Soni v The General Medical Council [2015] EWHC 364 (Admin)

Case No CO/1530/2014[2015] EWHC 364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/02/2015
Before
MR JUSTICE HOLROYDE
Between
MALHAR SONIAppellantTHE GENERAL MEDICAL COUNCILRespondent
Mr Peter Herbert OBE (instructed by direct access) for AppellantMiss Gemma White (instructed by GMC Legal) for RespondentHearing Hearing dates: 11 th, 12 th December 2014
Judgment
[1]This is an appeal by Mr Malhar Soni against the decision of a Fitness to Practise Panel (“the Panel”). The General Medical Council (“GMC”) had referred to the Panel, pursuant to section 35C of the Medical Act 1983, an allegation that Mr Soni’s fitness to practise was impaired by reason of his misconduct. The Panel having heard the evidence found serious misconduct and impairment proved, and exercised its power under section 35D of the Act to suspend Mr Soni’s registration for a period of 6 months. That suspension has not taken effect, having been deferred pending the outcome of this appeal.[2]The powers of this court on appeal are set out in section 40 of the Medical Act 1983. So far as is material for present purposes, that section provides – “(7) On an appeal under this section from a Fitness to Practise Panel, the court may—(a) dismiss the appeal;(b) allow the appeal and quash the direction or variation appealed against;(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court, and may make such order as to costs (or, in Scotland, expenses) as it thinks fit. … (9) On an appeal under this section from a Fitness to Practise Panel, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not.”[3]The effect of CPR Part 52, PD 22.3 is that an appeal under s.40 of the 1983 Act is by way of rehearing. By CPR 52.11, this court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal.I accept the submission of Mr Herbert, who appeared on behalf of Mr Soni, that I should apply the principles which Langstaff J, in Bhatt v GMC [2011] EWHC 783 (Admin), conveniently summarised (after a review of the authorities) in the following terms:
“… although the court will correct errors of fact or approach: (i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect; (ii) that the tribunal has had the advantage of hearing the evidence from live witnesses; (iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body; (iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from; (v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be ‘wrong’ or procedurally unfair.”
[4]I begin with an outline of the circumstances in which the allegation was made, and of the lengthy chronology of these proceedings.[5]Between December 2005 and May 2011 Mr Soni was employed by East and North Hertfordshire NHS Trust (‘the Trust’) as a consultant ophthalmologist at the Queen Elizabeth II Hospital, Welwyn Garden City (“the hospital”). The work of the hospital was primarily concerned with NHS patients, and the treatment of private patients at the hospital formed only a small part. There were however a number of consultants, in various disciplines, who saw and treated private patients, and Mr Soni was one of them.[6]There was a system for the payment by private patients of the appropriate fees both for the services of the consultant concerned and for the use of the Trusts’s premises and resources. I will refer to that system in more detail later in this judgment.[7]The GMC’s allegation against Mr Soni related to his treatment, between 5th February and 11th April 2008, of five private patients, all of whom were elderly and suffering from wet age-related macular degeneration. The patients concerned were listed in a schedule annexed to the written allegation. Mr Soni saw each of them on a number of occasions in a consulting room at the hospital, and there administered injections of a drug known as Lucentis. Mr Soni’s diary for the relevant period contained entries in relation to each occasion on which the five patients were treated. It was however alleged that no record of their treatment had ever been passed to the Private Patient office at the Trust, and that the Trust had not received the appropriate payments in respect of their attendances at the hospital. In summary, it was alleged that those private patients had been treated by Mr Soni on Friday afternoons in circumstances which amounted to their being “under the radar” so far as the Trust was concerned.[8]It appears that the first person to be concerned about Mr Soni’s actions was Mrs Jean Aldridge, who was at the material time a Senior Sister in the Ophthalmology Department. She made some initial inquiries, and in about May 2008 the Trust began an investigation into possible fraud on the part of Mr Soni.[9]It should be noted that there was also a concern as to the room in which Mr Soni had administered the injections. It appears there was a difference of opinion within the profession as to whether or not such injections should only be administered in an operating theatre or designated clean room. It is unnecessary for me to consider that issue, or other points relating to the location and suitability of the room, which are not relevant to the decision which this court has to make. It should however be borne in mind as a factor which was of concern to the Trust, because it related to patient safety.[10]On 6th November 2009 Mr Soni was informed by the Local Counter Fraud Specialist that the investigation had been completed. It had concluded that there was insufficient evidence to proceed to any criminal charges relating to “discrepancies in the records held by the Trust regarding Lucentis treatments that you have administered”, but that there was sufficient evidence to refer the matters generally to the GMC to consider what if any further action should be taken. The letter also indicated that the Trust might consider whether an internal disciplinary investigation was necessary.[11]In May 2010 the Trust started a further internal investigation, and a year later arranged an internal disciplinary hearing against Mr Soni. In May 2011 Mr Soni resigned from the Trust. The Trust nonetheless continued with its case, and found that Mr Soni had committed acts of gross misconduct, such that he would have been summarily dismissed if he had still been employed.