Sharma v General Medical Council [2014] EWHC 1471 (Admin)

Case No CO/567/2014

[2014] EWHC 1471 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT (Manchester CJC)

Civil Justice Centre

Venue Manchester

Date 22/05/2014

M60 9DJ

Before

HIS HONOUR JUDGE PELLING QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

YOGENDRA DUTT SHARMAAppellant

GENERAL MEDICAL COUNCILRespondent

Mr Martin Forde QC (instructed by Freeman Fisher LLP) for Appellant

Mr Hugh Davies (instructed by GMC) for Respondents

Hearing Hearing dates: 2 May 2014

Judgment

HH Judge Pelling QC:

Introduction

[1]This is the hearing of an appeal by the Appellant by which he appeals under s.40 of the Medical Act 1983 (“MA”) against a decision of a Fitness to Practise Panel (“FTPP”) taken on 10 January 2014 to find him guilty of misconduct, that his fitness to practise was impaired and to suspend him from practise with immediate effect for a period of 12 months. The FTPP found proved allegations that the Appellant had dishonestly failed to inform his hospital employers of a Warning given to him by the GMC in 2007, failed to provide good clinical care to a patient (referred to in the FTPP Determinations and hereafter as “Patient A”), failed to cooperate with a PCT audit, dishonestly failed in 2010 to complete accurately an Employer Details Form (“EDF”) by omitting therefrom details of his hospital employers, dishonestly failed to inform his hospital employers that he had been the subject of a Conditions Order imposed by an Interim Orders Panel (“IOP”), and breached the conditions imposed by the IOP which required him to be employed only as a GP and to cooperate with audits and investigations.

[2]At the start of the hearing before me there was an application by the Appellant for an extension of time in which to file Grounds and for permission to reply on the Grounds served even though they had not been served with the Appeal Notice. I granted those applications for reasons that I gave orally and which I need not take up time describing in this judgment. I should make clear that Mr Forde QC did not appear for the Appellant at any stage before the FTPP and was not instructed in relation to this appeal until shortly before this hearing. He was not responsible for and did not draft the combined Grounds and skeleton served on behalf of the Appellant after the Appellant’s Notice had been issued.

Background

[3]The Appellant qualified in 1972. At all material times the Appellant was a GP practising from a surgery in Stockport mainly as a sole practitioner but for a period with a partner. He was also employed as a clinical assistant in Dermatology by the Stockport NHS Foundation Trust (“SNHSFT”) at Stepping Hill Hospital and by East Cheshire NHS Trust (“ECNHST”) at Macclesfield Hospital. Although technically employed by ECNHST, in fact he did not carry out and had not for some years carried out any work for that organisation because there were no consultant dermatologists at Macclesfield Hospital who could supervise him there. At all material times therefore his work in hospitals was confined to one session a week at Stepping Hill Hospital. He had carried out such a weekly session at that hospital for about 30 years. Aside from the warning which had been issued to him in May 2007, to which I return further below, the Appellant had practised throughout his career without being found guilty of any professional or regulatory misdemeanour.

[4]As I have said already, the Appellant practised principally as a sole practitioner GP in Stockport and had done so since 1982. He practised in partnership with a Dr Bani between January 2008 and November 2009. That relationship became hostile and the Appellant terminated the partnership by a Notice of Expulsion served on 16 November 2009. Prior to this, Dr Bani had met with the PCT responsible for the practise and made various complaints against the Appellant. In December 2009, Dr Bani made a complaint to the GMC concerning a total of 19 patients. It is principally what happened thereafter that led to the Appellant’s appearance before the GMC. It is an unfortunate feature of this case that the regulatory issues that arose as between the Appellant and the PCT and GMC became entwined, at least as the Appellant perceived it, with a hostile and rancorous partnership dispute between the Appellant and Dr Bani. It was the failure of the Appellant to keep the regulatory issues that arose separate from his dispute with Dr Bani that led to most of the subsequent difficulties.

[5]The GMC embarked upon an investigation. The GMC provided a copy of the complaint to the PCT. The PCT offered to carry out an audit of 25 patients at the practise. This suggestion was agreed to by the GMC. There then followed what can only be described as long drawn out and hostile correspondence between the GMC and PCT on the one hand and solicitors then acting for the Appellant in relation to both his dispute with Dr Bani and in relation to his regulatory issues on the other. Various attempts were made to set up the audit but they came to nothing essentially because of objections and resistance on the part of the Appellant.

