Shamsian v General Medical Council [2011] EWHC 2885 (Admin)

Case No CO/5520/2011[2011] EWHC 2885 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2011
Before
MR JUSTICE BEAN
Between
DR NEGIN SHAMSIANAppellantGENERAL MEDICAL COUNCILRespondent
Martin Forde QC (instructed by The Medical Defence Union) for AppellantCatherine Callaghan (instructed by GMC Legal Department) for RespondentHearing Hearing dates: 27 & 28 October 2011
JudgmentMr Justice Bean :
[1]The appellant Dr Negin Shamsian submitted an application on 8th December 2005 for the post of specialist registrar in plastic surgery in the Oxford and Wessex Deanery. Candidates were required to complete an application form in full. They were allowed to submit a CV as well, and Dr Shamsian did so, although the form advised candidates that:
“It is not acceptable to substitute your CV, and additional pages may only be included where indicated. A numerical scoring system is used by members of the appointments committee for ranking applications as objectively as possible.”
[2]Dr Shamsian was invited to an interview that took place on 17th January 2006. Along with two other successful candidates she was appointed. Her subsequent employment history was an unhappy one, a fact which is part of the background to the present proceedings.[3]Some years later an allegation was made by the General Medical Council that she had been guilty of misconduct in a number of respects. A Fitness to Practise Panel enquired into the allegations. Their sessions began on 1st November 2010. That hearing continued for 12 sitting days, at the end of which Dr Shamsian was taken ill, and it was necessary to reconvene for a further 8 days in May 2011.[4]On 17th May 2011 the panel found that the application form submitted in December 2005 contained seven inaccurate statements which were both dishonest and misleading; that her fitness to practise was therefore impaired; and that she should be suspended from practice for 12 months. She appeals against those findings and the sanction. The panel also heard and determined some allegations of inadequately performed surgery which they found did not amount to misconduct, and which are not the subject of this appeal. She has been the subject of an interim order of suspension since the conclusion of the hearing before the panel.

The law

[5]There was no dispute before the panel, and there has been none before me, as to the definitions of dishonesty and of misleading conduct. The GMC’s guidance defines a misleading statement as one which leads someone to believe something is true when it is not true. There is no implication of dishonesty or any intention to mislead. This is potentially very wide indeed, since it appears to cover any inaccuracy in a document such as an application form which is not immediately apparent to the reader.[6]Dishonesty is defined according to the decision in R vGhosh [1982] QB 1053. The question for the professional regulatory body is, as it would be for a jury, a two stage test;(1) whether what was done was dishonest by the ordinary standards of reasonable and honest people (the objective element); and(2) whether, unless it was obviously dishonest, the doctor must have realised that what she was doing was by those standards dishonest (the subjective element).[7]There is also no dispute that the burden of proof rested on the GMC and that the standard of proof was the civil standard, but subject to the qualification expressed by Lord Nichols in re H (minors), namely that the more inherently improbable the allegation, the more convincing the evidence needs to be for it to be found proved. Ms Catherine Callaghan, for the GMC, submits that there is nothing inherently improbable in an ambitious applicant for a highly competitive post such as specialist registrar, exaggerating her qualifications and experience. Mr Martin Forde QC, for Dr Shamsian submits that a finding of dishonesty against a doctor of previous good character should require more convincing evidence than a simple application of the balance of probabilities would suggest.

