of the medical profession.”
[8]That part of the procedure having been reached, the panel went on to consider sanctions. It heard from the appellant, having previously heard from her in respect of the primary facts and fitness to practise. In summary, she produced a number of written testimonials demonstrating that she had competence as a clinician. No findings had been made against her in respect of her fitness to practise with respect to her clinical competence. She pointed out that her private life had real difficulties, with the loss of a marriage, and she was left with a two-year-old child, and that part of her reasons for misleading the police at an earlier stage of the criminal investigation was real concern that she may face a custodial term and loss of contact with her child. She stressed the time since the events occurred and the hearing before the panel, and placed emphasis upon the fact that she had be under considerable stress for the previous three years as the matters were being investigated.[9]The panel went into private session to consider her psychiatric and psychological state of mind on the basis of reports that it itself had commissioned at an earlier stage of the investigation and which were available to the appellant as she now is. But no psychiatric or medical evidence was placed before the panel in the course of mitigation on sanction, although further reports are now available. In summary, Mr Gledhill submitted that the reports went to the degree of stress that the appellant was under during the period of investigation leading up to the sanction hearing. But that was a fact that she herself had stated in her evidence, and the panel were aware of the earlier medical investigations.[10]In the course of her evidence, the appellant said this:
“In the last three and a half years I have been working hard to ensure that such behaviour never occur again. I have learnt from my mistakes by taking appropriate steps.”
She went on to give examples of her behaviour vis-à-vis her employer, repaying wages and matters of that sort, and stressed that she had been truthful with her current employer and had placed a proper and truthful CV before it. She stressed that there had been no issue of dishonesty prior to the events in question starting in March 2002. She said that she accepted complete responsibility for her actions, and she certainly sought to be given an opportunity to continue in due course with her medical career, and invited the sanction of suspension as appropriate and proportionate.[11]All those factors were before the panel and taken into consideration when it then gave its reasons for its decision for the sanction of erasure. Understandably, the panel indicated that in reaching its decision it took account of the GMC’s Indicative Sanctions Guidance (April 2009) and bore in mind that any sanction must be proportionate and that its purpose was not to be punitive, although it may have a punitive effect. The panel was conscious that it has to balance the appellant’s interests with the wider public, including not only the protection of patients but the maintenance of public confidence in their profession and the keeping and upholding of proper standards of conduct and behaviour. None of that is legally controversial and is indeed an appropriate self-direction on the task to be achieved in the question of sanctions.[12]The Indicative Sanctions Guidance is just that: guidance. It is something which every panel must take into consideration, and departures from it may need some explanation, but it is not the source of legal obligation. The guidance states in connection with dishonesty as follows:
“Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor’s clinical responsibility, e.g. providing false statements or fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession.”
The panel then went through the least sanctions that could be imposed, to consider whether that would be appropriate in the light of the fact-finding and the conduct found and whether the importance of maintaining public confidence in the medical profession could be met by any lesser sanction than erasure. It noted, with what by now is familiar theme of this case, as follows:
“Your dishonest conduct took place over a period of more than five years. It was repeated and persistent. On more than one occasion you attempted to conceal your previous deceit by lying to the senior staff supervising you, to the police and to the GMC. The dishonesty related directly to your employment as a doctor in the National Health Service and was designed to mislead employers into believing that you were more highly qualified than you were. The fact that you falsely represented your qualifications in order to secure a post in the NHS led to your being cautioned by the police for a criminal offence. This emphasises the strong disapproval with which society regards such behaviour.”
The panel reminded itself of the familiar guidance given by Lord Bingham MR as he then was in the case of Bolton v The Law Society [1994] 1 WLR 512 to the effect that the reputation of a profession is more important than the fortunes of any individual member. Membership of a profession may bring many benefits, but membership comes at the price of liability to sanctions to maintain the reputation of the profession. It concluded that suspension was neither proportionate nor appropriate, and accordingly reached the conclusion:
“The Panel considers that you have demonstrated a pattern of behaviour which is fundamentally incompatible with your continuing to be a registered medical practitioner. Accordingly, the Panel directs that your name be erased from the Medical Register.”
