Oluwashegun v General Medical Council [2015] EWHC 2146 (Admin)

[2015] EWHC 2146 (Admin)Case No CO/3140/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 24 th July 2015
Before
SIR STEPHEN SILBERSitting as a Judge of the High Court
Between
Dr Danielle OluwashegunAppellantGeneral Medical CouncilRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedTrading as DTI165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person for in personNigel Grundy (instructed by General Medical Council of Manchester) for RespondentHearing Hearing date: 15 th July 2015
JudgmentSir Stephen Silber:Introduction
[1]Dr Daniellle Oluwashegun (“the appellant”) appeals against a decision of the Fitness to Practise Panel of the Medical Practitioners Tribunal Service (“the Panel”) made on 11 June 2014 ordering that her name be erased from the Medical Register.[2]The background to the decision now under appeal is that the appellant’s registration had been subject to conditions set out in an Interim Order (“the 2012 Interim Order”) made by the Interim Orders Panel (“IOP”) on 5 January 2012. It was later reviewed and maintained on 20 June 2012. Its conditions are set out in the Schedule attached hereto.[3]The significance of the 2012 Interim Order was that the terms of the appellant’s registration required her to inform “any prospective employer or contracting body (at the time of application) [that her] registration is subject to the conditions [in the 2012 Interim Order]”. The case against the appellant is that she did not do this during the course of two job applications and that in the interview for one of them, she stated that she was not the subject of such conditions. The complaint against the appellant was that she did not notify prospective employers at the time of the application that she was subject to the conditions in the 2012 Interim Order. It is noteworthy that one of the conditions in the 2012 Interim Order was that that the appellant “ must …not undertake any private practice” but the applications with which this appeal is concerned were for working in private practice.[4]More specifically, the case for the GMC before the Panel was that the appellant: i) In or around October 2012 during her application process with Ellern Mede Ridgway (“EMR”) failed to disclose that her GMC registration was subject to conditions which had been imposed by the IOP on 5 January 2012 as required by those conditions (Paragraphs 1); ii) In or around October 2012 during the application process with the Cambian Group (“Cambian”) failed to disclose that her GMC registration was subject to such conditions, as required by those conditions (Paragraphs 2); iii) Represented that her GMC registration was not subject to such conditions during her interview with Dr. Skalbania of Cambian (Paragraphs 3); and iv) The conduct referred to at paragraphs 1, 2 and 3 was dishonest (Paragraphs 4); “And that by reason of the matters set out above your fitness to practice is impaired because of your misconduct”[5]After a hearing which lasted for eight days in which there had been extensive examination of the evidence, the Panel found each of these matter proved and that the appellant’s evidence was “not credible” and was “presented with calculated dishonesty”. In contrast, the Panel considered that the evidence called by the GMC, namely the witnesses from EMR (Dr. Al-Khairulla) and Cambian ((Dr. Skalbania) was credible and consistent.[6]The Panel found that the appellant’s conduct amounted to serious misconduct and it then proceeded to consider what proportionate sanction should be imposed starting with the most lenient and then moving up the scale of severity. It explained that it was not appropriate to impose any order on the appellant other than the erasure of her name from the Register in the light of the seriousness of the misconduct proved against her and the need to protect the public interest in maintaining public confidence in the profession. The Panel concluded reasoning that the appellant’s conduct was fundamentally incompatible with her continuing to be a registered medical practitioner, and therefore that it would be both proportionate and necessary in the public interest to direct that the appellant’s name be erased from the medical register.

