General Medical Council v Theodoropolous (Rev 1) [2017] EWHC 1984 (Admin)

[2017] EWHC 1984 (Admin)Case No CO/710/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2017
Before
THE HONOURABLE MR JUSTICE LEWIS
Between
GENERAL MEDICAL COUNCILAppellantTHEODOROPOLOUSRespondent
Eleanor Grey Q.C.(instructed by the Senior Legal adviser for General Medical Council ) for the Appellant for The Respondent did not appear and was not representedHearing Hearing date: 21 June 2017
Approved Judgment
[1]This is an appeal by the General Medical Council (“the Council”) against a decision made by the Medical Practitioners’ Tribunal (“the Tribunal”) on 12 January 2017. By that decision, the Tribunal directed the suspension of registration of the respondent, Dr Theodoropolous, from the medical register for a period of 12 months. The Council appeals on the basis that that decision was wrong and the appropriate sanction was erasure of the respondent’s name from the medical register.[2]The respondent did not attend the appeal hearing and, in the circumstances outlined in detail below, a preliminary question arises as to whether it is appropriate for this court to hear and determine the appeal in his absence. THE FACTUAL BACKGROUND The Allegations

THE FACTUAL BACKGROUND

[3]The respondent is a consultant ophthalmologist who is, it seems, a Greek national and has had a private practice in Athens. He has practiced in the past in the United Kingdom and was registered as a medical practitioner pursuant to the provisions of the Act. That registration lapsed when he returned to Greece in about 2005. In March 2015, his name was restored to the register. Registered medical practitioners are required to obtain a licence to practise. A licence may be refused if the person concerned has not demonstrated a knowledge of English: see regulation 3 of the General Medical Council (Licence to Practice and Revalidation) Regulations Order of Council 2012 (“the Regulations”) made pursuant to sections 29A and 29B of the Medical Act 1983 (“the Act”). Section 49A of the Act provides that it is a criminal offence punishable by a fine if person who does not have a licence to practise holds himself out as having such a licence.[4]Details of registered medical practitioners are maintained by the Council on on a data base. There is provision for practitioners to access the data base but they cannot alter the data base itself. The respondent was shown on the data base as a registered medical practitioner “without a licence to practise”. He was accused of accessing the data base, using software to amend the version that appeared on the screen on the computer used to access the data base so that the entry appeared to read “with a licence to practise”, and printed out that altered version. The record stored in the electronic data base itself was not altered. The respondent was said to have sent of copy of the altered version to an agency, ID Medical, with a view to seeking employment as a locum.[5]Proceeding were brought against him in the Tribunal alleging that the respondent’s fitness to practice was impaired by reason of misconduct pursuant to section 35D of the Act. The allegation was in the following terms:
“That being registered under the Medical Act 1983 (as amended): 1. On 18 March 2015 the GMC sent you an email confirming that:- a. your application for restoration to the register with Full registration without a licence to practice had been granted from 18 March 2015; b. you must make sure that your status on the register is appropriate for the type of work or post in which you are planning to practice; c. you must be registered and licensed to work as a doctor in the UK. 2. On a date between 18 March 2015 and 14 July 2015 you: a. accessed your certificate of proof of entry on the register (“the Certificate”) from your GMC online account. b. amended the Certificate so that it stated that you had “Full registration in APS with a licence to practise” from 18 March 2015 (‘the Amended Certificate’); 3. On 14 July 2015 you provided a copy of the Amended Certificate to locum agency, ID Medical; 4. You submitted the Amended Certificate to ID Medical despite knowing that: a. you did not have a licence to practise; b. the Amended Certificate was falsified. 5. Your actions as described in paragraphs 2 to 4 were: a. misleading; b. dishonest.” a. your application for restoration to the register with Full registration without a licence to practice had been granted from 18 March 2015; b. you must make sure that your status on the register is appropriate for the type of work or post in which you are planning to practice; c. you must be registered and licensed to work as a doctor in the UK. a. accessed your certificate of proof of entry on the register (“the Certificate”) from your GMC online account. b. amended the Certificate so that it stated that you had “Full registration in APS with a licence to practise” from 18 March 2015 (‘the Amended Certificate’); a. you did not have a licence to practise; b. the Amended Certificate was falsified. a. misleading; b. dishonest.”
[6]The respondent sent a detailed, five-page e-mail, dated 10 August 2015 denying the allegations. He contended that there was no evidence that he had altered the certificate. He said that he had only printed the certificate that appeared on the Council’s website and sent it to ID Medical. He suggested that a member of the staff of the Council must, mistakenly, have made the alteration.