[6]The Grounds and Skeleton relied on by the Appellant refer to three issues that it is maintained “… continue to bedevil the matter …”. The first was whether the concerns that the PCT had were the result of complaints by Dr Bani. The second was the view of the Appellant and his solicitors that any complaints made by Dr Bani should have been disclosed. In my judgment, however relevant these points might have been either in relation to the dispute between the Appellant and Dr Bani or in relation to any complaint that might have been in contemplation by the Appellant against Dr Bani, they were not relevant to the request of the PCT to carry out an audit of the Appellant’s practise. Either the PCT’s “concerns” had merit or they did not. If they did then that would have become apparent from the audit and the source of the originating complaint would be immaterial. If they did not, then that too would become apparent from the audit and the Appellant would be vindicated. The third issue concerned a patient confidentiality point. The main assertion seemed to be that Dr Bani had breached confidentiality by removing patient records from the practise. As to that, if Dr Bani had acted unlawfully or had misconducted himself in the manner alleged that was an issue that was entirely separate from the question of whether patients had not been provided with the appropriate quality of care by the Appellant and thus did not merit delaying the audit that the PCT wished to carry out. Although it was suggested on behalf of the Appellant that the Appellant’s then solicitors were driving these issues, I consider that submission to be without merit. No solicitor would advance submissions of the sort I am now considering without instructions. As a regulated practitioner, it was for the Appellant to make a judgment as to whether the position being adopted could be justified professionally not his solicitor.

The FTPP’s Findings and Conclusions

[7]It was alleged by the GMC and admitted by the Claimant that he practised as a: 7.1. GP at his Stockport practise where he provided medical services on behalf of the PCT; and 7.2. Clinical Assistant in Dermatology at SNHSFT and as a clinical assistant/Hospital practitioner at ECNHST. The admission relating to ECNHST might more accurately have been to the effect that he was employed to provide such services but did not in fact provide them and had not done so for some years for the reasons that I have set out above. However nothing turns on the scope of this admission.

[8]In relation to Patient A, it was alleged by the GMC and ultimately found proved that the Appellant had failed to provide good clinical care to that patient on occasions between October 2006 and December 2008 in a number of identified respects. Although Mr Forde conceded that these findings were not capable of challenge, and thus were accepted for the purposes of the appeal, that had not been the position of the Appellant before the FTPP. Mr Davies relied on this point as undermining the credibility of the Appellant in the sense that the FTPP had rejected evidence given on this issue by the Appellant. It is also material to the conclusion reached by the FTPP, which considered that the Appellant’s response to these allegations (rather than the failure to provide good clinical care) suggested that his fitness to practise was currently impaired and that this factor, together with others, justified the decision to suspend the Appellant and to do so for a period of 12 months.

[9]I now turn to the non-medical findings made by the FTPP. It would have been more helpful both to the Panel and the Court if the allegations made by the GMC had been set out in strictly chronological order. This would have enabled a more structured analysis of the allegations to have been made by the Panel and would have made a consideration of the appeal more straight forward.

[10]The GMC alleged and the Appellant admitted that he had provided employer details to the GMC on 15 February 2006 in a Employers Details Form (“EDF”) that failed to disclose his employment by SNHSFT. An allegation that that this omission was made intentionally and dishonestly was rejected by the Panel.

[11]The GMC alleged and it was admitted by the Appellant that he had failed to inform SNHSFT in a timely manner that he had been issued with a GMC warning on 14 February 2007. The GMC alleged and the FTPP concluded that this failure was dishonest. The reasons given by the FTPP for concluding that this omission was dishonest were that:

“… you stated in your evidence that you thought “everyone knew” that you had a warning. The Panel has considered the context of the warning. You are a doctor of some experience, and you received this warning in writing. It states very clearly what your responsibilities are. The Panel rejects your assertion that you informed consultant colleagues, because if you had, the Panel considers it highly probable that at least one of the consultants would have informed the medical director, and some action would have been taken. The Panel considers that this was dishonest and intended to fit your own purpose. The Panel is of the view that at the time you saw a substantial risk to your professional standing and your career, which served as your motivation in not informing others. On the balance of probabilities, the Panel considers that objectively a reasonable and honest person would consider this to be dishonest, and subjectively, you must have known that this was dishonest … In these circumstances, dishonesty … is found proved.”

This finding of dishonesty is challenged on this appeal. I refer to this issue hereafter as the “2007 Warning Issue”

[12]In relation to the PCT Audit, the FTPP found that between 29 March 2010 and 27 October 2010, the Appellant failed reasonably or fully to cooperate with the PCT’s request to undertake an audit of his practise regarding 25 patients with chronic disease conditions. In the end Mr Forde did not seek to challenge this finding of fact but he submitted there was no proper basis on which the FTPP could infer current impairment from this finding.

