Yassin v The General Medical Council [2015] EWHC 2955 (Admin)

Case No CO/3184/2015[2015] EWHC 2955 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/10/2015
Before
THE HONOURABLE MR JUSTICE CRANSTON
Between
YASSINAppellantTHE GENERAL MEDICAL COUNCILRespondent
Christopher Geering (instructed by Direct Access) for AppellantTom Cross (instructed by Gemma Brown, the in-house solicitor at the General Medical Council) for RespondentHearing Hearing dates: 14/10/2015
Judgment

Introduction

[1]This is an appeal under section 40 of the Medical Act 1983 against a direction of a Fitness to Practise Panel (“the Panel”) to erase the appellant from the medical register. It is an appeal confined to the Panel’s determination on the facts. The appellant’s grounds concern a lack of specificity in some of the allegations and that, in relation to two findings of dishonesty, the Panel was wrong or failed to provide adequate reasons. There is a further ground based on new medical evidence.

Background

[2]In August 2008 the appellant, having qualified as a medical student in Scotland, commenced work as a Foundation Year 1 (“FY1”) trainee doctor. There was a Fitness to Practise hearing in 2011 concerning events in 2009. The Panel found that the appellant had dishonestly changed marks awarded to her in written feedback from two nurses to give a better impression of her professional performance, and dishonestly fabricated a story to explain a failure to order blood tests for a patient who collapsed a few days later. The Panel concluded that her attitude when giving evidence demonstrated a serious lack of insight into her failings. In her evidence she “maintained [her] denials and lies, and sought to deflect responsibility for [her] your actions to others”. It suspended her for three months.[3]In 2012 the appellant was referred to the General Medical Council (“the GMC”) again following events between August 2011 and July 2012, when she had been a Foundation Year 2 (“FY2”) trainee assigned in Oxfordshire (between August 2011 – December 2011 and April 2012 to July 2012) and Buckinghamshire (December 2011 – April 2012). There was a 16 day hearing in January this year. The Panel heard evidence from 13 witnesses called by the GMC and had another 4 witness statements. The appellant gave evidence herself, called two witnesses and submitted further written evidence. She was represented by counsel who cross-examined and made submissions.[4]Early in its determination on the facts, the Panel commented on the witnesses who had given evidence. Having regard to demeanour, consistency and clarity, the Panel concluded that all the witnesses for the GMC gave clear and straightforward evidence, appeared to be concerned with professionalism and patient safety, had no apparent motive to lie, and were credible and compelling. By contrast, the Panel considered that the appellant was vague and evasive in her answers. She persistently avoided answering direct questions with clear and straightforward answers and appeared to have an inconsistent recall. The Panel considered that many of her answers were untrue. The Panel therefore determined that, on the whole, her evidence was less credible and less reliable than that of the witnesses for the GMC.[5]The Panel then considered the evidence on the charges. The Panel found that 53 of the charges were proved. Nine of them involved dishonesty. The Panel’s conclusions on the substantive charges which it found proved were as follows: Charge 2: From time to time between August 2011 and July 2012 you:a. arrived late for ward rounds; found proved.b. left ward rounds without informing your colleagues; found proved.c. left the ward and were not contactable; found proved.d. failed to take responsibility for the care of patients who arrived unwell in the clinical area; found proved.e. took an unnecessarily prolonged time to complete tasks assigned to you or passed those tasks on to others; found proved.f. took an unnecessarily prolonged time to complete discharge summaries; found proved.g. failed to answer your bleep; found proved.h. failed to attend Multi-Disciplinary Team (‘MDT’) clinics; found proved.i. completed TTO and discharge summaries with incomplete information including incomplete clinical history; found proved.j. failed to carry out effective handovers; found proved.k. failed to communicate correct information to team members; found proved.l. failed to carry out investigations in a timely and safe way; found proved. Charge 4: On 8 February 2012, on completing your day shift, you: a. failed to check a patient’s bloods; found proved b. wrongly stated that there was nothing to hand over; found proved. Charge 5: On 17 March 2012 when you were called to investigate a patient with a gastro-intestinal bleed you: a. failed to examine the patient; found proved. Charge 6: On the afternoon of 1 May 2012 you were not on the ward and could not be contacted; found proved. Charge 7: On 14 June 2012 you: a. left the MDT clinic before it had finished; admitted and found proved. b. failed to inform a member of the team that you were leaving; found proved. c. failed to share the workload; found proved. Charge 8: From time to time between August 2011 and July 2012 you: a. failed to engage with colleagues when asked questions relating to the care of patients; found proved. b. ignored colleagues; found proved. Charge 9: On 20 September 2011 you admitted a patient in her absence as not a ‘blue bloater or pink puffer’; admitted and found proved. Charge 10: On 10 February 2012, at approximately 09:00, you interrupted Dr A during a ward round and: a. spoke to her in an angry manner; found proved. b. falsely stated that you had handed over a patient to a colleague when you did not do so; and found proved. c. falsely informed Dr B that your colleague had taken responsibility for an incident involving the death of a patient; found proved. Charge 11: On 10 February 2012 at approximately 16:30 you confronted Dr C in an angry manner about allegations that you had not answered your bleep; found proved. Charge 12: On 15 March 2012 at approximately 14:00 you angrily confronted and shouted at a staff nurse in the presence of a colleague; found proved. Charge 14: From time to time between August 2011 and July 2012 you: a. when asked why outstanding