The Tribunal’s Hearing and Determinations

[7]On 9 January 2017, the Tribunal convened to hear the allegations. The respondent was not present. Rule 31 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004/2608 (“the Rules”) provides power for the Tribunal to proceed to determine the allegation against the practitioner if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with the rules. The Tribunal first considered whether it was satisfied that all reasonable efforts had been made to notify the Respondent and decided that it was. The Tribunal then considered whether to continue with the hearing in the respondent’s absence and decided to do so. There is available a full transcript recording the submissions relating to both of those matters and the Tribunal’s decision and reasons are recorded in its written determination.[8]The Tribunal then considered the allegations. It heard oral evidence from officers at the Council dealing with the operation of the website and received documentary evidence in the form of e-mail correspondence between the respondent and the ID Medical agency. The Tribunal found that the Council’s witnesses were honest, credible and reliable witnesses. The Tribunal also expressly confirmed that it had read and taken into account the respondent’s e-mail of the 10 August 2015 setting out his account of events.[9]The Tribunal found that the respondent had accessed his certificate on the register on a date between 18 March 2015 and 14 July 2015 and had amended it so that, instead of reading “Full registration in APS without a licence to practise”, it read “Full registration in APS with a licence to practise”. The Tribunal also found that he had provided a copy of the amended certificate to ID Medical on 14 July 2015 knowing that he did not have a licence to practise and knowing that the amended certificate was falsified. The Tribunal found that the respondent’s actions had been misleading and dishonest (save that it was not dishonest or misleading in itself in accessing the website). Full reasons are given for those conclusions in the Tribunal’s written determination. In paragraphs 36 and 37 of their determination, the Tribunal said this:
“36. In respect of sub-paragraph 2(b), the tribunal found that between 18 March 2015 and 14 July 2015 Dr Theodoropoulos amended the Certificate so that it read ‘with a licence to practise’ instead of ‘without a licence to practise’. The tribunal was satisfied that amending the Certificate in that way was misleading because by doing so anyone reading the Certificate would be under the impression that he had a licence to practise when he did not. In his written representations, dated 10 August 2015, Dr Theodoropoulos made no admission that he had amended the Certificate. The tribunal did not accept that. The tribunal has found that an amendment was made and that the amendment was made by Dr Theodoropoulos. The tribunal was satisfied that there could have been no other intention behind the amendment other than a deliberately dishonest intention to procure himself a job for which, in the absence of a licence to practise, he was not eligible. It therefore found paragraph 5 as it relates to sub-paragraph 2(b) proved. “37. In respect of paragraphs 3 and 4, the tribunal found that on 14 July 2015 Dr Theodoropoulos submitted the Amended Certificate to ID Medical by email, despite knowing that the did not have a licence to practise and despite knowing that the Amended Certificate was falsified. By doing so, Dr Theodoropoulos sent a healthcare recruitment company responsible for placing locum doctors, a document which stated the opposite of the truth in respect of him having a licence to practise. He knew this to be untrueand he also knew that the Amended Certificate was falsified. The tribunal was satisfied that it was perfectly apparent that Dr Theodoropoulos’s actions in his respect were both misleading and dishonest. It therefore found paragraph 5 as it relates to paragraphs 3 and 4 proved.”
[10]The Tribunal then determined that the facts found amounted to misconduct. In its determination on that issue it said that:
“ 9. Having considered the facts found proved in light of the principles contained in [Good Medical Practice], the tribunal was satisfied that by submitting the Amended Certificate to ID Medical in order to gain employment for which he was not eligible, Dr Theodoropoulos breached a fundamental tenet of the medical profession, namely to act with honesty and integrity at all times. The tribunal was satisfied that the public must have trust in doctors and the Dr Theodoropoulos’s actions undermined that trust. The tribunal also takes the view that there is a public interest in maintaining the integrity of the medical register. By submitting a falsified certificate of proof of entry on the register to a healthcare recruitment company, Dr Theodoropoulos’s actions could have led to a doctor without a licence to practise medicine in the UK, practising when he was not eligible to do so. “10. The tribunal was more than satisfied that such a course of action breached the principles of the GMP set out in full above, and would be considered deplorable by the public and fellow practitioners. In sum, it concluded that Dr Theodoropoulos’s dishonest actions were serious and unequivocally amounted to misconduct.”
[11]The Tribunal determined that the respondent’s fitness to practice was impaired by reason of that misconduct. The Tribunal then considered the question of the appropriate sanction, starting with the least restrictive sanction available. It considered that it was not appropriate to take no action or simply to impose conditions on the registration. The Tribunal then considered suspension and said the following:
“11. The tribunal next considered whether it would be appropriate and proportionate to suspend Dr Theodoropoulos’s registration. The tribunal acknowledged that a sanction of a suspension does have a deterrent effect and can be used to send a signal to Dr Theodoropoulos, the profession and the public about what is regarded as behaviour unbefitting a registered doctor. It also acknowledged that suspension is an appropriate response to conduct which is sufficiently serious that action is required in order to protect members of the public and maintain public confidence in the profession but falls short of being fundamentally incompatible with continued registration. “12. Having had regard to all the circumstances in this case, the tribunal was satisfied that Dr Theodoropoulos’s misconduct, although serious, is not fundamentally incompatible with continued registration and that erasing his name from the medical register would be disproportionate, punitive, and otherwise not in the public interest. The tribunal therefore determined that a period of suspension would be an appropriate and proportionate sanction that would maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour. “13. The tribunal carefully considered whether erasure was the more appropriate sanction. It acknowledged that Dr Theodoropoulos’s dishonesty was a serious departure from the principles set out in the GMP and constituted a deliberate disregard for them. However, the tribunal noted that his dishonest behaviour was an isolated incident and did not take place in a clinical setting. The tribunal has noted that it has no evidence of insight or remediation on the part of Dr Theodoropoulos. Dr Theodoropoulos has not communicated with the GMC on this matter since July 2016. However, neither does the tribunal have any evidence that he is incapable of developing insight and of remediating his behaviour, albeit it recognises that this may be a significant challenge. In these circumstances, the tribunal determined that although Dr Theodoropoulos’s behaviour breached a fundamental tenet of the medical profession, it is not fundamentally incompatible with continued registration and it would be disproportionate to erase his name from the medical register at this time. “14. In concluding that suspension was the appropriate and proportionate sanction, the tribunal took into account the impact that suspension may have upon Dr Theodoropoulos. However, in all the circumstances the tribunal concluded that his interests are outweighed by the need to maintain public confidence in the profession, to declare and uphold proper standards of conduct and behaviour, and to send out a clear message to him, the profession and the wider public that the dishonest behaviour he has exhibited is behaviour unbefitting of a registered doctor and will be dealt with severely.”
[12]The Tribunal therefore directed that the respondent’s registration as a medical practitioner be suspended for 12 months.

