Fish v The General Medical Council [2012] EWHC 1269 (Admin)

Case No CO/1440/2012[2012] EWHC 1269 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue MANCHESTER CIVIL JUSTICE CENTRE, Manchester Civil Justice Centre, 1 Bridge Street West, Manchester, M60 9DJDate 14/05/2012
Before
MR JUSTICE FOSKETT
Between
DR. MICHAEL JONATHAN FISHAppellantTHE GENERAL MEDICAL COUNCILRespondent
Martin Forde QC and Caroline Cross (instructed by DWF LLP, Newcastle-upon-Tyne) for AppellantGemma White (instructed by GMC Legal) for RespondentHearing Hearing dates: 30 April and 1 May
Judgment

Introduction

[1]Dr.Michael Fish (‘the Appellant’) is a Consultant Anaesthetist. He qualified with the degrees MB ChB from Leeds University in 1990.[2]There is little evidence about his career after graduation, but he had worked in New Zealand and Australia at Consultant level since 2001. He returned to the UK after that. From 2003 until 2009 he was registered as a locum anaesthetist in the UK with a number of locum agencies including JCJ Locums Ltd (‘JCJ’), a locum agency that was subsequently purchased in 2007 by Healthcare Locums Group (‘HCL’). He was regularly employed through JCJ from August 2003. He had also worked via Quality Locums, the agency he worked with when he first came back from working in Brisbane.[3]His evidence to the Fitness to Practise Panel of the General Medical Council (the ‘FTP’) was that he chose to combine his professional anaesthetic practice with the family business of farming Highland cattle in the Scottish Borders and that this working pattern became the lifestyle he adopted during this particular period. It is evident from the way his appeal has been presented that he wishes to revert to anaesthetic practice as soon as possible. Equally, it should be noted that the references about his abilities as an anaesthetist put before the FTP were of a high order. This case is not about his professional competence.[4]While working as a locum anaesthetist he was placed and undertook locum posts with various hospital trusts including the Sheffield Teaching Hospitals NHS Foundation Trust, the Barnsley Hospital NHS Foundation Trust and the Chesterfield Royal Hospital NHS Foundation Trust.[5]In September 2011 the Appellant faced an FTP hearing which lasted 6 days in total arising from allegations of misconduct made against him. He had been referred to the GMC by JCJ. I am told that there had been civil litigation between them in which he sued them for unpaid fees. The allegations he faced arose, firstly, from a period between 2 July 2007 and 26 September 2008 when he was employed as a locum Consultant Anaesthetist through JCJ at the Sheffield Teaching Hospitals NHS Foundation Trust, secondly, from when he was employed by the Barnsley Hospital NHS Foundation Trust (also through JCJ) from July to October 2009 and, finally, from a period of employment at the Chesterfield Royal Hospital NHS Foundation Trust between 3 and 11 December 2009.[6]I will indicate the nature of the allegations in more detail below, but it is right to say at the outset that the FTP dismissed certain of the principal allegations. I will refer to those matters later because it is necessary to do so to understand the essence of his appeal to this court. However, the FTP did find one particular allegation of dishonesty established (see paragraph 24 below). As a result of that finding, on 12 January 2012 the FTP decided to suspend his name from the Medical Register for a period of 12 months with immediate effect.[7]He appeals to this court against that specific finding and, if the finding is upheld, against the penalty of suspension.

The case advanced against him

[8]As I have already indicated, in order to appreciate the nature of the finding that the Appellant seeks to challenge in these proceedings it is necessary to understand the full case that was advanced against him before the FTP even though, as I have also indicated, several parts of that case were rejected.[9]The allegation arising from the period he spent with the Sheffield Teaching Hospitals NHS Foundation Trust in 2007-2008 concerned the alleged non-payment of the monthly invoices which it was said he had received for his accommodation in the nurses’ home. His receipt of these invoices was disputed. The allegation was that at the time of leaving the Trust he had not settled any of the outstanding invoices and indeed left with a debt to the Trust of some £2,688.88. The suggestion was that it was not until 2010, when he applied for a locum position as a Consultant Obstetric Anaesthetist with the Trust, that the matter was finally resolved. During the course of that application he was informed that he could not be considered for the post given the outstanding invoices and in due course he provided a cheque to the hospital for a slightly lesser sum which was accepted in order to close the matter.[10]The allegation before the FTP was that the Appellant “failed to pay the sum of £2,866.88 due to Sheffield in respect of the Sheffield Accommodation in a timely manner”.[11]A similar allegation was made in relation to accommodation he occupied whilst working for the Barnsley Hospital NHS Foundation Trust. It was to the effect that between 19 July 2009 and 16 October 2009 he stayed in accommodation provided by Barnsley and that he “subsequently failed to pay the sum of £691.24 due to Barnsley” in respect of the accommodation.[12]Finally, and along the same lines, it was alleged that between 3 and 11 December 2009, whilst he worked for the Chesterfield Royal Hospital NHS Foundation Trust, he stayed in accommodation provided by the Trust and “subsequently failed to pay in a timely manner the sum of £118.32 due … in respect of the … [accommodation].”[13]The case against him in the foregoing respects was that his conduct “was inappropriate and dishonest”.[14]I will for convenience refer to those matters collectively as “the accommodation allegations”.[15]His case, in a nutshell, was that he was not obliged to meet these accommodation costs personally: his experience from the time he started work as a locum through JCJ was that they were met by the agency or at least provided free of charge to the doctor.[16]The next matter in respect of which he faced further allegations arose from his period of employment with the Barnsley Hospital NHS Foundation Trust and concerned his claims to JCJ for payment arising from the shifts he claimed to have worked. The nature of the case can be seen from the charge as formulated. It was that he - “… submitted timesheets to JCJ Locums to claim payment for the Barnsley Shifts, i. in which [he] failed to accurately record the start times and/or finish times of 33 of the Barnsley Shifts, ii. in which [he] attempted to claim payment for approximately 46 hours and 40 minutes during which [he was] not working for Barnsley, iii. which did not contain the declaration required by JCJ Locums that the information contained in the timesheets was correct and complete ….”[17]The declaration referred to in (iii), which was said to be the standard requirement of JCJ and to have been deliberately deleted by the Appellant on each occasion he made a claim, was in the following terms:
“I declare that the information I have given on this form is correct and complete and that I have not claimed elsewhere for the hours/shifts detailed on this timesheet. I understand that if I knowingly provide false information this may result in disciplinary action and I may be liable for prosecution and civil proceedings. I consent to the disclosure of information from to and by the NHS Counter Fraud and Security Management Service for the purpose of verification of this claim and the investigation, prevention, detection and prosecution of fraud.”
[18]The conduct alleged in (i) - (iii) was further alleged to have been “misleading” and “dishonest”.[19]I will again for convenience call items (i) and (ii) collectively the “time allegations” and (iii) the “declaration allegation”. However, an important issue arises as to whether these were truly separate allegations or whether this was in effect one allegation of dishonest activity sought to be achieved by means of the three individual component activities particularised.[20]The person who investigated the “time allegations” at Barnsley was Dr Ye Myint, a Consultant Anaesthetist who had been with the Trust in that capacity since 1995. He was Director of Intensive Care for about eleven or twelve years from 1995 and then Clinical Director for “the whole department” from the end of 2008 to the beginning of January 2011. He was the principal witness in support of those allegations. This allegation was obviously serious and involved conduct, if demonstrated on the evidence, that was tantamount to fraud.[21]The witness upon whom substantial reliance was placed in support of the “declaration allegation” was Miss Elizabeth Fendyke, an Associate Director for HCL Doctors and the Operations Manager for JCJ at the material time.

