Brookman v General Medical Council [2017] EWHC 2400 (Admin)

[2017] EWHC 2400 (Admin)

Case No CO/1544/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/09/2017

Before

THE HON. MR JUSTICE HOLGATE

Between

DR MICHAEL JAMES NORTON BROOKMANAppellant

GENERAL MEDICAL COUNCILRespondent

Nicola Newbegin (instructed by Newman Law) for Appellant

Rory Dunlop (instructed by GMC Legal) for Respondent

Hearing Hearing date: 4 th July 2017

Judgment Approved

Mr Justice Holgate :

Introduction

[1]The Appellant, Dr. Michael Brookman, appeals under section 40 (1) of the Medical Act 1983 (“the 1983 Act”) against the decision of the Medical Practitioners Tribunal (“the Tribunal”) under section 35D dated 21 February 2017 to erase his name from the register of medical practitioners and that he be subject to immediate suspension under section 38.

[2]The Appellant was born in 1960. He enjoyed a long career as a science teacher. Later on in life he decided to pursue a long-held aspiration to become a doctor. In July 2011 he obtained a BM BS at the University of Nottingham. He worked as a Foundation Year 1 (“FY1”), or trainee, doctor at the Royal Devon and Exeter Hospital between July 2011 and December 2013.

[3]On 17 March 2014 the Appellant registered with Coyle Medical (“Coyles”), an agency, to obtain locum medical work. On 15 April 2014 the Respondent, the General Medical Council (“the GMC”), wrote to the Appellant to inform him that it had opened an investigation into an allegation against him that he had carried out an inappropriate and sexually motivated examination of a female patient at the hospital where he had been working in October 2013.

[4]On 27 May 2014 the Appellant started working as a FY1 locum doctor in Adult Medicine at the Darent Valley Hospital (“DVH”), which is part of the Dartford and Gravesham NHS Trust (“the Trust”).

[5]By letter dated 17 June 2014 the GMC required the Appellant to attend a hearing before the Interim Orders Tribunal (“the IOT”) on 1 July 2014. At the hearing the IOT made an Interim Order under section 41A of the 1983 Act imposing a number of conditions on the Appellant’s registration for the period of 18 months from 1 July 2014. One condition was that, save in life threatening emergencies, the Appellant should not carry out any consultations with female patients in the absence of a chaperone, who should be a fully registered medical practitioner, nurse or midwife. He was also required to notify certain parties of the conditions. The Appellant was due to begin locum work in the Urology Department at DVH. Indeed, on 3 and 4 July 2014 the Appellant did work at the hospital (see his email dated 7 July 2014 to Hannah Clark of Coyles). But on 7 July 2014 the Trust cancelled his placement with them in view of the decision to impose the conditions.

[6]Since July 2014 the Appellant has not undertaken any medical work requiring GMC registration. Instead he has sought work in education. In September 2015 the Appellant began to teach at Bournemouth University as a lecturer in Paramedic Science. As a result of complaints received from students, the University carried out an investigation and decided to dismiss him summarily. It notified the GMC of this action on 22 January 2016.

[7]In the meantime, on 4 December 2015 the High Court granted an extension of the Interim Order for 5 months. Further extensions were granted on 23 May and 21 December 2016.

[8]On 24 February 2016 the Appellant applied for three posts as a lecturer at Swansea University. In his application form the Appellant made no reference to this work at Bournemouth University or to the conditions on his registration as a medical practitioner. However, the Appellant did refer to his work as a lecturer with SGS College, Bristol, which had begun a few days earlier on 15 February. On 26 February 2016 the GMC informed the Appellant that it would be investigating matters relating to Bournemouth University. However, ultimately the Tribunal decided that its findings adverse to the Appellant on that part of the case did not amount to “misconduct” (see para. 23 of its Decision on Impairment).

[9]On 26 April 2016 Swansea University offered the Appellant the part-time post of Senior Lecturer in Advanced Practice. The University subsequently became aware of the conditions. It held a fact-finding meeting with the Appellant on 9 May 2016. He informed them about the conditions and the investigation into the complaint by the patient he had examined in October 2013. On 19 May 2016 Swansea University withdrew their offer of employment.

[10]Stage one of the hearing before the Tribunal lasted some 11 days over the period 10 to 26 October 2016. The Tribunal received opening submissions, evidence, closing submissions and legal advice dealing with the factual allegations. The Appellant was not represented, save for the cross-examination of the patient, which was carried out by counsel funded by the Medical Practitioners Tribunal Service (“MPTS”), in accordance with rules relating to the evidence of “vulnerable witnesses”. The Tribunal deliberated on their factual findings on 27 to 28 October and 21 to 22 December 2016, and on 20 to 21 February 2017.

[11]At the end of the hearing on 26 October 2016 the Tribunal had listed the case to reconvene for 4 days from 21 February 2017. At the beginning of that session it was to deliver its factual findings on the allegations. The dates were also notified by the MPTS to the Appellant by an email sent on 31 October 2016. It was explained to the Appellant that there would be an opportunity for him to consider the findings and that, as appropriate, the Tribunal would go on to consider issues relating to misconduct and whether fitness to practise was impaired, and if so whether any sanction should be applied.

[12]In emails to the MPTS dated 20 and 22 February 2017 the Appellant stated that he would not be attending the remainder of the hearing because he was unable to afford to do so. The Tribunal decided that it was appropriate to proceed in the Appellant’s absence. Arrangements were made for the determination of the factual allegations to be sent to the Appellant on 22 February 2017 and for him to send written submissions on impairment by 23 February. The MPTS sent the Tribunal’s determination on impairment to the Appellant towards the end of the afternoon on 23 February, giving him until the beginning of the following morning to make any written submissions on sanction. The Appellant did not make any further submissions.

[13]On 24 February the Tribunal decided that the appropriate sanction was erasure. The Tribunal rejected all significant allegations made by the patient. However, the Tribunal decided that the Appellant had failed to notify both Coyles and the Trust about the conditions imposed on 1 July 2014 by the IOT and had failed to inform Swansea University about both his employment at Bournemouth University and the reasons for the IOT’s imposition of the conditions. This was said to amount to misleading and dishonest conduct which was sufficiently serious to warrant a finding that his fitness to practise was impaired and ultimately, after having explained why lesser sanctions would be inappropriate, erasure from the Register. The Tribunal also decided that the Appellant’s registration should be suspended immediately.

Grounds of Appeal

[14]The notice of appeal was filed on 28 March 2017. It was supported by Grounds of Appeal comprising some 23 grounds, each of which were divided into a number of sub-paragraphs. This 18 page document was accompanied by a skeleton argument of just over 41 pages.

[15]The appeal was listed to be heard on 4 July 2017 with a time estimate of 1 day. Ms. Nicola Newbegin appeared for the Appellant and Mr. Rory Dunlop appeared on behalf of the GMC. As late as 26 June the Appellant filed an application, primarily to amend his grounds of appeal, but also to adduce some evidence which had not been placed before the Tribunal. The application to amend related to what has become ground 1(e) and sought to add paragraphs 19(a), 19(b) and 19(c) to the existing paragraphs 13 to 19. The applications were opposed by the GMC and, because they had been made so late, had to be dealt with at the start of the substantive hearing. Save for one point, I rejected the application for reasons given at the hearing. In summary, the Appellant was seeking to change the case which he had put before the Tribunal on the nature of the relationship between himself, Coyles and the Trust. Since the issues raised matters of fact (see e.g. James v London Borough of Greenwich

[2008] ICR 545

at paragraph 40) which would have required evidence and examination before the Tribunal it was inappropriate to allow the application. Ms. Nicola Newbegin had no real answer to the GMC’s objections.

[16]Ms. Newbegin’s skeleton argument for the hearing was not filed until 28 June 2017 which was plainly far too late, particularly for an appeal of this nature. It was over 50 pages long and did not cross-refer to the 23 grounds of appeal. It was accompanied by a 9 page document entitled Appellant’s List of Issues, which purported to set out 15 issues, or rather headings, under each of which up to 8 sub-issues were identified. Once again that document did not cross-refer to the Grounds of Appeal or explain the relationship between the two. An updated skeleton for the Appellant filed on 30 June 2017 to include the proposed amended grounds of appeal ran to nearly 58 pages. These documents were not only prolix, repetitious and lacking in coherence, they raised some points which had no merit at all. What was required was a single, shorter document which succinctly set out in a coherent fashion those points which were properly arguable. What was presented to the Court was confusing, time-wasting and unacceptable. It cannot be thought that to burden a Court with material of this kind advances a client’s case one iota.