[13]It was alleged by the GMC and admitted by the Appellant that on 22 January 2010, the Appellant provided the GMC with an EDF that did not include disclosure of his employment by SNHSFT. The GMC also alleged that that this conduct was dishonest. The FTPP found this last mentioned allegation proved. Its reasons for reaching this conclusion were:

“… the Panel is not satisfied that on the first occasions, on 15 February 2006, your failure to disclose your employment was either deliberate or dishonest. By the time you came to submit a similar form on 22 January 2010, and in circumstances where you would have been reminded of your obligations in relation to submitting full and accurate information to the GMC, the Panel has concluded that you must have been aware that you should disclose all employment and that you deliberately failed to do so. The Panel rejects your suggestion that on this occasion it was a misunderstanding or misconception on your part as to the necessity to provide details of your employment not related to general practise. The Panel formed the view that you are an intelligent man and given that this was the second occasion that you were the subject of an investigation by the GMC, you could not have failed to understand the clear instructions on the EDF or the importance of complying with them. Therefore the Panel finds your conduct to be both deliberate and dishonest in failing to provide the relevant employment details …”

This conclusion is challenged in this appeal. I refer to this issue hereafter as the “2010 EDF Issue”

[14]On 28 October 2010 the IOP made an interim conditions order against the Claimant. The principle stimulus for the commencement of proceedings by the GMC before the IOP was the continuing failure on the part of the Appellant to cooperate in the audit of his practise. The Conditions imposed included:

“ … 5.a. You must confine your medical practise to general practise posts where your work will be supervised by a named GP Principal; … 6. You must cooperate fully with any formal enquiry into the treatment of any patient, any audit of your practise and with any complaints procedure that applies to your work. You must disclose to anyone entitled to ask for it any information relevant to an investigation … … 7. You must inform the following … that your registration is subject to conditions … a. Any organisation or person employing or contracting with you to undertake medical work …”

It was alleged and admitted by the Appellant that in breach of Condition 5a, the Appellant continued to perform his once weekly session for SNHSFT at Stepping Hill and that in breach of Condition 7a, he failed to inform SNHSFT that he had become subject to these conditions. He further accepted that by failing to inform SNHSFT that his registration had become subject to conditions, he had acted in a misleading manner. The GMC also alleged that the failure to inform SNHSFT of the imposition of conditions was dishonest. That was disputed by the Appellant before the FTPP but was found proved. In relation to this finding, the FTPP’s reasoning was:

“… your evidence and that of Mrs Sharma, was that she faxed a notification of your conditions to the foundation trust, but that this failed. The Panel heard Mrs Sharma’s evidence of how the fax was mistakenly sent to a telephone number erroneously printed on the Foundation Trust’s stationary. The effect of your evidence was that whereas she had placed the fax onto the fax machine, it had not gone through as the machine had been set to send to a telephone as opposed to a fax number. The Panel was unimpressed by the evidence in this regard and was concerned that, even if a truthful account, there is no explanation as to why no one in the practise had appreciated that the fax had not been sent, … why Mrs Sharma had not supervised the transmission nor requested a transmission receipt. Neither was a hard copy of this letter subsequently sent to, or any acknowledgement of receipt sought from, the trust. The Panel found that given previous difficulties you had with the Foundation Trust regarding notification of GMC matters, you must have appreciated the importance of this communication and, if you had intended to notify the Foundation Trust of the interim order you would have done more than you did. The Panel rejects the evidence that any attempts were made to send the fax. The Panel is of the view that on the balance of probabilities, you deliberately failed to inform the Trust, as you were obliged to do, as this suited your interests. The Panel finds that such conduct was plainly dishonest, by both objective and subjective standards. …”

This finding is challenged in this appeal. I refer to this issue below as the “Interim Order Information Issue”

[15]In addition, there was a finding that the Appellant failed to cooperate in a timely manner with the PCT audit in breach of Condition 6 of the order of the IOP. This had been contested at the hearing before the FTPP but Mr Forde made it clear that he was not contesting the factual finding in this appeal. He made it clear however that the findings concerning impairment by reference to this allegation was challenged.

[16]The Panel concluded that the Appellant was guilty of misconduct in relation to his treatment of Patient A. That is not a conclusion that is challenged in these proceedings nor could it be. In relation to the non-medical issues mentioned above, the Panel concluded that these events when taken together constituted misconduct. In relation to the failure to cooperate in the Audit, the Panel said:

“… your failure to cooperate with a request for a PCT Audit is a serious matter. PCT Audits are fundamental to protecting patients and improving standards. By not cooperating, your behaviour fell seriously below the standard expected of a registered medical practitioner. Concerns had been raised about your clinical care, and rather than assisting an investigation, you deliberately obstructed and prevented the PCT from conducting their audit for some 14 months. You made continuous excuses, and despite several requests, you never gave your written consent for an audit to take place. … …the Panel found proved that you failed to cooperate with a PCT Audit in accordance with your Conditions. The Panel considers that your breach of conditions demonstrated a casual disregard for your medical regulator. …”