The findings of the FTP

[22]The FTP dismissed the “accommodation allegations” and the “time allegations”. The reasons for so doing in respect of each were expressed as follows: (a) the accommodation allegations In relation to each of the accommodation allegations the FTP said this:
“Since there is no evidence of a written or oral contract or agreement between you and either JCJ or the hospitals to pay for accommodation, the Panel is not satisfied that you had a contractual obligation to pay the accommodation charges. However, the Panel is of the view that you were aware that the situation regarding payment of the accommodation costs at all three hospitals was ambiguous and that you took advantage of the situation. It considers that your behaviour was disingenuous. You have been a locum for many years, you know hospital accommodation must be paid for by someone and you must have seen at least one of the many invoices sent to you over a prolonged period. Given the above, the Panel cannot therefore find [the allegation referred to in paragraphs 10-13 above] proved to the requisite standard.” (b) the time allegations “The Panel has scrutinised the theatre lists and the spreadsheet which details the variance figures. It has also considered your evidence that it was your usual practice to record the hours 8am to 6pm as these were the normal hours of work. You defined ‘hours worked’ as hours that you were available for work. You stated that although theatre sessions could finish considerably earlier than 6pm, you often assisted other teams or dealt with pre-assessment administration or participated in the training of junior doctors. Dr Myint’s evidence on this point was that he could not recall any occasion when you had stayed longer than the end of the theatre sessions in order to assist other teams. However, Dr Myint also told the Panel that locum doctors were allowed to round up their finishing times to the nearest hour. The Panel cannot identify how much of the period of 46 hours and 40 minutes was due to the rounding up of time to the nearest hour. It cannot therefore find proved [the allegation referred to at (ii) in paragraph 16 above].”
[23]I will return to the conclusion expressed by the FTP that the Appellant’s conduct concerning the accommodation allegations was “disingenuous” later (see paragraph 82).[24]The allegation referred to at (iii) in paragraph 16 above (the “declaration allegation”) was found to be proved. The FTP expressed itself in this way: “The Panel has been provided by JCJ Locums with all the timesheets submitted by you in relation to your work at Barnsley Hospital and notes that none of them contain the declaration required by JCJ Locums. …a. misleading has been found proved The Panel relies on the Oxford dictionary definition and finds that your conduct was misleading in that your removal of the declaration without notice to JCJ Locums was deceitful and led JCJ Locums to assume that the content of the forms you had submitted was as required by JCJ Locums.b. dishonest has been found proved The Panel considered whether your conduct as set out at paragraph 5(b) was dishonest. It has applied the two stage test as advised by the Legal Assessor. You denied in evidence that you had removed the declarations from the timesheets and alleged that JCJ had fabricated the documents. The Panel has carefully scrutinised the timesheets and noted that they are substantially different from the timesheets submitted by other doctors to JCJ Locums. In comparing the timesheet you submitted for work on 19 October 2009 at Barnsley with the blank timesheet provided by JCJ Locums on 2 November 2010 for the same period … it is evident to the Panel that you have altered the timesheet by removing the declarations. The Panel is satisfied by the ordinary standards of reasonable and honest people that your conduct in removing the declarations from the timesheets would be regarded as dishonest. The Panel then went on to consider whether you must have realised that what you were doing was by those standards dishonest. It considers that you took positive action to remove the declarations from the timesheet, that this was a conscious decision made by you and therefore you must have realised that what you were doing was dishonest. Consequently, your actions meet both limbs of the dishonesty test.” …[25]I will deal with the way Mr Martin Forde QC and Miss Caroline Cross, neither of whom appeared for the Appellant before the FTP, seek to challenge the essential finding and those conclusions after reminding myself of the approach of this court to such a challenge.

The approach of the court to findings of fact

[26]The appeal is brought under section 40 of the Medical Act 1983 which provides a practitioner with a right of appeal to the High Court inter alia from a decision of an FTP under section 35D giving a direction for suspension. By virtue of section 40(7) on an appeal under section 40 the High 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.[27]The issue for the court is whether the FTP’s determination was wrong: see CPR 52.11(3).[28]Whilst the appeal constitutes a “re-hearing”, it is a re-hearing without hearing again the evidence.[29]I venture to repeat certain quotations from earlier cases that I made in the case of Chyc v General Medical Council [2008] EWHC 1025 (Admin) concerning the approach of this court to challenges to findings of fact. I referred in Chyc to what was said by the Judicial Committee of the Privy Council in Gupta v General Medical Council [2002] 1 WLR 1691where the following appears at paragraph 10:
“[T]he obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses’ 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. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] AC 484, 484-488.”
[30]The passage from Lord Thankerton’s opinion was as follows:
“I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.”
[31]I referred also to Threlfall v General Optical Council [2004] EWHC 2683 (Admin), at paragraph 21, where Stanley Burnton J, as he then was, said this:
“Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial ….”
[32]So those are the parameters for considering the issues raised in this appeal in relation to the findings. It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been “seen and heard”, this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case.[33]To the extent that reliance is placed in support of an appeal on what is alleged to be wrong or misleading advice by the Legal Assessor, the approach of this court was reviewed by the Court of Appeal in Gopakumar v GMC [2008] EWCA Civ 309. Tuckey LJ (with whom Sir Anthony Clarke MR, as he then was, and Jacob LJ agreed), having referred to the General Medical Council (Legal Assessors) Rules 2004, said this at paragraph 30:
“By rule 2 the legal assessor is required to advise on any question of law referred to him and to intervene to advise the Panel where there is a possibility of a mistake of law being made or where he learns of any irregularity in the conduct of the proceedings.”
[34]He continued as follows: “31. So the differences between judge and jury in a criminal trial and members of a Panel and its legal assessor are obvious. The Panel is not a jury. They take legal advice from the assessor but they are not bound to follow it. The assessor is not a judge. He gives legal advice but does not give directions as such and does not sum up the evidence to the Panel.32. These differences alone show that the analogy with criminal proceedings is not a good one. But this conclusion is confirmed by the two cases relied on by the Judge. Libman v GMC [1972] AC 217 was principally concerned with the test to be applied by the Privy Council (then the appellate body) when considering whether to upset a finding made by the then Disciplinary Committee of the GMC. But at page 221 when summarising the general propositions to be drawn from earlier decisions of the Privy Council Lord Hailsham said: 4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee … on points of law … The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee’s decision. Where a criticism is made of the legal adviser’s … advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision … In R (Campbell) v GMC [2005] EWCA Civ. 250 this court approved Lord Hailsham’s propositions as still governing the approach that any court should adopt to decisions made by the then Professional Conduct Committee of the GMC. Mr Wilby argued that things have changed, at least since Libman was decided, because at that time the Disciplinary Committee was comprised entirely of doctors. As a result of the Human Rights Act a lay element has had to be introduced so the committees are now more like juries than they used to be. I do not think this makes any difference. It assumes that doctors have a greater knowledge of the law than the lay members who are now selected to sit on the Panel.33. So unfettered by any criminal analogy was there anything wrong with the legal assessors direction in this case? Was it unfair? Does it cast doubt upon the Panel’s decision?” 4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee … on points of law … The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee’s decision. Where a criticism is made of the legal adviser’s … advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision …[35]Those cases set the essential parameters within which an appeal against the findings made is to be considered by this court. In relation to the Legal Assessor’s advice, the question is whether it was unfair such that it casts doubt on the Panel’s decision.[36]I should mention one further matter in the context of this case. After she had given her advice to the Panel the Legal Assessor said this:
“That is my advice, unless it raises any issue for counsel.”
[37]Neither counsel raised any issue with her. A question may arise as to whether it is possible now for new Counsel to contend that the advice was defective given the lack of objection by Counsel then acting for the Appellant. I will return to this later (see paragraph 83 below).