The Appeal

[13]The Council wished to appeal the determination on the sanction as it considered that erasure of the respondent’s name from the register rather than suspension was the appropriate sanction. The grounds of appeal contended that the Tribunal erred(1) in failing to recognise the seriousness of the evasion of the licensing regime and the dishonest job application(2) in failing to have regard to the doctor’s denial of dishonesty(3) in failing to recognise the gravity of the misconduct and impairment and(4) in so far as the Tribunal departed from the approach in the Sanctions Guidance approved by the Council, failing to give adequate reasons for doing so.[14]By order of Master Giddens dated 23 February 2017, the Council were given permission to serve the appellant’s notice in this appeal, together with any other documents, on the respondent by e-mail at a specified e-mail address. That e-mail address was one that had been used by the respondent to correspond with the Council as appears, by way of example, from an e-mail sent to Council in March 2016.

The Hearing of the Appeal

[15]The appeal was listed for hearing on the 21 June 2017. The respondent did not uappear, and was not represented, at the hearing. I adjourned the hearing to obtain confirmation that notice of the hearing had been sent to the respondent. The Administrative Court Office confirmed that written notice dated 29 March 2017 giving details of the time, date and place of the hearing had been sent to the respondent at his last known address in Athens. The Council confirmed that they had sent a copy of the notice of the hearing addressed to them by e-mail to the respondent’s e-mail address and also by post. In the circumstances, I was satisfied that notice had been sent to the respondent. I was addressed by Ms Grey Q.C. on the powers of the court to hear the appeal in the absence of the parties. Ms Grey drew my attention to the power in Part 39.3 of the Civil Procedure Rules (“CPR”) to proceed with a trial in the absence of a party but also, very properly, drew my attention to the notes in Civil Procedure (“the White Book”) referring to the decision in Howard v Stanton [2011] EWCA Civ 148 and indicating that the provisions of CPR Part 39.3 may not apply to an appeal hearing. Ms Grey also addressed me on the inherent jurisdiction of the court to manage its own procedure. I was satisfied that I had power, in the exercise of the court’s inherent jurisdiction, to proceed with the appeal in the absence of a party and that it was appropriate to do so. I then heard the submissions made by Ms Grey on behalf of the Council. At the end of the hearing, I reserved my judgment in order to consider carefully the arguments and the case law to which reference had been made.[16]On 10 July 2017, Ms Grey, again very properly, drew the court’s attention to an e-mail which had been received by the Council at about 7.45 a.m. on the morning of 21 June 2017. A copy of that e-mail had also been received at approximately 7.56 a.m. on 21 June 2017 by the Administrative Court Office but that e-mail had not been shown to me on 21 June 2107 or subsequently. That e-mail said the following:
“ Dear sirs/madams I am writing this letter on behalf of Dr Theodoropoulos parents. Dr Theodoropoulos had a car crash accident end of June last year (2016). He was hospitalised in the Intensive Care for more of 4 months and during that time he was in a coma. After that, he was hospitalised in different Rehabilitation Centers in Europe but with poor results. Enen now, he has a lot of problems with his health, many disabilities and he is not in a position to communicate, because he had severe traumatic brain injury. I managed to open his email two days ago, after his parents request and informed them, about some e-mails which came from you. (GMC, MPTS, Administrative Court, e.t.c…) His parents don’t know English and don’t know how to use the internet (elderly people) and they asked me, to send you this e-mail and TO EXPRESS THEIR INDIGNATION AND THEIR ANGER. “Since you didn’t have any news of him, WHY you didn’t call in the phone number of his next of qin, that you have in your file for those cases??????”
This is their obvious question. Conversely you started a litigation against him (mainly from the GMC), like he was a criminal and during that time Dr Theodoropoulos was fighting for his life. You sent all your letters at the address, in which Dr Theodoropoulos used to leave, before the accident and that time their son was or unconscious in the Intensive Care Unit or in different Rehabilitation Centers in Europe. You didn’t think at all, since you didn’t have any response from him, that something could happen to him. THIS IS SOMETHING UNBELIEVABLE FOR AN EUROPEAN COUNTRY. LIKE U.K, WITH SO HIGH STANDARDS IN HIS SERVICES. His parents want to inform you that they are looking for an international law office, to undertake the case and to launch a lawsmit against GMC, which did this terrible mistake. Please do not use this e-mail address, to send any further e-mails, because Dr Theodoropoulos is not in a position to communicate and his parents don’t know