Grounds of Appeal

[7]The appellant has appealed and in her detailed and very wide-ranging oral and written submissions, she has contended that i) She was not bound by the terms of the 2012 Interim Order during her application process with EMR and Cambian in October 2012 and therefore she was not obliged to tell them of the 2012 Interim Order (“Issue 1: The Effect of the 2012 Interim Order Issue”); ii) The Panel should not have accepted the evidence of Dr. Kalbania and of Dr. Al-Khairulla (“Issue 2: The Credibility of the GMC Witnesses Issue”); iii) The Panel failed to attach weight to the appellant’s good character and should have accepted her evidence (“Issue 3: The Credibility of the Appellant Issue”); iv) The Panel should not have found the appellant to be dishonest (“Issue 4: The Dishonesty Issue”); v) The Panel ought not to have found that the her fitness to practice was impaired (“Issue 5: The Fitness to Practice Issue”); vi) The sanction of immediate erasure was disproportionate (“Issue 6:The Sanctions Issue”) and vii) There are various other reasons why the appellant’s appeal should be allowed (“ Issue 7: The Sundry Issues”)

The Approach of an Appellant Court to a Decision of the Panel

[8]This Court can allow an appeal where the decision of the panel is wrong (CPR 52.11 (3) (a)). In the light of some of the submissions of the appellant, it is appropriate to set out some of the guidance given by the Court of Appeal as to how this court should deal with appeals from fact-finding bodies and, in particular, when this court can interfere with decisions of the Panel.[9]Those established principles are that: i) “The court must have in mind and must give such weight as appropriate in the circumstances to the following factors- a) The body for whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practise deserves respect; b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, akin to jury questions to which there may reasonably be different answers”. Meadows v GMC [2007] QB 462 [197] per Auld LJ); ii) The Appeal Court conducting a review of the trial Judge’s decision would not conclude the decision was wrong simply because it is not the decision the Appeal Judge would have made had he or she been called on to make it in the court below. Something more is required than personal unease and something less than perversity has to be established… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible”.(Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577 [197] per Ward LJ); iii) “The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow” (ibid); iv) “First as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon as assessment of the credibility of witnesses are virtually unassailable” ( Southall v GMC [2010] EWCA Civ 407 [47] per Leveson LJ with whom Waller and Dyson LJJ agreed); and v) “A principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession rather than the administration of the retributive justice, particular force is given to the need to accord special respect to the judgment of the profession decision-making body in the shape of the Panel”. (Fatnani and Raschid v GMC [2007 EWCA Civ 47 [19] per Laws LJ).