[13]On the face of all that decision making and reasoning that is a perfectly proper self-direction, taking into account but not over-constrained by guidance. Mr Gledhill submitted, and I would accept, that erasure is not necessarily inevitable and necessary in every case where dishonest conduct by a medical practitioner has been substantiated. There are cases where the panel, or indeed this court on appeal, have concluded in the light of the particular elements that a lesser sanction may suffice and it is the appropriate sanction bearing in mind the important balance of the interests of the profession and the interests of the individual. It is likely that for such a course to be taken, a panel would normally require compelling evidence of insight and a number of other factors upon which it could rely that the dishonesty in question appeared to be out of character or somewhat isolated in its duration or range, and accordingly there was the prospect of the individual returning to practice without the reputation of the profession being disproportionately damaged for those reasons.[14]In my judgment, however, the insurmountable difficulty facing this appellant, and indeed Mr Gledhill in developing the submissions that he made skilfully on her behalf, is that on any view it is accepted that her account is unreliable and she did not do herself credit in the manner in which she gave evidence. One example of that was the subject of discussion in the course of this hearing. In the quotation given from the appellant’s evidence to the panel, she said:
“In the last three and a half years, I have been working hard to ensure that such behaviour will never occur again.”
The difficulty is that three and a half years from June 2009 would be the beginning of 2005; and yet on the panel’s findings and indeed the uncontested evidence she continued to lie through at least to November 2007, ie two years of the three and a half years that she was referring to.[15]I now turn to deal with the first submission, namely that even if the panel was entitled to conclude that the appellant was unreliable in her evidence to the panel, it should not have gone further and concluded that she had lied in a particular respect. In one of the CVs that she had put forward about her qualifications before coming to the United Kingdom, she had identified under the heading “Other degrees, diplomas and doctorates” that she had the following qualifications from the granting body. She put down BSc in Physics, Crimean University of Science, 1990, Crimea, Ukraine. There then followed a Postgraduate diploma in Nucleophysics from the same institution, Crimean University Faculty in Physics, 1995, Crimea, Ukraine. She had been asked about that qualification in the course of her police interviews, and said that qualification, by contrast with many that she had put forward in respect of purported qualifications from United Kingdom based bodies, was a true and genuine qualification.[16]At the hearing before the panel, she was asked by the advocate for the GMC about those matters, and which qualifications she now maintained were genuine. In the course of those questions, it was put to her:
“Q … BSc in Physics, Crimean University of Science, 1990. Did you genuinely have that? A Yes”
There are then questions about the Postgraduate diploma in Nucleophysics., and she answered:
“A I do not have proof that I did a diploma in nucleophysics, no. Q You did not have the full diploma? A No. Q What did you have then? A I had only the first part, which is the theoretical part...”
Then the question continues after some other reference to other qualifications:
“ The one qualification you genuinely had was a BSc in physics, Crimean University of Science, that you obtained in 1990. Yes? “A Yes.”
That answer is then explored by reference to the fact that she had failed to mention that qualification in certain applications which she made for employment in the United Kingdom, and she said she did not think it was relevant to mention it. There is then a question about the fact that in another application she said that she was in 1990 at the Moscow School of Pharmacology, rather than at the Crimean University of Science, and the obvious fact that there is some distance between Moscow in the Russian Federation and the Crimea, now part of the Ukraine. She said that she was on a distance learning course:
“Q Which was the distance learning, the diploma in pharmacology or the BSc in Physics? A Both of them. I did both of them distance learning.”