These factors together with (a) continuing to perform the weekly hospital session in breach of Condition 5 of the IOP imposed Conditions (b) the failure to inform SNHSFT of the condition that precluded him from working other than as a GP (c) the failure to disclose the SNHSFT employment on the EDF (Employers Details Form) and (d) the three findings of dishonesty amounted in the aggregate to misconduct. In relation to impairment, the FTPP considered that the Appellant was currently impaired because there was no evidence that he had sought to remedy his actions or had any or any adequate insight into the issues that his misconduct raised and in consequence that the risk of repetition remained high. In relation to the non-medical findings of misconduct, the FTPP said:

“ … The Panel has concerns regarding the cavalier attitude displayed by you with regard to reasonable requests, requirements and conditions made of you by the PCT and GMC. The Panel is in no doubt that such conduct serves to undermine the trust that the public has in the medical profession and its regulator. Your dishonesty in failing to make full disclosure demonstrates your willingness to cover up matters which put your standing at risk and brings the profession into disrepute. These matters are not easily remediable. … you have shown little change in your attitude … the Panel has seen little evidence of real insight … the Panel cannot be satisfied that you do not risk repeating such misconduct and has determined that your fitness to practise is currently impaired …”

Applicable Principles

[17]There was no real dispute as to the applicable principles. This appeal is one to which CPR Part 52 applies. It follows that the appeal can succeed only if the Court is satisfied that the FTPP were wrong in the conclusions that it reached (no procedural irregularity having been alleged) – see CPR r.52.11.

[18]Appeals such as this are re-hearings. However, the Court does not have the benefit of hearing witnesses give oral evidence. Quite the approach to be adopted by an appellate court in these circumstances has generated a significant amount of case law. That case law was reviewed by Langstaff J in Bhatt v. GMC

[2011] EWHC 783

, where at [9] he summarized the effect of these authorities in these terms:

“I accept and adopt the approach outlined in these authorities, in particular that although the court will correct errors of fact or approach: i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practise deserves respect; ii) that the tribunal has had the advantage of hearing the evidence from live witnesses; iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body; iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from; v) but that where what is concerned is a matter of judgment and evaluation of evidence which relates to police practise, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be "wrong" or procedurally unfair.”

I respectfully adopt that summary. In particular in relation to the findings of dishonesty that are the primary focus of this Appeal, paragraphs (iv) and (v) of Langstaff J’s summary are of particular importance.

[19]It was common ground between the parties that for a finding of dishonesty to be made, the GMC must prove that(a) the act or omission concerned was dishonest by the standards of reasonable and honest people and

(b) that the practitioner must have realised that what he or she was doing was dishonest if applying those standards. The onus of proof rests throughout on the GMC and the applicable standard of proof is the civil standard – that is the balance of probabilities. However, as Lord Nicholls observed in Re H (Minors) (Sexual Abuse: Standard of Proof)

[1996] AC 563

at 586:

“The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence… Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation.”

Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so. However, on the facts of this case, in my judgment this might, and I emphasise the word “might”, have made a difference in relation only to one of the allegations of dishonesty. In my judgment it was immaterial to the others for reasons that will become apparent.

[20]Against that background I turn first to the findings of dishonesty that the FTPP made against the Appellant. I do so because it was these findings that Mr Forde subjected to the heaviest criticism and because it is clear from the reasoning of the Panel that these findings were a major consideration in its conclusion that the Appellant’s fitness to practise was impaired and that it was appropriate to impose a penalty of suspension for a period of 12 months.

The 2007 Warning Issue

[21]In my judgment the conclusion of the FTPP that the Appellant was dishonest in failing to inform SNHSFT of this warning is wrong. I reach this conclusion for the following reasons.

[22]First it should be noted at the outset that at the commencement of the GMC investigation that led to the Warning, the Appellant had been asked to complete an EDF. The Appellant had completed the Form and signed and dated it 15 February 2006. He confirmed that the information given in the form had been given “… truthfully and in good faith …” – see the Declaration above the Appellant’s signature on page 2 of the Form. The Form asked the Appellant to “… provide the details listed below …”. Question 1 was in these terms:

“If you work in the NHS the name address and postcode of your current employer(s). If you are a GP this should be the PCT with whom you have a contract or for hospital doctors the employing NHS Trust … The Appellant had replied: “GP Full Time, Stockport PCT Regent House Heaton lane Stockport SK4 1BS”

