Fernando v General Medical Council [2014] EWHC 1664 (Admin)

Case No CO/30/2014Neutral Citation Number: [2014] EW 1664 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2014
Before
MRS JUSTICE PATTERSON
Between
DR SUMIDO FERNANDOAppellantGENERAL MEDICAL COUNCILRespondent
Adrian Darbishire QC and Rachna Gokani (instructed by Direct Access) for AppellantIvan Hare (instructed by GMC Legal) for RespondentHearing Hearing dates: 9th May 2014
JudgmentMrs Justice Patterson :Introduction
[1]This is an appeal under section 40 of the Medical Act 1983 from a decision of a fitness to practice panel (FPP) of the Medical Practitioners Tribunal Service (MPTS) dated 6th December 2013 to impose a sanction of erasure from the medical register of the appellant.[2]The appellant submitted that there should be a derogation from CPR 39.2 and parts of the hearing should be heard in private due to the need to consider personal medical information. The respondent did not disagree.[3]Given the nature of the information and the complaint from which the appellant suffered I agreed that the public should be excluded from parts of the hearing.[4]The finding by the FPP that the appellant’s fitness to practice was impaired is not disputed.[5]The appellant’s submission is that the FPP has imposed a disproportionate sanction, namely, erasure. Suspension was appropriate in the circumstances of the appellant.

Factual background

[6]The hearing took place between the 2nd-6th December 2013. The appellant faced 14 allegations. Most related to, or followed on from, the appellant presenting a fraudulent prescription at a Sainsbury’s store in August 2012 in that although made out by the appellant it was for a fictitious patient and purported to be signed by a different doctor. The appellant intended to obtain and use the 12 tablets the subject of the prescription for himself. On the 3rd January 2013 the appellant was cautioned for a criminal offence for fraud by dishonest false representation contrary to sections 1 and 2 of the Fraud Act 2006 in relation to the presentation of the prescription the previous August.[7]After the appellant’s arrest on the 3rd August 2012 his house and car were searched and prescription pads found from seven other medical practices. The appellant had, on one occasion, written out a prescription knowing that there was no patient of that name and signed it with a false name. Again, he had intended to use the prescription to obtain listed drugs for himself. The other prescription pads had not been returned to the relevant medical practices.[8]Between the 1st March 2012 and 7th August 2012, the appellant had allowed his professional indemnity cover to lapse.[9]When the appellant told his fellow partners at his medical practice of his arrest in August 2012 he failed to inform them of the reason for it and falsely led them to believe that his arrest related to a road traffic offence. He failed to disclose his lack of professional indemnity insurance. It was not until October that he was candid with his partners on the matters that he was facing.[10]Further, the appellant had applied to join the performers list of Hampshire PCT in 2009 but failed to disclose that two earlier employments, one in 2008 and another with a different practice group in Guildford between the 2nd April 2009 and July 2009 were terminated due to unsatisfactory probation periods.[11]The FPP concluded that the appellant’s misconduct and the caution that he had received had brought the medical profession into disrepute. His misconduct had breached fundamental tenets of the medical profession and the appellant had acted dishonestly in the past. The panel considered whether his behaviour was remediable but accepted that dishonesty by its nature was difficult to remedy. It was not satisfied that the appellant would not be dishonest in the future. In the circumstances the panel concluded that his fitness to practice was impaired on the basis of his criminal caution and his misconduct. The finding of impairment is accepted by the appellant as an appropriate finding for the panel to make.[12]As part of their determination of the facts the panel took into account witness statements from two of the partners at the medical practice where the appellant had been a partner, a statement from Mr Andrew Marshall, an investigating officer with Surrey Police and a statement from Ms Amanda Cophee who was the associate director in charge of revalidation at the Hampshire PCT.[13]The panel proceeded to consider the issue of sanction. The panel heard evidence from the appellant and took into account submissions by counsel on his behalf and for the GMC. The panel began its decision as follows, “Whilst the panel has considered the submissions made, it has exercised its own judgment as to the appropriate sanction, if any, to impose on your registration. Throughout its deliberations, the panel has borne in mind that its primary duty is to protect the public interest. The public interest includes amongst other things the protection of patients, the maintenance of public confidence in the profession and the GMC as its regulator, and the declaring and upholding of proper standards of conduct and behaviour within the profession. It has also taken into account the guidance provided within the ISG [Indicative Sanctions Guidance]. The panel has applied the principle of proportionality, weighing the public interest against your own interests. The panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect, but to protect patients and the wider public interest.”[14]The panel went through the hierarchy of possible sanctions. The panel found that taking no action would be wholly inappropriate and that no conditions could be formulated to address the matters in the case which involved dishonesty and serious misconduct.[15]The panel then turned to consider the question of suspension.[16]The panel considered the advice at paragraphs 69-75 of the Indicative Sanctions Guidance (ISG) which was that a serious breach of Good Medical Practice (GMP) where the misconduct was found is not fundamentally incompatible with continued registration. But in addition, the panel had to be satisfied that the doctor had insight and did not pose a significant risk of repeating behaviour.