Issue 1: The Effect of the 2012 Interim Order Issue

(i) Introduction

[10]The case for the GMC is that the appellant was bound by the terms of the 2012 Interim Order during her job-application processes with EMR and with Cambian in October 2012 .The appellant disagrees and contends that the 2012 Interim Order did not bind her in October 2012 when she was engaged in the application processes with EMR and Cambian because i) The 2012 Interim Order should not have been made; ii) A letter of 7 September 2012 from the GMC to Powell Spencer and Partners indicated that that the appellant was permitted to work as an expert witness in breach of conditions (5) and (6) of the 2012 Interim Order and according to the appellant, this indicated to her that these conditions had “been set aside”; and because (c). The 2012 Interim Order was later revoked.[11]The answer to each of these complaints is, as I will explain, that in October 2012 when the appellant is said to have failed to comply with the 2012 Interim Order, the Order was in force and it had not been revoked. Thus it had to be complied with by the appellant. (ii). Is it relevant that the appellant considered that the 2012 Interim Order should not have been made?[12]The remedy of the appellant if dissatisfied with the existence and the terms of the Order was to seek the termination of it pursuant to an application made under section 41 A(10) of the Medical Act 1983.[13]The Appellant did not avail herself of that or any other remedy and so she continued to be bound by the terms of the 2012 Interim Order in October 2012. It is no defence to a claim that a party has acted in breach of an interim or any other order of the GMC that the order in question should never have been made if that party has not had it terminated. Parties do not have the option of not complying with any existing Interim Order in force and they must comply with it even if they believe that it should not have been made. In other words, the submission of the appellant that the 2012 Interim Order should never have been made, even if correct, does not mean that she was not bound by its terms when it had not been revoked. So this belief on the appellant's part that it should not have been made did not constitute any justification or any excuse for the appellant not complying with the terms of the 2012 Interim Order.[14]The appellant gave evidence that she had taken advice about the effect or validity of the 2012 Interim Order, but the stark fact is that she continued to be bound by it until it was later revoked. The Panel noted that the appellant acknowledges having seen subsequently the minutes of the Case Management Stage 1 Telephone Conference which took place on 11 September 2012 and they indicated that the interim order remained in force.[15]In coming to that conclusion, I have not overlooked the submission of the appellant that the 2012 Interim[16]Indeed none of those matters excused the appellant from complying with the terms of the 2012 Interim Order while it was in force. (iii). The 7 September2012 letter from the GMC[17]The letter of 7 September 2012 was sent by the GMC in response to a request from Messer Powell Spencer & Partners who had asked the GMC if the 2012 Interim Order would affect the ability of the appellant to act as an expert witness in a Family Division case. A copy of a Court Order was provided in which information was sought regarding the appellant’s status to give evidence in family proceedings.[18]In its letter of reply of 7 September 2012, the GMC explained that the appellant was subject to the 2012 Interim Order and that “there was no regulatory objection to [the appellant] giving evidence” in those proceedings. The appellant has sought to allege that the response of the GMC of 7 September 2012 to the request from Powell Spencer & Partners entitled the appellant to disregard the 2012 Interim Order because it facilitated or authorised a breach of the Order.[19]I disagree as the letter did no such thing as it explained that the appellant’s “registration is subject to the conditions imposed by the Interim Orders Panel on 5 January 2012and maintained on 20 June 2012(enclosed) , pending resolution of a statutory Fitness to Practice investigation …which is to be put before the Medical Practitioners Tribunal Service on a date in the future” (iv). What is the effect of later revocation of the 2012 Interim Order?[20]The 2012 Interim Order was revoked after October 2012 and the appellant contends that this shows that her present appeal should be allowed. The circumstances in which the 2012 Interim Order came to be revoked was that Cambian and EMR reported to the GMC in November 2012 their concerns that the appellant had failed to disclose to them during the appellant’s job application of the existence and the nature of the condition in the 2012 Interim Order affecting her registration.[21]By a letter from the GMC dated 1 November 2012, the appellant was informed that the Interim Order of Conditions would be reviewed by the IOP at a hearing on 3 December 2012. At that hearing, the IOP determined that there might have been repeated breaches of the Interim Order of Conditions imposed on the appellant’s registration. The Panel then decided to vary the2012 Interim Order to one of suspension of the appellant’s registration.[22]On 20 January 2013, the GMC wrote to the appellant informing her that many of the original charges were being dropped, but that an investigation into other matters would continue. On 11 February 2013, the IOP revoked the order of suspension[23]The fact that the 2012 Interim Order was revoked in 2013 did not affect its validity in October 2012. Indeed the fact that it was later revoked is irrelevant to the issue as to whether the appellant was bound by the existing Interim Order in October 2012, and its subsequent revocation did not excuse what would have been breaches of the Order in October 2012.

(v) Conclusion

[24]The appellant was bound by the terms of the 2012 Interim Order during her application process with EMR and the Cambian Group in October 2012 and the Panel was correct to find this.