English. (Moreover you know that, for the last one, year, you didn’t have any news from him) On behalf of P and S Theodoropoulos, parents of Dr E. Theodoropoulos” On behalf of P and S Theodoropoulos, parents of Dr E. Theodoropoulos”[17]The information contained in the letter to effect that the respondent had been involved in a car accident and had suffered serious injury hospitalised was, of course, of concern to the court. At the same time, there still existed the appeal against the decision of the Tribunal. The issues raised in that appeal were important not only to the respondent but also to the Council and, indeed, were matters of wider public interest. The e-mail did not indicate who the writer was, although it said that it was written on behalf of the respondent’s parents. The writer did not indicate who was able to act on behalf of the respondent. The writer asked that the e-mail address (which is the one authorised for service under the order of Maser Giddens) not be used for any further e-mails but did not offer any alternative address to which communications about the appeal could be sent. The Administrative Court Office has no details for contact other than the e-mail address and the address in Athens where, the e-mail said, the respondent was no longer living.[18]In the light of that communication, I arranged for the following letter to be sent to the e-mail address to which communications had, hitherto, been sent to the respondent and by post to the last known address for the respondent: “Our ref: CO/710/2017 Your ref: 25 July 2017 Dear Dr Theodoropoulos, or the person managing Dr Theodoropoulos’ affairs, Re: GENERAL MEDICAL COUNCIL v THEODOROPOULOS CO/710/2017 The judge responsible for dealing with the above appeal, the Honourable Mr Justice Lewis, has asked that we write in connection with the hearing of the appeal in the case of General Medical Council v Evangelos Theodoropoulos. The hearing was scheduled to take place on 21 June 2017. Notice of that hearing was sent to Dr Theodoropoulos in accordance with a court order dated 23 February 2017. No response was received. At the hearing the judge checked that notice had been sent and, on being re-assured that it had, the hearing continued in the absence of Dr Theodoropolous. The judge has not yet given his decision on the appeal. On 10 July 2013, it was drawn to the judge’s attention that an e-mail had been sent to the Appellant (the General Medical Council) and the Administrative Court Office. It was received at the Administrative Court Office at 07.56 on 21 June 2017, that is the morning of the hearing which was scheduled to start at 10.30. The judge was not told of, and was therefore unaware of, this e-mail. The e-mail is said to be written on behalf of the parents of Dr Theodoropoulos (but the name of the writer of the e-mail is not given). It indicates that Dr Theodoropoulos had a car accident at the end of June 2016 and was in a coma for 4 months and then subsequently in different rehabilitation centres. It requests that this e-mail address (va.theodoropoloulos@gmail.com) not be used to send any further e-mails because Dr Theodoropoulos is not in a position to communicate and his parents do not know English. The judge is sympathetic to the position of Dr Theodoropoulos as set out in that e-mail. The position is, however, that there is an outstanding appeal in the High Court of Justice brought by the General Medical Council and there is a public interest in that appeal being resolved and judgment given. The writer of the e-mail gives no contact details by which communications may be sent to Dr Theodoropoulos or any individual able to manage his affairs. The only contact details that the Administrative Court Office has are the e-mail address va.theodoropoloulos@gmail.com and an address at Agias Triados 23, Glyfada, Athens 16674, Greece. The judge, therefore, would be grateful if contact details for Dr Theodoropolous or for a person able to act on his behalf is sent by e-mail to the Administrative Court Office at the following e-mail address administrativecourtoffice.caseprogression@hmcts.x.gsi.gov.uk by the end of Friday 21 July 2017. If no response is received, the judge will consider giving his judgment on the appeal even though no communication has been received from Dr Theodoropoulos or any person acting on his behalf. We will copy this letter to the lawyers acting for the appellant (the General Medical Council). Yours sincerely, “ The letter was signed by an official in the Administrative Court Office. The reference in the second paragraph to Jul 2013 is a typographical error for July 2017. Your ref: 25 July 2017 Re: GENERAL MEDICAL COUNCIL v THEODOROPOULOS CO/710/2017

Yours sincerely, “

[19]No response has been received. In the light of the lack of response, I have considered again the question of whether it would be appropriate to proceed to give judgment in the light of the circumstances described above. I had the benefit of a written note from Ms Grey making submissions on, amongst other things, the e-mail received on 21 June 2017 and the powers of the court to proceed in the absence of one of the parties.