jobs for patients had not been completed you falsely claimed that: i. you did not know the jobs needed doing; found proved. ii. you had not been allocated the task; found proved. iii. the job had been completed; found proved. Charge 15: On 13 February 2012 when asked by Dr D about hand back and triage patients you: a. falsely replied that none had been triaged; found proved. b. falsely claimed to have contacted the on-call team; and found proved. c. failed to carry out a satisfactory handover; found proved. Charge 16: On 7 September 2011, at an induction meeting with your educational supervisor, you falsely stated that you had not had any problems with your previous training; found proved. Charge 17: On 30 November 2011 you were asked to arrange a meeting with your educational supervisor once you had started a new job but failed to do so; found proved. Charge 19: On 12 July 2012 you submitted a job application to the Northampton General NHS Trust falsely stating that you were not the subject of a fitness to practise investigation by a regulatory body in the UK; found proved. Charge 20: Your conduct as described in paragraphs 10(b) and (c), 14, 15, 16, 18, and 19 above was: a. Misleading; found proved in relation to 10(b) and 10(c), 14(e)(i), 14(e)(ii) and 14(e)(iii), 15(a) and 15(b), 16, and 19. b. Dishonesty; found proved in relation to 10(b) and 10(c), 14(e)(i), 14(e)(ii) and 14(e)(iii), 15(a) and 15(b), 16 and 19.[6]The Panel commented further on each of the findings of misconduct and dishonesty. As regards charge 19, it said that it had considered her explanation but was not persuaded that she could have overlooked the inaccuracy: entries on the form immediately before and after the answer to this question appeared to have been updated correctly.[7]The Panel then considered whether the appellant’s fitness to practise was impaired. It found that the facts proved amounted to misconduct which could properly be characterised as serious. In failing to adhere to the principles of being honest and trustworthy at the material time, and in continuing to be dishonest before the Panel, her conduct had fallen short of the standards of a doctor. Her fitness to practise was consequently impaired. She provided no evidence that she had reflected on her failings since the hearing in 2011 or since she was again referred in 2012, she had not apologised for any of the acts or omissions, she had maintained her denial of wrongdoing and she lacked insight into the potential consequences of her lack of probity. Given that she had no insight into the implications for patient safety as a result of her dishonesty when she made errors, the Panel could not be satisfied that she would not repeat her misconduct. Her lack of insight, her failure to remediate her failings and the fact that the Panel could not be satisfied that she would not repeat her wrongdoing, put patient safety at risk. The public’s confidence in the medical profession and need to declare and uphold proper standards of conduct and behaviour in the profession would be undermined if a finding of impairment was not made.[8]The Panel’s determination on sanction was postponed through lack of time. When sanction was considered in June this year, the appellant adduced medical evidence about her epilepsy. An email from Dr Bryan Timmins, a consultant neuropsychiatrist, stated that he was struck by the marked contrast between her established behaviour in 2011-2012 and the reports of her exemplary conduct since April 2015. He was drawn to the conclusion that the appellant was unaware of the manifestations of her complex, partial epileptic seizures. “As a consultant neuropsychiatrist specialising in the area of acquired brain injury I am often asked to comment upon abnormal behaviours especially when they appear paroxysmal. There is rarely an established pattern of seizures as well-documented as occurs in this case. It would appear to me reasonable to expect acts of omission in particular as these would arise from ictal inattention or amnesic episodes. [The appellant] might have at best only patchy recall of ictal events and her accounts of what took place could appear muddled or misleading. A full analysis of each allegation would take more time than we had available today but the impression I gained from many of the comments made about [her] behaviour in 2011/2012 would support the observation made by Dr Adcock about active epilepsy.”[9]Dr Adcock’s report before the Panel was dated 30 May 2012, and was written shortly before the sanctions hearing in response to a request by the appellant’s lawyers. She diagnosed the appellant as having “right temporal lobe epilepsy with unrecognised complex partial seizures (dyscognitive seizures)” and “mild memory difficulties”.[10]In her report Dr Adcock set out the medical history from 2004 and referred to the medication prescribed. In February 2004, the appellant had been admitted to hospital with limbic encephalitis. She was treated and associated seizures improved fairly quickly. In 2009, she had two generalised tonic-clonic seizures associated with missing medication and sleep deprivation. She also had seizures similar to her previous attacks, described as a sensation of nausea occasionally associated with déjà vu. Her medication was increased but by April 2010 she had been attack free for six months. She felt that she was attack free from 2010 to 2012, until she became pregnant with her first baby at the beginning of 2012. The child was born in October 2012. During the pregnancy, she had episodes of nausea. After she gave birth these symptoms of nausea seemed to settle. Since the end of 2014, the appellant had experienced brief episodes of rising nausea, occurring once or twice per week, possibly more frequently. She thought that she may have had occasional episodes since her pregnancy.