Issue 2: The Credibility of the GMC Witnesses Issue

[25]As I have explained, the Panel was very critical of the evidence and conduct of the appellant, while it accepted the evidence from the GMC witnesses who were Dr Skalbania of Cambrian and Dr Hind Al-Khairulla, who was the clinical director with EMR. The appellant attacked before the Panel and on this appeal the credibility of these witnesses who she accused of lying. She also made allegations of Dr Skalbania’s sexually inappropriate conduct towards her during her interview on 25 October 2012.[26]The Panel considered with care the credibility of the witnesses and they found Dr Skalbania to be a credible and consistent witness whose oral evidence was supported by written evidence including a contemporaneous note. It considered significant the facts that first, there was a genuine expression of shock on Dr Skalbania’s part at the appellant’s allegation of sexual impropriety, and second, that despite the alleged impropriety, the appellant nevertheless still accepted a job offer which would have involved her working with Dr Skalbania.[27]The Panel accepted Dr Skalbania’s evidence that he had made enquiries of the appellant of her GMC registration because he was unsure about her career breaks and in consequence he was digging further and exploring why she had not been working at certain times. His evidence was that he had asked the appellant “what about your GMC registration?” or words to the effect to which he said she had “full GMC registration with license to practise”. The Panel was satisfied that the appellant was asked directly and replied that her registration was not subject to conditions.[28]Dr Al-Khairulla, the clinical director with EMR, was willing to admit that she was unable to recall elements of the interview of the appellant, but she explained that she was able to recall salient parts of it. She stated that she always asked at the end of the interview whether there was anything that the interviewee wished to disclose. Her evidence was that at this stage, she would have expected the appellant to disclose the conditions imposed on her in the 2012 Interim Order. The Panel was entitled to conclude first, that she had no reason to lie about these events, second, that she was credible and competent, and third, that her evidence was coherent and logical.[29]The appellant challenges these findings. She points out that Dr. Skalbania was unable to recall large parts of the interview on 25 October 2012 while his evidence was “largely inconsistent and contradictory”. The appellant also criticised the oral and written evidence of Dr. Al-Khairulla as being inconsistent and contradictory.[30]I am unable to accept these criticisms of the Panel’s conclusions on these two witnesses. The Panel were the decision- makers who had the great advantage, which I did not have, of having seen the witnesses give evidence and how they stood up to cross-examination. In addition, the Panel gave sensible, cogent and clear reasons for accepting the evidence of these witnesses as I have explained and I accept their conclusions.[31]I am fortified in reaching that conclusion by the statement of Leveson LJ, with whom Waller and Dyson LJJ agreed, that: “it is very well established that findings of primary fact, particularly if founded upon as assessment of the credibility of witnesses are virtually unassailable” ( Southall v GMC [2010] EWCA Civ 407 [47] ).

Issue 3: The Credibility of the Appellant Issue

[32]The appellant adduced evidence of her good character and she produced supporting references, but she complains that the Panel did not take account of the evidence of her good character and in particular the supporting evidence from Dr. Glaze, Dr. Subhu Muthalagu, Dr. Balogun and Dr. Danilewicz which the appellant says was acknowledged by the Panel’s Legal Assessor but not by the Panel.[33]The appellant had the opportunity to take the Panel through the relevant documents and so she could have drawn its attention to all relevant material. I have no reason to believe that she did not do so. In its reasons, the Panel recorded that it had received evidence in the form of testimonials of the appellant, which formed part of the evidence. There was no need for them to refer to each testimonial in its reasons, although it did so in the case of Mr. Danilewicz. There is no reason to believe that all this good character evidence was not considered especially as in its Reasons, the Panel accepted that the appellant’s clinical competence had not been called into question and that her testimonials attest to her clinical skills.[34]The second complaint made by the appellant is that the Panel declined the appellant’s invitation that oral evidence should be adduced from Dr. Danilewicz on the phone. The Panel was entitled to refuse this invitation as the written evidence from this witness was not challenged by the GMC and the Panel had no questions for him. It can be safely expected and assumed that Dr. Danilewicz would have set out everything of importance in his written evidence.[35]The third complaint is that the Panel was not entitled to conclude that the appellant was not a credible witness. It was given a proper direction on the legal approach to be adopted in considering the appellant’s good character and it was clearly taken into account. Even so, the Panel found the appellant’s evidence not to be credible and that her responses during a cross-examination and to questions from the Panel were evasive. It explained that the appellant had deliberately and wilfully misinterpreted the GMC’s letter of 7 September 2012 and the court order and that the appellant had built her case around this belief. The Panel noted that this was in spite of the fact that the appellant acknowledged having seen subsequently the minutes of the Case Management Stage 1 Telephone Conference which took place on 11 September 2012 and which indicated that the 2012 Interim Order remained in force.[36]It was the view of the Panel that there was no ambiguity in GMC’s letter of 7 September 2012 and the Court Order, but even if that was the appellant’s genuine belief, she had access to legal advice or she could have contacted the GMC to seek clarification, but significantly, she did not take advantage of these opportunities.[37]The Panel gave a number of other reasons for finding the appellant not to be credible, including that it did not consider her allegations against Dr Skalbania and Dr Al-Khairulla to be credible. Indeed the Panel concluded that the appellant had: “presented her case with calculated dishonesty and lied in relation to Dr Skalbania and Dr Al-Khairulla in a concerted attempt to discredit their testimony”.[38]In reaching that conclusion the Panel had taken account of documents adduced by the appellant relating to her qualifications, her work experience and testimonials adduced on her behalf. In my view, the Panel as the specified fact-finder was entitled to conclude that the appellant’s evidence could not be accepted as being credible.[39]I must stress that, as I have explained in paragraph 9(i) above, the Court of Appeal has concluded that the Panel is entitled to deference as its members, as they, unlike me, had heard the evidence and reached conclusions open to it for reasons comprehensively and comprehensibly explained. I have already pointed out in paragraph 9(iv), the Court of Appeal has explained in Southall that “findings of primary fact , particularly if founded upon an assessment of the credibility of witnesses are virtually unassailable”. That comment fortifies my conclusion.