[17]This must also have caused unnecessary work for the Respondent’s Counsel in order to analyse what the case was about so that a response could be given. Mr. Dunlop’s skeleton (first produced on 20 June) suggested that there were in fact only seven main grounds of appeal. Clearly, it was essential for counsel to marry up their opposing arguments so that the Court could readily see a list of issues needing to be decided.

[18]In view of the lateness of the Appellant’s skeleton, it was not possible for Counsel to respond to the Court’s concerns by producing a single document listing the real issues. Instead, the problem had to be tackled through oral submissions, an inefficient and inappropriate use of the Court’s resources. Ms. Newbegin accepted that the Court should not be expected, once oral submissions had been concluded, to work out for itself how the Appellant’s grounds of appeal, list of issues and skeletons related to each other, let alone to the Respondent’s responses in its skeleton. As was pointed out by Simon Brown LJ (as he then was) in R (Richardson) v North Yorkshire County Council

[2004] 1 WLR 1920

at paragraph 80:- “Where, as here, a challenge or appeal is pursued in a somewhat scattergun fashion, it is simply not practicable [for the Court] to examine every pellet in detail.” (see also Sales LJ in Smyth v Secretary of State for Communities and Local Government [2015] P.T.S.R. 1417 at paragraph 8). Furthermore, it was self-evident that some of the detailed criticisms made in the Appellant’s documents had no merit. In these circumstances, Ms Newbegin accepted that it was her responsibility to tell the Court during the hearing which amongst the plethora of points set out in various documents the Appellant was actually pursuing at this stage, with the consequence that other points would be treated as abandoned and need not be addressed in this judgment. She agreed that the Appellant’s appeal could properly be presented under the seven grounds (subsequently amended to eight) identified by Mr Dunlop.

[19]All this should have happened before the hearing in good time to enable the Respondent’s skeleton to reply to the Appellant’s points efficiently. In oral submissions Ms Newbegin did abandon a few points, but others should also have been dropped. Unfortunately, the manner in which the Appellant’s appeal was presented has resulted in far more time being required for the preparation of this judgment and its length. In these various respects the Appellant failed to comply with requirements of the overriding objective to deal with a case in a manner which is expeditious, fair and proportionate to (inter alia) its importance and degree of complexity, allotting to it an appropriate share of the court’s resources, while taking account of the need to allot resources to other cases (CPR 1.1 and 1.3).

[20]In summary, the grounds of appeal fall under the following headings:-(1) The Tribunal’s factual findings were perverse or tainted by other legal error;

(2) The Tribunal should not have made any factual findings or reached conclusions on misconduct, impairment of fitness to practise and sanction without an up to date health assessment;

(3) The Tribunal misdirected itself as to the correct approach to dishonesty;

(4) The Tribunal acted unfairly, in the second and third stages of proceedings, by refusing to permit the Applicant’s participation by Skype or a telephone link and/or in giving him insufficient time to make written representations;

(5) The Tribunal treated dishonesty too seriously, by assuming that it always amounts to (a) misconduct and (b) impairment and (c) justifies erasure except in exceptional circumstances. The Tribunal also failed to take into account relevant mitigating factors;

(6) The Tribunal had insufficient up to date information as to A’s health to find him impaired by reason of his health;

(7) The Tribunal’s erred in its conclusions on sanction;

(8) The Tribunal was wrong to impose an immediate suspension order.

[21]It is preferable to deal with ground (2) before the other grounds. Before doing so, I will summarise some of the key evidence before the Tribunal and then set out important parts of the Tribunal’s findings of fact and decisions on misconduct, impairment and sanction.

Evidence before the Tribunal

[22]When the Appellant registered with Coyles for locum work on 17 March 2014 he signed a set of declarations which included:- “I confirm that I shall inform Coyle Medical immediately of any changes to my professional registration, fitness to practise or health that would affect my ability to perform duties as required.” The importance to the agency of a candidate providing such information is obvious.

[23]The letter from the MPTS dated 17 June 2014 was sent by special delivery. It asked the Appellant to appear at a “hearing” of the IOT on 1 July. It made plain to the Appellant the serious nature of the hearing in that the IOT could suspend his registration or impose conditions. It advised him to contact his medical defence organisation immediately, in order to obtain legal advice and representation at the hearing. He was also sent a bundle of the documents that would be placed before the Panel, so that he could prepare for the hearing, and given the opportunity to make written submissions in advance. The letter stated that the GMC would be represented by counsel and that the hearing could go ahead and an order made in his absence if he did not attend. The Appellant was told that the MPTS had a statutory duty to publish the outcome of the IOT hearing on the register. The Annex to the letter explained that cases are referred to the IOT “where the doctor faces allegations of such a nature that it may be necessary for the protection of members of the public, or otherwise in the public interest or the interest of the doctor, for the doctor’s registration to be restricted”. The Case Examiner also explained why the allegations raised concerns that the Appellant’s actions may have been sexually motivated and that, if he were to be successful in obtaining locum work, patients could be at risk from him. Even if the Appellant was not working, a properly informed member of the public would not expect his practice to remain unrestricted whilst such serious allegations were being resolved. Thus, the nature of the hearing and its implications were made clear.

[24]It appears from an email sent by the Appellant on Friday 27 June 2014 that by that stage he had instructed a representative to appear at the hearing on 1 July.

[25]On Sunday 29 June 2014 the Appellant sent an email to Dr. Ashraf (his supervising consultant at DVH) and to Imogen Rust (who had been acting as his rota manager at DVH) informing them about the IOT hearing on 1 July and stating:- “This is to discuss whether I am working in an LAS post (which a doctor without full registration cannot do) and a complaint made against me last October at my first hospital. I therefore need to spend Monday dealing with solicitors and travelling to Manchester. The result of this may mean that my licence to practice is suspended, or I may have restrictions placed on my practice. It is unlikely that no action is taken at this stage. I therefore do not know what this means for the future.” Therefore, it is plain that the Appellant realised that he had to attend a hearing which was likely to result in his being suspended or restrictions being placed on his practice, and which was sufficiently serious that he was to be represented by solicitors.

[26]It appears from an exchange of emails sent on Monday 30 June 2014 that the Appellant had been due to start work that day in the Urology Department of DVH. In the morning, Sarah Gunner, the rota manager responsible for that department, considered that because the hospital needed someone in that post straight away, she would have to cancel the Appellant’s appointment and find another locum. Her colleague Ms. Rust passed on that view to Hannah Clark of Coyles by email at 9.42 and to the Appellant by email at 9.43 (responding to his email sent on the previous day). In an email sent at 10.04 Ms. Clark told Ms. Rust that the hearing fixed for 1 July was in fact just a meeting, so that nothing would change regarding his ability to practise, and that DVH should be reassured that the Appellant would be able to work for them from 2 July until August as planned. The email stated that Ms Clark had spoken to the Appellant that morning. In evidence before the Tribunal she said that the information she gave to the Trust in the email was based upon what she had been told by the Appellant in that conversation. Transcript Day 5 page 21. The Appellant did not cross-examine Ms. Clark. In emails timed at 10.12 and 10.15 Ms. Rust made it clear to both Coyles and the Appellant that his position was now being handled by Sarah Gunner, as the relevant rota manager at DVH. Accordingly, in an email sent at 12.52 Ms. Clark repeated her reassurance to Sarah Gunner. At 12.53 Ms. Gunner replied that so long as she could be assured that the Appellant would be working at DVH from Wednesday 2 July, she would not book another locum. At 13.24 Ms. Clark gave that assurance to the Trust.

[27]The Appellant was indeed represented at the hearing on Tuesday 1 July. Mr. Briggs told the IOT that although the allegation by the patient was wholly denied and that no impropriety had taken place, the Appellant accepted that “the allegations can reasonably give rise to concern” and that “conditions may be suitable whilst matters are resolved”. He referred to the locum position “secured” at DVH until 5 August 2014.