[11]Then, in March 2015, the appellant undertook video-recorded practise patient consultations as part of her training. Dr Adcock’s view on watching the video was that the appellant had had a typical temporal lobe seizure with loss of awareness, during which she looked vague and did not seem aware of what was going on around her. Dr Adcock opined that it was very likely that the appellant had been having unrecognised temporal lobe complex partial seizures arising from the right temporal lobe. As a result, the appellant would not be able to process or retain memory normally during or after such events. She stated: “I cannot comment about specific events per se, but my clinical opinion is that seizures, post-seizure amnesia or confusion, and memory difficulties could have contributed to some of her problems at work. Examples could include being forgetful, not paying attention, not responding or not engaging fully if people were talking to her, taking longer to complete tasks, not answering a bleep promptly, and not remembering what she was told. It is possible that these may have contributed to unexplained brief absences from the ward”.[12]There was also a short letter from Dr Nithi, a consultant neurologist and neuropsychologist, that the appellant was under his care; that she had made a good recovery after 2004, and that her history and in particular the March 2015 video recording led him to conclude that she had been suffering from hitherto unrecognised dyscognitive or complex partial seizures, during which she may have not been able to process and retain memory normally.[13]Finally before the Panel was a report of a consultant neuropsychologist reported that an EEG was abnormal, findings consistent with a potentially epileptogenic focus in the right anterior temporal region. The Panel said this about the medical evidence before it. “[T]he Panel is surprised that you have only sought to adduce this evidence at such a late stage when it had potential relevance to the Panel’s consideration at facts and impairment. Although your condition is longstanding and you appear to have been generally successfully managing it since 2004, you have only sought to raise it as mitigation to this Panel in June 2015. Furthermore, the evidence before the Panel does not suggest that your epilepsy may be in any way responsible for your dishonesty.” The Panel added that the evidence submitted had been actively pursued and considered it highly likely that the appellant had presented it in order to assist her in a further evasion of her responsibilities and to seek to excuse her conduct.[14]In accordance with its practice, the Panel went through the possible sanctions to be imposed in ascending order of severity. It rejected taking no action (there were repeated instances of dishonesty), the imposition of conditions and suspension. It said this:
“18. The Panel has made several findings of dishonest conduct and has already noted that you continued to be dishonest in your oral evidence before this Panel. It has viewed these findings against the background of your earlier dishonest behaviour which resulted in the suspension of your registration in 2011. Furthermore, the Panel is concerned by the information it has received which suggests that, in the past few months, you continued to demonstrate a propensity to be ‘economical with the truth’. In her letter of 13 April 2015, Dr Stephanie Smith stated: “[The appellant] did not inform me until after she had attended the hearing in January that she was under investigation by the GMC, which was unfortunate as we would have been able to offer her support. After attending the hearing in January, [she] made me aware of the restrictions that had been put on her practice by the GMC. On speaking to [her] as to why she did not inform us, it appeared she did not appreciate that the GP Surgery was her Employer and that information previously shared with the Deanery would not automatically be given to us.”
Dr Smith also stated that you only informed her that you had been previously suspended by the GMC after the hearing in January. 19. The Panel considered that this highlights one of its particular areas of concern. It has heard all of the evidence regarding your conduct and behaviour over several years, and read reports about your attitude when issues are raised. It has also been able to judge your demeanour during your oral evidence. The Panel has concluded that you have demonstrated a proclivity to manipulate information and situations in order to disclose only the information that is convenient to you and your purposes. It found your explanation that you did not realise that the GP Surgery was your employer to be beyond the realms of credibility.” “[The appellant] did not inform me until after she had attended the hearing in January that she was under investigation by the GMC, which was unfortunate as we would have been able to offer her support. After attending the hearing in January, [she] made me aware of the restrictions that had been put on her practice by the GMC. On speaking to [her] as to why she did not inform us, it appeared she did not appreciate that the GP Surgery was her Employer and that information previously shared with the Deanery would not automatically be given to us.”[15]The Panel stated that the appellant had continued to refuse to accept responsibility for her misconduct, to seek to lay the blame with others, and to demonstrate a woeful lack of insight into her misconduct. The Panel accepted that the evidence before it suggested that there may have been instances where her clinical omissions may be attributed to her health condition. However, the allegations and subsequent findings in 2011 were strikingly similar in content to those the Panel considered in 2015. The appellant had had four years within which to remedy her conduct and demonstrate her integrity and she had failed to do so. This left the Panel to conclude that she was either unwilling or unable to remedy her conduct. As such, it could not be satisfied that repetition of her misconduct was highly unlikely.[16]The Panel thus reached the conclusion that erasure was appropriate in light of the Indicative Sanctions Guidance. It had regard to the appellant’s longstanding dishonesty, her continued efforts to cover up her misconduct, and her evasiveness in situations where she should have been wholly open and honest. It found that the appellant had persistently demonstrated that her integrity could not be relied upon and concluded that it was not in the public interest to retain a doctor who had repeatedly demonstrated that, even in the face of offered support and despite disciplinary action, she would continue to place her own interests before those of her patients and colleagues.