[17]The panel acknowledged that the appellant had made full admissions and had undertaken work to keep his professional knowledge and skills up to date. The panel noted the appellant’s apology to the doctor whose name he had forged and the testimonials that had been presented on his behalf. They continued [16C to 17D], “This case involves numerous acts of dishonesty. The panel considers that your dishonest acts have been persistent and covered up. In January 2001 you received a caution and in May 2002 a criminal conviction, both for shop lifting. The panel considers that your contact with the criminal justice system whilst you were still a medical student particularly your appearance in a Magistrates’ Court ought to have been sufficient to impress upon you that dishonesty was to be avoided in future. As you must have been all too well aware these acts did have the potential to end your medical career before it had properly started. In 2009 you completed an application form to register with the Hampshire PCT which, as already described, was inaccurate. You have candidly admitted that this was in effect a self serving and dishonest act. The panel notes the handwritten entries entreating the PCT to keep the matters of your caution and conviction confidential. The panel accepts that you did properly declare them. It is concerned, however, that you felt the need to express the wish to keep them confidential when open and honest behaviour is a requirement for doctors. In 2011 you completed a prescription form that you had retained for two drugs that you wanted. This prescription was incomplete and was not presented, but the patient information on it was entirely false. You clearly had had in mind the intent to present it at some stage. You were detected presenting a false prescription in August 2012, arrested and detained at a police station where you were interviewed. During your interviews you did not immediately give full and accurate details of your actions. Following your arrest you allowed your partners at the Victoria Practice to believe that you had been involved in a road traffic matter. You made what were effectively successive partial admissions to your partners and were not fully open with them until a practice meeting in October 2012. During this period you quite deliberately understated the seriousness of those issues which you did reveal. You behaved in a similar manner in the PCT panel hearings, failing to be frank, open and honest. You told the panel this was driven by your fear for your job and your career. The Panel accepts that these matters, which you brought upon yourself, would at the very least have caused anxiety to you. However, you had multiple opportunities and sufficient time to reflect upon your actions and fully inform all the relevant parties. You did not do this in a timely manner. The fact that your partners and the PCT were initially accepting of your explanations is a clear example of the trust that is placed in doctors, trust that you betrayed. When asked by the panel why you did not write a private prescription for yourself you said you did not want to be seen as self medicating nor did you want the pharmacist to know your condition. Instead you presented a false prescription and were arrested. At no time before you presented this prescription, and the others that you admitted to presenting in your evidence to the panel, did you seek the appropriate independent medical advice. In the panel’s view these acts as well as being self serving show extremely poor judgment. The panel finds that your writing and presenting false prescriptions was a clear abuse of your position as a doctor. You had access to the prescriptions from other surgeries, only by your virtue of your employment as a doctor. With respect to the retained prescription pads, the panel has no doubt that you knew you still had them. Whilst this matter may be less serious than many of the other matters in this case, it is another example of very poor judgment.”[18]The panel dealt with the cancellation of indemnity insurance and accepted the explanation that the appellant gave which was that he hoped to be able to achieve cheaper cover under a practice discount. Nonetheless the appellant failed to ensure that cover was in place. That was a further example of very poor judgment.[19]The panel continued [17F to 18A], “The panel accepts that you have done work and seen counsellors in an attempt to understand why you have behaved as you have and how to correct your behaviour. However, your acts of dishonesty were persistent and many were covered up, and the panel is not persuaded that you have developed sufficient insight into the gravity of what you did. The panel finds there remains a very real risk of repetition of the dishonesty as it believes you have a deep seated attitudinal problem. For example, the panel believes there is a theme in the evidence it has received that when you are facing embarrassing issues or issues that would impact on how people regard you, you display very poor judgment resulting in dishonest acts. The panel has carefully considered and weighed the overall seriousness of your misconduct. The panel finds that you have had a reckless disregard for some of the core principles of GMP. It considers that your actions have demonstrated that you are doctor whose probity cannot be relied upon. The panel is of the view that if a doctor’s probity cannot be relied upon then this is fundamentally incompatible with continued registration. Therefore the panel finds that suspension is not an appropriate sanction in this case.”[20]The panel concluded that the only appropriate and proportionate sanction to be made was one of erasure. It said, [18B] “in making this determination the panel has considered the issue of proportionality, balancing your needs with the public interest and concluded that the need to protect the public interest outweighs your interest.”

