Moneim v General Medical Council [2011] EWHC 327 (Admin)

Case No CO/5928/2010[2011] EWHC 327 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/02/2011
Before
THE HON. MR. JUSTICE LLOYD JONES
Between
Tarek MoneimAppellantGeneral Medical CouncilRespondent
Mr. James Counsell (instructed by MDU Legal Department) for AppellantMiss Catherine Callaghan (instructed by General Medical Council) for RespondentHearing Hearing dates: 18 th and 19 th January 2011
JudgmentThe Hon. Mr. Justice Lloyd Jones :
[1]This is an appeal by Dr. Tarek Moneim (“the appellant”) pursuant to section 40, Medical Act 1983 (“the 1983 Act”) against a decision of the General Medical Council’s Fitness to Practise Panel (“the Panel”) taken on 27th April 2010 to suspend his registration for 12 months under section 30D(2) of the 1983 Act.[2]Before the Panel the appellant admitted making retrospective amendments to the medical records of 32 patients. The Panel held that his actions in making these amendments were, in respect of the majority of patients, variously not in their best interests, not of the standard expected of a reasonably competent general practitioner and misleading. No appeal is brought against these conclusions. However the Panel also held that the appellant acted dishonestly in amending the records of six patients (Patients 8, 10, 15, 17, 30 and 33). The appellant appeals against that part of the decision and also against the sanction of suspension imposed by the Panel.[3]Before the Panel, the appellant faced further charges in respect of other alleged conduct at the practice “the paragraph 50 allegations”. None of those allegations was found proved.[4]The facts which gave rise to the allegations of dishonesty which were found proved are set out in the following paragraphs.[5]Between April 2003 and early 2007 the appellant was a partner in a general practice in Reading. Late in 2006, Dr. Underwood and Dr. Pizura, the two other partners in the practice, became concerned about the appellant’s clinical performance. On 9th January 2007 they told him that they were considering referring him to the Primary Care Trust (“PCT”). On 20th January 2007, the partners sent him a formal email, copied to the PCT, attaching a list of cases of concern. On further investigation Dr. Underwood and Dr. Pizura discovered that the appellant had retrospectively altered computerised patient records. In particular, they discovered that he had made a number of retrospective alterations on the evening of 20th January 2007 after he had received their email of the same date. In February 2007 they decided to remove the appellant from the practice. In July 2007 they made a complaint to the General Medical Council (“the GMC”) about the appellant and this led to the proceedings before the Panel.[6]Patient 8 had a telephone consultation with the appellant on 15th February 2005. The appellant recorded that “ibuprofen was not strong enough”. On the 18th February 2005 the patient called the practice stating that he was suffering side effects from medication. The staff at the surgery assumed that the appellant had prescribed the medication. Later that day the appellant had a telephone consultation with Patient 8 and made an entry recording that he was having trouble eating. Later still on 18th February 2005 Patient 8’s daughter called the practice and spoke to Dr. Pizura who arranged for Patient 8 to be brought into the surgery and then to be admitted to hospital as an emergency. That evening Dr. Pizura sent an email to the appellant stating that Patient 8 had been admitted to hospital and he was going to write up the matter as a critical incident and a matter for discussion at the practice. On the 21st February 2005 the appellant retrospectively amended his consultation record for 15 February adding “as given by vap” to the entry concerning ibuprofen. “VAP” are the initials of Dr. Pizura. The appellant amended his entry for the telephone consultation of 18th February 2005 adding “and inform surgery”. It was common ground before me that these words mean that the patient should inform the surgery if there is no improvement.[7]On 15th April 2005 the appellant prescribed an anti-malarial drug for Patient 10 who was going on holiday. Patient 10 had previously been diagnosed with angina and potential heart disease for which she was on medication. Later that day the dispensing pharmacist telephoned the practice and expressed concerns to Dr. Underwood about the interaction of the anti-malarial drug with the heart medication. Dr. Underwood noted the conversation in the computer record and noted that it raised the question whether the patient was fit to fly given her angina. On 18th April 2005 the appellant retrospectively amended his entry for the consultation of 15th April and added the words “and advised not to travel as h/o ihd [history of ischemic heart disease] under investigation”.[8]On 21st December 2005 at 3.00 pm Patient 15 called the surgery reporting breathing problems. The appellant had a telephone consultation with the patient and entered in the record “cough green sputum” and “seen opd 2d ago” [seen outpatients department 2 days ago]. The patient was later admitted to hospital were he died that night of cardiac arrest. Between 8.09 am and 8.18 am the next morning, the appellant made four attempts to amend retrospectively the record of the telephone consultation. The final version as amended read “cough green sputum not short of breath no chest pain” and added the words “doesn’t want a visit but wants ab [antibiotics] will call back if not better”.[9]On 19th December 2005 Patient 17 had a telephone consultation with the appellant who recorded under the heading “Problem” “chest infection”. On 28th December 2005 Dr. Pizura had a telephone consultation with Patient 17 and arranged for his admission to hospital. The patient was discharged on 11th January 2006. On 17th January 2006 the appellant added to his entry for the 19th December the words “cough, green sputum, no chest pain, try ab [antibiotics] c SOS [see as required]”.[10]On 15th December 2006 Patient 30 called the surgery requesting a home visit. The appellant arranged for her daughter to bring in a urine sample and he prescribed medication suitable for a urine infection. He made a computer entry simply recording the medication prescribed. The next day the patient was admitted to hospital, where she was found to have mild appendicitis and her appendix was removed. On 2nd January 2007 the appellant saw Patient 30. He then retrospectively added to his entry for 15th December 2006 under the heading “History” the words “suprapubic pain”, under the heading “Examination” the entry “urine ++ nitrate and ptn [protein]” and under the heading “Comment” the words “call back if worse”. It was common ground before me that the reference to ++ nitrate and protein indicated that a urine test had been done and that there was a urinary tract infection.[11]On 7th December 2006 the appellant fitted a coil for Patient 33. He saw her again on 29th December 2006 and recorded that she had wrist pain and that he had prescribed medication for that. On 8th January 2007 Dr. Underwood emailed the appellant asking whether he was going to see the patient for a routine check following the coil fitting. On 20th January 2007 the appellant added “coil nad [no abnormality detected]” to the entry for the consultation on 29th December.[12]In its Determination at Stage 1 the Panel concluded that the retrospective amendments in the case of these six patients were made dishonestly. The Panel went on to determine that the appellant’s fitness to practise was impaired by reason of his misconduct. It then went on to impose a period of suspension of 12 months with immediate effect.[13]The appellant now appeals on the following grounds(1) The findings of dishonesty were made on a different basis from that which had been put during the course of the hearing and in the Notice of Proceedings (“the Notice”).(2) However the case had been put, the Panel was wrong to reach findings of dishonesty in respect of these six patient records.(3) The sanction of suspension and/or its length was not a sanction that the Panel could reasonably have come to if no dishonesty had been found proved and/or was excessive and disproportionate in the circumstances.