Insufficient particularisation of charges

[17]For the appellant Mr Geering advanced a clear and coherent critique of the Panel’s decision. First, he contended that the Panel had been wrong in failing to stay charges 2 (a)-(i) (l), 8 (c) - (d) and 14(e)(i) - (iii), or alternatively it was wrong in finding those proved, since they were insufficiently particularised to allow her to understand the case against her and meaningfully to respond to it. As a consequence, the parasitic findings of dishonesty in charge 20 in respect of charge 14 (e) were also wrong. In his submission, the vagueness of the evidence adduced did not allow the appellant to address fairly these accusations as set out in the individual particulars. When instances of alleged misconduct are not noteworthy, or specified, or the circumstances not described adequately, that combination of factors impacts on the ability of a registrant to be able to respond. That was the position the appellant faced before the Panel.[18]The law regarding particularisation of the charges in this type of case was authoritatively laid down by Beatson J (as he was then) in R (Johnson and Maggs) v. Nursing and Midwifery Council [2008] EWHC 885 (Admin). There the appellants submitted that they had a right to be informed in detail of the nature and cause of the accusation against them, and to be given full particulars of the case they had to meet. As to a stay in such cases, Beatson J held that it is an exceptional remedy, only to be used where the trial process cannot deal with the points raised [92]. To the criticism that the charges in that case related to unknown dates within a span, and to a possible series of events in that span, Beatson J held:
“[102] The test to be applied in these cases is a two-stage test. Firstly whether the charges in the circumstances of the case provided sufficient information to enable those charged to know, with reasonable clarity, the case they have to meet. Secondly whether they know enough about the charges to enable them to prepare their defences. The second stage of the test is: if the first stage is not satisfied whether the only remedy is a stay.”
[19]In this case the Panel rejected an application to stay charges 2, 8, and 14 by way of preliminary application, advanced on the ground that the charges did not identify specific dates, times, locations, individuals or instances. The Panel applied Johnson and Maggs. While these charges did not give precise details and covered a period of time, the Panel decided that they referred to a pattern of behaviour and that in the circumstances it was difficult to provide specific dates. It concluded it was unlikely that the appellant failed to understand the allegations being made; she had been provided with sufficient information to understand what was alleged against her. The Panel stated that it would keep the situation under review throughout the proceedings.[20]In my view, applying Johnson and Maggs, there was no basis for a stay as regards any of the charges in this case. Indeed Mr Geering sensibly rested his case under this head on what he had set out in his written skeleton argument, except with charge 14, to which I return in a moment. As regards charges 2 and 8, I have no hesitation in concluding that the appellant failed to show that in all the circumstances, including the evidence the GMC advanced, she had insufficient information to know what case she had to meet or that she was unable to defend herself. The evidence relevant to these charges was both documentary and oral and came from a number of doctors including the appellant’s junior colleagues. They were cross-examined on behalf of the appellant, in some cases making concessions in her favour. The appellant herself gave evidence in relation to the allegations, in some cases refuting them, in other cases offering an explanation. The fact that the charges did not cite specific occasions did not make the Panel’s conclusions unfair. The Panel was perfectly entitled to prefer the doctors’ evidence to the appellant’s.[21]As regards charge 14, it will be recalled that it was that between August 2011 and July 2012, when asked why outstanding jobs for patients had not been completed, the appellant falsely and dishonestly claimed that she did not know the jobs which needed doing, that she had not been allocated the tasks, or that the jobs had been completed. Mr Geering submitted that specificity was especially important in this context given that that the Panel was also considering, under charge 20(b), whether these alleged false claims were dishonest.[22]The evidence for charge 14 came mainly from Dr Bowers who, at the time, was like the appellant, a FY2 at High Wycombe Hospital, Buckinghamshire. Her evidence was that, when asked about outstanding jobs for patients, the appellant would deny knowledge of the original task, deny that she had been allocated the task, or claim that it was completed when it was later found not to have been. Her evidence was that the other doctors became accustomed to the idea that they would have to pick up jobs allocated to the appellant. Dr Bowers’s evidence was also that the appellant would claim that jobs were complete and would tick off jobs on the PMS (Patient Monitoring Service) as completed which she and her other colleagues later discovered had not been completed. In cross-examination, Dr Bowers accepted that the PMS system might not reflect the reality, that she could not provide specific examples of the appellant acting in this way, and that she could not recollect speaking to the appellant on any occasion about a job which she knew had not been completed.[23]In this regard the Panel also referred to the evidence on charge 4, which was found proven, although no dishonesty attached to it. This related to the appellant denying being responsible for chasing the bloods for a patient who later died. The evidence relating to it came from Dr Sahota, who at the time was a senior house officer at High Wycombe hospital. It was a case where the appellant had not denied being allocated the task but rather claimed to have handed it over to Dr Sahota.[24]Mr Cross for the GMC sought to defend the particularity of charge 14. In effect, he submitted, the charge concerned the appellant’s time at High Wycombe, January – August 2012, although it was framed as covering the period of August 2011 to July 2012. Dishonesty could be alleged in relation to a course of conduct, although it might be more difficult to establish it than with a specific instance. Overall, he contended, the charge, coupled with the evidence, created no unfairness for the appellant in knowing what was alleged and preparing her defence.[25]Allegations of dishonesty need to be carefully formulated and specific allegations need to be made. That does not mean that a Panel cannot fairly consider someone’s state of mind in relation to false claims, save by reference to the circumstances of a specific case. The key is fairness. In Sheill v. General Medical Council [2008] EWHC 2967 (Admin) the doctor was accused of dishonestly and falsely claiming that his failure to notify a particular patient’s general practitioner of his prescribed treatment was at the patient’s request. Foskett J held that the charge of dishonesty against the doctor did not specify the circumstances in which it was alleged that he had made a false claim and it was not clear that the Panel had directed itself to the key issue of whether, when the claim was made, it was being made dishonestly: see [63]. Foskett J set aside the finding of dishonesty but nonetheless upheld the doctor’s erasure, given his other misconduct.[26]Foskett J also set aside a finding of dishonesty for lack of evidence in Fish v. General Medical Council [2012] EWHC 1269 (Admin); [2012] Med. L.R. 512, where the Panel had found that a locum anaesthetist had deliberately deleted information on timesheets and that that conduct amounted to dishonesty. Foskett J said this:
“[69] [Dishonesty] is an allegation (a) that should not be made without good reason, (b) when it is made it should be clearly particularised so that the person against whom it is made knows how the allegation is put and (c) that when a hearing takes place at which the allegation is tested, the person against whom it is made should have the allegation fairly and squarely put to him so that he can seek to answer it. It is often uncomfortable for an advocate to suggest that someone has been deliberately dishonest, but it is not fair to shy away from it if the same advocate will be inviting the tribunal at the conclusion of the hearing to conclude that the person being cross-examined was dishonest… [70]… It is an issue that must be articulated, addressed and adjudged head-on.” [70]… It is an issue that must be articulated, addressed and adjudged head-on.”
[27]In my judgment, charge 14 did not have sufficient specificity to meet the fairness standard, given that it was associated with an allegation of dishonesty. There were no examples of the appellant acting in the manner alleged, of who asked her to complete any given task, or of an illustration of what the task was, or to which patient or condition it related. It was also alleged that she stated that she did not know a job needed doing but without any detail of the circumstances. In particular, nothing was provided to explain how the inference of falsity could be drawn. In my view, without more specific allegations it was impossible for the appellant to respond properly to these charges and for the Panel to come to any conclusion about her state of mind at the time. Thus, the Panel could not properly consider the appellant’s state of mind when she was said to have ticked the electronic PMS record on a date unknown sometime over a six-month period. It is not good enough to make a bald allegation as contained in this charge as a basis for a finding of dishonesty.