[28]The IOT announced their decision at the hearing. They decided that it was necessary to make an order imposing 10 conditions on the Appellant’s registration (“the conditions”) for 18 months as follows:- “(1) You must notify the GMC promptly of any post you accept for which registration with the GMC is required and provide the contact details of your employer. (2) You must allow the GMC to exchange information with your employer or any contracting body for which you provide medical services. (3) You must inform the GMC of any formal disciplinary proceedings taken against you, from the date of this determination. (4) You must inform the GMC if you apply for medical employment outside the UK. (5) You must confine your medical practice to posts within the National Health Service and not undertake any private practice. (6) You must obtain the approval of the GMC before accepting any post for which registration with the GMC is required. (7) You must not undertake any locum posts of less than two months’ duration. (8)a. You must confine your medical practice to National Health Service posts, where your work will be directly supervised by a named Consultant.

b. You must seek report(s) from your supervisor(s) for consideration by this Panel, prior to any review hearing of this Panel. (9) a. Except in life threatening emergencies, you must not undertake consultations with female patients without a chaperone present. The chaperone must be a fully registered medical practitioner or fully registered nurse or midwife. b. You must maintain a log detailing every case where you have undertaken a consultation with such a patient, which must be signed by the chaperone.

c. You must maintain a log detailing every case where you have undertaken a consultation with such a patient in a life-threatening emergency, without a chaperone present.

d. You must provide a copy of these logs to the GMC prior to any review hearing of this Panel or, alternatively, confirm that there have been no such cases during that period. (10) You must inform the following parties that your registration is subject to the conditions, listed at 1 to 9 above: a. Any organisation or person employing or contracting with you to undertake medical work b. Any locum agency or out-of-hours service you are registered with or apply to be registered with (at the time of application) c. In the case of locum appointments, your immediate line manager at your place of work (at least 24 hours before starting work) d. Any prospective employer or contracting body (at the time of application).” b. You must seek report(s) from your supervisor(s) for consideration by this Panel, prior to any review hearing of this Panel. b. You must maintain a log detailing every case where you have undertaken a consultation with such a patient, which must be signed by the chaperone. c. You must maintain a log detailing every case where you have undertaken a consultation with such a patient in a life-threatening emergency, without a chaperone present. d. You must provide a copy of these logs to the GMC prior to any review hearing of this Panel or, alternatively, confirm that there have been no such cases during that period. a. Any organisation or person employing or contracting with you to undertake medical work b. Any locum agency or out-of-hours service you are registered with or apply to be registered with (at the time of application) c. In the case of locum appointments, your immediate line manager at your place of work (at least 24 hours before starting work) d. Any prospective employer or contracting body (at the time of application).”

[29]The Panel explained that on the information it had received “there may be impairment of [the Appellant’s] fitness to practise which poses a real risk to members of the public and which may adversely affect the public interest”. The order was said to be necessary to guard against that risk. The allegations were of a serious nature and public confidence in the profession might be seriously damaged if the Appellant’s practice were to remain unrestricted. The IOT read out its determination and handed down a copy to the Appellant.

[30]On Wednesday 2 July the MPTS sent by special delivery to the Appellant a formal notification of the Panel’s decision. The letter reminded the Appellant that the order would be reviewed after 6 months and went on to warn that he had to comply with the conditions and that his registration “would be put at risk” if he failed to do so. The letter added that the IOT would expect to receive information on the Appellant’s compliance with the conditions at any subsequent review of the interim order. The letter concluded by stating:- “Good medical practice requires doctors to be honest and trustworthy at all times, in order to maintain public trust in the profession. You must respond appropriately, if asked for information about your fitness to practise history. This duty will continue to apply where an Interim Order is removed from LRMP, following case closure with no adverse finding.”

[31]Conditions 9 and 10 are of particular significance to this appeal. Condition 9 imposed protective restrictions in relation to consultations with female patients, the use of chaperones and the keeping of records. Condition 10 required the Appellant to give notice of conditions 1 to 9 to various parties who might provide him with medical work, whether currently, or at the time of making an application, or at least 24 hours before starting work. Not surprisingly, the emphasis of condition 10 is on notification sooner rather than later, if not at the first point of contact.

[32]Before the Tribunal the Appellant relied upon evidence that he had used his mobile phone to telephone the Trust soon after the hearing on 1 July. The call started at 1.23pm and lasted 1 minute 40 seconds. He said that it was during this call that he told the Trust about the conditions. He said that he thought he had been speaking to Ms. Rust and was not aware of her transferring the call to the person responsible for his appointment, Sarah Gunner. His case was that he had given a similar account in an email to Ms. Clark at Coyles on 7 July 2014. In that email he also stated that on 2 July he had sent an email to the Medical Director of DVH (Miss Annette Scheiner) asking for a meeting in her office which had been arranged to take place on 9 July. The Court has been shown the email to the Medical Director. It did not refer to any conditions having been placed on the Appellant’s registration. It does not appear that an email to that effect was sent to the Trust around that time.

[33]Ms. Rust was called to give evidence, but not Ms. Gunner. Ms. Rust could not recall any details of a telephone conversation with the Appellant, but simply passing the call over to Ms. Gunner.

[34]However, only an hour or so after the telephone conversation with the Trust on 1 July the Appellant sent an email to Ms. Clark at 2.43pm dealing with the outcome of the IOT hearing under the heading “Good news”. The e-mail read:- “Gmc told me off. An f1 should have permission from their. Medical school and new deanery before starting. Although never officially complained by first hosp told gmc that I had assaulted a pt. Darent vally happy for me to continue there. I am relieved. Michael.” Plainly that email told the agency nothing about the conditions, or that DVH had been informed about that matter. It focussed instead on a different subject, namely a failure to obtain permission from the education authority for the work he was to do. The email had a misleading effect, because it did not refer to restrictions on registration or practice, when it was obvious from the earlier emails sent over the previous two days that that was a matter of concern for both Coyles and the Trust.

[35]On Thursday 2 July 2014 the Appellant sent an email to Ms. Rust asking for contact details for the Deanery to which he should apply for permission to carry out locum work at the hospital. This was the very same point as the Appellant had told Coyles about when he was describing to them the upshot of the IOT hearing (in his email on 1 July). Once again, there was no mention of conditions having been imposed. The email dated 2 July 2014 became the subject of allegations 8, 13, 14 and 30 in the hearing before the Tribunal. I also note that the Appellant stated:- “Since GMC is now monitoring me I need to do things properly…”

[36]On Monday 7 July 2014 Ms. Gunner of the Trust had discovered that conditions had been placed on the Appellant’s registration and so she announced that she was cancelling his post at DVH. She asked Ms. Clark for an explanation as to why the Trust had not been told by Coyles about the conditions. The evidence indicates that the Appellant had not told Coyles about the conditions. Ms. Clark then sent this email to the Appellant at 11.24 that day:- “I have had a call from Sarah with regards to your gmc – why did you not tell me that the gmc had added a list of conditions to your gmc? You emailed me after the meeting last week and said you had just been told off, I wasn’t aware that restrictions and conditions had been added…”

[37]The Appellant replied to Ms. Clark in his email on 7 July at 14.23:- “Today I have written to you and the other agencies who I have ever been in contact with enclosing a copy of the conditions on my employment. I didn’t speak to Sarah after the GMC meeting, I spoke to Imogen and I did say that there were conditions on my employment and that I had to inform lots of people. I sent an email to Miss Annette Shreiner last week requesting to have a meeting in her office. This was made for Wednesday 9 July at 11.30. I informed Elaine, her secretary that I would be discussing the conditions of my employment. I had written to Dr Fitzpatrick asking him to be my Educational Supervisor, but he replied saying he would not be back until my last week I then sent requests to Dr Ogunko and Dr Ashraf asking each of them if they would fulfil that role. I did not meet any urology consultants until Friday. I have sent an email to Mr I Dickinson asking him to be my Clinical Supervisor. I had planned to have Thursday and Friday of last week off to spend time writing to all those who need to know. You would have received a copy of the conditions by post on Friday or today. But my weekend duty was changed to Saturday so I then worked those two days. It is today and Tuesday that I am completing all the tasks that the GMC gave me.” This shows that the Appellant had worked at DVH on 3 and 4 July (the Thursday and Friday referred to). The only indication that the Appellant had notified the conditions to any party was the reference to the telephone conversation with the Trust on 1 July lasting 1 minute 40 seconds. That assertion became the subject of allegations 9, 12 and 30 before the Tribunal. However, the email did not suggest that the content of any of the conditions had been notified. Moreover, the Appellant did not respond to Coyles’ concern that in his email to them on 1 July he had said that he had only been “told off” (referring to the “permission from the Deanery” issue).

[38]On 9 July 2014 at 11.29 Ms. Clark of Coyles sent an email to the Appellant complaining that he had failed to tell her “how serious the meeting with the GMC was” and that in reliance upon his email she had given reassurances to the Trust. It was Ms. Gunner at the Trust who had told her that the meeting had in fact been a hearing and more serious because conditions had been imposed. Ms. Clark was also concerned that the Trust was now questioning the agency’s compliance checks. In his reply at 12.46 the Appellant stated:- “The meeting at the GMC was not a hearing at all. The purpose was solely to start a process of investigation. An investigation which will end soon because I have two witnesses. I met with a panel for just a few minutes. It was their intention that I should continue working. I am really sorry that I did not make it clear that there were conditions on my licence. My solicitor implied that they were rather standard conditions. But I should have prepared you. I did not imagine that Sarah [Gunner] would react like this……” These statements that the IOT process on 1 July 2014 had not been a hearing at all, but only a meeting held to initiate a process of investigation, were the subject of allegations 10, 12 and 30 before the Tribunal.