The legal framework

[21]Appeals under section 40 of the Medical Act 1983 are by way of a re-hearing: CPR PD 52D paragraph 19. The court will allow an appeal where the decision of the FPP was, “(a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings before them”.[22]In the case of Raschid and Fatnani v General Medical Council [2007] EWCA Civ 46 Laws LJ said at [20], “The High Court will correct material errors of fact and, of course, law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”[23]In relation to sanctions he said, “As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision making body in the shape of the panel.” [19][24]In the case of Nicolas-Pillai v General Medical Council [2009] EWHC 1048 Mitting J considered an appeal involving a single incident of dishonesty. In that case the doctor had been suspended for 6 months and was facing two categories of allegation, namely, clinical performance and dishonest note keeping. No sanction was imposed in relation to the first. The suspension related to the second. Mitting J summarised what was common ground in the case when he said at [16], “Sanctions are imposed for the public interest, which includes protection of patients, the maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour. Given that purpose the panel are, in my view, clearly entitled to take into account, at the stage at which they determine fitness to practice is impaired, material other than the allegations which they have considered which suggest that it is either not impaired or that it is impaired.” Given that purpose the panel are, in my view, clearly entitled to take into account, at the stage at which they determine fitness to practice is impaired, material other than the allegations which they have considered which suggest that it is either not impaired or that it is impaired.”[23]Reference was made in the judgment to paragraph 44 of the GMC’s ISG where it says, “Dishonesty, even where it does not result in direct harm to patients but is, for example, related to the doctor’s private life, is particularly serious because it undermines the trust the public place in the profession…” “These cases always result in the balancing of one public interest against another. In cases of actual proven dishonesty the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one off incident of dishonesty.”[25]As to the duty to give reasons the case of Phipps v General Medical Council [2006] EWCA Civ 397 summarised the jurisprudence. Wall LJ, giving the lead judgment, referred to the case of Gupta v GMC at paragraph 14. That reads:
“14. Their Lordships would add this. They have rejected the submission that there is a general duty to give reasons in cases where the essential issue is one of the credibility or reliability of the evidence in the case. Nonetheless, while bearing in mind the potential pitfalls highlighted by Lord Mustill, the committee can always give reasons, if it considers it appropriate to do so in a particular case. Their Lordships would go further: there may indeed be cases where the principle of fairness may require the committee to give reasons for their decision even on matters of fact. Nothing in Selvanathan is inconsistent with that approach, while the general reasoning in Wallace supports it. It is also in line with the observations of Lord Steyn giving the judgment of the Board in Rey v Government of Switzerland [1999] 1 AC 54, [1998] 3 WLR 1. That case concerned extradition proceedings in the Bahamas in which the magistrate had not given reasons for her decision on certain disputed matters of fact. The Board was not prepared to hold that there is a general implied duty on magistrates to give reasons in respect of alldisputed issues of fact and law in extradition proceedings. Lord Steyn continued, however ([1999] 1 AC 54 at 66, [1998] 3 WLR 1 at 10): But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons. In the present case Mr Shaw, who appeared for the respondent council, accepted that in certain circumstances – which he said would be exceptional – there could indeed be a duty on the committee to give reasons for its decision on matters of fact. He gave examples of situations in which, he believed, such a duty might arise. He urged the Board to provide guidance to the committee on this matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live.”
[26]He continued at [85] and [86]:
“85. Whilst I fully accept that the instant case is not a proper forum for the promulgation of guidelines, my provisional view is that paragraph 14 of the decision of the Privy Council in Gupta v GMC identifies an approach which reflects current norms of judicial behaviour. In every case, as it seems to me, every Tribunal (including the PCC of the GMC) needs to ask itself the elementary questions: is what we have decided clear? Have we explained our decision and how we have reached it in such a way that the parties before us can understand clearly why they have won or why they have lost? ” 86. If, in asking itself those questions the PCC comes to the conclusion that in answering them it needs to explain the reasons for a particular finding or findings of fact that, in my judgment, is what it should do. Very grave outcomes are at stake. Respondents to proceedings before the PCC of the GMC are liable to be found guilty of serious professional misconduct and struck off the Register. They are entitled to know in clear terms why such findings have been made.”
[27]Against that background I consider the circumstances of this case.