Findings of dishonesty with two of the charges

[28]Under this head Mr Geering contends that with charges 15(a) and 19, read together with charge 20(b), the Panel was wrong to find the appellant dishonest or failed to give adequate reasons for this conclusion. It will be recalled that charge 15(a) was that on 13 February 2012, when asked about hand back and triage patients, the appellant falsely and dishonestly replied that none had been triaged. Charge 19 was that on 12 July 2012 the appellant submitted a job application to the Northampton General NHS Trust falsely and dishonestly stating to one of the questions of the on-line form that she was not the subject of a fitness to practise investigation by a regulatory body.[29]As regards charge 15(a) the Panel accepted the evidence of Dr Gallen, a consultant physician at High Wycombe hospital. His evidence was that on that day he asked the appellant if any patients had been triaged, she replied in the negative, but that when he checked the on call registrar this was incorrect. He continued that when he confronted the appellant about her answer she was defensive. The appellant’s explanation to the Panel was that she had answered no because she could not speak to the on-call team. The Panel concluded that the appellant had given a false answer and was dishonest: on her own account she not checked the position and she was defensive when challenged.[30]As to charge 19, the appellant accepted that her answer on the form to the question was wrong but explained it as an oversight. The Panel did not accept that because entries in the application form immediately before and after that question appeared to have been updated correctly.[31]Mr Geering’s criticism of the Panel’s finding on charge 15 was that dishonesty was being based on a failure to check. The fact was that the appellant did not know, on her account because the computer system was not always up to date and she had tried to contact the on call team without success. In his submission that could not mean that the appellant knew the information was false; a failure to check cannot be dishonest. As to charge 19, Mr Geering’s case was that the appellant had already disclosed her position to Dr Shmueli, the clinical director at medicine at Northampton hospital. Moreover, the form contained many mistakes, since the appellant had prepared it in a rush, including (contrary to the Panel’s observations) in the information immediately before and after the impugned answer. Indeed in an email to another hospital the appellant had corrected her answer to this question. Mr Geering submitted that the Panel’s findings of fact were inconsistent with dishonesty.[32]Appeals under section 40 of the Medical Act 1983 Act are by way of re-hearing (CPR PD52D, [19]) so that the court can only allow an appeal where the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity in its proceedings: CPR 52.11. The authorities establish the following propositions: i) The Panel’s decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44]; ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin); iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not; iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ; v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ; vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed; vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii). viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407, [55]-[56]. ix) A principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.[33]Applying these principles, I find it difficult to see how the Panel’s conclusion on the appellant’s honesty can be challenged. The Panel heard from many witnesses over a number of weeks, including from the appellant. It came to conclusions on the credibility of the witnesses, which it set out clearly, and its findings of fact are, as I have said, unassailable. The inferences it drew and the secondary findings of fact it made are entitled to considerable deference. The reasons it gave for coming to the conclusions on these charges are set out and explained. It is simply not possible for the appellant to come to this court and adduce evidence and allege errors in reasoning which, it is said, mean that she was not dishonest. That evidence, and the fact that the reasons may not be perfect, do not mean that the Panel was not entitled to reach the view that it did on these two allegations of dishonesty.