[39]The evidence before the Tribunal on the allegations relating to the Appellant’s conduct towards Swansea University is summarised in the next section and under grounds 1(h) and 1(i). The Tribunal found against the Appellant on this aspect under allegations 22(a), 28(b) and 30.

Summary of the Tribunal’s decision

[40]The Tribunal’s decision on the Appellant’s conduct in 2014 stemmed from its acceptance that allegations 7(b), 8, 9 and 10 were proved. These were initially dealt with in the decision as individual points, but they were brought together via allegations, 12 and/or 13 and/or 14, and finally allegation 30.

Failure to disclose IOT conditions to Coyles - Allegations 7(b), 14 and 30

(b) , 14 and 30

[41]The Tribunal found that allegation 7(b) was proven as follows:- “7. On 1 July 2014 you sent an email to Coyle Medical after the conclusion of the Hearing which:a. …

b. failed to disclose that the Conditions had been imposed upon your registration.” The Tribunal’s reasons were given in paragraphs 105 to 107:- “105. The tribunal noted Dr Brookman’s evidence that he did not inform Coyles about his Conditions until he sent a handwritten letter to them a week after they were imposed. In his email to Ms Clark on 1 July 2014 he stated that ‘Gmc told me off’. He did not mention anything about the Conditions. He told the tribunal that he did not need to inform Coyles of the Conditions within this email as he was not employed by them at this time. His evidence was that Coyles had already found him work at the Trust and that he had told Ms Rust at the Trust about the Conditions before he sent the email. 106. The tribunal first considered whether the Conditions themselves imposed an obligation on Dr Brookman to disclose them to Coyles. The tribunal noted that the Conditions do not include a time scale for Dr Brookman to inform current employers. The tribunal concluded that the Conditions themselves did not require Dr Brookman to inform Coyles immediately after they were imposed. 107. The tribunal noted that Dr Brookman signed terms of engagement with Coyles and that this placed an obligation upon him to ‘inform the Employment Business without delay of any relevant changes to such information or any additional information that may affect any Assignment (and/or his suitability to continue in it) as appropriate’. The tribunal did not accept Mr Brookman’s evidence that he was no longer employed by Coyles after they had assigned him to work at the Trust as he was still ‘on their books’ and remained so until at least November 2015. He was due to begin working at the Trust on 2 July 2014, and the fact that the Conditions included a requirement for him to have a chaperone with him during any examination of a female patient was likely to have been a relevant consideration for them. The tribunal was of the view therefore that Dr Brookman had a duty, under the terms of engagement with Coyles, to inform them immediately about the Conditions, and it found paragraph 7(b) proved.” (original emphasis) a. … b. failed to disclose that the Conditions had been imposed upon your registration.”

[42]The Tribunal later found allegation 14(a) proven as follows:- “14. You knew, or ought to have known, that your failure to disclose the Conditions, as set out at paragraphs 7b and 8 above: a. meant that the Trust and/or the locum agency were not aware of the correct position about the Conditions;” The Tribunal’s reasons were given in paragraph 126:

“126. The tribunal considered that the Trust and Coyles would not necessarily have known about Dr Brookman’s Conditions if he did not tell them after the IOT hearing. In fact, Ms Clark, of Coyles, specifically searched the List of Registered Medical Practitioners (LRMP) at some point on 1 July 2014 but found no reference to the Conditions. The tribunal noted Dr Brookman’s evidence that he thought the GMC would contact the Trust and Coyles to inform them but it did not consider that this obviated his obligation to tell the Trust immediately, given that he was due to start work the following day. The tribunal found paragraph 14(a) proved in its entirety.”

[43]The Tribunal found that the Appellant’s conduct in relation to allegation 7(b) was both “misleading” and “dishonest” under allegations 30(a) and (b) for the reasons given at paragraphs 165 to 166 of its decision:- “165. The tribunal was of the view that Dr Brookman’s failure to disclose his Conditions would mean that Coyles were misled into believing he did not have any Conditions on his GMC registration. The tribunal noted that his terms of engagement with Coyles placed an obligation upon him to disclose the Conditions to them. The tribunal noted Dr Brookman’s evidence that he could not be expected to remember all of the terms of a document he signed months before. He also told the tribunal that he does not remember if he read the determination himself after the IOT hearing but that he discussed it with his solicitor at length before he left the building. The tribunal concluded that Dr Brookman was, at the very least, reckless in not checking his terms of engagement or asking for clarity from his solicitor about whether he was under any obligation to disclose the Conditions at that stage. 166. The tribunal noted Ms Clark’s reference to a conversation she had with Dr Brookman on the morning of 30 June 2014 following which she understood from him that the appointment at the IOT had ‘been blown out of proportion’. That was in stark contrast to the email Dr Brookman sent to the Trust on 29 June 2014, in which he acknowledged that his licence to practise may be suspended or restrictions may be placed on his practice. The tribunal considered that, following the hearing, Dr Brookman was under an obligation to correct the impression he had given during his telephone conversation with Ms Clark on 30 June 2014 by accurately disclosing the outcome of the hearing to the locum agency. He needed to do this immediately following the hearing as the locum agency had found him the appointment at the Trust, which was due to begin the following day. In those circumstances the tribunal concluded that Dr Brookman made a deliberate decision not to tell Coyles about the Conditions. The tribunal found paragraphs 30(a) and (b) proved in relation to paragraph 7(b).” (original emphasis) Failure to disclose IOT conditions to the Trust – Allegations 8, 9, 12, 13, 14 and 30

[44]The Tribunal found both allegations 8 and 9 to be proven in the following terms:- “8. On 2 July 2014 you sent an email to Ms C at Dartford and Gravesham NHS Trust (‘the Trust’), which failed to disclose that the Conditions had been imposed upon your registration. 9. On 7 July 2014 you sent an email to Coyle Medical stating ‘I didn’t speak to [Ms D] after the GMC meeting, I spoke to [Ms C] and I did say that there were conditions on my employment and that I had to inform lots of people’.” There was no real issue as to the correctness of allegation 9, because it simply reflected the content of the Appellant’s email to Coyles on 7 July 2014, in which he claimed to have notified the Trust about the conditions in his conversation with them on 1 July. The Appellant denied allegation 8, that he failed to disclose the conditions in the email to the Trust on 2 July, on the basis that he had already told them about the conditions in that conversation. Thus, the issues on allegations 8 and 9 were linked.

[45]The Tribunal rejected the Appellant’s case on these issues for the reasons given at paragraphs 108 to 111 of its decision:- “108. The tribunal noted that Dr Brookman sent an email to Ms Rust (Ms C) on 2 July 2014 at 21:46 which included information about the GMC monitoring him and stating that he should have asked for permission to do the job he was currently doing. The tribunal noted that his email does not include any information about Patient A’s complaint (which was the reason conditions were imposed on Dr Brookman’s registration at this time).109. Dr Brookman gave evidence to the tribunal that he telephoned Ms Rust on 1 July 2014 straight after leaving the MPTS building, at the conclusion of his IOT hearing, and told her that he had conditions, and specifically about the conditions relating to him requiring a chaperone. He provided the tribunal with evidence from his telephone records that he telephoned Ms Rust’s direct dial and that the telephone call lasted 1 minute and 40 seconds. He told the tribunal that as he had told Ms Rust about the Conditions during the telephone conversation he did not consider himself to be under any obligation to repeat the information in this email.

110. Ms Rust gave evidence to the tribunal that Dr Brookman contacted her on 1 July 2014 but that she then transferred the call to Sarah Gunner (Ms D), who continued the telephone conversation with Dr Brookman. Ms Rust was unable to say whether Dr Brookman told Ms Gunner about the Conditions or not. Even though Ms Gunner did not give evidence to the tribunal, based on the other evidence before it, the tribunal concluded that Dr Brookman did not disclose the Conditions to Ms Gunner. Emails contained in the bundles suggest that Dr Brookman worked at the Trust on 3 and 4 July 2014 and that Ms Gunner was annoyed at Coyles at a later date because he had worked for those two days and she did not know about the Conditions.

111. The tribunal concluded that in all the circumstances Dr Brookman had not told Ms Rust (or Ms Gunner) about the Conditions during his telephone call on 1 July 2014 and therefore he was under a duty to notify Ms Rust about them in his email on 2 July 2014. The tribunal therefore found paragraph 8 proved.”