Appellant’s submissions

[28]The appellant submits that at its heart the FPP were faced with a single occasion of when a doctor presented a false prescription. There were a number of personal factors concerning his medical treatment and personal circumstances which contributed to acute embarrassment on his part. He, therefore, sought to conceal the fact that the prescription was for him.[29]Following his arrest the appellant was required to account for what he had done. He deliberately downplayed his conduct which shows bad judgment and dishonesty. It is necessary that the medical profession is held to a high standard of account. But it is unrealistic to expect doctors to be immune from human emotions. In fact, the appellant volunteered three other prescriptions which he had falsely submitted in 2012. There was another in March 2011 which he had written but which had never been presented.[30]The allegations against him were, therefore, fivefold, i. his prescribing conduct; ii. his explanations and revelations thereafter; iii. his retention of the prescription pads; iv. the lapse of professional indemnity insurance; v. his failure to declare accurately two aspects of his employment history. That is not conduct such as to warrant erasure which is a disproportionate result.[31]The panel failed to acknowledge that the appellant had given evidence about the extent of his dishonesty. He was not cross examined on the topic nor questioned on it by the panel. There was no reasoning as to why his evidence was not accepted.[32]There is nothing that shows any weight being attached to references and testimonials including a letter from Dr Brunet whose signature the appellant forged. Those matters are simply noted. That, submits the appellant, is not enough.[33]The appellant’s admissions which have led to the finding of impairment needed to be properly taken into account. It is much harder to produce evidence of remediation. Although the respondent says that the references and testimonials are not impressive it is unclear what standard that is judged against. The brief allusion to the letters and statements fell far short of doing justice to their content.[34]There was an outstanding apology due to a doctor in his practice to whom the appellant had not been candid after his misconduct had come to light. However, the appellant had given a clear explanation that it was inappropriate to proffer the apology as Dr Walker was a witness and actively involved in the GMC case. That was ignored.[35]On CPD the panel acknowledged the work that the appellant had undertaken and counsellors whom he had seen to understand the issue of probity. There was evidence from his CBT therapist and a mental health professional which attested to the appellant’s desire to learn from the event and address any underlying reasons for his behaviour. By seeking personal and professional help the appellant has significantly reduced the risk of repetition.[36]The second ground of challenge was that the panel failed to have due regard to the underlying causes of the appellant’s misconduct, namely, his extreme unwillingness to admit to and seek help for his medical condition, and the absence of any evidence of desire for personal gain.[37]The panel’s approach it was submitted failed and, in fact, tended to misrepresent, the underlying medical cause of the appellant’s problems. The drugs were available to any patient, including the appellant. Whilst his conduct was dishonest it was not motivated by personal gain only shame. The description of the conduct as self serving was unfair.[38]The prescription that was written in 2011 was valid only for 6 months so that his retention of it was consistent with the appellant’s account within his witness statement of turmoil and uncertainty about his medical condition. There was an omission of a material consideration on the part of the panel.[39]The third ground of challenge was that the panel placed insufficient weight on the appellant’s candour during the FPP process.[40]Throughout the appellant’s evidence he admitted misconduct of which there was no other evidence. That formed a significant part of the conduct which led to his erasure even though it was not part of the charges that he faced.[41]The appellant accepted that he was not candid initially with his partners. But he was entirely candid in his answers to the panel. The panel relied upon his answers because they involved an admission of a greater amount of misconduct.[42]The panel failed to draw any distinction between the appellant’s conduct prior to his full disclosure and subsequently. The ‘theme’ of ‘very poor judgment resulting in dishonest acts’ is evidenced only by the appellant’s conduct prior to him seeking assistance.[43]The next ground of challenge relates to the manner in which the appellant’s forensic history was treated and relied upon, namely the conviction and caution in 2001 and 2002 respectively and a submission that that was unfair. Both offences were committed whilst the appellant was an undergraduate student and before he commenced his medical studies.[44]The panel unfairly placed reliance upon the appellant’s application to register with the Hampshire PCT. The panel noted the handwritten notes on the application form entreating the PCT to keep matters of the appellant’s caution and conviction confidential. The appellant submits that in making that understandable request for confidentiality on the part of the PCT he was doing no more than that which he was entitled to by law. It was not evidence of any dishonest behaviour. He was never asked any questions about it or given any opportunity to expand on the entries. He had no idea that he would be criticised for it until he received the determination.[45]The remaining head of criticism of the FPP is one of lack of insight on the part of the appellant into his conduct and the finding there was a very real risk of repetition.[46]The claimant accepts that the registrant facing sanction is the person with evidence of insight. However, that evidential burden does not equate to a persuasive burden.[47]It is submitted that the panel misdirected itself. There is no burden on the doctor to prove that he does have insight. It is contended that the appellant was disadvantaged. First, because in the assessment of insight the panel focused on his conduct prior to the hearing rather than his conduct at the hearing. Second, whilst charged with acts of dishonesty relating to his obtaining the prescription and failing to volunteer that conduct to his colleagues the panel focused on other conduct not forming part of the charge. Third, in relation to the request for discretion from the PCT the panel made adverse findings in relation to matters which would never have been understood by the appellant to be in issue.[48]The differing criticisms are cumulative. They reveal a fundamental failure to have regard to the cause of the appellant’s misconduct. The result is a decision which is wrong.