New medical evidence

[34]The appellant seeks to rely on medical evidence about her epilepsy not before the Panel when it made its determination on facts.[35]Aside from the medical evidence referred to earlier in the judgment, which was adduced before the Panel in relation to sanction in June 2015, there was already evidence in existence at the time of the Panel’s determination on facts in January 2015. Some of this was prepared for the appellant’s earlier hearing before the Panel in 2011. First, there was a letter from Dr Livingston from October 2009. Dr Livingston is a consultant clinical neuropsychologist. The appellant had expressed concern to Dr Livingston as a result of her family telling her that she had said something when she was quite adamant that she did not say it. Dr Livingston conducted tests and his opinion was that:
“There is no doubt that [the appellant] has been under considerable pressure from work of late, and it is highly likely that the cognitive and emotional symptoms that she describes are in the large part a result of these circumstances. The effect of significant working hours combined with very little social or relaxation time, alongside disrupted sleep, are all likely to have had an impact on her day-to-day functioning. With the exception of a slightly lowered visual memory performance, albeit still falling within the average range for her age group, her neuropsychological profile does not display any evidence of objective impairment across any of the domains assessed…I now intend to discharge [the appellant] from the Department of Clinical Neuropsychology.”
[36]Then there was a report of Dr Roberts, a consultant neurologist, dated April 2010, requested by the appellant’s lawyers for the 2011 Panel hearing. It concluded that her epileptic seizures did not impair her ability to work as a doctor in most settings. Dr Roberts commented that with respect to cognitive impairment, the appellant’s neuropsychological assessments had consistently showed that she made a rapid recovery from the encephalitis in 2004. With respect to her performance as a doctor, Dr Roberts did not anticipate that the slight deficit, compared to other abilities of her visual memory, had any significant effect: there had been no suggestion clinically or in her investigations to suggest significant frontal lobe involvement by her illness, which might have affected her reasoning abilities and judgement. Her family had reported no change in her personality.[37]Thirdly, there was a report by Professor Oyebode, dated April 2010, prepared at the request of the appellant’s solicitors for the purposes of her hearing in 2011. At paragraph 2.6, Professor Oyebode stated:
“I enquired into any history of notable personality change in the wake of this condition [of limbic encephalitis]. I understand there is no reported change in her personality, character, or disposition, either by her family or by her friends, since 2003. There is no evidence or history of a change in her moral disposition including a negative history of coarsening her language, of the use of swearing, of loosened habits, of petty crime, or of lying… Furthermore, there is no history of recent onset of irritability, anger outbursts, or impulsivity.”
[38]After the Panel’s determination on sanction in June 2015 the appellant has obtained four further documents: a report from Dr Bissessar dated 22 June 2015 (about 48 hours of ambulatory EEG, which does not advance matters); a letter from Dr Adcock to a Dr Abbas dated 12 August 2015; a report of Dr Bird dated August 2015; and a letter from Dr Adcock dated 28 September 2015.[39]The letter from Dr Adcock to Dr Abbas recorded results following a five day period of video EEG telemetry. This captured one brief typical seizure where the appellant described feeling nauseous. She also had a second electrographic seizure but this “was not associated with any clinical change or any symptoms”.[40]The report of Dr Bird, a consultant neuropsychiatrist, was sought for the purpose of this appeal and was produced in light of previous medical reports and the videotape of the March 2015 training interview with a patient, referred to earlier. Dr Bird had an interview with the appellant and her husband in July 2015. Under the heading “descriptions of episodes”, Dr Bird states that the appellant described her episodes as mostly consisting of a feeling of nausea, otherwise she had no awareness of any vacant spells, except that others had told her that she did. The appellant’s husband described episodes in which he had observed his wife behaving abnormally. There was also the training video showing the appellant in an altered state of consciousness, and the appellant’s husband stated that this was typical of many of her ‘vacant spells’.[41]In the “opinion” section of his report, Dr Bird states that the descriptions of vacant episodes given to him by the appellant and her husband, as well as the episode which he was able to see on the training video, “are the result of a complex partial seizure. During such seizures, conscious awareness is partial or lost”. Dr Bird’s opinion is that people who suffer with epilepsy are usually aware that something is wrong with them and there is a gap in their memory or awareness, which can last seconds or a few minutes, but they cannot pinpoint it and this is obviously very frightening for them. Others may inform the sufferer that something wrong has happened.[42]Dr Bird then states that most of the misconduct demonstrated by the appellant giving rise to the GMC charges occurred during the time that she was pregnant in 2012. He expresses the firm opinion that the appellant was suffering with complex partial seizures during the time in question. At the time of seizures, “she will become vague and apparently slightly inappropriate. She will have no memory of the episode afterwards. She is likely, when questioned about it, to become upset and perhaps angry (this is a common response in people with epilepsy). Her behaviour at a time of frequent partial seizures would be abnormal even between the seizures. The individual not only has no memory of what was going on during the seizures, which could last for several minutes, but would also be likely to become quite irritable if told by witnesses what had happened because of a failure to believe it resulting from the failure to remember it. It is my opinion that during the material time, the [appellant] was suffering more of those seizures and this is probably why most of the substantive allegations have occurred during the period of pregnancy when seizures are more likely to occur.”[43]As regards the completion of the application form in July 2012, Dr Bird opines that it is at least possible that the appellant had a complex partial seizure. Dr Bird says that he is less able to explain the false statement in November 2011, the basis of charge 17, but it is possible that the appellant was in a post-ictal forgetful stage.[44]The final piece of new medical evidence, the letter from Dr Adcock of 28 September 2015, records the results of the MRI scan at the end of August. These were consistent with right hippocampal sclerosis and left temporal lobe discharges.[45]For the appellant, Mr Geering submitted that the new evidence should be admitted since it throws a completely new light on the appellant’s behaviour. At the time of the hearing commencing in January 2015, she had not see any doctors about her epilepsy since 2010 and there was no indication she was experiencing any symptoms she associated with this condition. She had experienced nausea, but she attributed that to the pregnancy. It was the March 2015 videoed consultation with a patient, as part of her GP training in March 2015 where she saw her potentially unusual behaviour. She consulted Dr Nithi on 24 April 2015, who reviewed the footage and concluded that the appellant had been suffering from previously unrecognised dyscognitive or complex partial seizures. When Dr Adcock considered her case, she agreed. Subsequently, there have been the telemetry assessments, during which the appellant suffered two episodes. As a result, Dr Adcock was able to conclude that the appellant suffered from seizures which impacted on both her verbal and non-verbal memory, seizures which had subtle manifestations, hence they had gone unrecognised by family and colleagues. Dr Bird echoed this conclusion.[46]Mr Geering submitted that in light of this new medical evidence the Panel’s factual findings against the appellant were flawed. Although some medical evidence was adduced at the sanction stage of proceedings, it all constituted new evidence for the purposes of this appeal against facts. He contended that it met the three conditions in Ladd v. Marshall [1952] 1 W.L.R. 1489 for the admission of new evidence on appeal (powerful persuasive authority, per Stewart J in Jasinarachchi v. GMC (2014) EWHC 3570 (Admin), [31]). These are, firstly, that the evidence could not have been obtained with reasonable diligence for use at the hearing; secondly, the evidence must be such that, if given, it would probably have an important influence on the result and; thirdly, the evidence must be apparently credible.