[12]On 11th January 2012 the GMC wrote to Mr Soni saying that it had decided to conclude the case with no further action against him. However, the Trust wrote to the GMC on 13th February 2012 urging it to review that decision, and expressing concerns which principally related to the nature of the investigation and the Trust’s continuing concerns as to patient safety. The GMC offered to meet representatives of the Trust and did so on 4th April 2012. As a result, the GMC decided to re-open the case, more than 18 months after it had closed it.[13]So it was that the hearing before the Panel eventually took place in late February and early March 2014, some 6 years after the events giving rise to the allegation. By very unfortunate coincidences of timing, Mr Soni had two other matters which were causing him great anxiety at that time. It is unnecessary to go into personal details. It suffices to say that two members of his immediate family were experiencing serious medical problems. At the outset of the hearing, leading counsel applied on his behalf for a postponement of the hearing so that Mr Soni could defend the allegation against him without having his attentions diverted by those other serious concerns. The application was refused, but the timetable of the hearing was altered, and other arrangements made, to enable Mr Soni to be with a member of his family in London, rather than at the hearing in Manchester, on a number of days. Sadly, that person’s position worsened during the course of the hearing, with the result that his concerns were such that he felt unable to give evidence when the time came for him to do so. His counsel informed the Panel that Mr Soni (who was present in the hearing room) was simply not in the right frame of mind to give evidence, and said “I made my application to postpone. It has been obviously refused for the reasons given, so I do not maintain that. I am sorry to say that I will not be calling him to give evidence for that reason.”[14]Counsel had earlier informed the Panel, in answer to a question from the legal assessor, that no witness statement from Mr Soni had been served on the GMC. This court was informed that there was a draft statement, but it had not been signed by Mr Soni.[15]The allegation against Mr Soni which the Panel had to consider was in the following terms:
“That being registered under the Medical Act 1983 as amended 1. Between 28 December 2005 and 16 May 2011 you were employed by East and North Hertfordshire NHS Trust (‘the Trust’) as a consultant ophthalmologist; 2. Between 5 February 2008 and 11 April 2008 you provided treatment of Lucentis to five private patients (set out in Schedule A) on the Trust premises. In respect of this treatment a. you failed to inform the Private Patients office at the Trust that these were private patients, b. you failed to inform the Private Patients office at the Trust that the five private patients had been treated on Trust premises, c. you retained the full fees paid to you by the five private patients, d. you failed to make appropriate payments to the Trust from the fees paid to you in (c) above for treating private patients on Trust premises; 3. Your actions in paragraphs 2(c) and (d) above were dishonest; 4. Between February 2008 and April 2008 at the Trust, you breached Royal College of Ophthalmologists Guidelines in that you failed to administer Lucentis in a designated clean room; And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.” a. you failed to inform the Private Patients office at the Trust that these were private patients, b. you failed to inform the Private Patients office at the Trust that the five private patients had been treated on Trust premises, c. you retained the full fees paid to you by the five private patients, d. you failed to make appropriate payments to the Trust from the fees paid to you in (c) above for treating private patients on Trust premises; And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”
[16]The facts alleged in paragraph 1 of that allegation were admitted. The breach alleged in paragraph 4 was admitted, but was ultimately found by the Panel not to amount to misconduct. The issues on this appeal therefore relate to the facts alleged in paragraph 2 of the allegation, and the allegation of dishonesty in paragraph 3.[17]Schedule A showed that the five private patients had been treated with Lucentis on a total of 11 occasions, and had paid fees to Mr Soni totalling £13,542.[18]The Panel heard evidence from Mrs Jean Aldridge; Ms Linda Lacey, who was at the material time the Private Patient Administration Manager; and two consultant ophthalmologists, Mr Simmons and Mr Toma. The Panel also heard oral evidence from a number of character witnesses called by Mr Soni, all of whom spoke highly of him.[19]The Panel was referred to a Code of Conduct for Private Practice, published by the Department of Health in 2004, which emphasised that NHS consultants could only use NHS facilities for the provision of private medical care with the agreement of the NHS employer. Paragraph 3.4 of the Code stated that the NHS employer would determine and make such charges for the use of its facilities as it considered reasonable and that “any charge will be collected by the employer, either from the patient or a relevant third party”. Paragraph 3.5 stated that, except in cases of emergency, a consultant should not initiate private patient services involving the use of NHS staff or facilities “unless an undertaking to pay for those facilities has been obtained from (or on behalf of) the patient, in accordance with the NHS body’s procedures”.[20]Mrs Aldridge’s evidence was that the outpatients clinic was closed on Friday afternoons, but that some consultants – including Mr Soni – would see private patients after their morning NHS clinic had ended. On one occasion she had noticed that nurses were being kept late on a Friday, and had been told by them that Mr Soni was seeing NHS patients and giving them Lucentis injections. On a second occasion she was told that a nurse was late because she had been collecting Lucentis from the pharmacy for two NHS patients, and that Mr Soni also had private patients awaiting Lucentis treatment. On a third occasion, Mrs Aldridge herself was telephoned by Mr Soni, who wanted a nurse to collect Lucentis from the pharmacy for him. She thought this strange, even though he said it was for NHS patients. She said there would have been no one else in the clinic on Friday afternoons, and that she was not aware of any payments being made to the Trust for the use of the hospital facilities. She therefore took it upon herself to look at Mr Soni’s diary (without reference to him), and there found entries relating to both private and NHS patients being seen on Friday afternoons. She telephoned three of those private patients, and ascertained that each had been injected with Lucentis and had subsequently received from Mr Soni a single, unitemised bill.