The arguments advanced in support of the appeal

[38]The principal arguments in support of the appeal can be summarised as follows:(i) there was no or no sufficient evidence upon which the FTP could conclude that the timesheet declaration had been altered, part of which involves the assertion that there was no sufficient evidence that all the timesheets sent by JCJ to the Appellant contained the declaration in the first place;(ii) the FTP should have concluded that the GMC was unable to demonstrate how the Appellant altered the time sheets;(iii) the FTP should have concluded that the Appellant had nothing to gain from deleting the declarations;(iv) the FTP’s conclusion that he deleted the declarations was illogical because the allegations on which that conclusion rested (namely, that he had falsely over-claimed the hours he had worked) were not proven;(v) given that the time sheets had to be countersigned by a consultant this was a means by which locums were held to account given the onus on the consultant to ensure that the hours were properly claimed and, it is argued, the FTP failed to give sufficient weight to the fact that the Appellant’s time sheets were all properly countersigned and that they had been properly countersigned for many years (dating back to 2003) and no questions had been raised;(vi) given that the Appellant was of good character, the FTP needed to be advised that “the starting point should be that it was inherently improbable that a man of good character would act dishonestly and that such a finding demanded anxious scrutiny of the evidence which would have to be highly cogent, reliable and consistent before such a finding of dishonesty could be made” and that no such advice was given (reliance is placed for this purpose on Re B[2008] UKHL 35,[2009] 1 AC 11, and Re Doherty[2008] UKHL 33,[2008] 1 WLR 1499).[39]In order to see the context of these submissions it is necessary to see the way this part of the case was put against the Appellant by the GMC.

The way the case was put against the Appellant

[40]There was a fairly brief opening of the case against the Appellant by Counsel for the GMC (not Miss Gemma White who has represented the GMC in this appeal). She said this after the charges had been read:
“The case against Dr Fish surrounds one around financial irregularities in his conduct as a Consultant Anaesthetist. You will note that the allegations are fully particularised within the charges that you have now seen and heard and relate essentially to four separate areas of alleged misconduct.”
[41]She then dealt with the allegations I have referred to in paragraphs 9 and 10 above. She then moved to the only part of the opening that dealt with that part of the case that now forms the subject of this appeal. She said this:
“Dr Fish was then employed by Barnsley Hospital NHS Trust from July to October 2009. You will hear from a number of witnesses in relation to that employment. Dr Myint, the Clinical Director, was made aware of irregularities in the time sheets submitted by Dr Fish and you will hear that his own initial review of the documentation did indeed reveal discrepancies, and a further formal investigation, conducted with the assistance of Michael Eyre of the Medical Investigation Unit, concluded that Dr Fish had over-claimed for some 46 hours and 40 minutes. Elizabeth Fendyke of JCJ locums will confirm that those time sheets were submitted and that some, it would be alleged, had the declarations of truth missing.”
[42]The sentence underlined was the only reference made to the “declaration allegation” in the opening. It will be appreciated that the allegation was, as Miss White very fairly and properly conceded in argument, “linked” to the allegation that the Appellant had over-claimed in relation to hours worked on the time sheets and this is a matter to which it will be necessary to return. No motive for what was, at least by implication, suggested as having been the deliberate removal by the Appellant of the “declarations of truth” was advanced in the opening other than, also by inference or implication, that it was in some way connected dishonestly with the charge relating to over-claiming. It was, of course, only at Barnsley that any suggestion of over-claiming had been made.[43]The opening then dealt with other matters and the first witness, Miss Fendyke, was called. It was her evidence, and the documents she produced, that constituted the basis upon which the GMC alleged that the Appellant had deliberately interfered with the time sheets by deleting electronically the declaration of truth to which I referred in paragraph 17 above.[44]She was asked to describe a series of documents that were put before the Panel (at pages 54 to 65 of the bundle placed before the FTP) and the questions put to her and the answers she gave were as follows: A: These were the time sheets that Dr Fish submitted for the work that he did at Barnsley. Q: As far as these time sheets are concerned, are these the standard time sheets? A: These are not the time sheets that were sent to Dr Fish. Again, I am sure in here there are the original time sheets that have a lot more information in the authorised box. The declarations are not on this version. Q: Could you just elaborate and explain what the declaration is? A: Just the declarations around the correct - well the fraud declarations. Q: As far as these time sheets are concerned, are these the standard time sheets?

Q: Could you just elaborate and explain what the declaration is?

[45]She was asked to explain matters a little more clearly and she said this: A: The examples that we were looking at on pages 54 to 65 have quite a lot of text missing …. All of our time sheets are system-generated so they all have standardised declarations, the bespoke information is at the top of the time sheet which talks about that specific doctor, the hospital that the placement is at, shift details, if we have them.[46]She then spoke of another document she had provided (at page 73 of the same bundle which was an anonymised document in the sense that the name of the doctor who submitted it to JCJ was not identified) in the following way: Q: Those are pages 54 to 65 which you say have text missing and then going back to the page that you took us to at page 73 ... A: Yes. Q: ... the anonymised time sheet from another doctor, that has, do you say, the complete text? A Yes, that is a complete example of a complete time sheet.[47]That document was indeed a time sheet of another doctor who was at the time (namely, September 2009) engaged as a locum through JCJ at Macclesfield District General Hospital in the field of “Medicine”. This was, of course, in the same period that the Appellant was engaged at Barnsley. It contained the declaration referred to in paragraph 17 above, but it should be said that it was not in completely identical form to another form produced to the FTP by JCJ for another doctor (in this case, one who was engaged in the A & E Department at Barnsley in August 2009). It was in a different font and in a box entitled “Timesheet signatories” it was said that the time sheet “must be signed by the most senior person in the Department …” and gave an alternative named person as a signatory - whereas in the same box for the A & E doctor’s time sheet it simply said “All locums must get their timesheets authorised before leaving the hospital by a consultant”. In all other respects those two forms were identical.[48]Miss Fendyke then went on to describe the process by which the blank time sheets were sent to the Appellant for completion: Q: How are time sheets provided to Dr Fish for his completion? A: They would normally be e-mailed and posted, so the email attachment is a PDF attachment and obviously a printed posted copy as well. Q: As far as the content of the time sheets, you have described the anonymised one as a standard time sheet. Are all the time sheets the same or not? A: Yes, they are all the same. Q: When the time sheets were submitted with text missing, what is the significance of that as far as you are concerned? A: Well at the time it was not picked up by our payroll department, it was only after the event when Barnsley had asked us to re-look at these time sheets that it came to light that the text was missing.

Q: How are time sheets provided to Dr Fish for his completion?

[49]She was cross-examined by Counsel then acting for the Appellant about the PDF element of the system that she mentioned: Q: Can I move on finally to the issue of PDFs? Can you help me with the way in which these time sheets are put together? …. I do not know how much experience you have of them, both the mechanics and the IT procedures involved, but perhaps you can explain as much as you understand? A: In our front office system Dr Fish has a record, as do each of the doctors, and each hospital has a record and in the hospital records we would record individual jobs that are given to us by the hospitals. If we then submit a doctor for work and move forward and confirm that doctor for that job, it creates what we would call an order, a job order, for that specific job. In that job order we would record the details such as pay, travel, accommodation, reporting, instructions, all of the information that was in the confirmations that we have looked at. Then we would create a confirmation from that information at which point the confirmation letter that we touched on is created and the PDF time sheet. Q: The PDF time sheet is created? A: At that point, yes. Q: Does each job have a different PDF? A: Yes, and you would see, if you look on the time sheets of Dr Fish’s in the anonymised time sheets in the top right-hand corners, there will be an order number. … A: The top right we have a job reference and we have an order reference. That is specific to the two things I have mentioned. Then the detail that is specific to that job would be the grade, the specialty, the dates, the rota, the details of who the post is covering or who the consultant is and the hospital. The time sheet signatories is also bespoke to specific hospitals, so depending on what that hospital’s policy is for who is able to authorise time sheets, that text also changes. Q: That is very helpful. Thank you. Within each form we know, therefore, that there are fields which can be altered. The obvious ones relating to the name of the doctor, the grade, the specialty and so on? A: Yes, they cannot be altered on the actual time sheet, they have to be altered in the order and then a time sheet is created. The time sheet itself, unless you were going to open a PDF writer, is not alterable. Q: The PDF time sheet is created? Q: Does each job have a different PDF? …

Q: Does each job have a different PDF?