Respondent’s submissions

[49]It has to be recalled that the appellant gave evidence to the FPP for a day. The panel had an opportunity to ask questions of him and to form a judgement about him.[50]The approach to reasons is important as the sanction of erasure was imposed to protect the public interest. It is that interest, therefore, which the panel had to explain so that the public understood its action.[51]Where there is a reasons challenge but only one live witness and all the facts are admitted the position is not comparable to when there is a conflict of evidence and a preference has to be expressed for one part of the evidence over another.[52]The GMC submission before the FPP was clear, namely that the only appropriate sanction was one of erasure. The panel’s conclusions need to be considered in the light of the submissions made to it.[53]The extent to which evidence was given in private about the appellant’s condition and how it should be taken into account is part of the context that was before the panel. Very little was actually said other than the bare details of his condition and personal circumstances at the time.[54]As to the duty to give reasons the obligation on the panel was not to produce a judgment as if it came from the Chancery Division but to provide a determination for a doctor who receives not only that but the full transcript of the evidence. He is, therefore, able to look at it as a whole. The ultimate question is whether the doctor is able to understand why he was treated as he was. It is clear here that the seriousness of the misconduct and the effect on the public confidence in the profession were such as to warrant erasure.[55]The testimonials in the appellant’s case were part of the overall evaluation but were of limited weight when set against clear evidence of its repeated dishonesty. With one exception the appellant’s CPD was in the immediate run up to his FPP hearing.[56]Applying the ISG the presumption was that the appellant would be erased. Paragraph 82 of the guidance lists a series of factors where erasure may well be applicable. They are:
“82. Erasure may well be appropriate when the behaviour involves any of the following factors (this list is not exhaustive): a. particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor b. a reckless disregard for the principles set out in Good Medical Practice and/or patient safety. c. doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 112 -113 regarding failure to provide an acceptable level of treatment/care) d. abuse of position/trust (see Good Medical Practice paragraph 65 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”) e. violation of a patient’s rights/exploiting vulnerable persons (see, for example, Good Medical Practice paragraph 27 regarding children and young people, paragraph 54 regarding expressing personal beliefs and paragraph 70 regarding information about services) f. offences of a sexual nature, including involvement in child pornography (see further guidance below at paragraphs 92 -104) g. offences involving violence h. dishonesty, especially where persistent and/or covered up (see further guidance at paragraphs 105 -111 below) i. putting own interests before those of patients (see Good Medical Practice – “Make the care of your patient your first concern” on the inside cover and paragraphs 78 to 80 regarding conflicts of interest) j. persistent lack of insight into seriousness of actions or consequences.” a. particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor b. a reckless disregard for the principles set out in Good Medical Practice and/or patient safety. c. doing serious harm to others (patients or otherwise), either deliberately or through incompetence and particularly where there is a continuing risk to patients (see further guidance below at paragraphs 112 -113 regarding failure to provide an acceptable level of treatment/care) d. abuse of position/trust (see Good Medical Practice paragraph 65 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”) e. violation of a patient’s rights/exploiting vulnerable persons (see, for example, Good Medical Practice paragraph 27 regarding children and young people, paragraph 54 regarding expressing personal beliefs and paragraph 70 regarding information about services) f. offences of a sexual nature, including involvement in child pornography (see further guidance below at paragraphs 92 -104) g. offences involving violence h. dishonesty, especially where persistent and/or covered up (see further guidance at paragraphs 105 -111 below) i. putting own interests before those of patients (see Good Medical Practice – “Make the care of your patient your first concern” on the inside cover and paragraphs 78 to 80 regarding conflicts of interest) j. persistent lack of insight into seriousness of actions or consequences.”
[57]A doctor was provided with a copy of the ISG guidance when he was served with a notice of the hearing. Dishonesty has its own section. The fact that a doctor’s dishonesty may have no direct effect on the patient does not detract from its gravity. As paragraph 108 of the ISG says, “Dishonesty even when it does not result in direct harm to patients but is for example related to matters outside the doctor’s clinical responsibility, e.g. providing false statements or fraudulent claim for monies, is particularly serious because it can undermine the trust the public place in the profession. The Privy Council has emphasised that:
“Health authorities must be able to place complete reliance on the integrity of practitioners; and the committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole.” ” “Health authorities must be able to place complete reliance on the integrity of practitioners; and the committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole.” ”
[58]At paragraph 111 the ISG says, “Dishonesty, especially where persistent and/or covered up is likely to result in erasure (see further guidance at paragraph 82 above)”[59]The case of Raschid v GMC (supra) establishes that special respect must be had to the judgment of the panel. Although impairment and sanction are separate stages overall the assessment will be on the seriousness of the conduct. The panel has to consider whether the sanction is proportionate in that context.[60]The background to the challenge based on the medical condition is a contention that the panel failed to have regard to it. The more that the appellant relied upon his condition the more concerning was the issue of self medicating rather than seeking independent advice. His condition was a matter going to mitigation. As the case has been about the public interest and that is the reason for the imposition of the sanction his condition and personal mitigation is of less relevance.[61]At the hearing there was questioning by the medical members of the panel which showed that they understood the appellant’s condition. They probed whether the appellant was suffering from the level of embarrassment that he claimed was the explanation for his conduct.