[21]Mrs Aldridge accepted that she had not personally been present in the relevant part of the hospital on any of the Friday afternoons when Mr Soni treated private patients, and therefore had no direct knowledge of what had happened. She did however know from others that Mr Soni was seeing private patients on Friday afternoons. She said that she had thought he was merely holding consultations, and did not know he was injecting patients with Lucentis. It appears however that even a consultation in a room at the hospital would have entitled the hospital to charge the patient for the use of that facility.[22]Ms Lacey in her evidence explained the system by which private patients treated on the Trust’s premises paid for their treatment. The system involved the use of a Private Patient Agreement form (“PPA”), usually completed by a nurse at the reception desk of the relevant department of the hospital. This was signed by the patient, and confirmed his or her undertaking to make payments to the Trust for the hospital services provided and facilities used, and for any medication used or dispensed. The form also referred to the patient’s liability to pay the consultant for his or her services. Thus in the ordinary way the patient would receive a bill from the consultant, or his or her secretary, for the consultant’s services; a bill from the Trust for the use of the hospital facilities (the amount of which would of course vary according to what facilities had been used); and a bill from the Trust’s pharmacy for any medication which had been used or dispensed to the patient.[23]The PPAs would be provided to Ms Lacey by the receptionists, either singly or in batches. Ms Lacey’s evidence was that it was the responsibility of the consultant to ensure that she was advised of any private patients and therefore able to bill them. Usually the consultant would do so through his or her secretary. In Mr Soni’s case, she said that his secretary would at intervals of between one and three months provide her with a list of private patients seen in the Trust, which she could then cross-check against the PPAs. Ms Lacey invoiced every patient who had filled in a PPA, but if there was no PPA, and no relevant entry on the list provided by Mr Soni’s secretary, then she would not know of the patient. In about July 2009 she was asked to check her records, and could find no record of the treatment with Lucentis of the five private patients listed in Schedule A.[24]Ms Lacey referred to three occasions when she had invoiced one of Mr Soni’s private patients (not one of those in Schedule A) on the basis of treatment in an operating theatre, but was later asked by Mr Soni to render an amended invoice because the treatment had in fact been given in a consultant’s room, for which the Trust’s charge was much less.[25]Ms Lacey confirmed that she knew at the time that Mr Soni saw private patients on Friday afternoons. In cross-examination she said that at the material time, consultants were not part of making sure the PPA form was completed and would not necessarily see it. She said there was at that time no very robust policy as to the arrangements between a consultant, a private patient and the hospital: it was pretty casual, and there was no induction course at which a consultant would be told what procedure to follow. She also said that the system of documentation was not robust either, and papers could go missing. She said at one point in her evidence – “… most consultants’ secretaries made me aware that the patients had come in – and it was usually the consultant’s secretary, not the consultant – but for whatever reason, the agreement to pay forms were not always captured where the patients were brought in at the end of the receptionist’s hours or the nurses forgot to do them or they could have just been misplaced.”[26]With reference to Mr Soni’s secretary at the time, Ms Lacey said “I had my information from Valerie, sometimes monthly, as I said, sometimes two or three months later, and I would just check the information she gave me against the agreement to pay forms I had received from the ward, and then if I did not have all the agreement to pay forms then I would just bill for the extra patients I had been advised of.” The closing words of that passage plainly indicate that the information which Ms Lacey received from Mr Soni’s secretary included on occasion information about a patient for whom there was no PPA form.[27]It was clear from the evidence that subsequent to the relevant time, the Trust had instituted a new and more robust procedure. However, Ms Lacey said – “Unfortunately, not being set up to be just a private hospital, there are many doorways that patients can come in and there are many areas they can be seen. Even now, although we have the private patient policy in place, still sometimes paperwork goes missing. ”[28]Mrs Aldridge’s evidence had been that she knew that the reception desk was not staffed on Friday afternoons, and that if there was no one else to complete a PPA for a private patient, “then the consultant himself would complete it”. However, Ms Lacey did not give evidence to that effect. Moreover, the GMC’s case was that it was not essential for the PPA form as such to be completed, as long as the consultant notified the Private Patient office in some manner that he had treated a patient on Trust premises.[29]By the time of the hearing before the Panel, none of the five private patients was fit to attend the hearing to give evidence, but they had made witness statements (taken on dates in July and August 2008) which were adduced in evidence by the GMC. None of Mr Soni’s invoices to the five private patients was exhibited, and of course none of these witnesses was available for cross-examination. Only one patient gave any evidence that anything had been said to suggest that Mr Soni would include the hospital’s charges in his invoice: that was a patient referred to as MC, who said that she had received an invoice for £1,270 for each treatment:
“This did not itemise the treatment but Mr Soni’s medical secretary had explained that £1,000 was for the Lucentis treatment and the £270 was for the hospital and Mr Soni’s fee.”