The proper approach on appeal

[8]It was common ground between counsel, both of whom have extensive experience of medical disciplinary cases, that the powers of the court on an appeal under section 40 of the Medical Act 1983 are not limited to a review, but the court will not interfere with a panel decision unless persuaded that it was wrong. I was referred to a number of authorities which expand on this.[9]Lord Millett observed in Ghosh v GMC [2001] 1 WLR 1915 at para 34; “The Board will afford an appropriate measure of respect to the judgment of the committee on whether the practitioner failings 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.”[10]Lord Rodger of Earlsferry observed in Gupta v GMC [2002] 1 WLR 1691:
“In all such cases the appeal court readily acknowledges that the first instance body has an advantage that the appeal court does not have precisely because that body is in a position to judge to credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witness’s credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.”
[11]In Southall v GMC 2010 EWCA Civ 407 at para 47, Leveson LJ said; “As a matter of general law, it is very well established that findings of primary fact, particularly if founded on an assessment of the credibility of witnesses are virtually unassailable (see Benmax v Austin Motor Co Ltd [1955] AC 370); more recently the test has been put that an appellant must establish that the fact finder was plainly wrong… “[12]In Southall the complainant alleged that at a particular interview Dr Southall accused her of drugging and murdering her 10 year old son. Dr Southall accepted that he had probed the circumstances of her son’s death but denied that he had accused her of murder although he accepted that she might have perceived that that was what he was doing. He was supported by the evidence of a social worker present at the interview. The panel found the complainant to be a clear, honest and credible witness and by implication rejected the evidence of Dr Southall. A judicial review challenge failed in this court. On appeal the Court of Appeal reversed that decision on the grounds that the panel had given inadequate reasons for their conclusion. Leveson LJ indicated that had there not been an error in the panel’s approach the court would have taken the view that it was for the panel as fact finders to make up their minds about where the truth lay. “Provided no other error is apparent”, he said at paragraph 48, “it is no part of the function of this court to interfere”. He repeated the proviso in the following paragraph. Neither counsel suggested that this decision (still unreported 18 months after being given) has changed the previous law.[13]Finally, Mr Forde referred me to the decision of Stadlen J in Khan v GMC [2008] EWHC 2009 (Admin). This case has some similarities to the present one, although there are differences as well. The similarity is that the doctor was charged with misconduct consisting of inaccuracy in an application form and CV which it is said amounting to misleading and dishonest conduct. The differences are(a) that Dr Khan’s application form contained some manifest errors (for example that he held one post from July 2003 to January 2003), such that it must have been evident to any reader of the form that he had completed it very carelessly, and(b) that the panel, relying on paragraph 51 of the GMC guidance which had then been in force, had applied a test of dishonesty which was wrong in law. So, as Ms Callaghan emphasised, the fact that Dr Khan’s appeal succeeded does not mean that Dr Shamsian’s appeal should succeed. But Mr Forde relies on paragraph 36 and 37 where Stadlen J said, “It is of course axiomatic that in the ordinary course an appellate court, even where, as here, the appeal is by way of rehearing (I shall refer to that in a moment), is always slow to interfere or overturn a finding of fact where it has not had the benefit of hearing oral testimony and seeing the demeanour of a witness, which was enjoyed by the tribunal of first instance. I am also conscious that, in particular in the context of findings of honesty or dishonesty, an appellate court is particularly slow to substitute its own view for that of the tribunal of first instance, particularly where it has not enjoyed the benefit of oral testimony. However, as will appear, this is a rather unusual case, in my judgment, because the nature of the allegation of dishonesty is one which appears from the face of the application form. The answers to it, provided by Mr Khan, themselves appear on the face of the application form, the CV and the admitted background of the job application, including the submission of certificates in advance and the presentation, in his portfolio, of the articles relied on by him in his application and CV.”