[46]At paragraph 125 the Tribunal found that the Appellant’s failure to disclose the conditions to the Trust was a breach of those conditions (allegation 13):- “125. In relation to paragraph 8 the tribunal noted that Dr Brookman worked at the Trust on 3 July 2014. The Conditions specify that for locum appointments Dr Brookman must tell his immediate line manager at his place of work ‘at least 24 hours before starting work’. Dr Brookman did not do so and the tribunal therefore found paragraph 13 proved in relation to paragraph 8.” (original emphasis) At paragraphs 126 and 128 the Tribunal found that the Appellant knew or ought to have known that(a) that failure meant that the Trust was unaware of the conditions and

(b) he was in breach of the conditions (Allegations 14(a) and (b)). Paragraph 126 has already been quoted (see paragraph 41 above). Paragraph 128 reads:- “128. The tribunal considered that the Conditions would affect Dr Brookman’s practice immediately as he was due to start a new clinical role in Urology on 2 July 2014. The tribunal noted that the chaperone conditions would have been a significant matter for the Trust. It therefore found that Dr Brookman knew or ought to have known that a failure to inform them was in breach of the Conditions. The tribunal found paragraph 14(b) proved in relation to paragraph 8.”

[47]At paragraph 118 of its decision the Tribunal found that the Appellant’s statement in his email of 7 July 2014 about the content of the telephone conversation with the Trust on 1 July was untrue and that he knew it to be untrue (allegation 12):- “118. The tribunal considered its previous conclusion that Dr Brookman did not at that time tell anyone at the Trust about his Conditions. To say therefore that he had told Ms Rust about them on 1 July 2014 was untrue and something he would have known to be untrue. It did not consider that his alleged confusion as to whom he was speaking at the time of his telephone call on 1 July 2014 was relevant. The tribunal therefore found paragraph 12 in relation to paragraph 9 proved.”

[48]At paragraphs 167 to 169 of its decision the Tribunal explained why it found that by his email dated 2 July 2014 the Appellant misled the Trust into believing that no conditions had been imposed and he had been dishonest (allegations 30(a) and (b)):- “167. The tribunal noted Dr Brookman’s explanation for not mentioning the Conditions in his email to Ms C dated 2 July 2014, namely that he had already disclosed the Conditions to the Trust in a telephone call on 1 July 2014. The tribunal has rejected his explanation. The explanation that he offered represented an acknowledgement by himself not only that he knew of the Conditions, as was manifestly the case as he was present when they were imposed, but also that he knew he had an obligation to disclose them timeously to the Trust.168. The tribunal found that Dr Brookman’s failure to disclose his Conditions to the Trust in his email on 2 July 2014 would have misled the Trust into believing that, notwithstanding the IOT hearing, there were no interim conditions imposed on his registration. It therefore found paragraph 30(a) proved in relation to paragraph 8.

169. In the light of the explanation which Dr Brookman advanced and which was rejected by the tribunal, the tribunal found that Dr Brookman deliberately chose not to disclose his Conditions to the Trust, and that therefore his conduct was dishonest in that regard. It therefore found paragraph 30(b) proved in relation to paragraph 8.”

[49]At paragraph 170 of its decision the Tribunal explained why it found that the untrue statement in his email to Coyles of 7 July 2014 amounted to conduct which was both misleading and dishonest (allegations 30 (a) and (b)):- “170. The tribunal has previously found that Dr Brookman knew the information contained in his emails to Coyles on 7 and 9 July 2014 was untrue. The tribunal therefore concluded that the matters set out in paragraphs 9 and 10 contained in these emails were misleading and, in the absence of any plausible explanation from Dr Brookman as to their inaccuracy, dishonest. The tribunal found paragraphs 30(a) and (b) proved in relation to paragraphs 9 and 10.”

The Appellant’s email to Coyles on 9 July 2014 – Allegations 10, 12 and 30

[50]At paragraph 113 of its decision the Tribunal accepted that allegation 10 was proven in the following terms:- “10. On 9 July 2014 you sent an email to Coyle Medical stating that the hearing was:a. a ‘meeting’;

b. ‘not a hearing at all’;

c. held ‘solely to start a process of investigation’.”

[51]At paragraphs 119 to 121 of its decision the Tribunal explained why those statements in the email were untrue and the Appellant knew them to be untrue (allegation 12):- “119. The tribunal noted that the IOT held on 1 July 2014 was a hearing and not a meeting. It did not consider that the hearing could have been mistaken for a meeting as it was in the formal setting of the MPTS and the letter Dr Brookman received notifying him of it specifically stated it was a ‘hearing’. It determined that Dr Brookman’s words at paragraphs 10(a) and (b) were untrue.120. The tribunal considered Dr Brookman’s evidence that following the IOT hearing on 1 July 2014 he decided that it had not been a hearing at all because his defence had not been heard by the panel. The tribunal noted Dr Brookman’s evidence that he adopted Ms Clark’s use of the word ‘meeting’ following her email to him on 9 July 2014. However, the tribunal noted that he used the word ‘meeting’ in an email sent to Ms Rust on 30 June 2014, notwithstanding that he had referred to the IOT as a hearing when he emailed Ms Rust and Dr Imran Asraf on 29 June 2014. The tribunal considered it implausible for Dr Brookman to have later decided that the IOT was not a hearing because his defence was not heard. During that hearing his solicitor made submissions and the panel made a determination. The tribunal determined therefore that Dr Brookman knew his words at paragraphs 10(a) and (b) were untrue. It therefore found paragraph 12 proved in relation to paragraphs 10(a) and (b).

121. The tribunal had regard to the letter of 17 June 2014 giving notice of the IOT hearing, and particularly to the section ‘What does the IOT do?’ where it states ‘The IOT will decide whether it is necessary to restrict your registration while our investigation is ongoing. If it makes an order, the IOT can Suspend or put Conditions on your registration. The IOT does not make findings of fact. If it decides that no interim order is necessary, our investigation will still continue.’ It also noted that Dr Brookman’s solicitor told the IOT, on his behalf, that ‘[he] accept[s] that the allegations can reasonably give rise to concern and accept[s] that Conditions may be suitable whilst matters are resolved’. The tribunal therefore determined that it was untrue to state that the purpose of the hearing was ‘solely to start a process of investigation’ and that Dr Brookman must have known it to be untrue. The tribunal therefore found paragraph 12 proved in relation to paragraph 10(c).” (original emphasis) The Tribunal explained in paragraph 170 of its decision (see paragraph 48 above) why the Appellant’s conduct in relation to those statements was both misleading and dishonest (allegations 30(a) and (b)).

The Appellant’s application to Swansea University – Allegations 22(a), 28(b) and 30

(a) , 28(b) and 30

[52]By the time the Tribunal reached these allegations it had already dealt with the issues concerning Bournemouth University. Thus, it had well in mind paragraph 71 of the 2013 edition of Good Medical Practice (“GMP”) which it had quoted at paragraph 134 of its decision:- “You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any document you write or sign are not false or misleading.a. You must take reasonable steps to check the information is correct.

b. You must not deliberately leave out relevant information.”

[53]The Tribunal found that in his application forms to Swansea University in February 2016 the Appellant had failed to refer to his earlier employment at Bournemouth University (allegation 22(a)). The Tribunal’s reasons in paragraph 142 of its decision stated:- “142. The tribunal noted that there were three opportunities for Dr Brookman to mention his employment at Bournemouth University within the application form and his CV and he did not do so. It was the tribunal’s view that, at the time of his application to Swansea, his employment at Bournemouth was his most relevant experience and therefore should have been included within his employment history or in the ‘any other relevant work experience’ sections. The tribunal noted that Dr Brookman did not provide a referee from Bournemouth University. The tribunal further noted that on his CV Dr Brookman has stated ‘During 2014 and 2015 writing for new textbook, doing locum work and working as house husband’ and that he has not included his employment at Bournemouth at all. The tribunal concluded that he was required to include his employment at Bournemouth on the application and his CV and did not do so. The tribunal therefore found paragraph 22(a) proved.” (original emphasis)

[54]At paragraphs 181 to 182 of its decision the Tribunal explained why it found the Appellant’s conduct in relation to this non-disclosure to have been both misleading and dishonest (allegations 30(a) and (b)):- “181. The tribunal considered that a prospective employer would be misled about Dr Brookman’s employment history if he did not disclose a previous post, particularly his most recent and most relevant post. The tribunal found paragraph 30(a) proved in relation to paragraph 22(a). 182. The tribunal considered that it was important for Swansea University to know about Dr Brookman’s employment at Bournemouth University. In evidence, Dr Cutter told the tribunal that she would have wanted to know about this post and would have expected even a short employment to have been included on the application form and CV. The tribunal inferred that Dr Brookman considered that he may not be successful in getting the role at Swansea if he told them about his employment at and dismissal from Bournemouth and that he deliberately chose to omit the information. The tribunal was of the view that Dr Brookman gave incomplete information about what he was doing in 2014 and 2015 on his CV. The tribunal also noted that Dr Brookman was aware that he needed to give full and frank disclosure to prospective employers given the problems he encountered at Bournemouth. The tribunal concluded that he deliberately omitted his employment at Bournemouth and was therefore dishonest.