The powers of the Court on a Section 40 appeal

[14]Section 40 (7) of the 1983 Act provides: “(7) On an appeal under this section from a Fitness to Practise Panel, the court may—(a) dismiss the appeal;(b) allow the appeal and quash the direction or variation appealed against;(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit…” (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or (d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,[15]CPR 52.11(3), which applies to this appeal, provides that:
“(3) The appeal court will allow an appeal where the decision of the lower court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.” (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
[16]The approach of the court on an appeal such as this was set out in Ghosh v General Medical Council [2001] 1 WLR 1915. There Lord Millett described the jurisdiction of the Privy Council, which at that time heard appeals such as this, in the following terms:
“33…The Board’s jurisdiction is appellate, not supervisory. The appeal is by way of a re-hearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes. 34 …the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner’s 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…”
[17]In Raschid v General Medical Council [2007] 1 WLR 1460 the Court of Appeal addressed, more specifically, the proper reach of the High Court’s discretion on appeal under section 40 of the Medical Act 1983 to vary a sanction imposed on a practitioner by the Panel. Laws L.J. identified two strands in the authorities:
“One differentiates the function of the panel or committee imposing sanctions from that of a court imposing retributive punishments. The other emphasises the special expertise of the panel or committee to make the required judgment.” (At para 16). He concluded: “These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course the law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”
(at para 20) Ground 1: The findings of dishonesty were made on a different basis from that which had been put during the course of the proceedings and in the Notice of Proceedings.[18]The complaint made by the appellant on this ground is, essentially, that the GMC failed to make clear either before the hearing or during the proceedings before the Panel that it was its case that the Panel could infer that the amendments to patients’ records made by the appellant were false in the sense that they made statements which, to the knowledge of the appellant, were untrue. The appellant submits that, save in respect of three records, it was not suggested by the GMC (at least until closing submissions) that the alterations which had been made were to add details which were themselves false in the sense that they were made knowingly to record something which had not taken place.[19]The Notice served on the appellant expressly alleged (paragraph 49b) that the appellant’s conduct in making retrospective amendments to patient records, including the six cases with which we are concerned, was dishonest. Clearly any allegation of dishonesty has to be expressly alleged. However, it was not suggested by Mr. Counsell on behalf of the appellant in his submissions before me that there was any obligation on the GMC to include in the Notice particulars of dishonesty. Further, he did not contend that it was necessary for the Notice to include an express allegation as to the falsity of the amendment. Nevertheless, he did maintain that if the GMC was alleging that the amendment was false there was a duty on the GMC to make that clear to the appellant so that he was able to defend himself. On behalf of the GMC Miss Callaghan accepted that, although there was no obligation on the GMC to plead particulars of dishonesty, it was incumbent on it to put its case on dishonesty sufficiently clearly so that it could be reasonably understood what case the defendant had to meet. Furthermore she submitted that it would be unfair for findings of dishonesty to be made on a materially different basis from that put by the GMC either in the Notice or in the course of the hearing, if that had deprived the defendant of a proper opportunity to respond to the case.[20]The issue raised in Ground 1 is therefore essentially one of procedural fairness.[21]Before the Panel it was alleged that the amendments were misleading and that they were dishonest. These allegations were expressly made in paragraph 49(a) and (b) respectively of the Notice and the terms are clearly intended to bear different meanings. The GMC case was that the amendments were misleading in the sense that they appeared to be part of the original record whereas they had, in fact, been added at a later date. Furthermore, the GMC alleged that the amendments were dishonest, that being an allegation as to the state of mind of the appellant when he made them. The Panel in its Determination on Stage 1 recorded that its Legal Assessor had advised the Panel as to the meaning of “misleading” and “dishonest”. “In relation to the word “misleading” he advised the Panel “misleading means leading someone to believe something it is true when it is not”. With regard to the word “dishonest” he advised the Panel that the courts have laid down that before there can be a finding of dishonesty, it must be established on the balance of probabilities that the doctor’s conduct was dishonest by the ordinary standards of reasonable and honest people, and if it was dishonest by those standards that he himself realised that by those standards his conduct was dishonest.” The definition of “dishonesty” is taken from R v Ghosh [1982] 1 QB 1053. It is not suggested that this approach or these directions were incorrect.[22]Dishonesty has many facets and manifestations. In the context of this case, concerned with altering a record, an important distinction emerged between conduct which may have been dishonest because the defendant acted for an improper motive and conduct which may have been dishonest because the content of the amended statement was to the knowledge of the maker itself false. Examples of the first category would include cases where a person with a dishonest motive alters a record to make it look better or to cast his conduct in a more favourable light or to divert attention from his role in a given matter but where the resulting amended record is not a false statement of what actually occurred. The amendment of a medical record by a doctor to include a true fact which he had failed to record earlier might be such a case if made with a dishonest motive. Despite the fact that the content of the resulting statement is not false, the alteration may still be dishonest if the author had acted from a dishonest motive. Examples of the second category might include cases where a doctor alters a medical record with the result of including a diagnosis he did not make or advice he did not give. At the hearing before me these situations were referred to respectively as cases of “dishonesty because of improper motive” and “dishonesty because of falsity”. I employ the terms in the same sense in this judgment.[23]Against this background I propose to consider the basis on which the GMC case was put and the basis on which the findings of dishonesty were made by the Tribunal before turning to consider whether any prejudice was suffered by the appellant as a result. The basis on which the GMC put its case. The Notice[24]The Notice served on the appellant expressly alleged that the alterations were made dishonestly. In respect of the six matters with which we are concerned it did not elaborate or provide any further particulars of the allegation. However the appellant points to the fact that the GMC did allege that the entries were false in the case of the records of three other patients (Patient 7, Patient 25 and Patient 27). In the case of Patient 7 it is alleged that the appellant made an entry in his medical records for a medication review which did not take place. In the case of Patient 25 it is alleged that the appellant inserted in the record details of a telephone consultation which did not take place. In the case of Patient 27 it is alleged that the appellant made an entry in the record relating to a consultation which did not take place on the date stated. In those three cases no findings of dishonesty were made either because the allegations themselves were abandoned or because the Panel accepted that the entry was made honestly. On behalf of the appellant, Mr. Counsell submitted before me that, although there was no obligation to plead expressly the falsity of the resulting record whenever it was alleged, the fact that these allegations of falsity were expressly made in three cases but in no other case entitled him to proceed on the basis that it was not alleged in those other cases that the entry as amended was false. On behalf of the GMC Miss Callaghan sought to distinguish these cases on the basis that the nub of the alleged misconduct in the case of Patients 7, 25 and 27 was that the appellant had fabricated an entire consultation. Accordingly, for that reason it was necessary to plead expressly that the consultation had not taken place in order that the alleged misconduct be understood. By contrast, she submitted, the six charges which are the subject of this appeal relate to improperly made retrospective amendments to records of consultations which had taken place. This may well explain how it came about that allegations of falsity appear in these three cases. However, this appears to have led the appellant’s advisors to understand that no corresponding allegations of falsity were made in other cases. This is apparent from a submission made by Mr. Counsell at the start of the proceedings before the Panel to which I now turn.