Other questions are then asked about her qualifications, how long the degree course was in the BSc in Physics, and she said:
“A I think it was -- I did only the theoretical part so I think it was a year or two. I cannot exactly be sure because, as I said, it was not -- I was doing other things. Q This is not nucleophysics. This is your BSc in physics from the Crimean University… How long did it take you to complete the course to obtain your BSc in physics from the Crimean University? (Pause) A I did not have BSc. Q Right. You told this Panel five minutes earlier that you genuinely had a BSc in physics from the Crimean University. You are now saying that you did not have that degree. Is that correct? A Yes. Q Why did you lie to this panel? A I am confused now what is nucleophysics was BSc. I am thinking about one thing when you are asking me about it.”
Then further questions are asked about two different qualifications, which concludes in the question:
“Q … I have been asking you questions about the BSc in Physics that you say you obtained in 1990, OK? Do you understand? A Yes. I think what I mean by BSc in physics, before you are allowed to do this nucleophysics you have to have some sort of degree in physics, some kind of preparation and I am not clear what BSc means so I thought that my qualification would be equivalent to BSc in English, so yes, then, I should not put something I was not sure about how exactly it translated to. Q What qualification did you have in physics from the Crimean University of Science that you obtained in 1990? A It was only a theoretical part of the course. Q If you had finished the course what qualification would you have got? Would it have been a Crimean or a Ukrainian degree in physics?”
She then gives an answer as to why she started the course, but the question then continues:
“Q So if you had finished the entire course you would have obtained a degree in physics. Is that right? A Yes. Q You did not finish the course. A No. Q So you did not have a degree in physics? A Not degree. There was a diploma in theoretical part of nucleophysics but not the degree. Q You passed part of the course but you had not finished it? A No. Q So whether it is equivalent to a BSc or not, why did you put down that you had a degree status qualification when you did not? A Because I tried to influence the Panel. I have admitted that I was lying. Q For the purpose of this Panel I asked you at the beginning of all this which of these were genuine, truthful qualifications and you said that one was? A Because I am not so sure how BSc stands to what I have. I believe that it is equivalent but I am not so sure so I should not have said, agreed to BSc. I should have said straightaway that I have a theoretical part which I think is equivalent to BSc but I am not entirely sure that it is. Q Dr Atkinson, is this not exactly as it was with Dr Roberts that you lie to this Panel until you are found out and tripped up? A I do not have anything else to lie about. I have admitted most of my charges, if not all. I feel better by actually telling the truth, there is no anything for me to gain today.”
A Yes” Q You did not have the full diploma? Q What did you have then? A I had only the first part, which is the theoretical part...” A Both of them. I did both of them distance learning.” Q Why did you lie to this panel? Q So you did not have a degree in physics?

Q You passed part of the course but you had not finished it?

[17]The task for this court on appeal is whether the panel were entitled to reach its finding on the facts. This court will not likely interfere with a finding of fact where it does not have the advantage that the tribunal of fact had enjoyed in seeing the witness perform in the witness box. Doubtless as Mr Gledhill submits any tribunal seeking to reach the conclusion that a witness has been dishonest should be slow to draw that conclusion when merely confusion, inconsistency or incomprehension may be the explanation. In particular, any panel must take into consideration the following: 1) English was not appellant’s first language; 2) she had already mentioned the stress of the pending proceedings for the previous three years; 3) she was unrepresented; 4) the panel were aware that she had been psychiatrically examined albeit she did not rely upon that herself in mitigation; and 5) she had already explained the disasters in her personal life as well as her professional life that added to her state of anxiety and confusion.[18]Nevertheless, taking the careful, persistent sequence of questions as a whole, it is difficult to see how this panel could have avoided the conclusion that the appellant had been evasive and dishonest with them. The centrepiece of the disciplinary inquiry was precisely her qualifications: which qualifications were false and whether any qualifications were genuine. She had already been interviewed about these matters. She could hardly have been surprised to have been asked questions about them again before the panel. The explanation that she was endeavouring to give at some moments in that exchange is a misapprehension that part of her degree was equivalent to a British degree of BSc. But it is difficult to see how anybody could conclude that a course that was not completed and that had not resulted in the award of a qualification by a relevant body in the Ukraine could be the equivalent of anything in the United Kingdom. She was not able to compare anything with respect to an British BSc in Physics although she may have done something in her postgraduate study.