He did not include SNHSFT in relation to the one session a week that he worked at Stepping Hill Hospital. The FTPP rejected an allegation by the GMC that the omission of a reference to SNHSFT was deliberate or dishonest. The Appellant’s case before the FTPP had been that the omission had not been intentional and that he had proceeded on the basis of a misunderstanding as to the need to provide details of his employment that was unrelated to general practise, based on the fact that the allegations being made related to his practise as a GP not as a sessional hospital physician. The effect of the FTPP’s decision on this issue was that the GMC had failed to establish on the balance of probabilities that the Appellant had not proceeded on the basis of such a misunderstanding. Regent House Heaton lane Stockport SK4 1BS”

Heaton lane

[23]At the end of the 2006 - 7 process, it was decided that the appropriate disposal was a formal warning in relation to an allegation that the Appellant had failed to maintain adequate records in relation to a particular patient. The warning was recorded in a letter from the GMC to the Appellant dated 23 May 2007. The letter set out the history of the proceedings, set out the terms of the warning given and then ended with the following:

“This warning will be disclosed to Dr Sharma’s employers and to any other enquirer during the five year period.

(s) you must also disclose it to any subsequent employers …”

The effect of the warning letter in my judgment was clear. The GMC would inform all current employers. The obligation to inform future employers rested on the Appellant.

[24]It was submitted that this point was of no relevance because there was a general duty on all registered practitioners to inform employers of warnings such as that to which the Appellant was made subject. The basis of this allegation was not demonstrated to me by reference to any statutory or regulatory material. That does not seem to have been the basis of the case advanced before the FTPP, where the allegation appears to have been that the Appellant was under a contractual duty to report warnings to the Trust. If there was at least a contractual duty owed by the Appellant to SNHSFT to report the warning to it (and I am prepared to accept that the Appellant did owe such a duty) then his failure to do so was plainly a breach of that duty. However that is not the basis of the reasoning of the Panel, which proceeds exclusively by reference to the terms of the warning letter. As I have said, the warning letter does not suggest that the Appellant was under a duty to inform existing employers of the warning.

[25]Even if that can be ignored, and I can proceed on the basis that the Appellant was under a contractual duty to inform the Trust of the warning, not every breach of duty is dishonest. Before breach of a contractual or general professional duty could be held to be dishonest, consideration had and has to be given to all the surrounding circumstances including in this case the Panel’s conclusion that the omission of any reference to the Appellant’s hospital employers in the 2006 EDF had not been proved to be dishonest and the terms of the warning letter. It was not suggested to the Appellant as far as I can see from the Transcripts that he did not inform the Trust of the warning because he knew that the GMC would not by reason of his omission of the details from the EDF Form. The Panel did not make any findings to this effect.

[26]Before me there was an issue as to how the existence of the warning came to the attention of SNHSFT. Mr Forde relied on some contemporaneous correspondence that was before the FTPP as being inconsistent with the finding of dishonesty I am now considering because it suggests that in fact the Appellant did inform the Trust albeit later than was reasonable. The correspondence consists of two letters. The first is a letter from Dr Catania, the Medical Director of the Trust, to Mr Smith, the associate Director of Medicine at Stepping Hill, dated 9 November 2007 (6 months after the Warning took effect). That letter refers in Paragraph 2b to the Appellant having informed the Trust but some weeks and perhaps months after the Warning had been given. The second is Dr Catania’s letter to the Appellant dated 8 January 2008, which states in terms that “… It has been brought to my attention that you have informed Mr Rob Smith … that you were recently the subject of a GMC hearing, the outcome of which was a formal warning …”

[27]Mr Davies’ answer to this point was to submit that the basis of the GMC’s case before the Panel was that the existence of the warning had come to the attention of SNHSFT as a result of a routine review of registrations. He further submitted that this was accepted on behalf of the Appellant at the hearing before the Panel. That appears to have been so, although no explanation seems to have been sought as to why the letters I have referred to were in the terms they were if in fact the existence of the warning had come to the attention of the Trust in the manner asserted before the FTPP. Further it is not clear to me how the existence of the warning could have come to light as a result of such a review if (as the warning Letter suggests), “… the warning will not appear on your registration …”. All this is unsatisfactory, and is particularly so where the allegation being made is one of dishonesty.

[28]It is against that background that I turn to the reasoning of the FTPP in relation to the issue I am now considering, the relevant part of which I have set out earlier in this Judgment. The key elements of the Panel’s reasoning were that:

“You are a doctor of some experience, and you received this warning in writing. It states very clearly what your responsibilities are. The Panel rejects your assertion that you informed consultant colleagues, because if you had, the Panel considers it highly probable that at least one of the consultants would have informed the medical director, and some action would have been taken.”