[30]The foundation of the GMC’s case was that Mr Soni was treating the five private patients on Friday afternoons, and was thus able to do so “under the radar”. However, although most of the dates of treatment were Fridays, one of the dates listed in Schedule A was 5th February 2008, which was a Tuesday: a fact which, remarkably, seems to have passed unnoticed until Mr Herbert pointed it out during the hearing before this court.[31]At the conclusion of the evidence called by the GMC, Mr Soni’s counsel submitted pursuant to rule 17(2)(g) of the General Medical Council (Fitness to Practise) Rules 2004 that there was insufficient evidence to find the alleged facts and dishonesty proved. That submission was rejected. For convenience, I shall refer to this (as counsel did) as “the submission of no case to answer”.[32]As I have said, Mr Soni did not give evidence. The application for a postponement which had been made on behalf of Mr Soni at the outset of the hearing before the Panel was not repeated with specific reference to Mr Soni giving evidence, and no application was made to adduce any witness statement as his evidence. I do not accept the submission that the Panel’s duty to ensure a fair hearing for Mr Soni required that leading counsel should in effect have been challenged about those omissions. Mr Soni was in fact present at the time when he would have been called to give evidence had he wished to do so, and the Panel was informed that he did not feel able to give evidence at that difficult time. The Panel was in due course correctly instructed by its legal assessor not to draw any adverse inference against Mr Soni by reason of his not having given evidence. It does not appear that Mr Soni ever signed the draft witness statement which had been prepared for him, and in any event there are obvious reasons why his counsel may have thought it unwise to attempt to adduce evidence in statement form when the witness was sitting in the hearing room but unwilling to give evidence.[33]Witnesses were called on Mr Soni’s behalf as to his medical skill and as to his good character.[34]The Panel heard closing submissions as to the facts, and made its determination on 4th March 2014. It accepted the evidence of the witnesses from whom it had heard. It found Mrs Aldridge to be “a straightforward witness to matters of fact”. It made a similar finding about Ms Lacey, adding that – “She provided important and credible evidence regarding the systems and procedures in place at the Trust for private patients and she was frank about deficiencies in the system.”[35]The Panel found the facts in paragraphs 2(a) and (b) of the allegation proved, saying that it was common ground that Mr Soni had injected private patients with Lucentis on the afternoons of Fridays 5th February, 15th February, 14th March, 20th March, 28th March and 11th April 2008, the issue being whether the Trust was aware of the existence of those private patients and that they were being treated on Trust premises. It accepted the evidence that no paperwork had been received by the Trust, and although “the system may not have been robust and there may have been administrative oversights”, it was unlikely that that would account for the Private Patient office not having received any paperwork relating to any of these patients. It concluded on the basis of the evidence heard that Mr Soni was aware of his duty “to inform the Trust through the usual channels that he was treating private patients in his clinic on Friday afternoon”. In the absence of any records from the Private Patients office the Panel was satisfied that Mr Soni failed to do so.[36]The Panel found the facts in paragraph 2(c) proved. It referred to the evidence of the patient MC, and said it “had not been provided with any evidence that Mr Soni did not retain the full fees paid by the patients”.[37]It found the facts in paragraph 2(d) proved, accepting the evidence of Ms Lacey that she had not received any paperwork in relation to the five private patients and had therefore not billed them. The Panel said that Mr Soni was aware of the system in place for private patients, and “even if it was not his personal duty to provide a list of the patients to the Private Patients office then he had a responsibility to ensure that this list was provided”.[38]At the conclusion of their finding in relation to this paragraph, the Panel said – “It is clear from the witness statements provided by the five private patients that they attended the hospital and received treatment with Lucentis from Mr Soni. It is also clear that Mr Soni charged the patients for Lucentis and there is evidence that he asked the nurses to obtain it for him from the pharmacy, although it is not clear if this was solely for the treatment of private patients. Both Mr Toma and Mr Campbell confirmed that they obtained Lucentis for treatment of private patients from the hospital pharmacy. The Panel has heard no evidence that there was any other mechanism for obtaining Lucentis for private or NHS patients. The Panel heard conflicting evidence as to the process of billing for Lucentis. Ms Lacey told the Panel that Pharmacy would bill the patient whilst Mr Campbell was unaware of this. Mr Toma gave evidence that the expectation was that the hospital would bill for use of the theatre, nurses, equipment and Lucentis administered. The Panel has therefore determined that Mr Soni was billing the patient for Lucentis obtained from the hospital pharmacy but there is no evidence that he made any subsequent payments to the Trust.”[39]The Panel then went on to find the allegation of dishonesty in paragraph 3 of the allegation proved, saying – “The Panel has been informed that Mr Soni is a man of good character. It heard from a number of testimonial witnesses who attested to his honesty and integrity. The Panel has already determined that Mr Soni had knowledge of the system for the processing and billing of private patients, and what his part in the process was. It has also determined that Ms Lacey knew nothing of these five patients. The Panel has been provided with details, within Schedule A, of approximately £13,000 billed to the five private patients and subsequently paid to Mr Soni. It has also been provided with evidence of payments due to the Trust, particularly in relation to the use of Lucentis. However, there has been no evidence adduced of any payments made by Mr Soni to the Trust. The Panel is in no doubt that, according to the ordinary standards of reasonable and honest people Mr Soni’s actions, in charging for Lucentis and not providing payment to the Trust, would be considered dishonest. It also considers that Mr Soni must have realised that what he was doing was dishonest.”