Issue 4:The Dishonesty Issue

[40]A recurrent complaint of the appellant is that the case against her amounted to an allegation that “ she is alleged to have committed the offence of dishonesty” and then reliance is placed on the provisions of Article 7 of the European Convention on Human Rights which states that: “No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”.[41]This argument of the appellant assumes incorrectly that the case against her is that she committed an offence of dishonesty while the allegation is the very different one that she acted dishonestly. There is a great difference between a person committing an offence of dishonesty and a person acting dishonestly which does not entail a breach of the criminal law. So if a person says that he or she has read a particular book or visited a particular place when he or she knows that these statements are incorrect, he or she is acting dishonestly, but significantly he or she is not thereby committing an offence of dishonesty.[42]In this case, the allegation is that the appellant acted dishonestly in failing to tell EMR and Cambian of the conditions which had been imposed on her in the 2012 Interim Orders and in her allegations in evidence. It was not part of the GMC’s case or part of the reasons of the Panel that the appellant had committed an offence of dishonesty, but as is stated in count 4, which is set out in paragraph 4 above, that the conduct referred to in counts 1, 2 and 3 was dishonest. The submission of the appellant relying on Article 7 ECHR is therefore flawed as relying on a false basis which was that the appellant had been accused of committing an offence, which is not the GMC’s case and never has been.[43]The Panel was given a proper Ghosh direction as to the meaning of dishonesty in relation to count 4 and it was properly applied. The appellant has no legitimate complaint against the use of such a direction as its purpose and effect is to protect a person against whom allegations of dishonesty are made as it requires proof of dishonesty on both a subjective and on an objective basis.[44]The Panel was quite entitled to reach its conclusion that the appellant had acted dishonestly as her conduct met the objective and subjective test for dishonesty as:
“The Panel is of the view that [the appellant] deliberately and wilfully withheld this information [relating to the conditions imposed on her in the 2012 Interim Order] during interviews as she knew were she to disclose it the prospect of securing a job offer was remote By any standard, not disclosing conditions concerning one’s professional standing when seeking employment is dishonest. The Panel was wholly unconvinced by [the appellant’s] assertions that she did not know this. The relevant documentation is explicit and the justification she puts forward for believing the condition no longer applied or ‘ had been set aside’ is simply not credible”
.