THE ISSUES

[20]In the light of the notice of appeal and the written and oral submissions on behalf of the Council, and the events that have happened, the following issues arise:(1) Does the Court have power to proceed to determine the appeal in the respondent’s absence and, if it has, should it do so?(2) If so, did the Tribunal err in suspending the respondent’s registration and should it have imposed a sanction of erasing his name from the register? THE FIRST ISSUE – PROCEEDING IN THE RESPONDENT’S ABSENCE The Power to Proceed to Hear an Appeal in the Absence of a Party

THE FIRST ISSUE – PROCEEDING IN THE RESPONDENT’S ABSENCE

[21]Dealing first with the power to proceed in the absence of a party, the appeal itself is brought pursuant to section 40A of the Act. The material provisions of that section provide that:
“(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession. (5) The General Council may not bring an appeal under this section after the end of the period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates. (6) On an appeal under this section, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the relevant decision; (c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal 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.”
A relevant decision includes a direction for suspension (such as the direction given in the present case): see section 40A(1) of the Act.[22]First, the Act itself does not deal with the powers of the court in relation to the conduct of an appeal and does not itself provide a power to proceed in the absence of a party. Secondly, CPR Part 52.20 provides that the appeal court has all the powers of the lower court. The only potentially relevant power is that contained in rule 31 of the Order which empowers the Tribunal to proceed to determine the allegation against the practitioner if it is satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with the rules. That provision is directed toward the powers of the Tribunal when dealing with allegations. The provision is not apt to deal with the situation where one of the parties is absent at the hearing of an appeal in the High Court against a determination of the Tribunal. There is no other provision of CPR Part 52 dealing with appeals which appears to provide a specific power to hear an appeal in the absence of one of the parties.[23]Thirdly, CPR Part 39 contains miscellaneous provisions dealing with hearings and CPR Part 39.1 provides that in CPR Part 39 reference to a hearing includes reference to a trial. CPR Part 39.3 provides that a “court may proceed with a trial in the absence of a party”. Lewison L.J. observed in the context of an appeal from a district judge to a county court judge in Howard v Stanton [2011] EWCA Civ 1481 that there was a “serious question mark whether that sub-rule applies to an appeal at all”. There must, therefore, be a serious doubt as to whether the provisions of CPR Part 39.3 apply to appeals brought under section 40A of the Act against decisions of a Tribunal. In my judgment, that sub-rule itself is not apt to provide a power to hear such an appeal in the absence of one of the parties.[24]Fourthly, CPR Part 3.1 provides case management powers for the court. CPR Part 3.2(m) provides powers for the court “to take any step or make any other order for the purpose of managing the case and furthering the overriding objective”. It is not immediately apparent that the taking of any step for managing the case is apt to describe the process of hearing the appeal in the absence of a party. Similarly, it would be difficult to describe hearing the appeal in the absence of a party as making any other order. Both of those provisions appear to be directed to the process leading to a hearing, and ensuring the effectiveness of the hearing, rather than dealing with a hearing in the absence of a party. I do not therefore rely upon that sub-rule as the source of a power to proceed in the absence of a respondent although I accept that there is an argument that “any other step” should be construed widely.[25]Fifthly, a court which “is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction” (per Lord Morris in Connelly v Director of Public Prosecutions [1964] A.C. 1254 at page 1301. The court here has jurisdiction to hear appeals under section 40A of the Act. That jurisdiction necessarily entails, in my judgment, power in appropriate circumstances to deal with appeals even in the absence of one of the parties.[26]Ms Grey drew my attention to three cases where the High Court was prepared to hear and determine appeals against the decision of regulatory bodies in the medical field once the court was satisfied that the absent party had been given proper notice of the appeal, namely Al-Daraji v General Medical Council [2012] EWHC 1835 (Admin), R (Veizi) v General Dental Council [2013] EWHC 832 (Admin) and Malik v General Medical Council [2014] EWHC 2408 (Admin). Those cases reinforce the conclusion that I have reached that the court has power to proceed in the absence of a party. It is right to note that all three were cases where the appellant failed to attend and prosecute his appeal. In principle, however, the existence of a power to proceed in the absence of a party should not depend on whether the absent party is the appellant or the respondent (although different issues may arise in terms of whether it is appropriate to exercise the power).

Should the Power be Exercised in the Present Case?