[50]She was asked about differences in the time sheets that had been produced over the years and then whether there were any original documents available to the FTP: Q: My understanding is that there was a change. We do not have any of these original documents because of a change in computer systems at JCJ. Is that right? A: There was a period where we swapped from an old system to a new system, yes.[51]One of the Panel members took up this issue in questions: Q: You have said in evidence that these cannot be changed by the recipient, it can only be changed by the operator of the PDF file. Is that correct? A: If somebody has a PDF writer they can change something. What I have said is as a company we cannot make those changes. Nobody who is operating our systems can make those changes. We sent them out in a format that contained those declarations and when we received them back those declarations were not there.[52]The Chairman also asked questions about the time sheets: THE CHAIRMAN: Can I come back to these time sheets which are obviously key to it … when you sent out a time sheet at the beginning of the engagement, the Sheffield engagement for Dr Fish lasted several months. Would you send out one signed sheet for the doctor to keep on copying ... and send back to you? A: Yes. Q: With different dates put in biro or whatever? A: No, the dates … they fill in themselves. Q: Yes, right. A: The only thing that impacts is the locum from and locum to dates ... because our payroll would only be able to pay up until the locum to date, but yes, we would send one by email, some doctors do not use email a lot so they would say:
“Please can you send it in the post? Can you send a few copies?”
Q: You send a template and they fill it in? A: Yes. Q: You told us that it is a PDF file. Is it password protected? A: No. Q: Tampering is a little strong, I know that is the word you have used, but with a PDF writer, which is not uncommon, people could alter it? A: Yes. Q: You do not have any security on the document? A: No. Q: When you looked at time sheets for Sheffield you say that the declaration is missing and that is for almost all of these and you have looked at these before, this is in document D1 and I think it goes from page 95 on. There is a subsequent locum, but certainly from 95 to 108? A: Yes. Q: That is almost a year’s period. Did you, when this was drawn to your attention that some of these declarations are missing, check any other time sheets for the same period? A: For other doctors? Q: For other doctors? A: Yes. Q: Did any of those other time sheets that you looked at have the declaration missing? A: No. Q: From your perspective this is not something missing from the template? A: No, no, and we did look into that to see if there was any way that the system had had an error, but even when we recreated the same time sheets the declarations were there. Q: Getting back to the declarations, if I move you back in this document D1 to page 55, this is a time sheet for Macclesfield. The declaration is there, but it does not appear to have been signed at all. Did that affect how you managed the case? I mean, we are talking about declarations having been removed from time sheets, but in this case the declaration is there, it is just not signed, it does not appear to have made any difference? A: Sorry, where are you looking? Q: I am looking at page 55. This is a Macclesfield time sheet. I have just looked at random, there are lots of time sheets in this particular section. Do you see the declaration, “I confirm total hours worked” from and to, amount, are correct? A: Yes. Q: Et cetera, “I agree to repay”, that does not appear to have been signed at all. A: Historically we were not required for doctors to sign their own time sheets. That was something that came again from the NHS over a period of time that we had to start insisting that doctors signed their own time sheet as well. Q: There is quite a lot of custom and practice in terms of doctors not even signing the time sheet? A: Historically, no. Q: With different dates put in biro or whatever? Q: You send a template and they fill it in? Q: You told us that it is a PDF file. Is it password protected? Q: You do not have any security on the document? A: For other doctors? Q: For other doctors? Q: From your perspective this is not something missing from the template?

A: Sorry, where are you looking?

[53]In the light of those questions Counsel for the Appellant asked this: Q: … the Chair has alighted on one area which I do not think was drawn to your attention and which you have not yet told us you investigated and that is the Sheffield time sheets because your witness statement in your evidence so far has all been about Barnsley, has it not, and the time sheets from Barnsley not bearing any declaration? The Chair has identified the fact that there is almost a year’s worth of time sheets from page 95 to page 108 of D1 not a single one of which bears the declaration. A: No. Q: That has never been investigated or queried by JCJ? A: Not by me, no.

Q: That has never been investigated or queried by JCJ?

[54]The Chairman thanked Counsel for drawing this to everyone’s attention and said that he hoped he had not “misled anybody by referring to the Sheffield ones.”[55]The next evidence to be given on the issue was that of the Appellant himself. This is what he said in his evidence-in-chief: Q: Can I move on to another area now, and that is of the forms and the declarations that are included on the forms? The suggestion is that you have somehow altered the forms so as to remove a declaration as to the veracity. It is only raised in respect of the Barnsley three month period, not in respect of the 14 months at Sheffield. Can you explain how the time sheets are transmitted to you and how you pick them up? A: By post. Q: Did you ever collect any by email? A: Never, for the reason that it is impractical. Q: Why is it impractical? A: Because when travelling, if a person was to do that with what might be described as a fairly nomadic lifestyle you would need to take a printer and computer pretty much everywhere you want to go. You already have enough stuff to take around as it is without having to do that. In my experience I have always found it better to actually have a pile of time sheets with the confirmation, or just a pile of time sheets actually posted. It depends on timing of the situation, it either goes to the home address, or in the past I have had them sent direct to the hospital just to pick them up when I get there so I can just use them. Q: The evidence from Miss Fendyke was that the forms are sent out both electronically and by post. Have you ever picked them up electronically? A: Never. Q: Have you ever found any in an inbox that have been sent electronically? A: Never. Q: Just to close that issue down, there is talk of PDF writers, and there are, obviously, such programmes available. Have you ever used a PDF writing programme? A: No. Q: Would you know how to use one if one was installed on a computer? A: No. Q: Dealing with hard copies, have you ever altered a time sheet that has been sent to you in any way? A: No, that would not be necessary. Q: At the time that you were submitting the Sheffield forms for the 14 months there, did anybody from Sheffield or JCJ say there is a problem with these time sheets? A: No. Q: Did you ever collect any by email? Q: Why is it impractical? Q: Have you ever found any in an inbox that have been sent electronically?

Q: Would you know how to use one if one was installed on a computer?