[40]Regrettably, the Panel fell into serious error in the findings which I have quoted at paragraphs 38 and 39 above. There was no evidence as to where Mr Soni had obtained the Lucentis for the five private patients: the GMC did not allege that he had injected those patients with Lucentis from the hospital pharmacy, and there was no evidence that he had done so. Nor did the GMC allege that he had failed to account to the Trust for Lucentis used by him in his treatment of these patients, and again there was no evidence that he had done so. The GMC’s case was put forward on the basis that Mr Soni had failed to account for the sums due to the Trust in respect of the use of the hospital’s facilities. The evidence was that each treatment of the relevant private patients would have attracted a fee from the Trust of £60 for the use of the consultation room, meaning that the alleged loss to the Trust was a maximum of £660 rather than the £13,000 which the Panel found. It may be that this error arose because the basis on which the case was being conducted had not been made as clear as it should have been by the parties: certainly that was a point raised by the legal assessor when the parties sought to clarify the position after the Panel had made its determination. I do not think anything is to be gained by seeking to ascribe responsibility for the error: the important point is that the Panel made a determination which went not only beyond the evidence but even beyond the allegation, and which it should not have made.[41]There followed an unsuccessful application on behalf of Mr Soni for the Panel to recuse itself on the ground that it had made a determination which was not properly open to it.[42]In the later stages of the proceedings, the Panel heard submissions as to whether the actions of Mr Soni amounted to misconduct and as to the appropriate sanction. The Panel - “found proved that you retained the full fees paid to you by the five private patients and that you failed to make appropriate payments to the Trust from the fees paid to you. The Panel found that your actions with regard to these fees were dishonest. ” The Panel thus based its finding of dishonesty on the failure to make appropriate payments to the Trust out of the fees received, and not on the other factual matters which were proved against Mr Soni.[43]The Panel went on to find that Mr Soni’s dishonest conduct amounted to serious misconduct, that his fitness to practise was impaired by that misconduct, and that the appropriate sanction was that he be suspended for 6 months. As I have indicated earlier in this judgment, it did not find that the conduct admitted in relation to paragraph 4 of the allegation amounted to misconduct.[44]In its ruling as to the appropriate sanction, the Panel said – “The decision made by the Panel in relation to dishonesty was not made solely on the basis of the source of the Lucentis. The Panel determined that Mr Soni had knowledge of the system for the processing and billing of private patients, and what his part in the process was. It also determined that Ms Lacey knew nothing of the five private patients and there was no evidence adduced of any payments made by Mr Soni to the Trust. In reaching it decision on impairment the Panel did not rely on the amounts set out in Schedule A. … The Panel has determined that it is still able to make a decision on sanction without relying on the figures in Schedule A as [counsel for the GMC] has now submitted that the fundamental issue is not about the actual sum in question but the finding of dishonesty itself. The Panel does not consider that it would be unfair to Mr Soni to proceed on this basis.”[45]With all respect to the Panel, I find that statement difficult to reconcile with the terms of the transcript of the earlier determination. That perhaps reflects the fact that the Panel was in a difficult position at this stage of the proceedings: it had made an unjustified finding that Mr Soni had received about £13,000 from the private patients, the majority of which was in relation to the cost of Lucentis obtained from the hospital pharmacy, and had failed to make the appropriate payments to the Trust; and it then had to consider the remaining stages of the proceedings in the knowledge that it had not been entitled to make that finding about the Lucentis.[46]In its initial skeleton argument, the GMC resisted all the grounds of appeal. It accepted that the Panel had made findings which it ought not to have made (namely, that Mr Soni had charged patients for Lucentis but not made payments to the Trust for that drug), but submitted that any procedural irregularity in making those findings had had no effect on the Panel’s decision. However, shortly before the hearing in this court the GMC filed a supplementary skeleton argument saying that it no longer resisted that aspect of the appeal. It submitted that this court should exercise its power under s40(7)(d) of the 1983 Act to remit the case to the Registrar for him to refer it to a freshly-constituted FTP Panel.[47]As a result, the parties were principally concerned with their competing submissions as to what order this court should make, and in particular whether it should remit for the Registrar to consider a new hearing. It is nonetheless necessary for me to summarise the overall grounds of appeal, and to address those aspects of the grounds of appeal which most impact upon the decision which the court must make as to the appropriate order.[48]On 17th November 2014, about three weeks before this appeal was to be heard, Mr Soni issued an application notice seeking permission to amend his grounds of appeal. By an order made on the 5th December (without a hearing) I permitted him to do so in certain respects, but refused permission to add grounds which contended that the Panel had failed to allow a short adjournment in order that Mr Soni could give evidence and in failing to ensure that a witness statement was adduced in evidence on his behalf. I gave the following reasons for that refusal of permission:
“No application was made for an adjournment or to adduce written evidence. The fact that the Appellant’s counsel made no such application is apparent on the face of the transcript, but any consideration of the reasons for his not doing so would require (a) an explicit waiver of the Appellant’s legal professional privilege, which has not been given, and (b) a body of evidence from the Appellant, and potentially from his former legal representatives, which was not before the Panel. It is not appropriate for the appeal court to embark upon an investigation of such evidence, and the application is in any event made much too late.”