[27]A court may decide that it is appropriate to proceed with an appeal where an appellant does not attend a hearing and the court is satisfied that notice of the hearing has been properly sent and there is no record of attempts by the appellant to inform the court why he is not attending or to request an adjournment. That may also be an appropriate course of action in similar circumstances where a respondent does not attend. Often, there will be some evidence of contact between either the respondent and the appellant or with the court office and that may influence the court in determining the precise course of action to take. That is a matter which a court faced with those circumstances will have to decide[28]The present case is different. There is a communication sent to the court office, albeit on the morning of the hearing, indicating why it is that the respondent is not attending. In terms of considering whether to exercise the power, an appropriate starting point is the decision of the Court of Appeal in General Medical Council v Adeogba [2016] 1 W.L.R. 3867. The Court there was dealing with a respondent who failed to attend a Tribunal hearing. It is appropriate, as a starting point at least, to consider the approach adopted there although an appellate hearing may raise different or additional considerations, not least because the Tribunal, not the appellate court, will be the body that usually hears evidence and is the finder of facts. The Court approved the use of the criteria governing continuing with a criminal trial in the absence of a defendant set out in paragraph 22(5) of the judgment in R v Hayward [2001] Q.B. 862 as qualified by the later decision in R v Jones (Anthony) [2003] 1 AC 1. Adapting the language of the judgment to reflect the context of an appeal hearing rather than criminal proceedings, the criteria are(1) the nature and circumstances leading to the respondent being absent, and in particular, whether the absence is deliberate and voluntary and such as to amount to a waiver of any right to attend(2) whether an adjournment might result in the respondent attending(3) the likely length of any adjournment(4) whether the respondent is or wishes to be legal represented or by his conduct has waived any right to be represented(5) whether the respondent would be able to give instructions to a legal representative before or during the hearing(6) the extent of the disadvantage to the respondent of not being able to attend(7) the general public interest(8) the effect of delay on the memories of witnesses. Other criteria (the risk that a jury would reach an improper view of the defendant’s absence and the problem of separate trials where there is more than one defendant) are not apposite to an appeal hearing.[29]In addition, however, the Court of Appeal in General Medical Council v Adeogba stressed the differences between a criminal trial and a disciplinary hearing in the context of the regulation of medical professions where the objective of the regulator is the protection, promotion and maintenance of the health and safety of the public. In that context, the Court emphasised that the “fair, economical, expedition and efficient disposal of allegations made against medical practitioners is of very real importance” (see paragraph 17 of the judgment).[30]Dealing with the criteria, the positon in the present case, taking the e-mail at face value is that the respondent had a car crash and suffered serious injuries in June 2016. The implications are that, even now in June and July 2017, the respondent has health difficulties and is not in a position to communicate because of brain injuries. Furthermore, there is no information available to the court that any other person is able to act on his behalf. There was no response to the request for details of such a person. There is no prospect, it seems, of the respondent, or any other person acting on his behalf, being able to attend or participate in the appeal in the near future. There is no indication that an adjournment of any length would result in the respondent being able to attend or in some way participate in the hearing of the appeal. In those circumstances, the position is whether the appeal should continue given that the respondent, through no fault of his own, is not be able to attend or instruct representatives to take part. The extent of the disadvantage in relation to the appeal is limited. The arguments are primarily legal arguments as to whether the Tribunal were wrong to impose a sanction of suspension rather than erasure, given the facts as found by the Tribunal. I appreciate that the respondent did not attend the Tribunal hearing but this not the hearing of an appeal against the decision of the Tribunal to proceed and, more importantly, there is no indication that it reached a wrong decision, on the information before it, when it decided to hear the allegation. Nor is it an appeal against the factual findings of the Tribunal.[31]Fundamentally, there is also the need to ensure the fair and efficient disposal of appeals in the context of the regulatory system. The issue in the present case, namely the appropriate approach to sanction in the case of a doctor found to have engaged in dishonest conduct, is important to the respondent but also to the regulatory bodies and the general public. In the circumstances, in my judgment, it is appropriate to continue with the appeal and give judgment on the issues that arise

THE SECOND ISSUE – DID THE TRIBUNAL ERR IN ITS DECISION?

[32]Ms Grey on behalf of the Council submitted that the Tribunal had erred in a number of ways. First, Ms Grey submitted that the Tribunal had failed to recognise the seriousness of the misconduct involving, as it did, dishonesty and attempts to evade the regulatory regime imposed for the benefit of the public and which was intended to ensure that doctors had an adequate knowledge of the English language. Furthermore, employers ought to be able to rely upon statements made by doctors about their qualifications and ability to practise. Ms Grey submitted that the Tribunal erred in considering that it was appropriate to suspend the respondent’s registration rather than erase his name from the register because this conduct did not occur in a clinical setting. Furthermore, she submitted that there was an inconsistency in the Tribunal concluding that the respondent had breached a fundamental tenet of the profession and then to conclude that the conduct was not fundamentally incompatible with continued registration.[33]In relation to ground 2, Ms Grey submitted that the incident could not properly be categorised as an isolated incident, with the implication that the conduct was unlikely to recur, given that the respondent had denied dishonesty and shown no insight into, or remorse about, his conduct. In relation to ground 3, Ms Grey emphasised that the Tribunal should have regard to the Sanctions Guidance which indicated that dishonesty, especially where persistent or covered up, was likely to lead to erasure from the register and none of the circumstances justifying suspension in such cases was applicable here. Finally, in ground 4, Ms Grey submitted that inadequate reasons had been given for the departure from the approach set out in the Sanctions Guidance.