[56]When he was cross-examined he was asked in the first instance about time sheets completed by other locum doctors placed by JCJ at or about the time he was working at Barnsley. A number that appeared in one of the bundles were put to him. I will record his answer to that and also the next part of the interchange between Counsel for the GMC and the Appellant, not merely for the substance of what the Appellant said, but to give a flavour of the way he handled the questioning (it not being denied by Mr Forde that he was obviously somewhat combative in his approach). I should say that I have italicised those questions and answers dealing with the way in which the GMC was putting its case to the Appellant on the alleged deletion of the declaration and his response to those suggestions: Q: You would agree with me that all of those time sheets have a declaration of truth on them? A: They have declarations on them, yes. Again, these are other people’s time sheets, different doctors, different grades. These are not my time sheets. Q: We have heard from Liz Fendyke that, at that time, declarations of truth were contained on the time sheets produced by JCJ Locums to comply with the requirements of the NHS and any other legal requirements, were they not? A: That is what she said, but in actual fact that is not correct because JCJ do not actually have any legal requirements. They are what is called an off-contract agency. What there is is a thing called the national framework contract and a number of locum agencies sign up to those. They are sort of standard terms and conditions agreed with a government body called Buying Solutions currently. It used to be an organisation called the PASA, the NHS Purchasing and Supply Agency. JCJ have no obligations to follow any NHS directives of any sort. There are no legal requirements as referred to by Ms Fendyke. I had that confirmed by Buying Solutions relatively recently. Q: Liz Fendyke was not asked about that, was she? She has not had the opportunity to deal with that. Leaving that aside, if I may, Liz Fendyke’s evidence was that she believed that declaration of truth was necessary to make sure these time sheets complied with all the requirements that she believed they needed to. That is what she said, was it not? Whether she is right or wrong, as far as Liz Fendyke is concerned, that declaration of truth is required to be on the time sheet? A: Liz Fendyke says lots of things. It does not necessarily mean that they are true. If what Liz Fendyke is saying is that the declaration is an actual requirement, it would seem very, very strange to me that the same agency were trying to say that these time sheets are invalid, have used those same time sheets to collect the full amount, the full number of hours and payment for those hours from Barnsley and from Chesterfield. Those two things – Liz cannot have that both ways. Either the time sheets are not valid, in which case they need to be going in the bin, or the time sheets are valid, always were valid and then the agency can collect payment from the hospitals for them. Having used all of the time sheets that I submitted to collect payment, the agency have used those to collect payment from both Barnsley and Chesterfield in full, it does not make sense that Liz Fendyke subsequently can try to allege that there is anything at all wrong with those time sheets. The reason that this argument about declarations came up was simply an effort on the part of the agency to not pay me for the work that I had done. That was what it was always about. It is the only way – according to the terms and conditions between myself and the agency, it is the only strategy that they could employ to try to squeeze out of their own responsibilities in terms of payment to me. That is what it was always about. It had nothing to do with legal requirements. It had nothing to do with anything. That was their objective. That is what they tried to do. It was not successful and then towards the end of 2010 they had to pay me – well, that was when the pages were completed --- Q: We have heard something about that, have we not? You instructed solicitors and JCJ Locums made a commercial decision to pay, did they not? Liz Fendyke has confirmed that, has she not? A: A commercial decision? You mean they finally, finally, after about a year they actually decided that perhaps they should follow their own terms of business, which is to pay the doctor irrespective of whether they received payment from the hospital on receipt of an authorised signed time sheet. That was their responsibility which they substantively ignored. Q: Just so that I am clear, your position is that JCJ Locums have fabricated this as a problem to avoid paying you? A: That is correct, and I can prove it using these documents. Q: They do not want to pay you because they want to reduce their expenditure. Is that right? A: That is correct. If you want me to show you exactly why these documents are fraudulent, I could do it right now. Q: The real explanation, is it not, Dr Fish, is that you somehow removed the declaration of truth from these time sheets before you submitted them? A: No, that is not correct. To go back to my previous answer, if you would like me to point out to you how these documents are fraudulent, I can show you. Q: You did that, you removed the declaration of truth on all those time sheets that were submitted without it because you knew that the hours you put on the sheet were not true. That is right, is it not? A: That is a false statement. That is not true at all. Q: We have a number of time sheets from Barnsley that Barnsley say are inaccurate, that overclaim the hours that you actually worked and, coincidentally, every single one has a declaration of truth missing, does it not? A: Every single one of them has been paid in full from Barnsley to the agency to me, belatedly. The time sheets that I submitted were the time sheets that came from the agency. Having completed the time sheet, the completed time sheets signed by me, signed by Dr Myint, was then faxed back to the same recruitment consultant, Mark Lincoln at JCJ’s Newcastle office, for him to process the payments. That is verified by looking at the top of – page 27 is one example, but anywhere in the 20s-ish at the top there – there is the fax number “0191 261 9443”, that is where they went, to Mark Lincoln. Had there been any problem with the format of the time sheet, that recruitment consultant, Mark Lincoln – who was one the that issued the time sheets, or certainly they came from that office is my understanding, that is where they came from – would have spotted immediately there was a problem with the time sheets. The first time that the agency raised any issue about declarations of truth or counter fraud declarations on the time sheets was several months after I had finished work at Barnsley. I think it was five months after that the first time that they ever said anything – from my recollection it was actually after I had sent my letter of claim dated 28 December 2009. There is a letter in here, which is dated 22 December 2009, from Liz Fendyke to me. That letter was backdated and it was actually sent out in response to my letter of claim in an attempt to make it seem as though that letter had been sent to me before I had sent the letter of claim, so to give the impression --- Q: Another fabricated document, is it? A: That is correct ….

Q: Another fabricated document, is it?

[57]He was asked questions based upon a letter that Miss Fendyke had said was sent to him on 22 December 2009 in which he was requested to re-complete and sign 6 time sheets for his work at Barnsley in what she said was “the original version which was sent” to him. (This, incidentally, is a letter he asserted that he saw for the first time in May 2010 after it had been submitted to the GMC by JCJ and that it had been back-dated to make it look as if it had been sent before his letter of claim against JCJ dated 28 December 2009.)[58]At a later stage the following interchange took place: Q: Why [were] there no declarations on your time sheets? A: There never were any – I am trying to explain this.

Q: Why [were] there no declarations on your time sheets?