Issue 5:The Fitness to Practice Issue

[45]Having completed Stage 1, the Panel proceeded to consider in accordance with the approach advocated in Cheatle v GMC [2009] EWCA 645 (Admin) whether on the facts proved, the appellant’s fitness to practice was impaired by reason of her misconduct and this entailed considering first, whether the facts found amounted to serious misconduct and second, if the facts found proven amounted to serious misconduct, whether in all the circumstances the appellant’s fitness to practice was then currently impaired as a result.[46]The Panel found first, that the appellant’s conduct fell far short of the standards expected of a medical practitioner so that it was satisfied that her conduct amounted to serious misconduct and second, that her fitness to practice was impaired by reason of her misconduct.[47]The appellant argues that because the appellant’s particular form of dishonesty is not particularised within “Good Medical Practice” it cannot be relied on to make a finding of misconduct or impairment. It is true that the Panel placed reliance on statements in that publication that: “56. Probity means being honest and trustworthy, and acting with integrity: this is at the heart of the medical professionalism. 57. You must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession” [sic][48]The Panel had referred to the appellant deliberately and wilfully withhold the information relating to the conditions imposed on her in the 2012 Interim Order during her interviews as I explained in paragraph 44 above. The Panel also said of the appellant that: “[her] persistent and dishonest conduct constitutes a serious departure from fundamental tenants of [Good Medical Practice] and the standards expected of a registered medical practitioner. This was not an isolated incident as her misconduct was repeated and took place over several weeks. The Panel considers that [the appellant’s] conduct has been aggravated by her maintaining her stance that the conditions ‘had been set aside’, by her lying whilst on oath and by her calculated, deliberate and wilful intent to discredit the witnesses called on behalf of the GMC”.[49]It then concluded that the appellant’s conduct: “falls far short of the standard expected of a medical practitioner and is satisfied that her behaviour amounts to serious misconduct”.[50]The Panel was quite entitled to reach that conclusion. Nothing has been put forward by the appellant to undermine that conclusion. In any event, it would be unassailable, even if it was not stated in general terms in “Good Medical Practice” which does not purport to be a comprehensive guide to what constitutes serious misconduct.[51]The Panel proceeded to consider whether the appellant’s fitness to practice was impaired as a result of her misconduct. It found, as it was entitled to, that the appellant : i) Had demonstrated “a persistent lack of insight into her dishonest behaviour” because of the arguments she had maintained in the hearing before them in her oral evidence in which she had continued to deny any misconduct and to blame others; ii) Has made false allegations about her colleagues; iii) Has reported them to the GMC; iv) Has blatantly lied to this Panel; v) Had deliberately and wilfully withhold the information relating to the conditions imposed on her in the 2012 Interim Order during her interviews as I explained in paragraph 44 above; and vi) Had acted in a way such that the Panel could not be satisfied that the appellant would not repeat her dishonest behaviour.[52]The Panel found that the appellant’s fitness to practice was impaired by reason of her misconduct. None of the appellant’s contentions go anywhere near showing that there were any errors in this conclusion especially as, I have stated in paragraph 9(i) above, Auld LJ explained in Meadows(supra) that the decisions of the Panel “whose understanding of what the medical profession expects of its members in matters of professional practice deserves respect”