As to this, in my judgment the material that I have referred to shows that this reasoning is mistaken. The warning letter does not state (as the Panel appears impliedly to suggest) that the Appellant is under an obligation to inform anyone of the warning other than “…any subsequent employers …”. Thus if and to the extent that the Panel is inferring dishonesty from the fact that the Appellant has failed to comply with the terms of the warning letter then it is wrong. Secondly, the effect of the correspondence referred to above suggests that the Appellant did inform the Trust of the warning. If that is the case (and as I say there is some uncertainty about this) that is not consistent with dishonesty unless it had been suggested, and the Panel had found, that he had undergone a change of heart. There was no such suggestion or finding.

[29]Taking a step back, no proper consideration appears to have been given as to likely motive. The warning related to his practise as a sole practitioner GP. The Appellant’s hospital work was supervised by a consultant. No one could reasonably have thought that the hospital would terminate the Appellant’s sessional work on the basis of the warning, nor could it reasonably have been thought that someone would endanger their livelihood for the fee paid by the hospital of £70 per session.

[30]I am cautious about concluding that a finding of this sort by a FTPP was wrong but I bear in mind that this conclusion was one based inevitably on inference. It was one to which Paragraph (v) of Langstaff J’s summary applies. In my judgment the reasoning given by the Panel does not support the finding made. The warning letter does not impose on the Appellant an obligation to report the warning to all current employees and thus the Panel’s reasoning was to that extent wrong. The primary finding of fact that the Appellant failed to report the warning to the Trust, even if correct, does not of itself lead to the conclusion that the failure was dishonest. Had the Panel been reminded of Lord Nicholls’ observation set out above then it is possible that the panel would have decided this issue differently.

The 2010 EDF Issue

[31]In my judgment the reasoning of the Panel in relation to this issue shows that its conclusions are ones to which paragraph (v) of Langstaff J’s summary of the relevant principles applies. The conclusion of dishonesty is one that depends on inferences to be drawn from the primary facts. Nonetheless in my judgment the Panel was fully entitled to reach the conclusion that it reached on this issue and it has not been demonstrated by the Appellant that the conclusion that the Panel reached on this issue was wrong. I say that for the following reasons.

[32]I start by reminding myself of the Appellant’s case, which is that whilst the form was misleading it was not intentionally so because he had proceeded on the basis of a misunderstanding as to what was required. Although some reliance was placed on the terms of the questions that are set out in the form (to which I turn in a moment) in my judgment the form cannot be read in isolation from its surrounding circumstances.

[33]The EDF was sent to the Appellant under cover of a letter dated 15 January 2010. The relevant paragraph of the letter is to following effect:

“… I also need to contact your employer(s) to provide them with a copy of the complaint and to ask them to comment or provide any other relevant information. To do this I need you to complete and return the attached form, giving details of all your current employers. … Please note that you have a professional obligation to provide this information in accordance with Good medical Practise. I have enclosed a copy of this booklet for your information. You also have a duty to keep us informed if you change employers while we are reviewing the concerns raised by Dr Bani …”

[34]In my judgment the recipient of this letter could not be in any doubt as to what was required – to give the requested details of “… all your current employers …” – or that the GMC considered that it was a professional obligation to provide all the information requested. Although the Panel do not refer in terms to this letter in their reasoning, the GMC’s case was opened to them by reference to this letter – see Transcript Day 1, page 8 – the Appellant was examined by reference to that letter – see Transcript, Day 4, page 69 – and cross examined in relation to it – see Transcript Day 5, page 20-21. No satisfactory explanation has been offered by the Appellant for why he did not include the details relating to his hospital appointments notwithstanding the terms of the letter. Whilst I could understand if the details relating to ECNHST had been omitted (because in fact the Appellant had not carried out any sessions for that Trust for some years) that does not apply to SNHSFT, where he had carried out a session each week for in excess of 30 years.

[35]The Form at Question 1 referred to “… your current employment …” and left enough space for the insertion of details relating to more than one employment. Further, Q.7 asked the practitioner to indicate “… which employer you were working for in respect of the complaint which we are considering …” . This plainly implies that a practitioner may have more than one employer, particularly when read with Q.1 and the covering letter to which I have referred at length already.

[36]I remind myself that before a dishonesty finding can properly be made, the Panel has to be satisfied on the balance of probabilities that(a) what was done was dishonest by the standards of reasonable and honest people and

(b) that the practitioner must have realised that what he or she was doing was dishonest applying those standards. In my judgment there was before the Panel more than sufficient evidence to enable it properly to find both these elements were satisfied in relation to the issue I am now considering. Having received a letter from the GMC that required him to supply details of all his employers, a reasonable and honest person in the position of the Appellant would have supplied information concerning SNHSFT not least because he had been employed there for in excess of 30 years. The Appellant must have realised that his failure to disclose at least that employment was dishonest applying those standards given the terms of the letter under cover of which the EDF had been sent to him.