[19]It is sufficient to address the ground of appeal based upon this contention to conclude, as I do, that the panel were fully entitled to reach the conclusions that it did on this issue. Accordingly, even if that consideration played a part in the sanction albeit that it was not a factor expressly referred to in the sanction part of the decision, any part that it played would be one that it was open to the panel to give weight to.[20]Secondly, in any event I conclude that even if, contrary to the decision I have reached on the first question, there was room for sufficient doubt that confusion, incomprehension and language difficulties were still playing a role in the reliability of the appellant’s testimony, and that therefore the panel should not have gone so far as to say they had been misled deliberately by the appellant in her account on that topic, nevertheless on all the other findings in the case not contested the panel were fully entitled to conclude that the only appropriate sanction that was proportionate and applicable in the context of this case was erasure. This is not a case where, as against admitted or proven dishonesty, there was a body of reliable material relating to the rehabilitation of the appellant -- as indicated, her own mitigation contradicted at least in some part that assertion -- although it has never been suggested that her clinical competence was itself a basis for concern, and indeed was a legitimate factor in the balance in her favour in mitigation. That is frequently a feature of cases where dishonesty is concerned. But nevertheless the interests of maintenance of the reputation of the profession still require nothing less than erasure by way of sanction. In my judgment the reasoning of the panel on sanction, making no express reference to the dishonesty that it had earlier found in the context of impairment of fitness to practise, is entirely appropriate in the context of this case, and it is a long way from material which this court could say was the wrong sanction in all the relevant circumstances of the case.[21]In respect to two further submissions that were deployed by the appellant and were in some measure reflected by the general thrust of the arguments developed in this appeal, it is to be observed that in comparative terms this was a case where there was quite a short period of time between the misconduct ending in November 2007 and the sanction hearing in June 2009; would it be that all such disciplinary measures could be brought within such a time frame. Moreover, if the claimant’s age is as she states it to be, she would have the potential of some 20 to 30 years of active employment life ahead of her, and although the prospects of reinstatement can hardly be good at present, they would not necessarily be meaningless if in due course she were to so apply after the minimum period of five years has elapsed. By contrast with some other cases the appellant is not at the end of a distinguished medical career and erasure holds no prospect of ever returning to that career. Undoubtedly the sanction severely affects her and her ability to practise, but as the learning has persistently pointed out, where the interests of the profession conflict with the personal interests of the appellant and the circumstances are not such that a lesser sanction can be imposed as proportionate, then the interests of the profession require that the appropriate sanction be made. The purpose is not punitive, although it may well have punitive effect.[22]Mr Gledhill has been faced with an impossible task in developing the submissions, which he has done with courage and care, but he has had no material upon he could found a sensible solution that this is a case where this court exercising its appellate functions could state that the decision was wrong.[23]Accordingly I dismiss this appeal. MR MORGAN: My Lord, there are no consequential applications on behalf of the GMC in the circumstances. MR JUSTICE BLAKE: Thank you very much. MR GLEDHILL: I am instructed to ask for a detailed assessment of public funding in this case, my Lord. MR JUSTICE BLAKE: Yes, you can have a detailed assessment of CIS funding. MR GLEDHILL: I am grateful. MR JUSTICE BLAKE: Thank you both for your very full and very helpful skeleton arguments. MR MORGAN: My Lord, it would be remiss of me if I did not, prior to leaving the room today, express my own gratitude and place my own gratitude on record for the good offices of your clerk, who stepped into the breach yesterday as a result of my previous indisposition, to ensure that you received a bundle of authorities. No discourtesy was intended by their late delivery, but nevertheless I express my gratitude. MR JUSTICE BLAKE: Not at all, none intended. Well, I am glad something worked at least. MR MORGAN: I am sure I speak for both my learned friend and I when I say we are grateful for both the humane and human way in which you have dealt with the appeal. MR JUSTICE BLAKE: Thank you very much.

Cited in 5 later judgments