The conduct of the hearing before the Panel

[14]After the witnesses for the GMC had given evidence Dr Shamsian herself gave evidence over three days. In the course of cross examination she accused three of the GMC’s witnesses, Messrs Dunn, Giele and Tiernan, of having conspired to tell lies about her, to hound her out of her job and to pursue an unjustified complaint before the GMC. Counsel for Dr Shamsian (at that point Mr Robert Jay QC) had not put these allegations to the witnesses when they gave evidence and it is clear from the transcript that he had not been expecting them to be made. Mr Davies, who appeared for the GMC before the panel, applied for the relevant witnesses to be recalled, which they were, at some length. Mr Dunn had given evidence on the negligence charges. Dr Giele had given evidence about an interview in December 2007 which formed the basis of one allegation against Dr Shamsian which the panel found not proved (and which was therefore not an issue before me). But it is difficult to see what relevance the credibility of any of the GMC’s witnesses had to the critical issue of whether the statements in Dr Shamsian’s application form were objectively misleading.[15]In his closing submissions to the panel (Day 15, page 519) Mr Davies sensibly suggested that the conspiracy allegations were a distraction from the task which the panel had to perform. I agree. The only reference to them in the panel’s decision is in the final sentence of the following paragraph:
“In reaching its findings on the facts the panel has focussed solely on the evidence before it relevant to those paragraphs of the allegation which remains in dispute. In its deliberations it took account of your good character and the terms of the letter at D6 and the inference the panel was invited to draw from that letter. [The letter was one which Mr Tiernan had sent to Mr Giele, enclosing a copy of a 2006 CV of the applicant “with a view towards trying to make sure the right outcome happens”.] It also took account of your evidence including that you were a victim of conspiracy where those involved had lied and exaggerated their evidence against you.”
[16]There is no clue as to whether the Panel thought the conspiracy allegation was a factor in Dr Shamsian’s favour (requiring particularly careful scrutiny of the evidence of the three witnesses concerned) or against her; and, if it was a point against her, on what basis this was the case. Of course if a witness is caught telling lies even on a peripheral point, that may discredit her evidence on central issues. But there is no finding to this effect by the Panel, either general or specific, and there was no submission to that effect by counsel for the GMC in his closing submissions to the Panel.[17]I should mention two other preliminary points. Mr Forde submitted that because the application form had been accompanied by a CV, the candidate could be expected to assume that anything she put on the form would be cross-checked against the CV. Ms Callaghan answers that by referring to the rubric at the beginning of the form which I have already set out, informing candidates that the application form must be self-sufficient and also that a scoring system would be used. I put it to Ms Callaghan that the CV might be irrelevant to the issue of whether a statement on the application form was misleading, but it could be highly relevant to the issue of whether a statement on the form was dishonest. She agreed.[18]Ms Callaghan further submitted that it is neither necessary nor sufficient (whether on an allegation of dishonesty or of misleading conduct) to show that anyone was in fact misled. It is helpful, at least on the issue of misleading conduct, to see whether readers of the form were misled, but it cannot be decisive. I accept that submission.[19]The other preliminary point is that where a panel are hearing evidence about what are said to be numerous inaccuracies in an application form or similar document, a finding of dishonesty on one aspect of the form will inevitably have what Mr Forde described as a ripple effect on the others. It is easier to explain away one inaccuracy as an innocent error than to explain away seven.[20]With that I turn to the individual allegations.

Paragraph 3(a) – the MD qualification

(a) – the MD qualification

[21]This was described by the Panel in its decision on sanction as the most serious of the seven misleading and dishonest claims made by the appellant, and it must therefore be dealt with in some detail.[22]Section 6 of the application form required the candidate to list her postgraduate medical qualifications. One of the bullet points states “if you are in the process of working towards a higher degree please say so, indicating expected completion date”. Dr Shamsian listed her MRCS part 1, which she passed in March 2001; part II, which she passed in November 2002; and also an FRCS (Plast) against which she wrote “not yet taken”. Nothing arises on any of these entries. The controversial one is the last which reads as follows, “MD; Leeds University Medical School, UK, Thesis and Viva”; and then, in the final column, which is headed “date passed”:
“TO BE AWARDED VIVA AWAITED Completion January 2006”
VIVA AWAITED