[49]At the hearing of the appeal, I was invited by both parties to vary that[50]The grounds of appeal, in summary, are that the Panel acted as no reasonable Panel would have done in finding the case against Mr Soni proved, and were wrong and unjust in that(a) there was an abuse of the process because the GMC and the Trust had acted together to re-open the case against Mr Soni, and had subjected him to inordinate and inexcusable delay;(b) the Panel failed to ensure that Mr Soni had a fair trial; and(c) the Panel’s findings were contrary to the weight of the evidence. I can deal quite briefly with the first and second of those grounds, before turning to the third, and in my view principal, ground.[51]The allegation of abuse of process focuses upon the circumstances in which the case against Mr Soni was re-opened by the GMC. In essence, it is submitted that the GMC was wrong to hold the meeting on 4th April 2012 at which it received representations from the Trust without either ensuring that a proper record was made of the meeting, and disclosing that record to Mr Soni, or offering Mr Soni a corresponding opportunity to make further representations. It is further submitted that the Trust wrongly provided Mrs Aldridge with copies of correspondence including a letter from the GMC. In those respects, it is submitted that the Trust successfully exercised inappropriate pressure on the GMC to re-open the case, and suborned a witness before she had been seen by the GMC.[52]I am not persuaded by those submissions. Rule 12 of the General Medical Council (Fitness to Practise) Rules 2004 gives the GMC a power to review its decision. It cannot successfully be criticised for its willingness to hear representations from a body affected by that decision. As Miss White was able to demonstrate, the GMC had written to Mr Soni on 21st May 2012, informing him that the Assistant Registrar felt it appropriate to review the decision to close the case, explaining why that was being done, and inviting him to submit any representations he wished to make. The relevant correspondence relating to the meeting which the GMC had held with the Trust was disclosed before the Panel hearing, and any concerns about Jean Aldridge could therefore have been ventilated in cross-examination of her. No submission was made to the Panel to the effect that the proceedings should be stayed on grounds of abuse, and Miss White relies on the judgment of Hodge J in Dzikowski v GMC [2006] EWHC 2468 (Admin), in particular at paragraph 22, in support of her submission that Mr Soni is not entitled to raise these matters for the first time on appeal to this court. Moreover, I find that nothing has been put before this court to justify the assertion that the GMC was unduly influenced by the Trust or acted maliciously. I therefore reject this ground of appeal.[53]The complaint that the Panel failed to ensure a fair trial is in part based on submissions that the Panel wrongly failed to allow the submission of no case to answer which was made on Mr Soni’s behalf at the conclusion of the GMC’s evidence, and wrongly failed to take into account Mr Soni’s good character. In my view, those arguments are more relevant to, and are more appropriately considered as part of, the third ground of appeal. This second ground also includes a complaint that the Panel failed to recuse itself after appreciating its error in relation to the source of the Lucentis. In relation to that latter point, I reject the submission. The Panel was, as I have said, in a difficult position, but cannot in my judgment be criticised for its decision that it could and should continue with the hearing after being alerted to the error which had been made. Any remedy to which Mr Soni may be entitled because of that error lies in this appeal, and not in recusal.[54]I have already referred to my refusal of an amendment which would have expanded the second ground of appeal by introducing criticisms of leading counsel’s conduct of the hearing.[55]I therefore turn to the third ground of appeal, about which both counsel made detailed and helpful submissions. I am grateful to them both for the clarity of those submissions. Mr Herbert’s primary submission on behalf of Mr Soni was that the evidence simply could not sustain a finding of misconduct and the appeal should therefore be allowed and the direction quashed. Miss White’s primary submission was that there was and is evidence on which a reasonable FTP Panel could properly find misconduct, and that the public interest in maintaining the probity of medical practitioners made it appropriate to remit the case with a view to its being heard by a new Panel. On that principal issue, as to whether this court should remit the matter, the parties helpfully agreed that the court should not remit if it found that there was no evidence on which a future Panel could reasonably find the allegation of dishonesty proved. Miss White submitted that if a finding of dishonesty could properly be made, the public interest required that the case be remitted. Mr Herbert advanced an alternative argument to the effect that, even if there might be a finding of dishonesty, a fair hearing was no longer possible because of the passage of time since the relevant events. Miss White submitted in response that a fair hearing was possible, and pointed out that it was Mr Soni’s case (in applying to amend his grounds of appeal) that he had evidence which he wanted to give and had not thus far been able to give. Both counsel acknowledged the irony that on the issue of whether a fair hearing was still possible, they were reversing the arguments which the parties had put forward when the Panel was initially invited to postpone its hearing: at that stage, the GMC had argued against any further delay, whereas Mr Soni had submitted that no prejudice would be caused if the hearing was delayed.[56]In the light of the evidence which was before the Panel, and having reflected on the submissions of the parties, I have come to the following conclusions.[57]There was, clearly, evidence on which the Panel could be satisfied that the facts alleged in paragraphs 2(a) and (b) of the allegation were proved, and that Mr Soni knew that he was required to give such information to the Trust, even if he was not expected personally to complete (or even to see) a PPA for each private patient. Those were important matters, and Mr Soni could legitimately be criticised for failing to operate a system which sufficiently ensured that, in whatever manner and on whatever form of document, his treatment of private patients on Trust premises was brought to the attention of the Private Patients office. However, as paragraph 3 of the allegation made clear, those matters were not in themselves alleged to be evidence of dishonesty. Counsel for the GMC, in responding to the submission that there was no case to answer, had very properly emphasised to the Panel that the GMC took the view that “there needs to be an element of financial gain to the doctor, or financial loss to the hospital, or financial gain to those patients and financial loss to the hospital and thereby indirect gain to the doctor, for it to be reasonable to ask you to conclude that there was dishonesty.”[58]There was also evidence on which the Panel could be satisfied that Mr Soni had retained all of the fees which he received from the five private patients - paragraph 2(c) – and that he had not paid any part of those fees to the Trust.