The hearing

[25]The first day of the hearing was largely taken up by an abuse of process application on behalf of the appellant. In his submissions on abuse of process Mr. Counsell drew attention to what he said was an important feature of the case. “…in all but a very few cases it is not suggested, as I understand it, that the alterations that were made, be they additions, deletions or amendments, were made to falsify the records in the sense that they were not made to make the record false. The allegation is that in those cases they were corrections or additions to the record which make it more accurate. The misleadingness, if I can call it that, the way in which the alteration was misleading was not, therefore, to make the record false but it was misleading in the sense that someone looking at the computerised patient record for that day might suppose that all of the record had been made contemporaneously when it had not.” He then referred to the charges in relation to Patient 7, 25 and 27 and continued:
“With the exception of those three the allegation is that the misleading impression given was not that the record was false the records were false, what was added or amended was false, but was misleading because anyone reading the record would tend to suppose that the record had been made contemporaneously when alterations were made later.”
This is a clear statement of understanding that it is not alleged that the statements in the remaining cases, which would include the six cases with which we are concerned, were false. Mr. Grundy (counsel for the GMC below) responded on the second day of the hearing in the following terms:
“On any view it is the GMC’s case that those matters are misleading; that record is misleading because on the face of it, it purports to be a contemporaneous record and accurate and it was not because it had been subsequently amended and it is dishonest.”
In this passage he made clear that he does allege dishonesty. However he did not go on to make clear in this passage that the cases where falsity of the statement is alleged were not limited to Patients 7, 25 and 27.[26]Earlier, on Day 1, Mr. Grundy had said this in response to the abuse of process application:
“On the face of it, there appear to be different reasons as to why retrospective amendments were made in a particular time. By way of example Patients 30, 32, 33 and 34 were all amendments made on the evening of 20 January, or the last one was in the very early hours of the morning of Sunday 21 January, 04.20 hours in the morning, he makes amendments to the records according to the audit trail. Why did he do that? It is the GMC’s case that he did that because Dr. Underwood sent an email to him on 20th January telling him that these were a number of cases which they were referring to the PCT. As a result of that, it is the GMC’s case that he therefore accessed these records, altered them and printed them off so that he would be able to take them to the PCT to show them a better clinical record than that which he had originally created; “create” is the wrong word, entered at the time. There are different types of amendments. I am trying to summarise the position and I apologise that a lot of this will be dealt with within the opening, but I think it is important that you know how the GMC’s case is put in order to assess whether it is proper for you to strike everything out now as being an abuse. There is an example there of intending to improve the record because the doctor knew that these matters were going to be investigated by the PCT; examples of appearing to make him look like a better clinician because he is retrospectively inserting a possible diagnosis after that diagnosis has been determined by later hospital visits; to cover up possible mistakes; to embellish the notes to make them look better than they originally were; inserting whole consultations long after the event; deleting matters because they are subsequently shown to be wrong, in other words whether to go to hospital; that the diagnosis is different, or certainly is a negative, so Dr. Moneim then appears to retrospectively alter his records. Why you would want to do that – doctors can get things wrong, but he seemed to want to do that.”
The examples given in this passage are certainly wide enough to include situations where the resulting statement is false. However, it is fair to say that this passage does not focus on the distinction drawn by Mr. Counsell. In particular there is no express statement here that the GMC case is that at least some of the amended entries are false.[27]In another passage, in his opening on Day 2, Mr Grundy addressed motive. “There appears on the face of it to be a number of reasons why the doctor was doing this. As we go through the records you will see particular examples. Of course it is always difficult to look into the mind of someone doing these amendments, and it will be a question for you drawing inferences and proper inferences from what you see from the records. It is open to you draw those inferences and determine on the balance of probabilities particularly in this case in respect of certain matters as whether the doctor was acting dishonestly. Some of the reasons would appear to be these: Firstly, an attempt – perhaps even a misguided attempt – to improve the record because he knew that he was about to be investigated by the PCT because Drs. Underwood and Pizura had referred various matters to them. The classic examples of those are Patients 30, 32, 33 and 34. Another reason would appear to make him look a better clinician than he was. There is no reason in fact to do so, but by retrospectively inserting a possible diagnosis after it had been determined, an example of that is Patient 6; attempt to cover up possible mistakes, an example of that is Patient 15; inserting whole consultations long after the event, an example of that is Patient 25; deleting matters that are later shown to be wrong, an example of that is Patient 14; and an attempt to make allegations against his partners that they may have been doing things they should not have been doing and making entries into the records by way of example now Dr. Underwood Patient 29. Another possible potential reason so as to comply with PCT or contract expectations by way of medication reviews and the like so that the practice would receive money accordingly, an example Patient 7 is medication review case. That is just a snapshot of potential reasons and we will have to look at them as we go through them.” The state of affairs described in the first paragraph quoted above is wide enough to include cases where the amendment is a false statement. The second paragraph seems to go further. I draw attention to the general opening words of “to make him look a better clinician than he was”. This suggests the making of a false statement as do most of the specific examples which then follow, for example inserting a diagnosis which was not made at the time. However, here, once again there is no express statement to that effect and this is unfortunate, in particular in the light of the statement Mr. Counsell had made on Day 1, as quoted above, as to his understanding of the position.[28]The issue arose again later on Day 2 in relation to Patient 29. Mr. Grundy stated that, on the face of it, a retrospective entry made by the appellant was a false allegation against Dr. Underwood. He was interrupted at that point by Mr. Counsell who said:
“My understanding of the case against Dr. Moneim was that it was not going to suggested that any of the entries were false and you remember that we had a discussion about this my learned friend did not demur from that yesterday.”
Mr. Counsell pointed out that the note made by the appellant was that the patient said that she had had swabs not that there had been swabs. He submitted that if the GMC was suggesting that the patient did not say that then it would have to call the patient. The debate between counsel then shifted largely to the issue of whether the allegation of falsity could be proved without calling the patient. However when pressed by the Legal Assessor to say whether it is a false entry Mr. Grundy stated:
“On the face of it on Dr. Underwood’s evidence this is a false entry because it is motivated by a desire to make an allegation against Dr. Underwood which is untrue and that the inference to be drawn in the circumstances is that, yes, therefore it is false.”
The Legal Assessor then expressed his view that in the absence of the patient saying what she said to the appellant the Panel could not possibly draw that inference. The matter was then left on the basis that Mr. Grundy would come back to it after consideration if he wanted to pursue that point in relation to Patient 29. In the event, I was told, he did not.[29]Here, once again, Mr. Counsell states his understanding that falsity of the amendments is not alleged. Mr. Grundy states expressly that he is alleging falsity in this case. However the point is disposed of on the basis of the inability of the GMC to call the patient to say that the statement was untrue.[30]In his opening Mr. Grundy dealt with the six specific cases with which we are concerned in the following way.[31]In the case of Patient 8 Mr. Grundy said of the two amendments that the appellant “appears to be amending his records to make them look better than they were.” These words can be read as referring to an alteration to improve the appearance of the records or to an alteration to make a false statement.[32]In the case of Patient 10 Mr. Grundy said “It is an example of an attempt by Dr. Moneim to cover up a possible mistake on his part.” Mr. Counsell submits that it was not suggested by Mr. Grundy that the insertion of the words “advised not to travel as h/o ihd under investigation” was a false entry. However this does seem to me to be the main thrust of this section of the opening. In particular, I read the words “a possible mistake” as referring to a failure to advise him not to travel, rather than referring to the possibility that the advice might have been given but not recorded.[33]In the case of Patient 15 Mr. Grundy stated in opening that this was an example of the appellant “amending his records to make things look better after the death of the patient”. The patient was in fact admitted to hospital and died nine hours after the telephone consultation. When the appellant was aware of that, he made four attempts at altering the record. “On the face of it he is clearly not sure what he wants to put in. The result of those four attempts are…the final version is to add to the record of the 21st after “cough green sputum”, “not short of breath no chest pain” and the comment “doesn’t want a visit but wants ab [antibiotics] will call back if not better”. That is all afterwards, as I have said, that the doctor knows that the patient later that night was admitted to hospital and died.” I consider that these words in opening are consistent with amending the record to include statements of truth not originally included, but they are also consistent with making false entries.[34]In the case of Patient 17 the original entry for 19th December 2005 had simply recorded under the heading “Problem” “chest infection”. After Dr. Pizura had made a long entry for a telephone consultation on 28th December 2005 the appellant on 17th January altered the records for 19th December by adding “cough, green sputum, no chest pain try ab c SOS”. In opening Mr. Grundy stated that on the face of it “this is an example of Dr. Moneim making his original record look better”. He also stated that what the appellant “has done is to add to his original record to make it better so that it actually had some history in there and what he was seeking to do in this particular case.” To my mind, these words are consistent with an allegation of falsity but they more naturally tend to an allegation that truthful matters were included to improve the record.[35]The Notice included two allegations of amendment in relation to Patient 30. Dishonesty was found only in relation to the allegation of amendment made on 2nd January 2007 (paragraph 33 of the Notice). Mr. Grundy dealt with this very briefly in opening, stating that it appeared that on 2nd January the appellant saw Patient 30 but did not make a note of the consultation at that time. What he did on the 2nd January was to amend notes of the 15th December 2006, after he had seen Dr. Underwood’s lengthy consultation note of 27th December 2006. The amendment made was “suprapubic pain, urine ++ nitrate and ptn, call back if worse”. The opening does not indicate whether it is alleged this statement was false.[36]In relation to Patient 33 Mr. Grundy in opening simply stated that the words “coil nad” had been added subsequently. I understand the words at D2/13C to refer to Patient 34.

The evidence of Dr. Archard in relation to Patient 33

[37]The GMC called Dr. Archard as an expert witness. It is necessary to refer to his evidence in relation to Patient 33. The original record for the consultation on 29th December 2006 showed that Patient 33 consulted the appellant about her wrist. It was admitted that he subsequently amended the record to add the words “coil nad”. Dr. Archard expressed the opinion that there was no clinical reason why the addition should have been made. His evidence was that the added entry would imply “that the lady had been examined to ensure that the coil was appropriately placed and that there was nothing to cause the physician concern, so there was no obvious infection, the threads had been seen, and so on and so forth, so an examination had taken place.” Mr. Grundy then reminded Dr. Archard that the record showed that the consultation began at 11.42 and ended at 11.43. Mr. Grundy asked Dr. Archard how long it would take to examine a coil to see whether or not it was appropriate. Dr. Archard replied that it would take 10 minutes. It must have been understood by everyone present that the purpose of adducing these answers was to establish that the examination had not taken place. It must have been apprehended by the appellant and his advisors that he was facing an allegation that he had not carried out that examination.[38]This allegation could have come as no surprise to the appellant’s legal representatives because these matters are referred to in Dr. Archard’s report which was served in advance of the hearing. There Dr. Archard stated, “It would seem inconceivable to me that a coil could be checked along with a consultation regarding a painful wrist in the space of either one or four minutes” (The reference to four minutes comes from the original record that following the consultation three minutes were taken writing up the notes.) Dr. Archard was not cross examined on this point.