[37]The reasoning of the FTPP that supports its conclusion concerning the 2010 EDF Issue is not as clearly focussed or expressed as it might have been. In my judgment however the material before it supports its conclusions on this issue for the reasons that I have set out. The terms of the covering letter sent to the Appellant with the form amply supports the conclusion that the Appellant had been reminded of the need to disclose all employment details and that the failure to do so was deliberate. It was only by ignoring the covering letter and referring to the form in isolation that the suggestion of a mistake or understanding could be even arguably maintained. The Panel was therefore right to reject that suggestion. The point made by the Panel that this was the second occasion that the Appellant had been the subject of an investigation by the GMC and thus that he could not have failed to understand the clear instructions on the EDF or the importance of complying with them lacks cogency of itself. The criticism about his approach to completing the EDF sent to him in 2006 did not surface until after the 2010 Form had been completed. However that is an immaterial error given the effect of the other material available to the Panel.

The Interim Order Information Issue

[38]Mr Forde challenged the findings of dishonesty in relation to this issue on the basis that the findings of fact that were made were hopelessly confused. He advanced this submission principally by reference the findings of the FTPP concerning the evidence of Mrs Sharma that she had attempted to fax a letter of notification to the SNHSFT informing that organisation of the IOP’s orders.

[39]The letter relied on is dated 4 November 2010. It does not purport to enclose a copy of the finding or of the Conditions that were imposed. In any event the letter is not a satisfactory document for the purpose of informing the Trust of the interim conditions that had been imposed. To the extent that it suggests that the Appellant’s ability to carry on with his sessional work at the hospital was, or could by agreement remain, unaffected by the Order, it was plainly wrong.

[40]The main point made by Mr Forde was that it was not open to the Panel to proceed on the basis that Mrs Sharma’s evidence was truthful (which is what he maintained it had decided) but nonetheless conclude that the Appellant had been dishonest in failing to inform the SNHSFT of the Interim Order. Had that approach been the one adopted by the Panel I would have agreed but in my judgment that was not the approach that it adopted. I reach that conclusion for the reasons that follow.

[41]The language used by the panel in its reasoning relevant to the issue I am now considering was not in all respects satisfactory. Having summarised Mrs Sharma’s evidence the FTPP then said that(a) it was unimpressed by her evidence and

(b) “ …even if truthful …” it did not explain why various other steps were not taken to draw to the attention of the Trust the terms of the IOP Order. It was submitted that this was not a proper basis for a finding of dishonesty and that if the Panel accepted Mrs Sharma’s evidence then they ought to have concluded that the Appellant had not been dishonest because attempting to send the letter – however unsatisfactory its terms might appear to be – is fundamentally inconsistent with the Appellant seeking dishonestly to conceal the making of the Order from the SNHSFT.

[42]Had matters rested there, this point might have been arguable, but things do not rest there. The whole of this section of the FTPP’s reasoning has to be read together. The whole of the relevant part of the finding is set out above. If it is read as a whole then it is entirely clear that in fact the Panel rejected Mrs Sharma’s evidence on this issue. This is apparent not merely from its conclusion that it was “unimpressed” by her evidence on this issue (which is not consistent with it having been accepted) but is put beyond doubt by the paragraph that follows that relied on by Mr Forde in which the Panel says in terms that it “…rejects the evidence that any attempts were made to send the fax …” This was a conclusion that the Panel was plainly entitled to reach for the reasons that it highlighted in the previous paragraph and which supported such an inference, and it is one that a Court should not interfere with. It is in my judgment classically one of those findings to which paragraph (iv) of Langstaff J’s summary applies.

[43]In my judgment in any event the conclusion that(a) the Appellant did not inform the Trust of the IOP Order

(b) the decision not to do so was deliberate and

(c) was dishonest, were conclusions that were plainly open to the Panel on the evidence available to it. This evidence included that: 43.1. The Appellant was present at and throughout the hearing before the IOP – see the transcript passim and in particular page 1G-H, where the Appellant identified himself by name and GMC Registration Number, and page 39 where the IOP Chairman directed concluding remarks to the Appellant; 43.2. The terms of the Conditions were read out by the IOP to the Appellant in the presence of his legal advisors – see Transcript, page 29-31; 43.3. It was made clear to the Appellant at the hearing that the Conditions took effect immediately – see Transcript page 38C; 43.4. No fax transmission report was printed off after the letter had allegedly been sent. It was said that there were technical difficulties about that given the nature of the equipment available to the Appellant. There was no evidence in support of that point save the assertion of the Appellant and his wife. If that point is correct then the point I have made in this sub-paragraph would be a bad point; but 43.5. No attempt was made even on the Appellant’s case either to send a hard copy of the letter supposedly sent by fax to SNHSFT (when it would have been the work of a moment to put it in an envelope, and would have cost no more than the price of a stamp and an envelope) or to seek an acknowledgement from the Trust or follow up the communication with a chaser when no acknowledgement was received.