Completion January

[23]A further document in the bundle indicates that the examiners for the research degree of MD make “every effort” to conduct an oral examination within six months from the date of the candidate’s submission of the bound thesis.[24]Dr Shamsian’s evidence to the panel was that at the time of submitting the application form she expected to submit the thesis in January; that (as the same document indicates) with the agreement of her supervisors external examiners had been appointed; and that a provisional date for the viva had been set for March 2006, though this depended on the submission of the thesis in January.[25]The panel’s finding referred to the evidence of Mr Tiernan, one of the GMC’s witnesses. They recorded that he had said that he was misled. In evidence in chief (day 1, page 31A) he had indeed said that the entry indicated to him “that Miss Shamsian had submitted her MD and was awaiting a VIVA, which is an oral examination on the MD, some time in the near future”. They did not record that Mr Tiernan had accepted the exact opposite in cross-examination (Day 1, page 42F), namely that what he understood the entry to mean is that the candidate expected to complete her written thesis in January 2006. (He later added that he thought the bulk of the work had been done, and that the written work was just about finished and sorted.)[26]Nevertheless, the panel’s finding was as follows:
“The Panel carefully considered the evidence of Mr Tiernan, which it found to be central to this paragraph of the allegation. He said he was misled. The Panel considered whether your statement regarding your thesis and VIVA would have caused Mr Tiernan, or any ordinary person, to be misled regarding the status of your MD thesis and VIVA. Mr Tiernan had the task of ranking and short listing applications for the post. The Panel notes that on page one of the application form it states “A numerical scoring system is used by members of the Appointment Committee for ranking applications as objectively as possible.”
The Panel accepted that academic merit would be a relevant factor in any scoring system and accepted his evidence that the wording led him to believe that you had submitted your MD thesis and you were awaiting your VIVA. The Panel is satisfied that you implied that your MD thesis was completed and your VIVA awaited in January 2006. This was untrue. The truth was that your MD thesis had not been completed or submitted and until that event occurred no VIVA date could be expected. In applying the objective test the Panel is satisfied that this was misleading. The status of your thesis is something that would have been known to you. You knew when completing your application that your thesis had not been completed. This was an application for a very competitive, promoted post. The form contains a declaration that the information to be provided is true and accurate to the best of your knowledge and belief. The truth was that far from a VIVA being awaited, your thesis had not even been completed. To imply that is was, applying the test in Ghosh, the Panel is satisfied was dishonest. In reaching its decision the Panel took account of the seriousness of the allegation and your good character. The Panel did not accept your evidence that it could have been worded better. The Panel was satisfied that it was worded in such a way to convey to the reader that your VIVA was expected and by inference your thesis completed and submitted”[27]The reasoning of the panel seems to me most peculiar. Candidates “complete” written theses. It is a very odd use of language to say that a candidate “completes” an oral examination or viva. No-one suggests that Dr Shamsian was representing on the form that she had been awarded an MD. The suggestion is that she deliberately implied that she had already completed the thesis and that her viva was due to be held in January 2006. If that was her intention, why not state on the form “viva due in January 2006”?[28]It is worth noting that there is no evidence that at the interview on 17th January 2006 she was asked anything about the viva, such as “has it taken place yet?” or “how did it go?”. Perhaps this issue was not seen at the time as being as significant as it later became.[29]The plain and obvious meaning which the entry on the form conveys to me is that the thesis was due to be completed in January 2006. I am fortified in that conclusion by the concession of Mr Tiernan in cross-examination. I do not regard the alternative interpretation – that the viva was due to be held in January 2006 - as a reasonable one. I am satisfied that this finding of misleading conduct is so flawed that it cannot stand, and that the finding of dishonesty must fall with it.[30]Even if I had upheld the finding that the entry was misleading, I would still have quashed the finding that it was dishonest. I will call the meaning found by the panel Meaning A (viva due in January 2006). At the very least Meaning B (thesis due to be completed in January 2006) is sustainable. The panel’s findings can be summarised thus:(1) we accept that Mr Tiernan interpreted the entry as Meaning A;(2) therefore you must have intended Meaning A rather than Meaning B;(3) Meaning A was untrue, as you well knew;(4) therefore you were dishonest. But there is no logical or evidential basis for step (2) in the above sequence.