Half-time submissions

[39]After the GMC had closed its case Mr. Counsell made a submission of no case. He coupled with this a renewal of his abuse of process application on which the Panel had not ruled at the outset. In responding to these applications Mr. Grundy made a number of statements which to my mind clearly indicated that the GMC was alleging that at least some of the amendments were false. With regard to Patient 33 he referred to Dr. Archard’s evidence that there would not have been sufficient time for the appellant to have checked the coil. With regard to Patient 10 he alleged that this was a case of covering up mistakes. In the cases of Patients 8 and 17 he submitted that there was absolutely no reason why this information could not have been recorded at the time of the making of the original record “if it were true and accurate”. (On the other hand, the reference in the passage at D12/33 (1177) to Patient 15, where it was said that the alterations were made “in effect to make things look better”, is equivocal). In the course of argument before me Mr. Counsell accepted that the clear implication of these passages was that the amendments recorded false information.[40]The defendant did not give evidence. Despite an invitation from the GMC to draw an inference against the defendant from this failure and advice from the Legal Assessor that it was open to it to do so, the Panel declined to draw any adverse inference.

Closing submissions

[41]In his closing skeleton argument Mr. Grundy included the following passage:
“It has been suggested by the defence that the GMC has not charged that the amendments/additions were false. That misses and/or confuses the point about the charge of dishonesty. GMC had charged that the amendments/additions were dishonest. In determining whether the entries were dishonest the Panel is entitled to consider all the evidence and draw the inference, if appropriate, that the entry was false, in particular when no explanation has been given for it. For example, that the entry was made to improve or embellish the record after the email of 20.1.07 or after the death of the patient etc. An obvious example is Patient 33 “coil nad”…”
Those words applied to all cases where dishonesty was alleged. They were an explicit statement that the GMC’s case was that, where it was appropriate on the evidence, it was open to the Panel to draw an inference that the amendment was false. Later in his skeleton when Mr. Grundy referred to the individual cases with which we are concerned, he did not in all of those cases expressly invite the Panel to draw an inference of falsity. However he did state in terms that the charge in relation to Patient 10 “is an example of Dr. Moneim seeking to cover up potential mistakes”. When he returned to Patient 33 he submitted that “the clear inference is that the note was added so that it could then be shown to the PCT and lead them to believe that the examination had been performed when there would not have been time to do it.” These are explicit allegations of the falsity of the amendments. An obvious example is Patient 33 “coil nad”…”[42]Similarly in his oral closing submissions Mr. Grundy maintained these allegations of falsity. This brought the matter to a head once again and there was a lengthy debate between counsel on this issue.[43]In summary, Mr. Counsell’s position was that the way the case had been put by the GMC and the way in which it had always been understood by those representing the appellant was that, with the exception of Patients 7, 25 and 27, “the misleading nature was not that the entry was false but that it was misleading and therefore dishonest because it failed to indicate that the entry was being made retrospectively”. Records can be embellished in many ways which do not involve inserting false entries. The allegation of falsity is different and puts an entirely different complexion on whether or not the conduct was dishonest. If it was to be alleged that an entry was false, then that ought to have been pleaded. (That is a submission which is no longer maintained on appeal.) Mr. Counsell submitted that the GMC should not proceed in this way and that the Panel should decide the matter as a discrete issue. Mr. Counsell invited the Panel not to conclude that there had been any insertion of false entries beyond those expressly pleaded in the Notice.[44]Mr. Grundy denied that there had been any change in position by the GMC. He had always been careful to distinguish “misleading” and “dishonest”. The submission on behalf of the appellant conflated the two. The position of the GMC was that there were various motives which could be inferred for the alterations. The Panel was entitled to conclude, if they saw fit, that the entries were false. That was not a new case but had always been the GMC’s case in relation to dishonesty.[45]The Legal Assessor then spoke. He began by saying that he did not think that this issue should be left up in the air. He considered that the ultimate test was whether there had been any prejudice to the defence in the way in which the case had been put. He suspected that there had not and that the matters could then be dealt with by Mr. Counsell in his closing submissions. However he then appears to change his mind from the position he took at the outset of his remarks and suggested that the best way to deal with it was by way of submissions and that the Panel should take this into account in their decision making process without making any ruling. Mr. Grundy indicated that he was content for the matter to be dealt with in that way. Mr. Counsell said that he too was happy to deal with it in that way and that he would continue to make his submissions having indicated what his position was.[46]My conclusions as to the basis on which the case was presented before the Tribunal may be summarised as follows.(1) The Notice expressly alleged dishonesty in relation to the six cases. It did not allege the falsity of the amendment in these six cases but it is no longer maintained that it was required to do so, provided that the position was otherwise made clear. (See generally Makki v. GMC [2009] EWHC 3180 (Admin) (Irwin J.) I consider that this concession was properly made.(2) Miss Callaghan on behalf of the GMC is correct in her submission that the case was opened for the GMC in terms wide enough to include both dishonesty by reason of improper motive and dishonesty by reason of the falsity of the amendment. Furthermore she is correct in her submission that the GMC submissions in opening and closing were consistent in the sense that the closing submissions fall within the ambit of the way in which the case was put in opening. However, that of itself does not address the real issues on Ground 1 which are whether the appellant and his legal advisers were given sufficient notice of the case against him so as to afford a proper opportunity to respond to it and whether they were misled by the way in which the case against the appellant was put.(3) The opening, while wide enough to include dishonesty by reason of falsity, did not unequivocally allege falsity in any particular case. Furthermore, the potential for a misunderstanding was increased by the presence of an express allegation of falsity in the Notice in the case of Patients 7, 25 and 27. Moreover, the onus on the GMC to be clear as to the way in which it put its case was increased by Mr. Counsell’s statement of his understanding on the first day of the hearing. Mr. Grundy’s statements on Days 1 and 2 imply a case based on falsity without expressly spelling it out. However, viewed objectively, it would have been unsafe in all the circumstances for the appellant to proceed on the basis that the issue had been resolved in the appellant’s favour.(4) Different considerations apply in the case of Patient 33. The Archard report, which had been served on the appellant in advance of the hearing, should clearly have put the appellant and his advisors on notice that the GMC’s case in relation to Patient 33 was that the amendment meant that the appellant had examined Patient 33 and that that statement was false. Dr. Archard’s evidence in chief made clear that GMC’s case on Patient 33 was one of falsity and the appellant and his advisors must reasonably have apprehended that at the latest when Dr. Archard gave his evidence in chief.(5) Mr. Grundy’s submissions in response to the appellant’s applications after the close of the GMC case made clear that the GMC was maintaining that, where appropriate, it was open to the Panel to draw inferences as to the falsity of the amendments, in particular in the cases relating to Patient 8, 10, 17 and 33.(6) The clearest exposition of the GMC’s position is to be found in paragraph 3 of Mr. Grundy’s closing skeleton.(7) It is most regrettable that the Tribunal failed to deal with this issue at that stage in the proceedings by hearing argument, in particular in relation to any prejudice which the appellant may have suffered. It should have made a ruling as to the basis on which the GMC was entitled to put its case and should have addressed any alleged prejudice to the appellant before proceeding to take its decision on Stage 1. Had it done so, the parties might have been spared a great deal of trouble and expense.[47]In the light of these conclusions, I consider that the present case is distinguishable from Chauhan v. GMC [2010] EWHC 2093 (Admin) (King J.) on which the appellant relies, because in that case the Tribunal, in deciding whether the doctor had behaved dishonestly, took into account a number of totally extraneous matters which were not the subject of any charge. Similarly in Farag v. GMC [2009] EWHC 2667 (Stadlen J.) the case against the doctor was that he had dishonestly faked or exaggerated illness with a view to claiming sick pay. The Tribunal rejected that case but found that he had acted dishonestly in concealing that he had been working part time for another institution. Although the allegation of concealing his other work had been raised in the proceedings, it had not been a free-standing allegation but merely evidence in support of the allegation that he was not ill at all. In the present case, by contrast, not only was the allegation of the falsity of the statements always within the scope of the way in which the GMC put its case, but in the case of Patient 33 the allegation of falsity of the amendment was clear from the report of Dr. Archard which had been served in advance of the hearing and in the other cases where allegations of dishonesty were upheld it became clear during the proceedings, at the latest by the submissions at half-time, that the GMC invited the Tribunal to conclude, where appropriate, that the amendments were false.[48]Finally, in this regard, I draw attention to R (Shankar) v. GMC [2006] EWHC 2503 (Admin) (Munby J.). There a general practitioner faced allegations of professional misconduct relating to his examination of a nine day old baby. During the course of the hearing before the Fitness to Practise Panel it became apparent that the doctor had subsequently falsified the patient’s notes by inserting entries which appeared contemporaneous. Munby J. held that there had not been anything unfair or inappropriate in allowing these matters to be investigated at the hearing and that, having made findings that the records had been altered, the Panel was entitled to take this matter into account as going to the doctor’s veracity.[49]Before considering the fairness of the course followed in the present case, I propose to consider the basis on which the Tribunal arrived at its conclusions on dishonesty.