[44]There is an additional factor that the Panel did not refer to but which it would have been entitled to rely on. The Panel would have been entitled to rely on what it had found to be the dishonest omission from the 2010 EDF form of details concerning in particular SNHSFT as supporting inferentially the conclusion that the failure to inform the SNHSFT of the conditions imposed was itself dishonest, when taken together with the other factors to which I have referred.

Non-Cooperation - Impairment

[45]In my judgment, the FTPP was plainly entitled to reach the conclusions that it did concerning impairment for the reasons that it gave. The point that was made on behalf of the Appellant was that the non-cooperation was the result of an on-going and rancorous dispute between the Appellant and Dr Bani. The Panel were required first to consider whether the facts as found amounted to misconduct. They did so for the reasons that I have summarised above and they were fully entitled so to conclude. They then had to turn to Impairment.

[46]Not all misconduct leads to the conclusion that fitness to practise is impaired. This conclusion might be reached for example where the misconduct is an isolated error where the chance of it being repeated is remote. However, current impairment is determined having regard to the manner in which the practitioner has conducted him or herself in the past. On the facts of this case, whilst the failure to cooperate with the audit process, and to comply with the IOP imposed condition relating to cooperation, might have been driven by the dispute with Dr Bani, the position adopted by the Appellant could not be justified for the reasons that I have summarised in paragraph 6 above.

[47]In those circumstances, the Panel was fully entitled to conclude that the Appellant’s conduct impacted adversely on the trust of the public in medical practitioners. The public are entitled to expect that the regulator will investigate any allegation of misconduct by a practitioner and that the practitioner will cooperate in the timely completion of such investigations, whatever the practitioner might subjectively think about the substance of the allegations or the source of them. The Panel was entitled to conclude that no insight had been demonstrated by the Appellant into this very important point and that the conduct which had been found proved might in consequence occur in the future. This was classically an issue where the decision of a specialist tribunal is entitled to most respect.

Determination of this Appeal

[48]In the light of the conclusions that I have reached it is next necessary to ask whether the decision to suspend the Appellant for 12 months was rendered wrong by reason of the Panel having reached one conclusion in relation to a dishonesty allegation that was wrong. In my judgment it was not. The reasons why the Panel considered it appropriate to suspend are not affected by the conclusion that it was wrong to reach the conclusion it did in relation to the failure to inform SNHSFT of the Warning in 2007. The decision to suspend involved the Panel in looking at all the allegations found proved in the round. It concluded that suspension was in principle the appropriate course to adopt because it concluded that on the whole of the findings made there had been a persistent lack of insight that had not been remedied but was capable of being remedied. The view that there had been a persistent lack of insight was driven not merely by the findings of dishonesty but by the findings made in relation to Patient A, disregard of NICE Guidelines and the requirements of Good Medical Practise and the failure to cooperate with the audit process over what was on any view a long period.

[49]Whilst all findings of dishonesty are serious, some inevitably are more serious than others. The finding in relation to the 2007 warning was at the less serious end of the spectrum when compared with the other findings of dishonesty made against the Appellant. The conclusion relating to impairment and the need for suspension in consequence would inevitably have been the same whether or not the finding relating to the 2007 warning had been made or not.

[50]The period of 12 months suspension that the Panel arrived at was imposed for the reasons summarised at Transcript Day 14, page 8. In my judgment those reasons remain sound notwithstanding the conclusion that I have reached concerning the 2007 allegation. In those circumstances, the appeal must be dismissed.

Further Directions

[51]By no later than 4 p.m. 3 working days after delivery of this judgment to the parties in draft, the parties are to submit an agreed form of order giving effect to this judgment. In the event that a form of Order cannot be agreed, then: 51.1. The Appellant is to file and serve written submissions in support of the form of Order he contends ought to be made an annexing thereto the form of order sought; 51.2. The Respondent is to file and serve written submissions in response not later than 4p.m. 2 working days thereafter, annexing the form of Order it seeks; and 51.3. The Appellant is to file and serve written submissions in reply if so advised by no later than 4 p.m. 2 working days thereafter.

[52]I will circulate a written ruling on the issues between the parties prior to formal handdown of the judgment. Handdown will be on the date identified in the box at the head of this draft. All parties will be excused from attending providing the directions set out above have been complied with.