[59]Counsel for the GMC reverted to the issue of why he did not complete new time sheets and again I need to record the questions and answers. Again I have italicised the questions and answers dealing with the way in which the GMC was putting its case on the alleged deletion of the declarations and the Appellant’s response to those suggestions Q: The reason that you did not make any effort to complete the new time sheets that were sent to you with the declaration of truth is because it was not a case of the wrong ones having been sent to you erroneously, it was because you had deliberately removed the declaration of truth and you knew full well that you would not be in a position to have those time sheets completed again? A: According to a letter by Kirsten Simcoe [the former Managing Director of JCJ] within the bundle, Kirsten Simcoe stated that these supposed declarations were introduced around about July 2008, or before July 2008. Now, I have been working with this agency since well before 2008 until well after 2008, and none of – those time sheets do not have the statement of truth counter fraud declaration, call it what you will, that you are talking about. They just do not have it. There are years of time sheets, what, two years? How many years are there? Years and years and years of time sheets of time sheets that were signed, submitted to the agency and paid without the declarations that Kirsten Simcoe is saying should have been there or were there from before 2008. What they are saying about these declarations of truth or counter fraud declarations, it seems to me they do not really know what they are talking about when they talk about those. They are not there on years of time sheets that have just been paid by the agency without any question. The only thing that has changed --- Q: Then the time sheets changed --- A: Please, please. The only thing that changed was their financial difficulties. Now in 2010, they initially reported I think it was a £5.6m profit. They have had an investigation. That actually should have been stated as a £60m pound loss, so there have been serious accounting irregularities at this firm. That is in addition to all the other shenanigans whereby the directors have been taking dividends that they were not entitled to and dipping into the till and passing £8m across to their partner in the case of [name given] for a company that was completely failing and certainly was not worth £8m. The accountants reckoned it was worth about £300,000 at best on a good day, but probably was actually worthless. They were doing all these financial shenanigans and the only thing is they were doing the same thing to me that they were doing to everybody else that they were having dealings with. Q: When they introduced the declaration of truth, that would not have suited you at all, would it? A: I am sorry; it would not have suited me in what way? Q: Because you would have had to sign the declaration of truth to say that your hours were right? A: I am quite happy to sign whatever --- Q: So you removed it? A: No, I did not remove anything. I have not removed anything at all. I have explained why the time sheets are in the format that they are. As far as the Barnsley time sheets go, there are twelve time sheets in all. The first seven of those time sheets, the first seven of the twelve, were paid by JCJ without question. The only time that the issue – without question. No question at all. No declaration of truth, as you put it. Nothing. They just paid them. They did not say anything about it. It was only after Dr Myint’s letter – because by the time of Dr Myint’s letter on 19 October I had five time sheets piled up because of the inefficiencies at JCJ, which, in hindsight, were obviously contrived to delay payment. I had five time sheets and because of Dr Myint’s letter everything happened the way it did, as I have explained. Q: Whether or not JCJ Locums noticed that the declaration of truth was missing does not change the fact, does it, doctor, that to remove the declaration of truth from a document is dishonest? A: You said it is a requirement, a requirement, a legal requirement even by the agency. You are saying it would be okay for the agency to receive back to the same office time sheets that they produced having been altered and that they would have no obligation at all to say anything about it to anyone. Do I have that right? Is my understanding correct? That seems to be --- Q: The point I am making is that, whether or not JCJ Locums noticed that the declaration of truth was missing – in other words, whether you got caught out or not – makes no difference to the fact that it was dishonest to remove the statement of truth, was it not? A: I am not dishonest. I have not removed any declarations of any sort from any JCJ documents. JCJ produced documents in a way that JCJ produced documents. I do not produce those documents. They send those documents to me. They send those time sheets to me. I complete them honestly. I have them countersigned and they are then sent back to the agency. That is the sum total of what happens with my involvement with the time sheets. I cannot understand – it does not make sense to me why anyone would alter a time sheet. For starters, it would be time-consuming. The job is busy enough without having to alter documents using computer software that I would not have anyway. I would not even have a computer with me on the job. Some of the confirmations actually arrive after the start of the job because of the way that things are quite hectic. I think in the case of Barnsley that certainly was the case because I think the job was confirmed I think on the 13th and I was quite busy, and so it was not at all unusual for them to post out the confirmation so it would actually arrive perhaps on the subsequent Wednesday, after I had already been working there for a couple of days, by which time, you know – sorry. Q: Equally --- A: All I am saying is that I have not altered any time sheets from JCJ. Because JCJ have used those time sheets to get payment in full from Barnsley, I do not even understand how they can possibly argue that now. It is obvious – I mean, they have tried to use that as their excuse not to pay. It has gone out of the window because they had to pay me, so subsequent to that they then started to go back to Barnsley and say, “You know, we actually think that the time sheets are valid now so we would quite like to be paid”, and Kirsten Simcoe wrote a letter, I think dated 4 February 2011, just shortly prior to her resignation from Healthcare Locums, telling Barnsley that she did not believe that there was anything fraudulent about the time sheets and she would actually quite like them to pay what Barnsley had described as the disputed hours now thank you very much, payment in full, thank you very much. Liz Fendyke confirmed earlier this week that recently, is how Liz put it, the agency had been paid in full on those time sheets. Q: What we are looking at here is your conduct, is it not, Dr Fish? It is right to say that, whether or not it comes to light after one week or one year, submitting a time sheet with hours on it that you have not worked is a dishonest act, is it not? A: That would be a dishonest act but it is not something that I have done. I am not dishonest. I am not a fraudster at all. Thank you. Q: You misled Dr Myint, did you not? A: Certainly not. I did not and have not misled Dr Myint at all. Q: You misled JCJ Locums? A: No, I did not and I resent that comment. Q: Then the time sheets changed --- A: I am sorry; it would not have suited me in what way? A: I am quite happy to sign whatever --- Q: So you removed it? Q: Equally --- Q: You misled Dr Myint, did you not?

Q: You misled JCJ Locums?

[60]So that represents the oral evidence given on the question of the deletion of the declaration.[61]In her closing submissions Counsel for the GMC made the following observations or suggestions concerning the “declaration allegation”. I have highlighted the submission made about the Appellant’s motive for deleting the declarations: “So far as the allegation that Dr Fish has amended time sheets to omit a declaration of truth, again, I would remind the Panel of the evidence of Liz Fendyke, who confirmed that all time sheets at that time were required to have the declaration of truth. That was her firm belief, and that JCJ Locums, on discovering the omission, checked their own system to make sure that the declaration was indeed on the forms. She confirmed that it indeed was. Of course, the Panel have been taken to other JCJ time sheets that cover the same period in time. … So far as the absence of the declarations of truth on the time sheets, it is submitted, on behalf of the GMC, that that was a misleading act, designed in the light of the doctor knowing that he had overclaimed the hours on those very sheets.” …[62]Counsel for the Appellant said this in relation to this aspect of the case:
“Can I come, finally, to the declarations? That is a straightforward issue. The doctor has pointed out what you might think is an important difference between pages 15 and 16 of the trial bundle. It is important because Liz Fendyke says … that page 16 was a copy of what was sent out to the doctor to fill in. The point that this doctor makes is no, it was not, it could not possibly have been because the time sheets were sent out at the beginning. At the beginning, as his time sheet shows, he was scheduled to be working there until 31 December. He was only informed that the placement was going to be foreshortened at the end of the first week – I think he suggested the 4th, a Friday. It would have been physically impossible for Ms Fendyke, unless gifted with extraordinary powers of foresight, to have produced a document knowing and anticipating in advance that that was going to be foreshortened. All he says to you is that there is no advantage to be gained by him in making a time sheet more obvious or more unusual. He just signed the time sheets he was given. He offered, in April 2010, to provide those original time sheets to JCJ just in a bid to get the money back. He is not a wealthy man. He had been kept out of his money by that stage for four months. He ended up being kept out of it for nearly a year. He says to you he did not alter the documentation. He had no need to. There was no justification for it. Why on earth would he want to delay the normal process for payment of his fees? We also point to the fact that your Chairman noticed I think what nobody else had done, which is that the Sheffield forms, going back a year-odd before that, none of them had the requisite declaration on either. It did not affect the amount of hours he did. It certainly did not affect the way in which he performed at Sheffield. You will recollect the glowing testimonial from Sheffield talking specifically about his time-keeping.”
[63]As I have indicated, it seems to me important to understand precisely the way in which the case was advanced in order to put into perspective, and thus to evaluate, the arguments advanced in support of the appeal.[64]Before I turn to that analysis, I think I should deal with the submission of Mr Forde and Miss Cross that the Legal Assessor’s advice was less full than it should have been and that express reference to the kind of issues dealt with in Re B and Re Doherty (see 38(vi) above) should have been made. It was submitted that I should indicate that advice of this kind should be given more frequently.[65]Persuasively though this submission was advanced, I am unable to accept it. It is plain from the analysis of the role of the Legal Assessor in Gopakumar (see paragraph 33 above) that the advice of a Legal Assessor is not to be equated with the directions given in a summing up by a judge in a jury trial. Even in that latter context, a formulaic approach is not encouraged: any summing up should be fashioned to the particular case. By way of a loose analogy, it must, as it seems to me, equally be the case that the advice given by a Legal Assessor must also be fashioned to the particular case being considered by the FTP. In my experience (admittedly some years ago now), the contents of that advice would often be a matter for discussion between the Legal Assessor and Counsel (in the absence of the Panel) and that practice, it seems to me, is one that ought to be encouraged: problems can be ironed out and minds concentrated on the real areas of concern. Ultimately, of course, the Legal Assessor must give the advice that he or she considers helpful to the Panel in the context of the circumstances of the case being considered by the Panel. It is a responsible and not always an easy task.[66]Against that background, whilst it cannot as a matter of principle be wrong to give advice along the lines of Re B and Re Doherty if it fits the situation, it cannot be advice that must be prescribed in every case where an allegation of dishonesty is made against a practitioner of previous good character: it must depend on the circumstances. The GMC has decided that the appropriate standard for determining an issue of fact is whether it is, more probably than not, established. It is not for the court to raise or lower that threshold.[67]What, however, seems to be a proposition of common sense and common fairness is this: an allegation of dishonesty should not be found to be established against anyone, particularly someone who has not been shown to have acted dishonestly previously, except on solid grounds. Given the consequences of such a finding for an otherwise responsible and competent medical practitioner, any Panel will almost certainly (without express reminder) approach such an allegation in that way.[68]An allegation of dishonesty against a professional person is one of the allegations that he or she fears most. It is often easily made, sometimes not easily defended and, if it sticks, can be career-threatening or even career-ending. Who would want to employ or otherwise deal with someone against whom a finding of dishonesty in a professional context has been made? I am, of course, dealing with the issue of dishonesty in a professional person simply because that is the issue before me. It is, however, a finding that no-one, whatever their walk in life, wishes to have recorded against his or her name.[69]I do not think that I state anything novel or controversial by saying that it is an allegation(a) that should not be made without good reason,(b) when it is made it should be clearly particularised so that the person against whom it is made knows how the allegation is put and(c) that when a hearing takes place at which the allegation is tested, the person against whom it is made should have the allegation fairly and squarely put to him so that he can seek to answer it. It is often uncomfortable for an advocate to suggest that someone has been deliberately dishonest, but it is not fair to shy away from it if the same advocate will be inviting the tribunal at the conclusion of the hearing to conclude that the person being cross-examined was dishonest. (I should say that Counsel presenting the case to the FTP did put the case advanced against him fairly to the Appellant. The problem, as I see it, for the reasons I will give below, is that what she put to him and what the Panel in due course concluded were arguably different or, at all events, the conclusion for which she contended did not have the compelling logic behind it that made its acceptance by the Panel valid.)[70]At the end of the day, no-one should be found to have been dishonest on a side wind or by some kind of default setting in the mechanism of the inquiry. It is an issue that must be articulated, addressed and adjudged head-on.[71]Those general considerations should, in my view, inform the approach of a Fitness to Practice Panel of the GMC. I have little doubt that generally it does indeed do so and that, for the reasons I have already given, all members of such a panel will understand the serious implications of any finding of dishonesty in relation to a medical practitioner who comes before such a panel.[72]These considerations are also of importance, in my judgment, when this court is invited to review on appeal such a finding.