The basis of the Panel’s decision

[50]The Panel concluded that the appellant had been dishonest in altering the records in all of the six cases with which we are concerned. However, in argument before me, the basis on which it came to that conclusion was hotly contested. All of the foregoing would be to no effect if the Panel’s findings of dishonesty were founded not on false statement but on the more limited ground of improper motive. It is therefore necessary to examine the basis on which the Panel drew its conclusions of dishonesty.[51]In its Determination at Stage 1 the Panel made the following findings in relation to Patient 33:
“On 20 January 2007 you made a retrospective amendment to the patient’s medical records for 29 December 2006 by inserting “coil nad”
. The Panel is not satisfied that such a check could have taken place in the short time and period recorded for this consultation…the Panel concluded that this was an attempt to cover up an omission on your part. … Further, the Panel has concluded that this is a situation where you sought to cover up your apparent clinical oversight and was therefore dishonest.” It was common ground between the parties before me that the Panel had made a finding in the case relating to Patient 33 on the basis of falsity of the amendment. This is clearly correct.[52]The charge in relation to Patient 8 concerned two alterations to the record both of which were admitted. One of these was the addition of the words “as given by vap” to the words “as ibuprofen not strong enough”. In its determination at Stage 1 the Panel said this in relation to that entry:
“The patient had been previously prescribed a drug which was causing him side effects and when earlier on 18 February 2005 he telephoned to discuss the prescription with the practice the staff had assumed you issued this prescription. However you had not. On 21 February 2005 you entered a retrospective amendment relating to a consultation record of 15 February 2005. This indicates that the prescription was issued by your partner, Dr. Pizura. … Whilst you may have believed that the medications were prescribed by your colleague in the context of the situation, the Panel concluded that making this amendment was below the standard expected. … In retrospectively amending the record on 21 February the Panel found you were behaving dishonestly because you were seeking to deflect blame on a colleague…”
It was common ground before me that the finding that the appellant may have believed the medications were prescribed by Dr. Pizura precluded any inference of dishonesty on the basis that the amendment had been made by the appellant knowing it to be false. The conclusion that the entry was made dishonestly must have been based on a conclusion on that the appellant had acted for a dishonest motive and not on the basis that he was knowingly making a false statement. Accordingly, Ground 1 can have no application to the charge in relation to this entry because the determination cannot, on any view, have been made on a different basis from that which was opened.[53]The other amendment in relation to Patient 8 was the addition of the words “and inform surgery”. In this regard the Determination at Stage 1 read:
“…on 21 February 2005 you added a further retrospective amendment “and inform surgery” to the entry on 18 February 2005. This related to your telephone consultation with the patient before Dr. Pizura became involved in his admission to hospital. Further by 21 February 2005, it had become clear that the patient had been sufficiently ill to require an emergency admission to hospital on 18 February. By this time you knew this was a critical incident. In retrospectively amending the record on 21 February the Panel found you were behaving dishonestly because you were seeking to…demonstrate that you took the incident more seriously than you had.”
(emphasis added) To my mind the final words “than you had” demonstrate that the Panel had reached a conclusion of dishonesty on the basis that the amended entry was false.[54]The remaining charges with which we are concerned can be conveniently considered together. (1) In the case of Patient 10 the appellant had amended the record by adding “advised not to travel as h/o ihd under investigation”. In its determination at Stage 1 the Panel stated:
“In relation to the allegation of dishonesty, whilst the pharmacist queried the prescription, it prompted Dr. Underwood to raise the issue of this patient’s fitness to travel and you sought to cover up your apparent clinical oversight by your actions. It is for those reasons the Panel found your actions in relation to paragraph 16 dishonest.” (Emphasis added).
The reference to “apparent clinical oversight” does not necessarily imply that the appellant added something to the record which he had not done i.e. that he had not advised the patient not to travel. The words used are at least equally consistent with the view that there was no oversight but that there were circumstances which might lead others to consider that there could have been an oversight. On that basis the Panel would have been making a finding that the amendment was made to avoid any appearance of a clinical oversight. (2) In the case of Patient 15 there were four attempts to alter the record after the appellant learned that Patient 15 had died in hospital. The final amended version added the words “not short of breath no chest pains. Doesn’t want a visit but wants ab will call back if not better.” In its determination on Stage 1 the Panel stated:
“The Panel noted that you made four attempts to amend the records and there were clear inconsistencies between the versions you entered. The Panel concluded that you were seeking to find a form of words which made your actions, this consultation, look more appropriate. (Emphasis added). The Panel concluded that this demonstrated that you were acting dishonestly.”
The Panel concluded that this demonstrated that you were acting dishonestly.” On the face of it there is no clear finding here that the altered statement was false, as the reference to finding a form of words which made his actions “look more appropriate” is equally consistent with altering the record to improve it by recording what had in truth happened. (3) In the case of Patient 17 the appellant had admitted having added to the record the words “cough, green sputum, no chest pain try ab c SOS”. In its determination on Stage 1 the Panel stated:
“On 17 January 2006, you made an additional note to the patient’s records for 19 December 2005 which the Panel concluded was an attempt to minimise the patient’s clinical situation… In relation to the allegation of dishonesty, the fact that you must have read Dr. Pizura’s entry and the discharge letter, and were therefore aware of the critical incident led the Panel to conclude that this is a situation which you sought to cover up your apparent clinical oversight.” (Emphasis added).
Here, once again, there is no clear finding that the altered statement was false and the reference to “apparent clinical oversight” may suggest that there was no actual oversight i.e. that the amendment was not a false statement. (4) The appellant admitted that in the case of Patient 30 he had amended the record by adding “suprapubic pain, urine ++ nitrate and ptn, call back if worse”. The Panel in its determination at Stage 1 stated:
“Patient 30’s situation resulted in a potential critical incident when you may have missed a diagnosis. On 2 January 2007, you made additional entries retrospectively to the patient’s medical record for 15 December 2006. … In relation to the allegation of dishonesty, the Panel has concluded that this is a situation which you sought to cover up your possible clinical oversight and therefore find that your actions were dishonest.”
(emphasis added) Here once again there is no unequivocal finding that the alteration to the record was false. On the contrary, the reference to the fact that he “may” have missed a diagnosis and to “possible clinical oversight” are consistent with the view that in this case the Tribunal had not made a finding that the alteration was false.[55]On the basis of the text of the Determination at Stage 1 alone, I should be inclined to conclude that in relation to these four further instances the Tribunal did not make findings that the altered entries were false. (In this regard I have not overlooked the fact that the Determination at Stage 1 in relation to Patient 33 also includes a reference to “apparent clinical oversight” but there, other passages of the Determination leave no doubt that there was a finding of falsity.) However in its Determination at Stage 2 (Fitness to Practise) the Panel referred to its findings of dishonesty in the following terms:
“…it reminded itself of its findings of dishonesty, which it considered reflected a pattern of behaviour, which included seeking to cover up your clinical oversights, making your actions appear more appropriate in the context of a potential clinical incident and in one instance seeking to deflect blame on a colleague.”
The reference to making actions appear more appropriate is consistent with the view that the alterations were not false. However, the reference to “seeking to cover up your clinical oversights” indicates that the Panel had concluded that the alterations were false and therefore that in one or more of these four further cases the Panel had drawn an inference of dishonesty from the falsity of the statement. Furthermore in its Determination at Stage 3 (Sanction) the Tribunal went even further:
“Over a period of two years you dishonestly amended the records of six patients, in one case potentially causing direct harm by recording a coil check which had not been undertaken. In some of those cases you were seeking to hide a clinical oversight, in one you sought to make your actions appear more appropriate than they were in the context of a potential clinical incident and in another sought to deflect blame onto a colleague.”
(emphasis added) The words “sought to make your actions appear more appropriate than they were” refer to Patient 15. The words “than they were” make clear that the Panel considered that the amended statement was false. Similarly, the Panel expressly states that in some cases the appellant was seeking to hide a clinical oversight.[56]Accordingly, I consider that the Panel came to the conclusion that the amended statements were false in the charges relating to Patients 8 (the amendment “and inform surgery”), 15 and 33 and at least one of Patients 10, 17 and 30 (the cases of clinical oversight).