[59]However, it is important not to lose sight of the terms in which the GMC had formulated paragraphs 2(d) and 3 of the allegation; and it must be remembered that it was the patient, not the consultant, who was liable to pay any fee due to the Trust for use of hospital facilities. Proof of those allegations required evidence that the fees received by Mr Soni from each of the five private patients did in fact include a sum for the use of hospital facilities which he should have paid to the Trust. In reality, that meant that there had to be evidence that Mr Soni had deliberately invoiced each patient on the basis that his fee would include whatever the patient was liable to pay to the Trust (which would, of course, be a complete departure from the proper system), and that he had deliberately withheld any such payment from the Trust.[60]There was no direct evidence to that effect. In my judgment, the evidence of the patient MC, referred to in paragraph 29 above, cannot be regarded as direct evidence against Mr Soni: it was evidence (not capable of being tested or clarified by cross-examination) of what the secretary had said to that one patient, and there was no evidence that the secretary had said anything similar to any of the other four private patients. This one statement cannot fairly be treated as evidence that Mr Soni was deliberately misleading his patients and cheating the Trust, and cannot properly bear the weight which the Panel appears to have attached to it.[61]The crucial question, therefore, is whether on a fair view of the evidence as a whole it was open to the Panel to infer that Mr Soni had deliberately withheld from the Trust sums of money which he had received from the five private patients, and which he knew he should pay to the Trust, and was deliberately dishonest. In my judgment, it was not. Although this was not a criminal charge against Mr Soni, and the GMC only needed to prove its allegation on the balance of probabilities and not to the higher criminal standard, the principle must nonetheless apply that before an inference could properly be drawn, the Panel had to be able safely to exclude, as less than probable, other possible explanations for Mr Soni’s conduct.[62]In the context of this case, the Panel therefore had to take into account both the evidence as to the deficiencies in the system of recording private patients and the powerful evidence of Mr Soni’s positive good character. With all respect to the Panel, I am driven to the conclusion that they cannot have given appropriate weight to those aspects of the evidence. Ms Lacey’s evidence was clear evidence that there might be an absence of a PPA because of oversight, or administrative error, or loss of the form. It was clear evidence that consultants were not in general personally involved in completing PPAs. It was clear evidence that PPAs and records from consultants’ secretaries were provided to the Private Patients office after the event, and sometimes months after the event, which plainly gave rise to the possibility of some records being lost or overlooked by the consultant or by the consultant’s secretary. It was also clear evidence that Mr Soni’s secretary on occasions made Ms Lacey aware of a private patient for whom no PPA could be found, thus alerting the Trust to its entitlement to invoice a private patient for treatment of which the Trust may not otherwise have been aware. Mrs Aldridge’s evidence could not and did not contradict Ms Lacey’s evidence. Thus the possibility of there being an explanation other than dishonesty for the absence of PPAs was clearly before the Panel. In my judgment, there was no evidential basis on which the Panel could conclude that any such explanation was less probable than deliberate dishonesty.[63]Moreover, the evidence as a whole made it clear that Mr Soni was known to be seeing private patients on Friday afternoons, and his diary recorded their attendances. Whether or not he was seeing these particular private patients for the purposes of administering Lucentis injections, their attendances would be expected to be notified to the Private Patients office. It is accordingly impossible to regard these as appointments which were “below the radar” of the Trust: Mr Soni could not realistically be thought to be trying to hide the existence of these five private patients, or his treatment of them, from the Trust. I accept Mr Herbert’s submission that Mr Soni’s behaviour in asking Mrs Aldridge whether a nurse was available on a Friday afternoon, and in asking Ms Lacey to render amended invoices to other private patients who had been wrongly charged for the use of a theatre when they had only used a room, was inconsistent with any desire on his part to avoid the Trust knowing about the relevant five private patients. I also accept his submission that it is important to note the absence of any evidence that Mr Soni ever gave any instruction to his secretary, or to any of the nursing staff, that no mention was to be made of his seeing private patients on Friday afternoons or that documentation was to be suppressed. Indeed, there was a complete absence of any evidence from the secretary (who could plainly be identified) or from any nurse (even the nurse specifically named by Mrs Aldridge as having had some dealings with Mr Soni in relation to Lucentis on a Friday afternoon). There may have been good reasons why the GMC could not call those witnesses; but their absence, at the end of investigations which had gone on over a period of years before the Panel hearing, gravely undermined the foundations of any inference of deliberate dishonesty.[64]Further, once it is recognised that there was no allegation, and no evidence, that Mr Soni had obtained the Lucentis from the hospital pharmacy, but had not passed on the patients’ payments for it, then any allegation of Mr Soni being motivated by financial gain for himself becomes extremely difficult to sustain. Of course, even a wealthy man may resort to dishonesty in order to enrich himself by a small sum; but in the light of the character evidence which was before the Panel, it is very difficult to infer that Mr Soni was deliberately jeopardising his career and his reputation in order to gain an extra £60 from each of the attendances by these particular private patients. Thus even if (contrary to my view) it was open to the Panel to find that he had received from the five private patients sums which he knew he should pass on to the Trust, it is very difficult to discern any motive for his withholding them.[65]In this regard, it is instructive to note that the Panel did not make any specific finding about dishonesty in relation to the £60 fee for the use of the hospital’s room. True it is that the Panel stated that it had not had made its decision about dishonesty “solely on the basis of the source of the Lucentis”; but what it did not do was to say why dishonesty was to be inferred even though the most that could be gained by dishonesty would be the comparatively modest sums applicable to the use of the consulting room. It seems to me that the Panel was, in truth, unable to do so. Miss White submitted that it is the finding of dishonesty which is important, not the sum of money involved. That is correct as far as it goes; but it overlooks the important point that there must first be evidence justifying the inference of dishonesty. In that respect the absence of any convincing financial motive is a relevant consideration – particularly when it is coupled with evidence to the effect that Mr Soni could at any stage have been asked awkward questions about the billing arrangements by his secretary, or by a nurse, or by Mrs Aldridge, or by Ms Lacey, or by a patient, and so was taking a terrible risk as to his future career if he was acting dishonestly.