[62]The panel was required to take into account the appellant’s dishonesty examples of which were widespread and over time. He had lied in his police interview and in his interview with the primary care trust. He said his concern was with the possible loss of his job but he continued to provide inconsistent accounts as to why he had used old prescriptions.[63]When the appellant was asked why he did not tell Dr Walker of his own practice of his plight soon after the 7th August 2012 he replied, “There was so much to tell Dr Walker at that point: there was the arrest, there was obviously in relation to self prescribing █████████████████████; I falsified a prescription in order to obtain that. I was arrested and in addition to saying that I had indemnity break, it was incredibly difficult to say that and that was my grave mistake as actually I was frightened, terrified. I had only been working at the practice for a very short time. I was fearful I would lose my job, which, to be frankly honest that was the reason, and I was concealing bits of information and I wanted to release it in a very slow manner because releasing everything in one go would have given- the repercussions would have been massive and I knew that and I have to say that I had concealed it.”[64]Later he was asked whether he accepted that there was a pattern which demonstrated that when he faced a difficulty and the path divided between the honest and dishonest actions he had, over the years, taken the dishonest path to get himself out of immediate problems that he faced. He responded, “I appreciate that and that has been the reason why I have actually gone to CBT and first initiative through the counselling and the counselling felt it was more appropriate through CBT it is an active process I am trying to understand my counsellor has said that, you know, I have taken shortcuts when I should not be and I am actively trying to address that and learn from it but you are right, I have taken, when faced with some difficult situation in the past I have- I genuinely feel I have learnt from it and I know this is an ongoing process which I am doing through everything I can.”[65]In the light of the evidence overall the panel were quite entitled to arrive at the conclusion that they did as to the question mark about the long term probity on the part of the appellant.[66]On unfairness the panel’s concerns needed to be looked at overall. The appellant had been taken through the relevance of his criminal conviction and caution in cross examination. The appellant had said that he had learnt his lesson but in 2009 he was making his PCT application and acted dishonestly again.[67]The previous conduct was clearly relevant as is clear in the case of Council for Health Care Regulatory Excellence v Nursing and Midwifery Council and Paula Grant [2011] EWHC 927 where Cox J in commenting on the decision of Silber J in R (on the application of Cohen) v General Medical Council [2008] EWHC 581 said at [67] and [68]: “67. In Cohen Silber J was concerned with serious professional failings by a consultant anaesthetist, on an isolated occasion, in relation to a patient undergoing major surgery. There was little dispute as to the facts, most of which appear to have been admitted. Against that background the judge said as follows, in relation to impairment of fitness to practise: "[62] Any approach to the issue of whether a doctor's fitness to practise should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the'(sic). In my view, at stage 2 when fitness to practise is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practise has been impaired. It must not be forgotten that a finding in respect of fitness to practise determines whether sanctions can be imposed: s 35D of the Act. [63] I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practise is impaired. [64] There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner's fitness to practise has been impaired. Indeed s 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practise is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'. [65] Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the Appellant were 'easily remediable'. I concluded that they did not consider it relevant at [that] stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so."70. An assessment of current fitness to practise will nevertheless involve consideration of past misconduct and of any steps taken subsequently by the practitioner to remedy it. Silber J recognised this when referring, at paragraph 65, to the necessity to determine whether the misconduct is easily remediable, whether it has in fact been remedied and whether it is highly unlikely to be repeated.71. However it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of his judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession. ” "[62] Any approach to the issue of whether a doctor's fitness to practise should be regarded as 'impaired' must take account of 'the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence in the'(sic). In my view, at stage 2 when fitness to practise is being considered, the task of the Panel is to take account of the misconduct of the practitioner and then to consider it in the light of all the other relevant factors known to them in answering whether by reason of the doctor's misconduct, his or her fitness to practise has been impaired. It must not be forgotten that a finding in respect of fitness to practise determines whether sanctions can be imposed: s 35D of the Act. [63] I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practise is impaired. [64] There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practise has not been impaired. Indeed the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner's fitness to practise has been impaired. Indeed s 35D(3) of the Act states that where the Panel finds that the practitioner's fitness to practise is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'. [65] Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the Appellant were 'easily remediable'. I concluded that they did not consider it relevant at [that] stage because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so."[68]Notwithstanding those paragraphs are focused on the issue of impairment they are clearly applicable to the question of sanctions.[69]On the question of insight the question for the FPP is whether the doctor’s fitness to practise is impaired at the date of the hearing which requires the FPP to consider the whole of the doctor’s conduct. In a case involving dishonesty the FPP will inevitably have regard to past conduct as an indication of the doctor’s probity. Although there were some criticisms of the legal assessor’s advice on the papers the appellant was represented by counsel throughout and had the opportunity to comment on the advice and made no comment upon it. There has been no suggestion in the hearing that the legal assessor’s advice rendered the panel’s decision unfair.