Prejudice

[57]I turn to consider whether the appellant may have been prejudiced in the presentation of his case before the Panel by a failure to make clear that it was alleged that these amendments were false statements.[58]In his submissions before me Mr. Counsell, very fairly, explained that he was unable to submit that, had he appreciated that the General Medical Council (“GMC”) was making allegations of falsity, he would certainly have called his client. He said that it was difficult to say in the light of what we now know whether he would have called him. However, he also drew to my attention the fact that it was the appellant’s case before the Panel that he had no recollection of making any of the changes. That, indeed, had been an important part of the appellant’s application on abuse of process. That, inevitably, has a very significant bearing on the question whether the appellant has suffered prejudice as a result of a lack of clarity in the way in which the GMC put its case below. The appellant would have been unable to explain the circumstances in which the amendments were made. It is true that he would have been able to give evidence as to his usual practice, but that could have provided little, if any, assistance. In his submissions to me Mr. Counsell did not identify any specific matter bearing on the alleged falsity of the amendments on which the appellant could have given helpful evidence in his defence. Patient 33.[59]In his submissions on this aspect of the case Mr. Counsell placed particular emphasis on the position in relation to Patient 33 and so I propose to address this case before the others. For the reasons set out above, I consider that it should have been apparent to the appellant and his advisors from the report of Dr. Archard, which had been supplied in advance of the hearing, and certainly from the oral evidence of Dr. Archard that the GMC was alleging that the examination had never taken place and the entry was false. For the reasons set out below I am satisfied that, in any event, the appellant was not prejudiced in the presentation of his case in relation to Patient 33.[60]Mr. Counsell points to the fact that the entry “coil nad” was made under the heading “Comment” not under the heading “Examination”. He said that this supports the possibility that the appellant was simply recording what he had been told by the patient. He submits that, had it been made clear that the GMC was maintaining that the examination had not taken place, it would have been necessary for him to cross examine Dr. Archard on this point. He says that because it had not been made clear that the entry was false he was under no obligation to cross examine Dr. Archard on the point and he did not do so. Dr. Archard’s evidence on Patient 33 was unchallenged.[61]In my judgement, it was clear by the time Dr. Archard gave his evidence that the GMC was alleging that the entry meant that the examination had taken place and that no examination had in fact taken place. Despite the indications Mr. Counsell had given at earlier stages of the hearing as to his understanding of the way in which the case was put, he was not entitled to proceed at this point on the basis that falsity was not part of the GMC’s case in relation to Patient 33. It was apparent that it was a part of the GMC’s case from Dr. Archard’s report, from his oral evidence and from the way in which the case had been opened.[62]In any event no prejudice was suffered by the appellant as a result of the failure to cross examine Dr. Archard on this point. “Coil nad” is shorthand for “coil no abnormality detected”. That clearly indicates the result of an examination. The coil had been inserted by the appellant. There is no record of a check on the coil having been carried out thereafter by any other doctor. Moreover on 8th January 2007 Dr. Underwood had sent an email to the appellant asking if he would be seeing Patient 33 for a routine coil check following the fitting on the 7th December 2006. It could not seriously be suggested that Patient 33 had carried out the check herself. Even if she had, she would not have been able to conclude that there was no defect. She lacked the expertise to draw such a conclusion. The entry clearly indicates a scientific conclusion based on an expert examination. Accordingly the suggestion that Patient 33 might have been reporting the result of an examination carried out by someone other than the appellant is untenable. In reality the appellant can have suffered no prejudice by reason of the failure to cross examine Dr. Archard on this basis.[63]Mr. Counsell further submits that the appellant was deprived of the opportunity to obtain his own expert evidence on the point. However, I am unable to see what evidence another expert could have given which could have affected the position. Mr. Counsell submitted that there was a lack of evidence as to when the coil should have been checked. He says that he would have had to cross examine Dr. Archard blind on this point without the benefit of his own expert. However, there can be little doubt that it should have been checked given the implicit criticism in Dr. Underwood’s email of the 8th January 2007 which was not challenged. Furthermore, and more fundamentally, the issue in this case was not about when it should have been checked. Here the appellant recorded that it had been checked and the unchallenged evidence entitled the Panel to conclude that it had not.[64]Moreover, by the time of the closing submissions on Stage 1 the GMC had made its position abundantly clear. Mr. Grundy’s skeleton (at paragraph 3) stated that the Panel was entitled to draw an inference, where appropriate, that an amended entry was false, in particular when no explanation had been given for it and he identified the case of Patient 33 as an obvious example. At paragraph 76 he stated that the clear inference was that the note was added so that it could then be shown to the PCT and lead them to believe that the examination had been performed when there would not have been time to do it. Mr. Grundy did not resile from that position in the subsequent argument before the Panel. The matter was left, at the suggestion of the Legal Assessor to be dealt with in submissions before the Panel. It was open to the claimant to object to that course on grounds of prejudice and, if necessary, to apply for an adjournment or for witnesses to be recalled. He did not do so. The matter proceeded to submissions. However, no submission was made on behalf of the appellant on the basis of the records themselves (and in particular the appearance of the entry under the heading “Comment”) that this was simply recording a report by the patient. In argument before me Mr. Counsell accepted that he could have made submissions on that basis but did not do so.

Other patients

[65]More generally Mr. Counsell submits that the failure of the GMC to make clear its case on falsity of amendments resulted in a failure to investigate whether any of these were clinical oversights. In addition to Patient 33, whose case has already been considered in this regard, this would also apply to the cases of Patients 10, 17 and 30 where there were findings of actual or possible oversights.[66]The case for the GMC was on the basis of inferences from the documentary history viewed in the context of the particular circumstances relating to the appellant. These matters are considered in detail in relation to Ground 2. The appellant has not identified what would or might have been done had he understood the basis of the GMC’s allegation of dishonesty. In particular, it is not clear how cross examination of Dr. Archard or calling an expert could have assisted on the question whether the amendment arose from an actual as opposed to an apparent omission. Furthermore, in the light of the appellant’s position that he could not remember making the retrospective amendments, it would have been very difficult for him to put a case that there was no clinical oversight and to cross examine on that basis.[67]To the extent that it is suggested that it would have been relevant to determine whether the amendment reflected an omission (whether actual or apparent) which could properly be characterised as an oversight, the case against the appellant was not one of failure to make a correct diagnosis or to take appropriate action but one of entries dishonestly made to cover up apparent or actual oversights. To the extent expert evidence could be relevant at all on this point, it would be equally relevant in the case of apparent as in actual omissions. The appellant had been aware throughout the proceedings below that, at its lowest, it was alleged that he had amended records to avoid the appearance of an omission.[68]Mr. Counsell in his submissions to me did not identify any other respect in which the presentation of the appellant’s case below, in respect of any of these six cases, would or might have been different had the GMC’s case on falsity been made clear from the outset. Moreover, by the time of the closing submissions on Stage 1 of the hearing, the GMC had made clear that it did invite the Tribunal to draw inferences of falsity. It was open to the defence to argue at that point that the appellant was prejudiced as a result and to seek an adjournment to obtain further evidence or to seek the recall of witnesses for further cross examination. That did not happen. Furthermore, in the course of final submissions on Stage 1 it was open to Mr. Counsell to make submissions as to why the documents did not support an inference of falsity but he did not do so.[69]For these reasons I have come to the conclusion that the appellant did not suffer any prejudice as a result of the way in which the GMC put its case.[70]For these reasons the appeal on grounds of procedural unfairness fails. Ground 2: However the case had been put, the Panel was wrong to reach findings of dishonesty in respect of these six patient records.[71]On behalf of the appellant Mr. Counsell submits that the findings of dishonesty made in respect of these six patient records were not findings which could reasonably have been reached on the evidence. He submits that there was no direct evidence which would have assisted the Panel in determining whether the entries were or were not false. The appellant elected not to give evidence but the Panel indicated that it did not draw an adverse inference from that decision. Accordingly the finding of dishonesty had to be an inference in each case from the nature of the entry and the circumstances in which it was made. Mr. Counsell submits that in each case there was no evidence or, alternatively, the Panel was wrong to draw the inference of dishonesty from the available evidence.