[47]Mr Geering submitted, first, that there was no issue over the credibility of this new medical evidence. Secondly, Mr Geering contended that the evidence could not reasonably have been obtained at the time of the initial hearing. The reports of Dr Roberts and others were in existence prior to the hearing but had no relevance until the videoed training session in March 2015. Up until then these previous reports dealt with an historic condition, with nothing to indicate that what they set out in any way impacted on the appellant’s actions whilst working at the Oxford and Buckinghamshire hospitals.[48]As far as the appellant was aware, Mr Geering submitted, her last epileptic episode was in 2009, as a result of missing her medication. Further, it was hardly surprising she attributed her nausea to her pregnancy, rather than a new manifestation of her epilepsy. The doctors who have for the first time considered her case were aware of her history and give the view that her condition was unrecognised. Her lack of engagement with medical services about it between 2010 and 2015 is because she did not know she was suffering the seizures. In Mr Geering’s submission the Panel’s views at the sanction stage ignored the circumstances in which the new diagnosis was made and was grossly unfair. It is clear she doessuffer this condition and it does materially impact on her life.[49]Thirdly, Mr Geering submitted, the evidence met the third condition in Ladd v. Marshall in that it would probably have an important influence on the result of the case. In particular, the medical evidence casts significant doubt upon the validity of the Panel’s credibility assessment. The medical evidence indicates that the appellant was suffering from partial seizures at the material time. It is recognised that pregnancy exacerbated the condition, and the majority of the allegations in the charges occurred, or potentially occurred, during the period of pregnancy. Her inconsistent recall was readily explained by the epilepsy. The Panel was unwittingly holding against her an aspect of her behaviour which was, at least potentially, a symptom of her condition. In Mr Geering’s submission this medical evidence offered a credible explanation for many of the instances of misconduct alleged against her. Her denial that a particular event occurred, or a particular issue was raised with her, need not be the result of her lying, minimising or obfuscating but rather a symptom of her condition. The appellant was found to have been non-contactable, or to have not answered a bleep, but if she were called when she was suffering a seizure she would no doubt not respond to it and she would have no recollection of having received it.[50]Even if the Panel did consider the evidence at the sanction stage, submitted Mr Geering, it did not have the benefit of Dr Adcock’s latest report or Dr Bird’s expert assessment. By the time the Panel saw the medical evidence it had already formed a view on her credibility and expressed it in strong terms. As to the findings of dishonesty, the Panel’s assessment that the medical evidence did not touch upon it ignores that the diagnosis is relevant to credibility and it also provides an explanation for acts which may, otherwise, appear transparently dishonest. Mr Geering accepted that a Panel would not be bound to find that each instance of inconsistent recall, conflict of evidence, or potential dishonesty is explained by the new medical evidence, but it must be considered by a tribunal of fact in order to arrive at a proper and informed assessment. Even if under Ladd v. Marshall this medical evidence was reasonably obtained, Mr Geering submitted, the court should properly admit this evidence in light of its relevance and the strong public interest in ensuring trained doctors continue in practice where there are no safety issues and no impact on professional standing.[51]In my view it is plain that evidence about the effect of the appellant’s epilepsy could reasonably have been obtained for her to deploy before the Panel. That is the second of the relevant Ladd v. Marshall [1952] 1 W.L.R. 1489 conditions. The appellant’s epilepsy is a long-standing condition recognised since her hospital admission in 2004. From at least that time the appellant has had seizures manifesting in a feeling of nausea and sometimes déjà vu, controlled by medication and exacerbated by factors such as lack of sleep. From at least that time she has been aware that her epilepsy can manifest in different ways, from simple partial seizures, through the complex partial seizures which she suffered in 2004, to generalised tonic-clonic seizures.[52]In other words, what the 2015 training video showed was the appellant having a complex partial seizure resulting from her epilepsy which she had suffered before. On the appellant’s account to Dr Adcock she felt nauseous during the episode shown on the video but that was a symptom which she had knowingly had in connection with her epilepsy for many years. As to memory loss she saw Dr Livingston in 2009 specifically in relation to cognitive and emotional symptoms, for example, that she had said something when she was quite adamant she had not and memory difficulties. So when the 2015 video showed that the appellant had a momentary loss of consciousness that should not have been surprising. Indeed I note Dr Bird’s opinion in this regard that people suffering with epilepsy are usually aware that something is wrong with them and there is a gap in their memory. Perhaps surprisingly, given the appellant’s case that she never conceived that problems of memory loss attributable to epilepsy had any relevance to her conduct over the August 2011 to July 2012 period, Dr Bird records that the appellant’s husband claims to have witnessed on a number of occasions episodes typically like the episode viewable on the training video.[53]Importantly, in my view, the appellant for the 2011 Panel hearing obtained medical evidence – the reports of Dr Roberts and Professor Oyebode – about the effect of her condition in relation to whether it impaired her fitness to practise. In other words, the issue of what if any effect the appellant’s condition may have had on her conduct between August 2011 and July 2012 is something which could have been medically explored well in advance of the Panel’s determination on facts in January 2015. The 2011 hearing, and what was done then, reinforces my conclusion that the appellant and her advisors were well able to have explored a potential medical cause for the conduct subject to this appeal.[54]In any event I am simply not persuaded that the new medical evidence is such that, if admitted, it would probably have had an important influence on the outcome of the case before the Panel. Dr Bird’s evidence, which is the highpoint of the new evidence, is that the appellant was having complex partial seizures which altered her behaviour during her pregnancy. That period does not include from August 2011 until when she became pregnant in January 2012 when some of the misconduct occurred. Moreover, it is somewhat of a surprise that there is no direct account of the appellant having any seizure during her pregnancy of the sort seen on the 2015 video involving a loss of conscious awareness. All we have that during the pregnancy she had episodes of nausea. Accordingly I find it difficult to see how Dr Bird could come to what he describes as a firm opinion that during the time in question and when under investigation by the GMC the appellant was suffering with complex partial seizures, and even more difficult to accept what he says is very clear evidence that during the material time she was suffering from frequent complex partial seizures as a result of her earlier encephalitis. As to the effect of this on the appellant’s behaviour, as specified in the various charges, perhaps I need only note Dr Adcock’s more cautious view that, whilst seizures, post-seizure amnesia or confusion and memory difficulties could have contributed to some of the appellant’s problems at work, she (Dr Adcock) “cannot comment about specific events per se”.[55]Even if Dr Bird’s analysis were to be accepted, I fail to see how this aspect of Ladd v. Marshall [1952] 1 W.L.R. 1489 is satisfied. The plain fact is that the Panel found the appellant’s wrongdoing to be very serious. It found 53 charges proven, including 9 of dishonesty, which the Panel described as longstanding. There was the dishonesty found by the previous Panel in 2011 and the dishonesty outside the period of her pregnancy such as charge 16, the false statement to her supervisor in September 2011 that she had no problems during the period of her previous training. Even during her pregnancy in 2012, as with charges 10 (falsely stating that a patient had been handed over) and 19 (the false statement in the application form) any epileptic episode seems to me to goes only part of the way as an explanation – with charge 10 one might not remember, but would one later lie about it, and with charge 19, one might mistakenly fill in the form, but would one not identify and correct it later on review? I frankly cannot see the Panel varying its assessment, referred to earlier, that the medical evidence did not suggest that the epilepsy might be responsible for the dishonesty.