Paragraph 3B – The ATLS certificate

[31]Section 7 of the form required the candidate to state what relevant medical or professional courses other than those leading to a post graduate degree or qualification she had attended. Dr Shamsian listed seven of these. The first was ATLS (advanced trauma life support), which she stated had been attained at the Mayday Hospital, Croydon. Under the heading “date certificate attained” she wrote “2001 C [ie completed] (recertification booked)”.[32]Dr Shamsian had in fact successfully completed a 3 day ATLS course at the Mayday Hospital from 13-15 September 2000. The certificate states that it expires on 15 September 2004, that is to say on the fourth anniversary of the last day of the course.[33]Mr Forde accepted that the date 2001 was incorrect. The panel was therefore right to find that this inaccuracy constituted a misleading statement within the meaning of the GMC’s guidance. The real issue was whether it was dishonest.[34]The panel found:
“The Panel has heard that your certification was completed in 2000 rather than 2001. The Panel has heard that the certificates lasted for four years and putting the date of 2001 and then completing the application form in 2005 would have indicated to anyone reading the application form that your ATLS certificate was still current at the time of application. The truth was that it was not current and had, in fact, expired. It would have indicated that you had a current certificate to properly assess patients who had suffered major trauma. Applying the objective test, the Panel found this misleading in relation only to the date of the ATLS course. The Panel accepted that you had re-booked certification. The Panel is satisfied that it was untrue to say that you completed your ATLS course in 2001. In the context of an important job application, truthfulness is expected. You knew this to be untrue. The Panel did not accept your evidence that this was a mistake. This was a certificate relevant to the application. Your application form implied that it was current when it was not. Applying the test in Ghosh, the Panel is satisfied that this was dishonest.”
[35]I do not understand the logic of saying that putting the date of 2001 for obtaining the certificate on an application form submitted in December 2005 amounted to an indication that the certificate was still current at the time of application. It would have been still current if, but only if, it had been obtained in December 2001. If it had been obtained in any of the months from January to November 2001, it would have expired. If the candidate had dishonest intent she would have surely have stated that the certificate had been obtained in 2002. I suppose a panel would have been entitled to find that the choice of 2001 was an ingenious piece of dishonesty by a candidate who feared (for some reason not explained to me) that to put 2002 would expose her as a liar, whereas she would have a chance of getting away with it by putting 2001. This is not a finding made by the panel. Again the basis of the finding of dishonesty is flawed. It would in any event have been liable to fall if, as I have found, all but one of the other findings of misleading conduct were unsound.