Patient 8

[72]Here the appellant challenges the finding of dishonesty on two grounds. First he submits that, given the Panel’s finding that the appellant may have believed the medications had been prescribed by Dr. Pizura, the Panel cannot have concluded that the amendment was made with knowledge of its falsity and accordingly there is no basis for an inference of dishonesty. Secondly he submits that the Panel proceeded on an erroneous assumption that the side effects were from ibuprofen.[73]The history of the matter may conveniently be set out in the form of a chronology. 15th January 2005 Patient 8 was discharged from hospital. The discharge letter recorded that he was prescribed ibuprofen. 4th February 2005 His prescription for ibuprofen was renewed by the practice at Tilehurst Village Surgery. 15th February 2005 Patient 8 had a telephone consultation with the appellant. The appellant recorded that he prescribed diclofenac and recorded in the record under the heading “History” “as ibuprofen not strong enough” 18th February 2005 At 11:50 Patient 8 telephoned the surgery. A manuscript entry in the diary records a message for the appellant:
“[Patient 8] would like to speak to you about tablets you prescribed as he has side effects.”
The diary entry does not identify the drug. The staff at the surgery apparently believed that the appellant had prescribed the drug in question. At 15:33 there was a telephone consultation between Patient 8 and the appellant. The appellant recorded this. Under the heading “Problem” he entered “Trouble eating”. Under the heading “History” he recorded “dsnt [doesn’t] have teeth, needs d [district] nurse to visit”. At 16:45 Dr. Pizura phoned the patient. He took a long medical history and arranged for his daughter to bring him into the surgery immediately. At 17:02 Dr. Pizura saw Patient 8 at the surgery and arranged for his emergency admission to hospital. At 18:25 Dr. Pizura sent an email to the appellant concerning Patient 8 which stated:
“For your interest – managed to get him to come in as he was so unwell – and not sorted. Never seen someone with a BP of 60 systolic – I’m guessing he is an addisonian crisis. … I will write it up if it is. Interesting one for critical incident – even if diagnosis of addisonian crisis is not correct.” 21st February 2005 At 07:43 the appellant edited the records of the consultations with him on the 15th and 18th February. To the record of the consultation on the 15th February he added after the words “as ibuprofen not strong enough” the words “as given by vap”
. To the record of the consultation on the 18th February he added after the words “needs d nurse to visit” the words “and inform surgery”. At 09:18 the appellant replied to the email sent by Dr. Pizura on the 18th February stating:
“You don’t have to take my permission to write anything up, we notice you like that. It is good for clinical governance. We all like that.”
[74]It is convenient to consider the two amendments of the record in turn. “As given by vap”[75]With regard to the addition of the words “as given by vap”, the Panel’s finding that the appellant may have believed that the medications were prescribed by Dr. Pizura does not necessarily preclude a finding of dishonesty. Knowingly making a false statement is not the only form of dishonesty. The making of a retrospective entry could be dishonest if the record was amended in order to point the finger of blame to a colleague even if the author believed that the colleague was responsible.[76]However, a further point was taken by Mr. Counsell for the first time at the hearing before me. Both parties agreed that the Panel proceeded on the basis that the side effects had been caused by ibuprofen. However Mr. Counsell now submits that it is clear from the records that the side effects were caused by the diclofenac prescribed by the appellant on the 15th February. He points to the fact that Patient 8 had been taking ibuprofen at least since his discharge from hospital on 14th January. Diclofenac was prescribed by the appellant on 15th February. The diary note of the 18th February refers to “the tablets you prescribed”. Mr. Counsell submits that this must refer to the diclofenac. The record of the telephone consultation with Dr. Pizura on 18th February records that the patient had only started vomiting in the last 48 hours. The record of the consultation with Dr. Pizura at the surgery on 18th February records that in the last two days he had been vomiting with all types of fluid. On this basis Mr. Counsell submits that the finding of dishonesty in respect of the entry “as given by vap” is unsustainable because there would be no basis for concluding that there was any need to transfer blame for prescribing ibuprofen.[77]This point should have been taken below and it is regrettable that it was not. The matter was never put to Dr. Archard in cross examination. The point was never made in submissions to the Panel. The point was simply not ventilated. Before the Panel the argument on this matter all proceeded on the basis that it was the ibuprofen which had caused the side effects. However, there is here, to put it at its lowest, strong evidence to support the view that it was the diclofenac which caused the side effects and the Panel does not appear to have considered this possibility. Despite a submission by Miss Callaghan that the appellant may have acted in the mistaken belief that it was ibuprofen which caused the side effects and despite my considerable diffidence in disagreeing with the Panel on such a point, I have come to the conclusion that the Panel’s finding of dishonesty on the basis of an improper motive in seeking to transfer blame to Dr. Pizura for prescribing ibuprofen is unsafe. For the reasons given above, I consider that the Panel’s finding that the appellant was dishonest in making this amendment should be quashed. “and inform surgery”[78]It was common ground before me that the meaning of this amendment was that the patient should inform the surgery if there was no improvement. The entry therefore has an important bearing on the view taken by the appellant as to the seriousness of the condition described to him in the telephone consultation. Later the same day Dr. Pizura identified an extreme condition and arranged for the patient’s emergency admission to hospital. He also sent the appellant an email telling him he was going to write it up as a critical incident. In these circumstances the Panel was clearly entitled to come to the conclusion that the entry was made to demonstrate that he had taken the incident more seriously than he had. That was a sound basis for this finding of dishonesty.[79]Mr. Counsell submitted that the confusion over which drug caused the side effects necessarily invalidated the Panel’s conclusion that this further entry was made dishonestly. I can see no reason why that should be so. The two matters were distinct and in the case of this second entry there was the clearest evidence entitling the Panel to conclude that the entry was made dishonestly.

Patient 10

[80]Patient 10 had recently been diagnosed with angina and was still under investigation for ischaemic heart disease. On 15th April 2005 Patient 10 had a telephone consultation with the appellant as a result of which the appellant prescribed an anti-malarial drug (larium) prior to travelling. The appellant recorded that at that consultation he had prescribed anti-malarial drug for two weeks travel abroad on holiday. On presentation of the prescription the pharmacist called the surgery to query it, due to its contra-indications with the patient’s current medication. Dr. Underwood dealt with the call noting in the records his concerns as to whether the patient was fit to fly. Three days later on the 18th April, after the appellant became aware of these matters, the appellant made a retrospective amendment to the record of the consultation by telephone on 15th April adding the words “was advised not to travel as h/p ihd under investigation”.[81]Dr. Archard’s evidence was that there was no clinical reason in the case of Patient 10 to add those words three days later.[82]The Panel concluded that “you sought to cover up your apparent clinical oversight by your actions”.[83]Mr. Counsell submits that this conclusion involves a criticism of the appellant’s clinical decision on which there was no evidence because it was not explored at the hearing. This overlaps with his submissions on Ground 1 which have already been addressed. Moreover, the circumstances of this case make clear that the appellant was aware that he was likely to be criticised for a clinical oversight.[84]The way in which the Panel expressed its conclusion on this finding on dishonesty in its determination on Stage 1 leaves open the possibility that it found either that the advice recorded in the amendment had not been given or that the record had been amended for a dishonest motive i.e. by improving the record without making a false statement. In either case there was ample evidence to permit the Panel to come to its conclusion.

Patient 15

[85]Patient 15 telephoned the surgery at 3.00pm on 21st December 2005 and left a message for the appellant that she was suffering breathing problems. At 15.24 the same day Patient 15 had a telephone consultation with the appellant, following which he entered on the record “cough green sputum” and “seen IOP 2d ago”. Later that day Patient 15 was admitted to hospital and she died that night of cardiac arrest in the casualty department.[86]Between 08.09 and 08.18 the next morning (22nd December 2005) the appellant made four attempts to amend the record of the previous day’s telephone consultation. First, he added “to go to a/e if not better”. Secondly he changed that to “advised to go to hosp [hospital] but wants ab [antibiotics] will go if not better”. Thirdly “cough green sputum” was changed to “cough green sputum not short of breath no chest pain”. Fourthly it was changed from “advised to go to hosp but want ab will go if not better” to “doesn’t want a visit but wants ab will call back if not better”. In the result he added to “cough green sputum” in the original entry the words “not short of breath no chest pain”. Furthermore, under the heading “Comment” he had added “doesn’t want a visit but wants ab will call back if not better”.[87]The evidence of Dr. Archard was that there was no clinical reason to make these amended entries at the time they were made. Furthermore Dr. Lal-Sarin, who gave expert evidence for the appellant, stated that in circumstances where there had been an adverse outcome, for example if a patient had died or there had been a complaint, he would never again touch the records that he had made.[88]The Panel in its determination at Stage 1 found that the appellant did not make an entry in the medical records following the telephone consultation until the next morning. This does not seem to be correct but no point was taken on this before me. In any event I do not consider that it has any bearing on the question whether it was open to the Panel to conclude that the amendments were made dishonestly. The Panel concluded:
“The Panel noted that you made four attempts to amend the records and that there were clear inconsistencies between the versions you entered. The Panel concluded you were seeking to find a form of words which made your actions, at this consultation, look more appropriate. The Panel concluded that this demonstrated that you were acting dishonestly.”
This finding is consistent with either amendment to make false statements or amendment to make the record appear better but without making a false statement. The Panel concluded that this demonstrated that you were acting dishonestly.”[89]Mr. Counsell submits that this finding suggests that there was some omission or oversight in the appellant’s conduct but that there was no evidence as to what that omission or oversight was. Alternatively, he submits that if it means the record had been improved without making a false statement it would be unreasonable to conclude that it was dishonest. However, to my mind, the relevant omission or oversight is clear: the appellant’s failure to appreciate how ill the patient was.[90]The entries have to be considered in the context of the circumstances in which they were made. Hours after the telephone consultation with the appellant the patient died. Early the next morning the appellant changed the records. It is an obvious inference that he changed the records to make his actions look better than they were or appeared to be. The insertion of the statement that the patient made no complaint of chest pains and did not want to go to the hospital were clearly intended to show that her death was not his responsibility. In my judgement there was ample evidence here which entitled the Panel to conclude either that the appellant had amended the record for the dishonest motive of making his actions look better (even though the amended statements were not false) or alternatively that he had acted dishonestly because the amended statements were false. In either case, the Panel was clearly entitled to conclude that the entries were made dishonestly.