Discussion and conclusions

[70]I bear in mind in considering the submissions that a principal purpose of a sanction imposed by the FPP is the preservation and maintenance of public confidence in the medical profession. As a result it is necessary to accord special respect to its judgment. As Laws LJ said in the case of Raschid v GMC (supra), “the High court will correct material errors of fact and, of course, law and it will exercise its judgment, though distinctly and firmly a secondary judgment as to the application of the principles to the facts of the case.”[71]The decision on impairment has been made and is not challenged in this case. My sole concern is the issue of appropriate sanction. But, in so considering, the assessment on the seriousness of the misconduct is essentially a matter for the panel in the light of its experience. In this case the committee comprised a chair and two medical members. The medical members were able to question the appellant when he gave his evidence as to his underlying condition and its implications. They would be well qualified also to understand what measures were required to maintain the standards and reputation of the profession. It is clear from their determination that the issue of proportionality was expressly part of their judgment and that having set that out that erasure was the appropriate sanction.[72]In dealing with erasure the ISG says at [79], “The Gupta judgment which adopted the approach set out in Bolton v The Law Society emphasised the GMC’s role in maintaining justified confidence in the profession and, in particular that erasure was appropriate where despite a doctor presenting no risk: The appellant’s behaviour demonstrated a blatant disregard for the system of registration which is designed to safeguard the interests of patients and to maintain high standards within the profession.”[73]Paragraph 82 of the ISG sets out a non exhaustive list of factors where erasure may well be appropriate. I have set out its contents above. On the factual findings made by the panel the appellant contravened five of them.[74]The panel recorded that the case involved numerous acts of dishonesty and that the panel considered that the appellant’s dishonest acts had been persistent and covered up. The issue of probity, therefore, was fundamental to the consideration of appropriate sanction in the case of the appellant.[75]The FPP was criticised for giving bare acknowledgment to the fact that the appellant had given evidence about more extensive dishonesty than he faced on the charges before the Panel. The fact that there was no cross examination of that part of his evidence and no questioning by the panel was submitted to make their findings even more unfair.[76]The FPP clearly took into account the full admissions made by the appellant including those which were not the subject of charges. The decision records those together with the courses undertaken by the appellant on probity within professional practice for health care professionals. It records also the fact of the appellant seeking professional help to manage his health and behavioural matters. Those matters were taken as findings in favour of the appellant to be balanced on one side of the equation.[77]In the same way the panel noted the apology to Dr Brunet, the testimonials supplied by the appellant and that no issues had been raised at any time with respect to the appellant’s clinical performance. In my judgement it is not correct to describe the approach of the panel as a bare acknowledgment. The matters were all set out as material considerations relevant to the panel’s determination. They were also matters relating to the appellant’s personal circumstances.[78]Having set out those matters it was the duty of the panel to weigh the matters in favour of the appellant against the matters that were adverse to him. There was, in my judgment, no higher duty, as appeared to be submitted by Mr Darbishire QC for the appellant, in the circumstances of this case for the panel to give greater weight to matters in favour of the appellant or, if not doing so, to provide its reasoning as to why the evidence was not accepted. The problem with that submission is that it rests upon a hypothesis which is not accurate. The panel clearly did accept the evidence in favour of the appellant and regarded it as true. What it did not accept was that greater weight should attach to matters of personal mitigation. The weight to be attributed to personal mitigation was a matter entirely and properly within the discretion of the panel.[79]The panel accepted the remediation work that the appellant had done and that he had seen counsellors in an attempt to understand why he behaved as he had and how to correct his behaviour (see 17F-G). Again, those favourable matters were weighed against the acts of dishonesty. The fact that many such acts occurred and were covered up meant that the panel was unable to conclude that the appellant had developed sufficient insight into the gravity of what he had done. Far from there being anything wrong in the approach of the panel it seems to me that it approached its task of balancing the material considerations in an impeccable and fair manner.[80]On the underlying medical cause the appellant submits that the panel failed to have due regard to the appellant’s explanation and, therefore, omitted a material consideration. The inference is that the matter was not taken into account. I cannot accept that submission given the content of [17B] of the determination. That is a clear record that the appellant did not seek appropriate independent medical advice and, instead, presented false prescriptions. When that is read in conjunction with the transcripts which the appellant received it is perfectly evident that he was asked questions about his medical condition. The panel was alive to the fact that it was possible to write a private prescription that could have been presented at a pharmacy that was not local: a proposition which the appellant accepted.[81]The reasoning of the panel on this point is short but records what the appellant did, namely, presenting a false prescription which led to his detection. It was that act rather than seeking prior appropriate independent medical advice which the panel found to be extremely poor judgment and self serving as well as a clear abuse of his position as a doctor. Their conclusion was thus reached taking into account the underlying medical condition and their reasoning based on the appellant’s behaviour is clear. There is no legal error in the approach of the panel.