The Nature of an Appeal

[34]The principles governing an appeal of this nature are summarised in the decision of the Divisional Court in General Medical Council v Jagivan [2017] EWHC 1247 (Admin) in the following terms; “40 In summary: i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52 . A court will allow an appeal under COR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'. ii) It is not appropriate to add any qualification to the test in COR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128. iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali Spa v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2013] 1 WLR 577, , at paragraphs 15 to 17, cited with approval in Datec Electronic Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47). iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36. vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd’s Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances". vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public. viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).”

Discussion

[35]The importance of honesty and integrity on the part of members of a profession, including the medical profession is generally recognised in the case law: see, e.g., Bolton v Law Society [1994] 1 W.L.R. 512; Makki v General Medical Council [2009] EWHC 3180 (Admin) at paragraph 43. Findings of dishonesty lie at the top end of the spectrum of gravity of misconduct: Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 at paragraph 13.[36]Dishonesty will be particularly serious where it occurs in the performance of a doctor’s duties or involves a breach of the trust placed in a doctor by the community: see Khan v General Medical Council [2015] EWHC 301 (Admin). Honesty and integrity are also fundamental in relation to qualifications and the system of applying for medical positions. Thus, in Makki v General Medical Council [2009] EWHC 3180 (Admin), the court dealt with a registered medical practitioner who had misrepresented the extent of his experience when applying for a post in a hospital. Irwin J. as he then was said at paragraph 44 of his judgment:
“The degree of dishonesty here and its nature, affecting not registration but qualification and the integrity of the system of job applications, affects something which is every bit as fundamental to the proper respect for the system, to the proper operation of the system of medicine and of appointments to medical positions, as is the system of registration.”
[37]Similar views were expressed by Parker J. in Naheed v General Medical Council [2011] where a doctor applied for a post and dishonestly included someone else’s career as her own in her application. At paragraph 25 of his judgment, Parker J sad that: “…the authorities make clear that for a doctor honesty, certainly in the matter here involved, is indeed fundamental and it does not appear to me that the panel acted in any way disproportionately in deciding that, having regard to the mitigating features that I have outlined, nonetheless erasure from the register would be justified”.[38]Furthermore, the case law recognises that where a doctor engages in deliberately dishonesty and lacks insight, erasure may, in practical terms, be inevitable. In Farah v General Medical Council [2008] EWHC 731 (Admin) , the court was dealing with a doctor who had been convicted of one offence of theft and five of using a false instrument. He had stolen 18 prescriptions and forged five of them to obtain drugs for his own use. The panel imposed a santion of erasure of the practitioner’s name from the register. As Sullivan J. as he then was observed at paragraph 21: “21. There is no reason to disbelieve the Panel’s assertion that they did consider those mitigating factors, but given the nature of the Panel’s finding that there had been a persistent lack of insight into that dishonesty, whatever the mitigating factors were, the inevitable consequence was that erasure from the Register was an entirely proportionate response to the appellant’s conduct. The Panel was entitled to come to the view that where a doctor had engaged in deliberate dishonesty and abused his position as a doctor, and had then shown a persistent lack of insight into that conduct, he simply could not continue to practise in the medical profession. Thus, the Panel’s conclusion as to sanction was, in practical terms, inevitable once it had reached the conclusion it did about the appellant’s lack of insight into his dishonest conduct.” 39 The importance of dishonesty is recognised by the document entitled “Good Medical Practice” issued by the Council which describes what is expected of doctors. The precise status of the document as a matter of law is not clear but, as a minimum, it represents the view of the Council which is the body charged with the over-arching objective of the protection of the public in this field by section 1 of the Act. Paragraph 66 states that doctors “must always be honest about [their] experience, qualifications and current role”. 40 Finally, for completeness, Ms Grey drew my attention to a document entitled “Sanctions Guidance” approved by the Council which is, it seems, intended to provide guidance to Tribunals to ensure consistency when deciding on sanctions in cases where a doctor’s fitness to practice is impaired. The precise legal status of this document is unclear. I was not shown any specific statutory provision dealing with the source or status of guidance and it may that it was issued pursuant to implied powers of the General Medical Council. The Sanctions Guidance recognises at paragraph 86 that suspension will be an appropriate sanction for misconduct that is so serious that action must be taken to protect members of the public but where the conduct falls short of being fundamentally incompatible with continued registration. That is also reflected in paragraph 91(a) of the Sanctions Guidance. Other situations where suspension may be appropriate are said to be cases where there is no evidence demonstrating that remediation is unlikely to be unsuccessful or where there no evidence of repetition of similar behaviour or where the Tribunal is satisfied that the doctor has insight and does not pose a significant risk of repeating behaviour. Paragraph 103 of the Sanctions Guidance indicates situations where the presence of any of certain factors indicates that erasure is appropriate. Those include cases involving dishonesty, especially where persistent and/or covered up. The Present Case 41 The present case did involve findings of dishonesty on the part of the respondent. The Tribunal had found that he dishonestly amended his certificate on the Council’s website to show that he was registered with a licence to practise when, in fact, he did not have (and knew he did not have) a licence to practise. He then dishonestly provided a copy of the amended certificate to a locum agency, ID medical agency. The Tribunal rejected the contention in his written representations of 10 August 2015 that he had not altered the certificate and that it might have been done by someone else. The Tribunal was satisfied that he did that to gain employment to which he was not entitled. 