Conclusion

[56]Although I have found that the Panel was not entitled to make the finding of misconduct and dishonesty associated with charge 14, I would dismiss the appeal. The serious misconduct and other findings of dishonesty over the period August 2011 – July 2012, coupled with the dishonesty found at the 2011 hearing and the further incident in 2015 (see paragraph [14] above), justify the Panel’s conclusions.

Postscript

[57]The appellant applied for her identity to be anonymised in the judgment on the basis that parts of it refer to aspects of her health and that this will affect how she is viewed.[58]The test for anonymity is contained in CPR 39.2(4). The question is whether the non-disclosure of the party’s identity is necessary in order to protect that party’s interests.[59]Anonymity constitutes a departure from the principle of open justice. In my view, it is not necessary to anonymise the appellant’s identity to protect her interests. Her interests were protected by holding the hearing of the medical part of the case in private. I have attempted to summarise the evidence describing her health condition with sensitivity. I note also that the medical evidence contains what I understand is her explanation of her misconduct. There is a general interest in the public being able to know the identities of those who have been subject to disciplinary proceedings. Anonymity would go beyond any legitimate protection of the appellant's privacy interest because it would also prevent her identity being known in relation to the other grounds of appeal. Indeed, the part of the appeal concerned with these grounds was held in open court so her identity is already public. For these reasons, I refuse to order anonymity.

Cited in 36 later judgments

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