Patient 17

[91]On the 19th December 2005 Patient 17 had a telephone consultation with the appellant. The appellant recorded under the heading “Problem” the words “chest infection”. On 28th December 2005 Patient 17 had a telephone conversation with Dr. Pizura. As a result Dr. Pizura visited the patient at home and arranged for his admission to hospital. The patient was discharged on the 11th January 2006. On 17th January 2006 the appellant amended the record of the consultation with him on 19th December 2005. Under the heading “History” he added “cough green sptm [sputum] no chst [chest] pain”. Under the heading “Comment” he added “try ab [antibiotics] c sos [see as required]”.[92]Dr. Archard gave evidence that there was no clinical reason why the record should have been amended so long after the event.[93]In its determination on Stage 1 the Panel concluded that the alteration was an attempt to minimise the patient’s clinical situation. It further stated:
“In relation to the allegation of dishonestly, the fact that you must have read Dr. Pizura’s entry and the discharge letter, and were therefore aware of the critical incident, led the Panel to conclude that this is a situation where you sought to cover up your apparent clinical oversight.”
[94]Mr. Counsell submits that the Panel’s finding is a criticism of the clinical decision of the doctor of which there was no evidence. However, it was clear from the records that the oversight would have been an actual or apparent failure to appreciate the seriousness of the patient’s condition.[95]I consider that it was clearly open to the Panel on the evidence before it to conclude that the entries were made dishonestly either because they were made from an improper motive to improve the record (without making false statements) or because the amendments were false. On either basis the Panel was clearly entitled to come to its conclusion of dishonesty.

Patient 30

[96]On the 15th December 2006 the patient called the surgery requesting a home visit. The appellant arranged for the patient’s daughter to bring a urine sample and he prescribed medication suitable for a urine infection. The record made by the appellant at the time recorded “urinary tract infection, site not specified” and recorded the medication prescribed. The next day the patient was admitted to hospital where she was found to have mild appendicitis and had her appendix removed. On 2nd January 2007 the appellant saw the patient. He then retrospectively added to the record for the 15th December 2006 “suprapubic pain, urine ++ nitrate and ptn [protein indicating a urine test had been done and that there was a urinary tract infection], call if worse.”[97]Dr. Archard gave evidence that there was no clinical reason why these entries should not have been made at the time of the original consultation.[98]The Panel in its Determination at Stage 1 found:
“Patient 30’s situation resulted in a potential critical incident when you may have missed a diagnosis. … In relation to the allegation of dishonesty, the Panel has concluded that this is a situation where you sought to cover up your possible clinical oversight and therefore find that your actions were dishonest.”
[99]Mr. Counsell submits that the Panel’s findings are a criticism of the clinical decision of the doctor of which there was no evidence. However, the criticism is not of an actual or apparent failure to diagnose appendicitis but of a retrospective amendment of the records. In this case the entries were made only after the appellant had heard of the adverse outcome and knew that the patient had had her appendix removed. There was ample evidence here for a finding of dishonesty, whether on the basis of a dishonest motive to correct an apparent oversight without making false statements or on the basis that the amendments were false. The Panel was clearly entitled to come to its conclusion of dishonesty on either basis.

Patient 33

[100]The history of this matter has been set out in detail earlier in this judgment. On the 20th January 2007 the appellant made a retrospective amendment to Patient 33’s medical records for a consultation on 29th December 2006 by inserting “coil nad”.[101]Dr. Archard gave evidence that there was no clinical reason why the entry should have been added later.[102]The Panel concluded in its Determination on Stage 1 that it was not satisfied that such a check could have taken place in the short time period recorded for the consultation. It concluded that this was an attempt to cover up an omission on the part of the appellant. In its finding on dishonesty the Panel stated:
“Further, the Panel has concluded that this is a situation where you sought to cover up your apparent clinical oversight and was therefore dishonest.”
However, it is clear from the Determination (and it was not in issue before me) that the Panel found that the examination had not taken place and that the entry was false.[103]In his submissions on Ground 2 in relation to Patient 33 Mr. Counsell revisited his arguments on Ground 1. In particular he drew attention to the fact that the entry was under the heading “Comment” and not under the heading “Examination”. He complains that this issue was not fully examined at the hearing below and that as a result the Panel’s conclusion could have been based on a false factual assumption. Furthermore, he submits that as matters stood there was insufficient evidence for the Panel to conclude that the appellant was recording that an examination took place. However, I am satisfied that there is no substance in that argument for the reasons set out earlier in this judgment. Moreover, Mr. Counsell accepted that he could have made this point by way of submission in his final submissions but that he did not do so.[104]The Panel was clearly entitled to conclude on the basis of the unchallenged evidence of Dr. Archard that the examination did not take place and that the entry was false. So far as the finding of dishonesty is concerned, not only had the Panel concluded that the entry was false but there was also evidence before it as to the circumstances in which the false entry was made. By the time the appellant had made this amendment he had received Dr. Underwood’s email of 8th January 2007 with its implicit criticism of the appellant’s failure to check the coil. Furthermore, only hours before he made the false entry, he had received an email notifying him that his partners had referred their concerns about his clinical performance to the Primary Care Trust. In these circumstances the Panel was clearly entitled to conclude that the false entry was made dishonestly.

Conclusion on Ground 2

[105]The Panel’s decision that the addition of the words “as given by vap” to the records of Patient 8 was dishonest will be quashed. Save as aforesaid Ground 2 is dismissed.[106]I have considered whether it is appropriate for me to remit to the Panel the case in relation to the addition of the words “as given by vap” to the records of Patient 8. Having regard to the fact that all of the other findings of dishonesty have been upheld and to the relationship this allegation bears to the totality of the allegations of dishonesty, I have decided that it would not be appropriate to remit this matter to the Panel. Ground 3: The sanction of suspension and/or its length was not a sanction that the Panel could reasonably have come to if no dishonesty had been found proved and/or was excessive and disproportionate in the circumstances.[107]I have upheld the Panel’s findings of dishonesty save the case of one of the two entries in the records of Patient 8.[108]In his submissions Mr. Counsell, on behalf of the appellant, realistically accepted that if the findings of dishonesty were upheld he could not challenge the imposition of a sanction of suspension. However he did submit that in those circumstances I should conclude that the period of suspension in this case, one of 12 months, was excessive and wrong. In this regard he also drew my attention to the evidence of Dr. Lal-Sarin on behalf of the appellant.[109]I approach this submission bearing in mind the particular respect which is normally due to the view of the expert professional tribunal as to appropriate sanctions, not least because the Tribunal is concerned with the reputation and standing of the medical profession rather than with the punishment of individual doctors. (See e.g. Raschid v General Medical Council [2007] 1 WLR 1460, cited at paragraph 17 above.)[110]The GMC Indicative Sanctions Guidance indicates that where there is a finding of dishonesty the likely sanction would be one of striking off. Having regard to the nature and extent of the findings of dishonest conduct in this case, I am quite unable to conclude that the sanction of suspension for 12 months was wrong. Accordingly the appeal on Ground 3 will be dismissed.

Cited in 2 later judgments