42 The Tribunal described that conduct as a breach of a fundamental tenet of the medical profession, namely to act with honesty and integrity at all time. They considered that that conduct would undermine the trust that the public places in doctors. They noted that it could have led to a doctor who did not have a licence to practise medicine in the United Kingdom when he was not eligible to do so. They concluded that the dishonest actions were serious. I agree. 43 In light of the conclusions reached, and the case law referred to above, the appropriate and proportionate sanction for dishonesty of this kind in this context would be erasure from the register. The conduct affected the system of qualifications and integrity of the system of job applications and put at risk the proper operation of a system designed to protect the public by ensuring that only those licensed to practise did so. 44 Against that background, I consider the reasons given by the Tribunal for concluding that suspension, not erasure, was the appropriate sanction. The Tribunal acknowledged that the conduct was a serious departure from the principles set out in the Good Medical Practice document and evidenced a deliberate disregard of them. They noted that there was no evidence of any insight or remediation on the part of the respondent although it noted that it had no evidence that he was incapable of developing insight and remediating his behaviour. Given the nature of the dishonest conduct, the denials of the respondent, and the absence of any evidence of insight or remediation, it is difficult to regard the possibility of developing insight or remediation as a basis upon which it could be said that suspension was appropriate. 45 The Tribunal referred to two others matters. It said that the conduct did not take place in a clinical setting. That is true. It did, however, involve dishonesty in relation to the qualification system for doctors and in dishonestly seeking to obtain employment, when not eligible, for appointment as a doctor. Such conduct would undermine the trust the public places in doctors. Misconduct does not have to occur in a clinical setting before it renders erasure, rather than suspension, the appropriate sanction. The serious dishonesty here is of the sort that, as a matter of principle, and having regard to the case law, makes erasure not suspension the appropriate sanction rather than suspension. 46 The Tribunal also referred to the fact that the incident was an isolated incident. Again, it is correct that there was only one attempt to obtain employment using a falsely amended certificate. That, however, does not accurately take into account the nature of what occurred. The dishonesty required forethought and planning. It involved accessing the website (legitimately) but then amending the entry, printing it out and sending it off to a locum agency intending them to act upon the falsified certificate. It involved a calculated and deliberate attempt to circumvent the regulatory system and obtain employment as a medical practitioner when not eligible to do so. It is not correct to treat that as an isolated incident of the sort justifying imposing a sanction of suspension rather than erasure. 47 The Tribunal said that given the circumstances, while the respondent’s behaviour breached a fundamental tenet of the medical profession, it was not fundamentally incompatible with continued registration. The reasons for that conclusion were the reliance on the isolated nature of the incident, the fact it did not take place in a clinical setting, and the absence of evidence that the respondent was incapable of developing insight and remediating his behaviour. For the reasons given above, those do not in fact demonstrate a reason for concluding that suspension rather than erasure was appropriate. In those circumstances, the position is that the Tribunal was faced with what it recognised was a serious, deliberate dishonest conduct which was incompatible with the fundamental tenet of the medical profession. In those circumstances, in my judgment, the Tribunal was wrong to conclude that suspension was an appropriate and proportionate sanction for the misconduct. The appropriate and proportionate sanction was erasure of the respondent’s name from the registrar. 48 In the circumstances, therefore, ground 1 of the appeal is made out. The Tribunal did fail to recognise the seriousness of the conduct involved in the evasion of the licensing regime and the making of a dishonest job application. This was an erroneous approach and the Tribunal did fail fully to recognise the seriousness of the conduct involved when determining the appropriate sanction. The Tribunal failed to recognise the gravity of the misconduct and, in the absence of any evidence of insight or remediation, the proper and appropriate sanction was not suspension but erasure. The appeal will be allowed on that ground. It is not necessary specifically to deal with grounds 2, 3 and 4. DISPOSAL OF THE APPEAL 49 The appeal is allowed. The decision of the Tribunal to direct that the respondent’s registration on the medical register be suspended is quashed. I direct that the respondent’s name be erased from the medical register. The parties are to have 28 days from the handing down of this judgment to apply in writing for any consequential order. CONCLUSION 50 The misconduct in question involved dishonesty. The respondent dishonestly amended the certificate on the Council’s website to show that he had a licence to practise when he did not, printed out a copy of the falsified certificate and supplied it to a medical agency with a view to obtaining employment in a medical position which he was not eligible to perform. That was a breach of a fundamental tenet of the medical profession, namely that medical professionals should act with integrity and honesty at all times. The Tribunal erred in considering that suspension of the respondent’s registration for a period of 12 months was an appropriate and proportionate sanction. The Tribunal failed to recognise the seriousness of the dishonest conduct which involved the evasion of the licensing regime and the making of a dishonest application for a post as a medical practitioner. In the circumstances, the appeal will be allowed, the decision to suspend the respondent’s registration for 12 months will be quashed and a direction substituted that the respondent’s name be erased from the medical register.

Cited in 22 later judgments

and 13 more of the most senior