The double counting issue

[36]In section 5 of the form Dr Shamsian stated, correctly, that from September 1994 to July 1999 she had attended Dundee University Medical School and obtained the ordinary qualifications of MB and CHB. Section 8 of the form required her to list the posts held since medical school in chronological order including details of research posts. This section contained a complete chronological sequence of eight posts covering the whole period of August 1999 to December 2005, the month in which the application was submitted. The last entry stated that from August 2004 to December 2005, a period of 17 months, she had worked at Pinderfields Hospital, Wakefield in the speciality of plastic, reconstructive, hand and burns surgery as a “Research Registrar” funded by Action on Plastic Surgery. (A further entry, not material for present purposes, indicated a post which she was due to take up as from January 2006.) The CV had a whole page which gave further details of the Pinderfields posting, including 1 shift in 6 as a registrar on clinical duties as well as a substantial amount of research.[37]There is no suggestion that anything stated in section 8 of the form was untrue. Complaint, however, is made of the answers in sections 9 and 11 of the form. Section 9 is a single line reading “time in full-time research” and seeking an answer in years and months. The answer Dr Shamsian gave was 1 year, 5 months. Section 11 asks about “time in plastic surgery (do not include research)”. Dr Shamsian answered that she had spent 24 months as an SHO and 17 months as a registrar. In oral evidence (Day 8, page 378) she said that during this period she spent 50 hours per week on research and her clinical hours were between 40 and 90 per week.[38]The panel found:
“The Panel considered the evidence in respect of these paragraphs separately but considered that they were interlinked. The application form, on page 6m, is clear and states “Do not include research”
. Notwithstanding your good character, the Panel rejects your evidence on this point and takes the view that it contributed to double counting leading to the potential for double points to be awarded. Whether or not you considered it to be a combined post, the application form implies to the reader that you spent 17 months in full time research and also 17 months as a full time Registrar. Applying the objective test, the Panel is satisfied that paragraphs 3(c ) and (d) are misleading….” [emphasis added] “The Panel determined that it was not true that you spent 17 months in a full time research post and spent 17 months in a full time clinical post. That is what your application form conveys to the reader. The Panel is satisfied that these are matters within your own knowledge and you must have known them to be untrue. Applying the test in Ghosh, the Panel is satisfied that this was dishonest.”[39]It is not obvious whether the hybrid post (as Dr Giele accepted it to be) of research registrar should have been listed as a full time research post or as a clinical post. But what is obvious to me is that the candidate was entitled to expect anyone reading the form to read it as a whole, including section 8 setting out her career to date in chronological order. She was also entitled to assume that anyone engaged in shortlisting candidates for a registrar post would be a reasonably careful reader of an application form, rather than what Foster J (in Morning Star Co-operative Society Ltd v Express Newspapers Ltd [1979] FSR 113) described in a different context as a “moron in a hurry”. I do not see how any conscientious reader of the application form could be misled into thinking that the 17 months claimed for full time research and the 17 months claimed as a registrar in plastic surgery were two separate periods. Even if that were wrong and the answers in sections 9 and 11 were misleading within the GMC’s definition, the Panel’s decision that they were dishonest as well would be unsustainable, both because it ignores section 8 of the form and because of the ripple effect from the finding about the thesis and viva.

Publications and presentations

[40]Paragraph 3(g) of the list of allegations made by the GMC against Dr Shamsian referred to a statement in the application form “that, during your research project, you had(1) produced 11 publications,(2) produced 21 national and international presentations”. This was alleged to be dishonest and misleading. The findings of the panel were as follows [emphasis added]:
“The period of your research was from August 2004 to December 2005. There were fewer than 11 publications related to your research within that time frame. In the context of a job application, to exaggerate the number of publications during your research period is misleading.”
[41]As to presentations they found:
“The period of your research was from August 2004 to December 2005. There were fewer than 21 national and international presentations related to your research within that time frame. In the context of a job application, to exaggerate the number of presentations during your research period is misleading.”
[42]When it came to dishonesty the panel found:
“The Panel considered the evidence in respect of these paragraphs separately, but considered they were interlinked. The Panel determined that it was not true that you have produce 11 research related publications and 21 national and international presentations during your period of research. The Panel is satisfied that these are matters within your own knowledge and you must have known them to be untrue. Applying the test in Ghosh the Panel is satisfied that this was dishonest.”
[43]It will be noted that the charge was that Dr Shamsian had not produced as many as 11 publications and 21 presentations “during your research project”. The charge was not that the statement on the application form exaggerated the number of publications and presentations if one excluded those that were not directly relevant to the research project on which she was engaged; nor was this suggested by counsel for the GMC in opening the case; nor was it put to Dr Shamsian in cross-examination; nor was it a point raised by counsel for the GMC in his closing speech. So it was not a point which Mr Robert Jay QC (at that stage representing Dr Shamsian) knew he had to deal with in evidence in chief, nor which Mr Forde QC (who had by then taken over from Mr Jay) knew he had to address in his closing speech. On this charge, in short, there was a basic failure by the panel to follow due process.[44]Quite apart from the failure of due process, it is unsatisfactory that the panel in their determination did not make any finding of the extent to which the number of publications which they found to have been produced by Dr Shamsian within the relevant period fell short of the stated total. It seems from the chairman’s response to a courteous enquiry made by Mr Forde after the findings had been announced that the Panel considered that if only those publications both published within the relevant period and relevant to Dr Shamsian’s research project were to count, the correct figure was 7 publications and 17 presentations. If the exclusion of those items not relevant to the research project was to be ignored and only the temporal limitation applied, the correct figures would have been 10 and 19. As to this, Dr Shamsian had given evidence that one publication and two presentations had not been published during the relevant period but had been formally accepted and were in press. By the terms of a rubric at section 15 of the application form, such publications qualify. The Panel would have been entitled to reject that evidence but there is nothing in the determination to show whether they did, nor (if so) why they did. I do not consider that the findings of misleading conduct, still less of dishonest conduct, under this heading, can stand.