[82]As to candour the ISG says at [34] “This insight- the expectation that a doctor will be able to stand back and accept that, with hindsight, they should have behaved differently, that it is expected that he/she will take steps to prevent a recurrence- is an important factor in a hearing. When assessing whether a doctor has insight the panel will need to take into account whether he/she has demonstrated insight consistently throughout the hearing e.g. has not given any untruthful evidence to the panel or falsified documents. But the panel should be aware that there may be cultural differences in the way that insight is expressed for example, whether or how an apology of expression or regret is framed and delivered and the process of communication and that this may be affected by the doctor’s circumstances for example their ill health. ”[83]The claimant submits that the guidance shows that the doctor’s state of mind is to be assessed at the hearing. Where a doctor produces unchallenged evidence there needs to be cogent evidence to reject it as unreliable, inadequate or insufficient. There is an important difference between conduct that is so dire that requires erasure without reference to insight and other conduct. Throughout the appellant’s evidence before the panel he admitted misconduct beyond that which he was facing, that demonstrated insight into his condition.[84]As set out the panel clearly took the extent of the appellant’s admissions into account as one of the factors in the appellant’s favour. The problem for the appellant is that was only one side of the balance. The appellant had lied to the police in his interview with them in August 2012, he had been disingenuous in his PCT interview and misled his partners in his medical practice, firstly, as to the gravity of the allegations that he was facing and, secondly, in relation to his failure to ensure indemnity insurance cover. Those were all factors which counterbalanced an earlier approach of candour. There was a considerable history of lack of candour as I have set out. The panel was quite entitled to take the earlier matters into account in coming to its ultimate conclusion.[85]That overlaps with the claimant’s next criticism of the treatment of the forensic history and previous criminality on the part of the appellant in 2001 and 2002. It is clearly right, as recognised in the case of Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council and Paula Grant[2011] EWHC 927 for a panel, when coming to a judgment as to the likelihood of repetition of the admitted misconduct, to take a longitudinal view. There was sufficient evidence before the panel going back to 2001 to enable it to conclude that the earlier incidents were clearly relevant. There was a pattern of behaviour which was repeated on occasions when the appellant was under pressure.[86]The manuscript request on the part of the appellant on the 2009 PCT application form together with the addenda to that form is in itself honest but contains the phrase imposed in the appellant’s handwriting “deeply regret event and have learnt from it.” It was open to the panel to conclude, as they did, that the appellant had not learnt from his earlier encounters with the criminal justice system by his behaviour in 2009, 2011 and 2012.[87]Next, the appellant submits that the reasoning at [17E] of the determination as to the cancellation of indemnity insurance without putting a replacement in place in terms of sanction is no reasoning at all. It is more relevant to the issue of impairment which had already been determined.[88]I reject those submissions. The panel found that although the appellant knew of the need for insurance cover he failed to ensure it was in place contrary to the mandatory requirement in GMP. The panel cited that as a further example of very poor judgement. It was equally apposite, therefore, to the prospect of repetition and the question of sanction[89]What the panel was doing was setting out the various factors which they took into account as part of their overall judgement on the gravity of the appellant’s behaviour to determine the appropriate sanction. That meant they could reach an overall judgment balancing the considerations of private mitigation against public interest, including the degree of insight demonstrated by the appellant and the consequent risk to the public that could ensue if he remained in practice. Their reasoning was quite clear and adequate; it measured the appellant against the standards set out in GMP which the panel found had been recklessly disregarded. I can find no flaw in the way that the panel approached its assessment.[90]The appellant submits further that his criticisms are cumulative so that taking all his points together there is a fundamental failure on the part of the panel.[91]I have found that each of the criticisms that have been made by the appellant is entirely without foundation. Together, in the circumstances of this case, it is impossible to conclude that the criticisms have any greater weight than they do individually and that there has been any fundamental failure.[92]In my judgment, the panel approached the exercise on sanction with care. They went through all matters that were raised. They came to a conclusion that they were entitled to on the evidence before them and provided adequate reasoning for the task which they had to discharge. They were entitled to look beyond the charges that the appellant was facing to take into account his overall professional history to come to a conclusion which was fair and in the public interest.[93]A decision on the part of an FPP is to deal with the principal controversial issues that are raised and not to provide a fully detailed judgment on every single point. The FPP went through the sanctions as they had to do starting with the least serious and progressing through them in an escalating fashion to examine the risk to the public. It concluded that the risk of repetition and lack of insight on the part of the appellant were critical factors that led to its conclusion that the defendant’s probity could not be relied upon so that suspension was not the appropriate sanction. Erasure was then the remaining and appropriate option. On a proper and fair reading it is evident to the appellant why they concluded that erasure was the appropriate sanction in this case.[94]For those reasons the determination by the FPP is unimpeachable. This appeal is dismissed.[95]Following written submissions on costs and on anonymity I order that the appellant do pay the respondent’s costs in the sum of £11,048.70 (the reduction being to reflect the attendance at court by the solicitor for less than a whole day). It is not appropriate to make any other reductions as the costs claimed are proportionate for a hearing of this type.[96]On anonymity I have made changes to reflect that parts of the hearing were held in private. The remainder of the hearing was in public as was that before the MPTS. This judgement reflects that.

Cited in 1 later judgment