Analysis of the findings

[73]In its finding that the “declaration allegation”, as I have characterised it, was proved, the FTP did not in its reasons ascribe a motive to the Appellant for having deliberately excised the declaration from the time sheet. They concluded that it was “deceitful” and “led JCJ Locums to assume that the content of the forms [he] had submitted was as required by JCJ Locums”, but that is all that was said.[74]With great respect, and with some diffidence, I simply do not understand the logic of that proposition. I do not understand how removing a statement of truth, as it has been called, can possibly lead the recipient of the form to believe that its content was “as required” by the maker of the form. If this statement of truth was standard and was in every other form submitted by a doctor placed as a locum by JCJ, the forms returned by the Appellant must have contained a gaping and obvious hole which must have been obvious to anyone receiving it. How was it that no-one noticed it until issues were raised by Dr Myint? One fairly obvious answer is that such a declaration did not appear in every time sheet required to be completed by a locum supplied by JCJ. If that is so, then far greater credence to the Appellant’s evidence that he was never supplied with a form that contained this declaration would need to have been given. If, on the other hand, it was a standard provision which had been deleted, the fact that no one noticed it suggests that little, if any, attention was ever paid by JCJ to the declaration.[75]These considerations feed into the analysis of the way the GMC’s case was put against the Appellant. However paragraph 5(b) was formulated, the way the case was advanced against the Appellant was that he falsely claimed for hours that he had not worked when engaged in Barnsley and that removing the declaration was because he knew that the hours he put on the time sheet were not true. In other words, the two factors were connected and were, in effect, two sides of the same coin. This does require some analysis because it seems to me to be rather too easy to assume that there was dishonesty involved here. In the first place, if the hours claimed were known by the Appellant to be wrong, it is difficult to think of anything more likely to arouse suspicion to that effect in the minds of those at JCJ who received the completed time sheet than by the wholesale deletion of a statement of truth asserting that the hours claimed were correct. Secondly, if the hours claimed were right and known to be right, what possible motive could there be to remove deliberately a statement attesting to the validity of the claim made? It is, on this analysis, very difficult to see why anyone, whether honest or dishonest, should want to take the steps of using a PDF writer to remove the declaration. What purpose would it serve?[76]As I have said, the FTP did not itself spell out the purpose that it perceived to have been in play in the Appellant’s mind when it gave its decision on the facts. When it came to its decision on sanction, some four months later, there was the first indication of what it thought was the motive for, as it had found, the removal of the declaration. The way the Panel expressed itself was in these terms:
“In the judgement of the Panel, your actions in removing the declarations of truth from your timesheets and submitting them were misleading and dishonest. [Your Counsel] suggests that you had no financial gain or benefit from doing so but the inference from your removal of the declarations is that you had sought to avoid being held to account for any possible discrepancies. The act of removal suggests a lack of transparency and openness in your dealings with JCJ Locums. The reputation of the profession requires that members act at all times with integrity and honesty and the Panel considers that your actions are a clear breach of a fundamental tenet of the profession, which other doctors and the public would find deplorable. It therefore amounts to misconduct which is serious.”
[77]Leaving aside the fact that on a proper analysis that does not appear to be the way the allegation was put to him on behalf of the GMC, there does seem to me, with respect, to be some difficulty with this analysis when(a) the “possible discrepancies” that had been contended for on behalf of the GMC were derived from deliberate over-charging for the hours worked and yet(b) that allegation itself was not substantiated. It requires the Panel to have had the following thought processes: (i) “we think it less likely than not that the Appellant deliberately claimed more hours than he was justified in claiming; (ii) but we think it more likely than not that he deliberately deleted the declaration of truth so that he would not be held accountable for the hours for which we are not persuaded, on the balance of probabilities, he overclaimed.” It is just possible to see some logic in it, but it requires a strained analysis which, in the context of a finding of dishonesty, I do not think ought to be regarded as acceptable unless the conduct of the hearing made it a compelling finding. In the context of the way in which the case had been put against him (see paragraph 75 above), I do not think it was right to put forward this construction of his state of mind.[78]I sense that the Panel arrived at its conclusion that he had acted dishonestly having decided, as a matter of fact, that he had deleted the declarations. I can, with respect, understand why that might have been so. It seems to have been the way that the case was presented. One advantage of being able to examine the circumstances at the remove that the court is able to adopt, is that of looking at matters in a somewhat different way. As I see it, if the issue had been addressed from the perspective of what possible reason could a fraudster (which is what the GMC was alleging against the Appellant), have had for drawing attention to his fraud by deleting the declaration of truth, the question is then raised as to whether that makes the deletion of the declaration a likely event. It does seem to me that the answer to that is clear: it makes it unlikely. I do not believe that matters were addressed in this way before the FTP and I acknowledge that, in one sense, I am turning the questions around from the way in which they were addressed before the FTP. The GMC was pressing for a finding, in effect, of fraud of which the deletion of the declarations was an integral part; the Appellant was saying that he did not over-claim for the hours in any fraudulent sense and did not delete the declarations. He did, in effect, invite the Panel to question why he would he have done it, but I can well understand why the answer to the question was somewhat obscured in the context of the combative and, in some respects, less than helpful way in which the Appellant addressed some of the issues before the FTP. Wholesale allegations of the fabrication of documents is hardly an attractive and credible assertion and reference to the fact that one of the principal witnesses (Miss Fendyke) had had lunch with someone who himself was a Chairman of a FTP of the GMC was also unlikely to help the air to be cleared. On the other hand, it is the kind of allegation that someone who believes he is being “stitched up” by others may well make. It may be wholly misguided, but it does not of itself prove that the person who makes it is guilty of the dishonesty alleged against him. I have no reason at all to think that the Panel reached an adverse conclusion against the Appellant because he conducted his case in this way, but I do think it may well have contributed to an atmosphere in which everyone lost sight of the true issue concerning the “declaration allegation”.[79]It does seem to me that, whilst there was indeed evidence upon which the Panel could conclude that the time sheets sent to the Appellant contained the declaration (on the basis that the inferences the FTP drew from the other timesheets that were produced and accepting the evidence of Miss Fendyke as far as her evidence could take the matter), there were also quite compelling considerations suggesting that this was highly unlikely. Miss Fendyke could speak only of the system as she understood it to be and, as Mr Forde and Miss Cross correctly submitted, the GMC was quite unable to produce evidence from, for example, the hard disk of some PC used by JCJ Locums at the material time to produce copies of the time sheets generated at the time or the ‘sent e-mails’ folder which proved to any standard of proof that an e-mail was indeed sent to the Appellant with a PDF attachment in the form of a time sheet which contained the relevant declaration. It is quite correct that historically (certainly before 2008 or thereabouts) no such declaration appeared on any such time sheet: there was ample evidence about that. Was it right in those circumstances to draw the inference that the Appellant had deliberately deleted the declarations and that he had done so for some dishonest motive? It seems to me that when the question of why anyone should have done that is addressed, any evidential balance that tipped in favour of a conclusion that there was such a deletion swung back decidedly the other way given that there was no firm evidence to the contrary (in the form, as I have indicated, of e-mails to the Appellant showing attachments in PDF form of the time sheets containing the declaration).[80]In those circumstances and for those reasons, I do not think that the FTP was right to conclude that the Appellant deliberately deleted the declaration from the time sheets. I reach that conclusion without regard to the way the advice of the Legal Assessor was given to the Panel. I reach it on the basis that the deliberate deletion of the declaration on the part of someone out to commit fraud (by over-claiming hours worked) is so unlikely that it could not be proved even on the balance of probabilities. As I have said, it is an integral part of this reasoning that the case advanced by the GMC against the Appellant was that the deletion of the declaration was part of the fraudulent design. Given the FTP’s conclusion that this was not established, I find it difficult to see how another element of the fraudulent design could be established independently. Whilst, strictly speaking, these allegations were open to be considered as separate allegations, that was not the case advanced by the GMC. No submission was made to the effect that if the FTP did not find that the over-claiming was proved, it could go on to conclude that, as a free-standing allegation, the “declaration allegation” was proved.[81]Lest it be thought that I have overlooked it, I should refer briefly to Miss White’s argument that there was nothing “illogical” in the Panel reaching the conclusion it did on the “declaration allegation” given that the allegations under sub-paragraphs (i) and (ii) of paragraph 5(b) (see paragraph 16 above) were found not proved by the Panel for what she described in her Skeleton Argument as “technical reasons relating to the way in which those charges had been drafted”.[82]I am unable to accept that submission largely because I remain of the view, having reviewed the transcript carefully, that the GMC could not truly be said to have been inviting a positive finding on the “declaration allegation” in the absence of positive findings on sub-paragraphs (i) and (ii) of paragraph 5(b): they were inextricably linked and represented a “package” of allegations that stood or fell together. I think that Mr Forde was justified in submitting that the Panel seemed somewhat grudging in its dismissal of the other charges against the Appellant in the light of describing his conduct in relation to the “accommodation charges” as “disingenuous” and saying that they could not find the charges “proved to the requisite standard”. Such reservations as they may have had about the way he had responded to requests for payment of these charges may have been more happily expressed if it was necessary to express them at all, but the net effect of their conclusion was that they were not satisfied that the charges were established. Nonetheless, my reading of the manner in which they dismissed the “time allegations” (see paragraph 22 above) is that they were not satisfied on the evidence that illegitimate claims had been made: if that is correct, there was nothing “technical” about that finding.[83]The overall conclusion I have reached renders it unnecessary to consider whether it is open to an Appellant to rely upon the submission that the advice of the Legal Assessor was defective when an opportunity to correct or supplement it was not taken at the FTP hearing by his or her then legal team. I pass no comment upon that other than to observe(1) that if there is a proper dialogue between Counsel and the Legal Assessor about the advice to be proffered (as there is in a jury trial between the judge and Counsel about the directions to be given before the speeches to the jury are given), the issue would rarely, if ever, arise and(2) this court is unlikely readily to permit reliance upon submissions to this effect made by an entirely new team of legal advisers who played no part in the proceedings below and who were not privy to the decisions, tactical or otherwise, made by the team below and who have little knowledge of the extent to which the doctor played a part in those decisions.[84]At all events, my conclusion, for the reasons given, is that the FTP was wrong to find that the Appellant was responsible for deleting the declarations and, accordingly, should not have found him guilty of acting dishonestly in that fashion.