Issue 6: The Sanctions Issue

[53]As I have explained, the Panel ordered the erasure of the appellant’s name from the Medical Register. The appellant contends that this sanction is “disproportionate to the allegations which are lacking in basis”. She also relies on a series of decisions in other cases , which she contends support that submission. Having considered those decisions, I am satisfied that they are all fact-sensitive and that they are based on different facts from the present case. My task is to consider these submissions bearing in mind that Laws LJ on Fatnani (supra) quoted with approval the statement of Lord Hope giving the decision of the Judicial Committee in Marinovitch v GMC, 24 June 2002, which was that:
“28… it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.”
[54]In this case, when deciding on the appropriate sanction, the Panel explained that it appreciated that the purpose of sanctions was not to be punitive, but to protect the wider interest [which] included the protection of patients, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. This approach reflects what Laws LJ said in Fattani as I have explained in paragraph 9 v) above and the statement of Lord Hope which I have just cited.[55]The Panel then proceeded to consider the sanctions open to them starting with the most lenient course. It decided that it would be inappropriate for them take “no action” in the light of the serious nature of the appellant’s misconduct.[56]The Panel then considered the next least rigorous sanction which was the imposition of conditions on the appellant’s registration, but it rejected that course as it concluded that it would not be possible to formulate appropriate practice conditions which would first, address the appellant’s dishonesty, second, ensure the public maintenance of public confidence in the profession and third, uphold proper standards of conduct and behaviour.[57]This led the Panel to consider imposing a period of suspension on the appellant and it took into account the fact that the appellant’s clinical competence had not been called into question and the testimonials which attested to her clinical skills. Nevertheless, it concluded that suspension would not be sufficient to mark the seriousness of the appellant’s misconduct, the protection of the public interest, and the maintenance of public confidence in the medical profession.[58]In reaching the conclusion, the Panel took into account: i) “The gravity of the [appellant’s] dishonesty”; ii) “The false allegations [she has made] against colleagues in an attempt to discredit them”; iii) “A persistent lack of insight [on the appellant’s part] into the seriousness of her behaviour"; iv) The absence of remorse on the appellant’s part; v) The appellant “deliberately and wilfully withhold this information [relating to the conditions imposed on her in the 2012 Interim Order] during her interviews as she knew that were she to disclose it the prospect of securing a job offer was remote” vi) The fact that “it cannot be satisfied that this behaviour [of the appellant] would not be repeated” ; and vii) The fact that even at the hearing, the appellant “persisted in ascribing meaning to documents which were evidently wrong” led the Panel to conclude that there may be a deep-seated attitudinal problem.[59]The Panel then had to consider whether the appellant’s name should be erased from the Medical Register and it explained that: “ [The appellant’s] persistent and dishonest conduct represents a serious departure from professional standards and undermines the public confidence in the profession and bring the standard of the profession into disrepute. The Panel has concluded that [the appellant’s] behaviour is incompatible with her continuing to be a registered medical practitioner”.[60]After having considered appropriate provisions of the Indicative Sanctions Guidance (“ISG”) the Panel concluded that it was “both necessary and proportionate in the public interest to direct that the appellant’s name be erased from the Medical Register”.[61]In my view, there is nothing whatsoever wrong with the approach with this decision fortified as it is by the thoughtful and persuasive reasons of the Panel. If, which is not the case, I had been in any doubt about it, I would not have interfered with it for the reasons explained by Law LJ and Lord Hope in the passages, which I have quoted.

Issue 7: Sundry Issues

[62]The appellant raised many issues and I should deal with two further matters, which I have not considered. First, she contends that her rights pursuant to Article 6 of the ECHR have been infringed, as she did not receive a fair hearing. Nothing has been put forward to show that the appellant did not receive a fair trial. The mere fact that the appellant was not believed does not show that her Article 6 rights were infringed especially because, as I have explained, the Panel has set out clear and cogent reasons to justify its decision. To my mind, the procedure in front of the Panel was compliant with Article 6.[63]Second, the appellant relies on s1 (1)-(4) of the Employment Act 1996 to contend that the application basis was ongoing and so interim Condition 8 (c) was not contravened. I am unable to accept this submission as the obligation on the appellant was in the words of the 2012 Interim Order to inform “any prospective employer or contracting body (at the time of application)” that the appellant’s registration was subject to the conditions.[64]By the time the appellant had the interviews with EMR and Cambian, which are the subject of the charges against her, she had passed “the time of her application” and so she already had the obligation to notify those prospective employers of the restrictions on her registration, but unfortunately she failed to do so.[65]None of these or any other points relied on by the appellant whether considered individually or cumulatively constitute valid grounds for allowing the appeal.

Conclusion

[66]For these reasons, the appeal must be dismissed. If either party wishes to obtain any other Order, they should make a written application to the Administrative Court General Office (RCJ room C324) within 14 days of handing down this judgment setting out the basis of the application with full particulars and the opposing party will have a period of 14 days in which to respond in writing to that address and the matter will then be resolved in writing.

Order

“lacked basis as (1) they related to administrative issues and not the appellant’s practice... (2) No charges were particularised at the Interim Orders Panel Hearing of 5 January 2012. (3) No risk to patient safety was identified (4) No risk to practitioners health was identified (5) No risk to the public s was identified as there were no cautions or criminal convictions against the appellant (6) No balance of proportionality of risk to the public relative to impact on life of the appellant of Interim Conditions was made (7) Evidence of necessity of Interim Conditions on appellant’s practice was not given. (8) Evidence to substantiate allegations considered by [Interim Order Panel] was lacking”

Cited in 1 later judgment