The CNN medical videos

[45]In a narrative section headed “Other achievements” in the “additional information” section of the application form there were 8 sentences, the fifth of which was “I have produced medical video packages for television which was broadcast internationally on CNN”. The charge in relation to this was that it was a dishonest and misleading claim.[46]This allegation was only dealt with extremely briefly in oral evidence. Dr Tiernan’s evidence (Day 3 page 96) was that “it seemed incredible that someone within a short period of elective, attached to CNN, would produce a video for broadcasting”.[47]The Panel had before it a letter from CNN dated 29th October 2010 which confirmed that Dr Shamsian “worked as an intern in the medical news department at CNN Atlanta in 1998 and was involved in writing, production and editing of medical news packages produced for CNN Health which were broadcast nationally and internationally.”[48]In their findings after referring to this letter and the application form the Panel went on:
“You have been involved in production, as an intern, for six weeks. The Panel considers that the information you provided in your application is misleading in that it implies that you were personally responsible for the production of video packages.”
[49]On the issue of dishonesty they wrote:
“The Panel determined that it was not true that you had produced medical video packages for television that were broadcast internationally on CNN. It was not true that you were solely responsible for the production of these packages. You were involved in the production with others as part of your internship. The Panel is satisfied that these are matters within your own knowledge and you must have known them to be untrue. Applying the test in Ghosh the Panel is satisfied that this was dishonest.”
[emphasis added][50]Again, as with the previous allegation, the ground changed without warning to the appellant. It was not suggested to her that she had implied that she was solely responsible for the videos. Nor did the Panel make any reference to two other mentions of her internship in the application form. One showed that she had worked for CNN in Atlanta in 1999 and had obtained a “certificate in medical news writing, editing and production”. There was neither any suggestion to Dr Shamsian, nor any finding by the Panel , that this statement was untrue. In section 22 of the application form, candidates were invited to “give details of awards for distinction in any personal or professional area not previously mentioned”; in answer to that, Dr Shamsian wrote that CNN had awarded her an internship award for medical news writing, broadcasting, production and editing. It was therefore apparent to any reasonable reader of the form that her rank at CNN had been one of an intern and that this had taken place in 1999 (the year in which she completed medical school in July and started her first PRHO post in August).[51]The most that can be said about the statement under scrutiny is that it should have read, “I have taken part in producing medical video packages for television” rather than “I have produced medical video packages for television”. Had the statement stood alone it might have misled the reader into thinking that the candidate’s role was more exalted than that of an intern. But it did not stand alone. In finding it to be misleading, and in particular in finding it to be dishonest as well, the Panel(a) ignored the evidence elsewhere in the application form that she had been a mere intern,(b) unfairly changed the question to whether she had been solely responsible for the videos when that point had not been put to her in evidence. These findings too cannot stand.

Conclusion

[52]I allow the appeal and quash all the findings of dishonesty, and all the findings of misleading conduct except that under paragraph 3(b).[53]The above paragraphs of the judgment were circulated to the parties in draft on 1 November 2011. Counsel are agreed that in the light of their contents there would be no reasonable prospect, in the event of remission of the case to the GMC, of a Panel finding that Dr Shamsian’s fitness to practise is impaired, nor of a warning being issued under section 35D(3) of the Medical Act. Accordingly the finding of impairment, the sanction of suspension and the direction for immediate suspension pursuant to section 38(1) of the Act will also be quashed. The GMC must pay the appellant’s costs of the appeal, which have been agreed in the sum of £22,000.