(a) ”

[55]The Tribunal found allegation 28(b) proved in that the Appellant had failed to disclose at the meeting with Swansea University on 9 May 2016 the fact that the conditions on his registration were being maintained by the IOT because of an additional concerns regarding his probity. Its reasons were given in paragraphs 156 to 159 of its decision:- “156. The tribunal had regard to the Collins dictionary definition of ‘accurate’ which reads, ‘faithfully representing or describing the truth’. The tribunal took into account paragraph 65 of GMP which states:

‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’. 157. The tribunal noted that the record of the Second Meeting includes a summary of the allegations as Dr Brookman described them to those present. The tribunal noted that this summary does not include any information about the allegations regarding his probity. 158. The tribunal considered that the Conditions were originally imposed on Dr Brookman’s registration because of the Patient A complaints and were not changed when matters relating to his probity were also raised. The tribunal noted that at the IOT hearing on 4 December 2014 the GMC asked the IOT to suspend Dr Brookman’s registration ‘in light of the escalation of the concerns about Dr Brookman given the professional requirements to which he did not adhere…there is now a concern about probity’

. Whilst the IOT did not vary the Conditions, it stated in its determination that the reasons for the Conditions were ‘allegations of sexual misconduct, clinical performance, probity and health’. The tribunal therefore considered that Dr Brookman’s disclosure of the reasons for the Conditions should have included reference to more than just the Patient A allegations. 159. Having taken into account the reason the Conditions were imposed, and maintained, and the obligations placed upon Dr Brookman by GMP, the tribunal found paragraph 28(b) proved.” (original emphasis)

[56]At paragraph 161 the Tribunal found allegation 29(b) proved:- “161. The tribunal considered that Dr Brookman would have known that Swansea University did not know the correct position regarding the conditions because he had not been completely open and honest with them when he had described the allegations against him.””

[57]At paragraphs 186 to 187 of its decision the Tribunal explained why it found this non-disclosure to amount to conduct which was both misleading and dishonest:- “186. The tribunal considered that Dr Brookman’s failure to provide accurate information about the Conditions to Swansea at the Second Meeting had the capacity to mislead them as they were not aware of the full picture and, in particular, the previous probity issues that had arisen. The tribunal found paragraph 30(a) proved in relation to paragraph 28(b). 187. The tribunal considered that Dr Brookman deliberately failed to disclose information about the reasons for the Conditions, which by now included the probity concerns relating to his dismissal by Bournemouth (namely the fact that he did not disclose the Conditions to them). The tribunal was of the view that Dr Brookman did not disclose the probity concerns to Dr Cutter as it would have put her on notice of his dismissal from Bournemouth.

Impairment of the Appellant’s Fitness to Practise

(b) ” Impairment of the Appellant’s Fitness to Practise

[58]Although at paragraphs 33 to 34 of its decision on “impairment” the Tribunal found on the evidence that the Appellant’s fitness to practise was impaired because of his adverse physical or mental health, in paragraph 26 of its decision on “sanction” the Tribunal made it plain that that would only have led to the imposition of conditions on registration and did not form any part of the basis for its decision to order erasure.

[59]The findings on misconduct were set out at paragraphs 22 to 32:- “22. The tribunal first considered whether the facts found proved in relation to misconduct are a sufficiently serious departure from the standards of conduct reasonably to be expected from Dr Brookman as to amount to misconduct. It reminded itself that in order to constitute misconduct, within the meaning of the Medical Act (1983) (as amended), it would be necessary to find a serious departure from acceptable standards.23. The tribunal has found almost all of the paragraphs of the allegation relating to Patient A not proved. It was of the view that Dr Brookman’s conduct in those paragraphs found proved was not inappropriate in the circumstances and does not amount to misconduct. In respect of Bournemouth University, the tribunal did not find Dr Brookman’s conduct dishonest and it considered that it did not therefore of itself amount to misconduct.

24. The tribunal has found Dr Brookman to be dishonest in relation to Coyles and the Trust in July 2014 and again in relation to Swansea University in February 2016 and May 2016.

25. Dr Brookman failed to disclose to the Trust and Coyles that conditions had in fact been imposed upon his registration. It is the tribunal’s view that he so acted because otherwise the Trust might not have allowed him to start his new post in the Urology Department in July 2014. Thereby, he was dishonest.

26. In respect of his application to Swansea University, Dr Brookman failed to reference his employment at Bournemouth University, from which he had been dismissed. In his submissions, Dr Brookman acknowledged that this failure was dishonest and that the reason for it was not to jeopardise his application to Swansea University. Later, he failed to disclose to Swansea University, in an informal meeting, the full reasons for his conditions. In the tribunal’s view, that omission enabled him to continue to conceal his dismissal from Bournemouth University. That was dishonest.

27. The tribunal has found that Dr Brookman was dishonest in relation to two employers, separated by a period of some 18 months. This being so, his conduct cannot be described as an isolated act.

28. The tribunal was of the view that Dr Brookman’s misleading and dishonest conduct was a serious matter. It was in breach of his professional obligations, including the principles of GMP, and the tribunal considered it to be a breach of a fundamental tenet of the profession. Members of the public and other members of the profession are entitled to expect doctors to act with honesty and integrity at all times. Dr Brookman has not.

29. The tribunal was satisfied that Dr Brookman’s actions represented serious departures from the standards of conduct expected of him and amount to misconduct. Impairment in relation to misconduct

30. Having concluded that the facts proved in relation to Coyles, the Trust and Swansea University amount to misconduct, the tribunal considered whether Dr Brookman’s misconduct currently impairs his fitness to practise. In doing so, it considered whether or not Dr Brookman has demonstrated insight, whether or not the misconduct is capable of being remedied and, if so, whether there has been remediation and whether there is a likelihood of the misconduct being repeated.

31. The tribunal noted that Dr Brookman has expressed some remorse and regret. He stated in his written submissions on Impairment that he is ‘ashamed that [he] did not inform Swansea University about [his] employment and sacking at Bournemouth University. This guilt hangs heavy in [his] heart’. The tribunal was of the view that Dr Brookman has demonstrated a certain degree of insight, but that this only extended to the impact on himself, rather than the impact of his misconduct on others, particularly Coyles, the Trust and Swansea University. The tribunal recognised that dishonesty is extremely difficult to remediate, especially when it has been repeated. In the absence of full insight into his misconduct, the tribunal concluded that Dr Brookman has not remediated his dishonest conduct. Given that Dr Brookman’s dishonesty in respect of Swansea University occurred after he had been put on notice by the GMC that there were concerns about his probity, the tribunal considered there to be a risk of repetition of dishonest conduct in the future.

32. The tribunal concluded that Dr Brookman’s misconduct is sufficiently serious that a finding of impairment of his fitness to practise is required in order to uphold professional standards and to maintain public confidence in the profession. The tribunal has therefore determined that Dr Brookman’s fitness to practise is currently impaired by reason of his misconduct.” (original emphasis) Impairment in relation to misconduct

Sanction

[60]The Tribunal had regard to both the Sanctions Guidance (July 2016 edition) and the GMP. It applied the usual proportionality tests for proceedings of this kind and balanced both mitigating and aggravating factors it identified. It then considered and rejected the appropriateness of taking no action in respect of the misconduct and impairment found, and then sanctions of increasing severity, taking each type of sanction separately before proceeding to the next one in the hierarchy. Having reached the point where suspension was determined to be inappropriate in the circumstances of this case, the Tribunal went on to explain why it considered only erasure to be appropriate.

[61]The Tribunal concluded in paragraphs 20, 22 to 25 of its decision on sanction:- “20. Dr Brookman’s dishonest behaviour was a departure from the principle contained within GMP that doctors must ‘be honest and open and act with integrity’. The tribunal considered this departure to be extremely serious, and was not satisfied that Dr Brookman fully understands this seriousness. It was particularly concerned by his apparent disregard for the authority of his regulatory body: breaching his conditions immediately they were imposed and repeating his dishonesty, in respect of Swansea, when he was already under investigation by the GMC for probity concerns.21. For the above reasons, the tribunal determined that suspension would not be an appropriate sanction in Dr Brookman’s case.