Other matters

[85]The Legal Assessor’s advice included reference to the kind of direction given to a jury about lies told by a defendant in a criminal case along the lines set out in the well-known case of R v Lucas. The advice was as follows:
“It is submitted by the GMC that Dr Fish’s evidence is not credible or reliable. The inference from that is that he has lied under oath, for example in saying that he has not removed the declarations of truth from the time sheets. I, therefore, give you advice on how to deal with that issue. In R v Lucas [1981] 73 Criminal Appeal Reports 159, a criminal case, the Lord Chief Justice identified four conditions that needed to be satisfied before a defendant’s lie could be seen as supporting the prosecution case. First, the lie must be deliberate; secondly, it must relate to a material issue; thirdly, the motive for the lie must be a realisation of guilt and fear of the truth; and, fourthly, the statement must be clearly shown to be untrue by other evidence or be admitted to be false. In relation to the third of those, namely the motive for the lie must be a realisation of guilt and fear of the truth, the Lord Chief Justice said, and remember this is a criminal case: ‘The jury should, in appropriate cases, be reminded that people lie, for example, in an attempt to bolster a just cause or out of shame or out of a wish to conceal disgraceful behaviour from their family.’ I advise you therefore to consider the issue in two parts. First, whether Dr Fish has lied and, secondly, whether his lie falls into all the categories which I have just identified from Lucas. Only if that is the case can you consider it as supporting the GMC’s case.”
[86]Mr Forde did not criticise this advice and it would seem that no objection was taken to it before the Panel. I am not sure to what extent there was a discussion between Counsel and the Legal Assessor before the advice was formulated, but, as I say, no objection was taken to it. In those circumstances, I think I should say little about it. However, the essential issue for the Panel was to determine whether the Appellant was telling the truth about the declarations of truth and I cannot disguise the fact that I have some reservations about how helpful that advice would have been in the circumstances. The advice somewhat begs the question of what “the GMC’s case” against the Appellant was and one wonders to what extent the quotation of the Lord Chief Justice’s words in Lucas would have afforded assistance to the Panel in the circumstances. It is just possible to envisage an “innocent” reason for the Appellant having deleted the declarations and then lying about it: perhaps a genuine belief that, given the period of over 5 years of never having been required to give such a declaration, it was either not necessary or that he was not sufficiently confident about the internal processes either of JCJ or the hospital where he was working such that a minor discrepancy in the hours claimed as against the hospital records would not be turned into a major issue. Obviously, he said no such thing, his case simply being a complete denial of the deletions. However, it is always necessary (as the Lucas-style advice requires) for possible innocent explanations for an untruth having been told to be considered when assessing the implications of that untruth. Plainly, the desirability for the advice to be given in any case needs to be considered in the context of the case being heard by the Panel, but where advice based on Lucas is given, it needs to be relevant to the issues in the case and fashioned accordingly.[87]That is why I repeat that I would commend the practice of a full discussion between Counsel and the Legal Assessor (in the absence of the Panel)(a) before any advice based on Lucas is given and(b) where such advice is to be tendered, on the issue of the precise terms of that advice.[88]At all events, I do not allow the appeal on this basis as such. But the phraseology of the advice does, however, reflect my concern about whether real thought was given to the way in which the GMC’s case against the Appellant was truly being advanced and how the Panel should have assessed it.

Conclusion

[89]Accordingly, I allow the appeal and set aside the finding made under paragraph 5(b)(iii).[90]It follows that the sanction imposed in consequence of that finding must also be set aside.[91]The overall appeal is allowed.

Cited in 38 later judgments

and 29 more of the most senior