[66]The fact that one of the dates listed in Schedule A was not a Friday is a further factor which militates against any inference of dishonesty. At the least, it raises the possibility that there was treatment on a Tuesday – when the reception desk would be staffed – which did not generate a PPA. That possibility is wholly inconsistent with the broad allegation that Mr Soni was not disclosing or providing records of private patients whom he had treated on Friday afternoons. It shows that explanations other than dishonesty have not been excluded by the GMC’s evidence.[67]With respect to the Panel, it seems to me that it conflated separate issues, and made unjustifiable assumptions. There is in my view considerable force in Mr Herbert’s submission that the Panel must have started from the finding that Mr Soni knew he should provide a record of treatment of private patients; added its findings that no record was in fact provided of these five private patients and that the Trust neither billed those patients nor received from Mr Soni any payment in respect of them; assumed (without sufficient evidence) that there had been a deliberate failure to account to the Trust for sums which Mr Soni had in fact received in respect of the use of hospital facilities; and then concluded that such conduct must on the balance of probabilities show deliberate dishonesty. The Panel was wrong to do so, because a finding against Mr Soni of a failing of administration, even of negligent administration, does not without more justify a finding of dishonesty. What was needed was evidence from which it could safely be inferred that the explanation for the failing probably lay in dishonesty on the part of Mr Soni rather than in oversight or confusion or even a lack of concern for ensuring that the Trust was made aware that a fee was due to it from a private patient. There was in my judgment no direct evidence, and no basis for a safe inference, that Mr Soni charged the patients for hospital facilities and retained those sums for himself; and no basis on which the Panel could reasonably reject the alternative explanations of innocent oversight or administrative confusion which were clearly raised by Ms Lacey’s evidence as to the deficiencies of the system.[68]For those reasons I conclude that the Panel made a wrong determination against Mr Soni. It was wrong to reject the submission of no case to answer, and wrong to find that dishonesty was proved. With all respect to the Panel, I am afraid it must have confused grounds for suspicion with evidence sufficient to prove, on the balance of probabilities, a serious allegation against a professional man.[69]I also conclude that no future Panel could be in any different position if the case were remitted. Any future Panel, before it could infer dishonesty, would have to consider whether the evidence showed other possible explanations, and if so whether it could safely conclude that those other explanations were less probable than deliberate dishonesty. In my judgment, the first question can only be answered in the affirmative, and the second question can only be answered in the negative. The evidence adduced against Mr Soni by the GMC was insufficient, and always would be insufficient, for any Panel reasonably to answer those two questions in any other way. Ms Lacey’s evidence makes it impossible to conclude that there was no realistic prospect of innocent error, oversight or administrative confusion on the part of Mr Soni and/or his secretary. The evidence as a whole makes it impossible to conclude that the probable reason for the Trust’s having no record of the five private patients was that Mr Soni had been deliberately dishonest.[70]I have reflected carefully before reaching a conclusion so contrary to the findings of the Panel. I also bear very much in mind that Miss White in the course of her admirable submissions relied upon Southall v GMC [2010] EWCA Civ 484, in which Leveson LJ (as he then was) expressed doubt as to whether the public interest was served by a rehearing of an allegation relating to matters some 12 years earlier, but nonetheless concluded that protection of the public interest was primarily a matter for the GMC and that it would no be appropriate to remove the responsibility of making that decision from them: see paragraph 8 of his judgment. Miss White submitted that this case should be remitted to the Registrar for a decision as to whether a rehearing is in the public interest and whether there can be a fair hearing. However, the determination of this appeal does not involve any departure from the Panel’s assessment of the credibility of the witnesses, all of whose evidence was accepted by the Panel. It does not turn on matters which engage the Panel’s specialist knowledge of medical matters. This court is in as good a position as the Panel was to assess the sufficiency of the evidence; and if the evidence is insufficient, then the public interest cannot be served by a further hearing of it. I conclude not only that the Panel was wrong in the decision which it made, but also that if the case were to be remitted, no future panel could be in any different position.[71]For those reasons, this appeal succeeds, and I quash the determination. It is not appropriate to remit the case, and I do not do so.[72]Any consequential orders should if possible be agreed between the parties, and notified to my clerk with a draft order which I will consider and, if appropriate, approve. Any disputed issues will be determined in writing unless I direct otherwise. Accordingly, in relation to any remaining issue which is in dispute, the parties must file their written submissions within 28 days after the handing down of this judgment, and provide electronic copies thereof to my clerk.

order

Mr Herbert sought permission for all the proposed amendments; Miss White on behalf of the GMC argued that he should not have even the limited permission which I had granted on the papers. Having heard the submissions of both parties, I was not persuaded that it was appropriate to make any variation, and so the hearing proceeded on the basis of the original grounds as amended by my order of 5th December. In particular, although Mr Herbert told me that Mr Soni was prepared to waive his legal professional privilege in respect of relevant matters, it appeared that former counsel had only been contacted by e mail a short time before the hearing and had not had a proper opportunity to respond to the criticisms which it was sought to make of him. I remained of the view that it would have been wholly unfair for this court to be invited in such circumstances to make a finding that former counsel had been professionally negligent in failing either to make a further application for a postponement or to adduce a witness statement from Mr Soni. It was much too late to raise such matters so close to the hearing of the appeal.

Cited in 6 later judgments