22. Having determined that imposing conditions on, or suspending Dr Brookman’s registration would neither be appropriate nor proportionate, the tribunal had regard to the relevant parts of paragraph 103 of the SG, which states:

‘103 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. b A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. … d Abuse of position/trust (see Good medical practice, paragraph 65: ‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’). ... h Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 114-122). … j Persistent lack of insight into the seriousness of their actions or the consequences.’ 23. The tribunal was of the view that Dr Brookman’s misconduct and departures from the principles set out in GMC were very serious. His dishonest conduct was not an isolated act since it related to two employers and was separated by a period of some 18 months, and it occurred whilst he was under GMC investigation. He put his own interests before the interests of others. 24. The tribunal concluded that Dr Brookman’s behaviour would undermine the public’s trust in the medical profession, and considered it to be fundamentally incompatible with continued registration. 25. The tribunal concluded that erasure is the only means of protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards of conduct. It therefore directs that Dr Brookman’s name be erased from the Medical Register.” (original emphasis) ‘103 Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive). a A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor. b A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety. … d Abuse of position/trust (see Good medical practice, paragraph 65: ‘You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession’). ... h Dishonesty, especially where persistent and/or covered up (see guidance below at paragraphs 114-122). … j Persistent lack of insight into the seriousness of their actions or the consequences.’

Ground 2

[62]Ms. Newbegin submits that the Tribunal erred in law or was wrong, by failing to require a “further health assessment” to be prepared to address the concerns it had raised on Day 9 of the hearing. In 2013 the Appellant had been diagnosed as suffering from depression and had since then been taking anti-depressant drugs. In summary, the Tribunal raised the following concerns:- Potential impact of medication on Dr Brookman’s decision-making now, and in the last three years Potential dependence on medication Potential impact of stopping medication Impact of stress on mental health Impact of Dr Brookman working one day a week as an F1 doctor, whilst also working as a lecturer Assessment of potential autistic tendencies It is said that the Tribunal failed to obtain adequate information about these matters and their potential impact on his actions at the relevant times, as well as his evidence and submissions before the Tribunal and his ability to represent himself in the proceedings. It is submitted that this rendered the proceedings unfair and tainted the findings which the Tribunal purported to make on factual allegations, misconduct, impairment and sanction. Given the fundamental nature of this complaint, it is difficult to see why Ms. Newbegin did not advance this line of argument first before going on to her minute, forensic dissection of the factual findings under ground 1. Logically it ought to be considered first. Potential impact of medication on Dr Brookman’s decision-making now, and in the last three years Potential dependence on medication Potential impact of stopping medication Impact of stress on mental health Assessment of potential autistic tendencies

What happened before the Tribunal

[63]I have carefully reviewed what happened before the Tribunal. It is evident from the transcript that the Tribunal was sensitive to the fact that the Appellant was acting in person and subject to the stress of the proceedings. It took the trouble to explain to him in clear language aspects of the allegations he faced and the procedure. Throughout the hearing the Tribunal ensured that the Appellant had appropriate breaks and sought to allow him sufficient time to prepare for the following stages in the process.

[64]Evidence about the Appellant’s health had been given by two consultant psychiatrists, Dr. Briscoe and Dr. Bickerton, whose reports were dated 26 May 2016 and 14 June 2016 respectively, but plainly the Tribunal considered that that evidence, which related to examinations carried out in May 2016, had not resolved the concerns it subsequently raised on 24 October 2016.

[65]The following examples well illustrate why the tribunal was right to be concerned about these issues. At one point in his evidence in chief on Day 7 the Appellant referred to allegation 22(a) (failure to inform Swansea University about his employment by Bournemouth University) and said “I do not think that I was deliberately being devious. My pills mean that I do not care about things that I need to care about…”. He then referred to evidence by Dr. Bickerton that by the time of the hearing he was taking a lower dose and that had reduced his recklessness. Similarly, when being cross-examined at some length on Day 9 about his awareness of the conditions imposed by the IOT initially at subsequent review hearings, the Appellant said that he had put to one side and left to a later date almost everything to do with the GMC. He associated this behaviour with his anti-depressant medication (page 1 of transcript). When it was put to him in cross-examination that he had been dishonest by reference to paragraph 71 of the GMP (see paragraph 52 above), the Appellant said that he had not known about condition 10(d) when he was at Bournemouth University in 2015 and subsequently when he made his applications to Swansea University in February 2016. He added that the medication had made him “not anxious about things and care less about less important matters” (page 4 of the transcript). It does not appear that he was challenged on any of these points in cross-examination, even though his evidence lasted several days.

[66]Subsequently, the chair of the Tribunal, in the context of the Appellant’s repeated evidence that he had not always opened letters from the GMC, asked him to what extent did he consider that his health over the previous three years had influenced his ability to engage with the GMC. The Appellant explained that when his medication was changed to citalopram in 2013 he found that he ceased to worry about things. He had become blasé about correspondence from the GMC. The only thing that he had really been concerned about was to clear his name in relation to the allegation of impropriety by the patient. He had not been concerned about the conditions (page 6 of transcript for Day 9). He also explained that he was looking forward to the Tribunal’s proceedings ending that week (on 28th October) and a successful outcome.

[67]Towards the end of Day 9 the Tribunal said that it was contemplating directing a further health assessment of the Appellant. The Tribunal had the power to take this course under rule 17(7) of the General Medical Council (Fitness to Practise) Rules 2004 (SI 2004 No. 2608) (“the 2004 Rules”), and even at a later stage before determining sanction (rule 17(9)). The chair said:- “I know we have two [reports] before us, but from some of what you said to us in evidence, and particularly you have talked about your medication and the impact of it, we think it could be useful for us to have a further health assessment done before we make our decision on the facts. ….. The reasons why we are concerned about the potential impact of the medication you have been on on your decision-making and over the last three years. Looking further forward, so less about the facts but about where we go next, we are concerned about the potential dependence you might have on that medication, the impact of stopping that medication and would like to know a little bit more about the stress on your mental health should you go back to being, and I think you said one day a week F1, but whilst also being a lecturer. …… You have mentioned also possible autistic traits or tendencies. We are thinking it might be helpful to have a better assessment of those. …. we are concerned that we might be deciding facts in the absence of material which may be relevant in this case” The Tribunal explained that it would take three to four months before the hearing could resume following the completion of the report, but it is to be noted that, in any event, the hearing did not resume until late February 2017. The Tribunal said that it would receive submissions on these matters the following day before deciding what course to take.

[68]On Day 10 leading counsel for GMC submitted that there was no need for any further health assessment to be ordered and suggested that the Tribunal could instead put further questions to Dr. Briscoe to deal with the points it had raised. He pointed out that both doctors had concluded that the Appellant remained fit to practise, subject to imposing a requirement of close supervision. They both addressed the risk of relapse if the Appellant should recommence medical work as an FY1. Leading counsel suggested that the Appellant was “normal” by the summer of 2014, but accepted that he may have had a hypomanic episode whilst working at Bournemouth University in 2015. Counsel then submitted that with a reduction in his medication (citalopram), the Appellant had become “well” by February 2016 when he made his applications to Swansea University. Neither of the two psychiatrists nor the Appellant had identified any autistic tendencies (see generally pages 2 to 7 of transcript for Day 10).

[69]However, the GMC’s submissions did not make any attempt to tackle the effect of medication on conduct around July 2014 (the allegations relating to Coyles, DVH and the Trust) or indeed the effect of the medication he was taking during the hearing before the Tribunal. Counsel suggested that there was no evidence that the medication could have affected the Appellant’s judgment and decision-making, other than from the Appellant. But that was precisely the difficulty the Tribunal found itself in. These points had not even been considered in the evidence it had otherwise received from the Respondent. Mr Dunlop did not suggest otherwise. Indeed, the GMC’s submission on Day 10 that Dr. Briscoe be recalled demonstrates its recognition that the evidence at that stage was insufficient to address the concerns which the Tribunal had neatly summarised. As to counsel’s submission about the Appellant’s health in 2015, the Tribunal rejected in any event nearly all of the Bournemouth allegations and erasure was not based on that episode. Even if the Tribunal had made a finding accepting counsel’s submission about the Appellant’s health in February 2016 (which it did not), we do not know whether they would have considered erasure to be justified solely on the basis of the allegations relating to Swansea University. It seems most unlikely that they would have done.

[70]The Appellant responded briefly. Not surprisingly, he said that he was not the best person to judge his own mental health. Despite that, he went on to say that he did not recall suggesting that “anything to do with my behaviour at any time could be excused by autistic tendencies”. He also expressed concern that the allegations made by the patient might be linked to any mental health problems that he had had, on the straightforward basis that her allegations were wholly untrue (p. 7 of transcript for Day 10). The Appellant did not respond to the main concerns raised by the Tribunal. It would appear that he had not understood their significance to the proceedings.

[71]The Legal Assessor gave sound advice at this point. He warned the Tribunal that the experts had not seen the Appellant make submissions or give evidence and therefore should read transcripts of the hearing before being recalled to give further evidence.

[72]After retiring to consider the matter the Tribunal decided that Dr. Briscoe, who was immediately available via a telephone link, should be recalled to answer further questions. However, it is common ground that there was no opportunity for him to consider any transcripts of the proceedings before doing so.

[73]The Tribunal explained to Dr. Briscoe that it was going to have to determine a number of dishonesty allegations and that they were not confident that the Appellant had fully grasped the seriousness of those allegations and their possible consequences for him. For example, he had said that his current medications made him feel very relaxed, and they also wondered whether a lack of concern could have affected his ability to represent himself adequately during the hearing (p.14 of transcript for Day 10).

[74]Dr. Briscoe said that he had not seen the allegations made against the Appellant but he had read a note of the concerns raised by the Tribunal on the previous day. He said that his earlier instructions had been to focus on the Appellant’s current state of health rather than at the time of the earlier allegations (page 15 of transcript for Day 10). He said that the concerns described by the Tribunal suggested the need for further assessment in order to consider the Appellant’s mental health over a period of time, whether there had been changes indicating illness or alternatively a personality disorder. But either would “affect” his ability to represent himself adequately (p.17 of transcript). Dr Briscoe stated that citalopram is prescribed for anxiety and not solely for depression. The Tribunal read to the witness part of the transcript of the Appellant’s evidence dealing with his not opening correspondence and his description of the effects of taking citalopram. Dr. Briscoe accepted that a possible side effect of this medication could be the Appellant ignoring things that are important. He said that if that had been reported to him by the Appellant, he would have told him to stop taking the medication. Dr. Briscoe said he could not give an opinion over the telephone as to whether this side effect would render the Appellant incompetent to defend himself, but he would nonetheless be very worried about him conducting his own case, and would very strongly advise him about the wisdom of doing this, because it sounded as if he was not taking anything seriously despite the seriousness of the proceedings (page 22 of transcript).

[75]Dr. Briscoe stated that he had not seen any overt signs of autistic spectrum in the Appellant. He certainly did not have any signs of severe autistic syndrome, and the border between a mild autistic condition and normal personality is very blurred. A large proportion of the population has autistic traits. To determine whether the Appellant has autistic spectrum disorder it would be necessary for a skilled clinical psychologist to carry out a “fairly lengthy battery of tests”. He then gave evidence on whether autistic tendencies would affect the Appellant’s judgment, but that was solely in the context of his relationship with patients (i.e. allegations 1 to 5), and not the allegations concerned with non-disclosure and dishonesty.

[76]Dr. Briscoe said that in the light of all the additional information he had heard that morning he was now of the opinion that the Appellant would benefit from “further psychiatric evaluation” (page 23 of transcript).

[77]The Appellant then cross-examined Dr. Briscoe. The witness accepted a suggestion put to him by the Appellant that his behaviour of not dealing with important matters could be a “coping strategy” to deal with the anxiety produced by uncomfortable situations rather than the effects of citalopram (page 24 of transcript). In my judgment, the question put by the Appellant suggests once again that he had not properly grasped the significance of the concerns which the Tribunal had raised. Reading the transcript as a whole, it would appear that his main focus was instead to deal with the allegations relating to the patient. At the very least this exchange lent some support to the concerns raised by Dr. Briscoe about the Appellant’s ability to represent himself.

[78]Leading counsel for the GMC then asked a question arising from that cross-examination. Dr. Briscoe said that when the Appellant was being pro-active in applying for jobs and identifying what information he would disclose, even if that were described as a “coping strategy” he could nonetheless be deceitful. He explained that the Appellant had not been so unwell “as to not realise that he is deceiving people or doing something wrong … He has not lost his ability to know what is right and what is wrong” (pages 24 to 25 of transcript). However, neither the question nor the answer were directed to the Tribunal’s questions to do with the potential effects of the medication the Appellant had been taking since 2013. Instead, they arose from the Appellant’s misguided introduction of the subject of “coping strategies” when he cross-examined Dr. Briscoe. Neither counsel for the GMC nor the Tribunal addressed the obvious disconnect between the answer given by Dr. Briscoe in re-examination and what he had previously said when responding to questions from the Tribunal (see paragraphs 73 – 75 above). I find this all the more troubling because it is plain from the transcript for Day 10 that the Appellant was having great difficulty in representing himself adequately.

[79]Leading counsel for the GMC then made submissions on what course the Tribunal should take. He submitted that, taking Dr. Briscoe’s evidence as a whole, a further health assessment would not assist the Tribunal on the issues it had to determine, in particular his condition had not affected the Appellant’s judgment when deciding whether or not to deceive others, nor did it suggest that he did not know what he was doing. He also submitted that there was no evidence to indicate that the Appellant had not been able “through a clinical condition” to participate properly in the proceedings. I observe that that submission ignored Dr. Briscoe’s evidence about the effect of the medication on that issue (page 28 of transcript). Counsel concluded with the submission that the additional evidence had “largely” resolved the issues raised by the Tribunal:

“… and those issues which have not do not strike at the key issue of whether or not he could have done what is alleged to have been done with the required intention.”

[80]In his brief submissions the Appellant said that he had really come to the hearing to obtain a determination of allegations 1 to 5, the allegations relating to the patient, and that he could not afford the time, or time off work, to attend further hearings (transcript page 30). He asked that allegations 1 to 5 be determined by 28 October (three days later).

[81]The Legal Assessor warned the Tribunal that particularly in relation to the mental element for the allegations of dishonesty they should be cautious about accepting the GMC’s submission that there was no need for a further health assessment because of the evidence given by Dr. Briscoe in re-examination, without any advance notice to the Appellant. He also pointed out ways in which the Appellant had been able to participate in the proceedings and said that what mattered was whether the Tribunal considered that he had had a fair trial (page 31 of transcript). I do not think that that advice adequately reflected the difficulties in representing himself that the Appellant had exhibited even before day 10 and which had prompted the Tribunal to express its concerns by the end of Day 9. It should also be recalled those concerns were not simply to do with procedural fairness, but also with whether the mental health issues impacted on their ability to make proper findings.

[82]The Legal Assessor raised the question whether the Appellant would cooperate with an adjournment for the purposes of obtaining a further health assessment. The Appellant replied that he would take part in a health assessment for the advantages to his health that that might give him, but he could not imagine any circumstances in which he would return to any continuation of the hearing. He said that he had had enough (pages 32-33 of transcript). Thus, the Appellant’s stated unwillingness to participate in further hearings beyond the end of that week was not dependent upon whether or not the Tribunal decided to order a further health assessment.

[83]After retiring to consider the issues the Tribunal decided that it would not adjourn the hearing for a health assessment to be carried out. It did not give any reasons for its decision at that stage, but reserved them to its formal decision in the final part of the hearings.

The Tribunal’s decision

[84]The Tribunal’s conclusions on these issues were set out at paragraphs 34 to 40 of its formal decision:- “34. Following the completion of Dr Brookman’s evidence the tribunal indicated that it wished to consider adjourning the hearing and directing a further health assessment. The tribunal gave the following reasons for this:• Potential impact of medication on Dr Brookman’s decision-making now, and in the last three years

• Potential dependence on medication

• Potential impact of stopping medication

• Impact of stress on mental health

• Impact of Dr Brookman working one day a week as an F1 doctor, whilst also working as a lecturer

• Assessment of potential autistic tendencies Overall the tribunal had some reservations about proceeding to decide the facts without further information about Dr Brookman’s health that may be relevant in this case. 35. The tribunal invited submissions from both you and Dr Brookman before making its final decision. You opposed the option of adjourning for a further health assessment. You submitted that both Dr Briscoe and Dr Bickerton concluded that Dr Brookman is fit to practise with supervision. You submitted that this is a case where honesty and probity are in issue, not one where the practitioner is facing allegations of deficient professional performance, nor where the behaviour could be attributed to mental health issues. You acknowledged that the tribunal will always be concerned about unrepresented doctors conducting hearings on their own, but observed that, in this case, there was no evidence that Dr Brookman was not able to understand the proceedings or that he has not been fit to participate. You drew the tribunal’s attention to the fact that Dr Brookman has given evidence-in-chief, challenged witnesses and been able to counteract with documentary evidence a submission you had made. You further submitted that under Rule 35(5) the tribunal could recall a witness at any stage of the hearing. You therefore invited the tribunal to recall Dr Briscoe to give evidence over the telephone so that the concerns the tribunal had could be addressed. You informed the tribunal that Dr Briscoe was available to give evidence immediately. 36. Dr Brookman acknowledged that he is not the best person to assess his own mental health but that he would comply with any additional health assessment that was directed. He submitted that the Patient A allegations are completely untrue and his mental state at the time he treated her is not in question. He concluded by informing the tribunal that he had reached the limit of what he could do at this hearing. 37. The tribunal first considered whether to accede to your request and recall Dr Briscoe before making its formal determination on directing a health assessment. The tribunal considered that it would be a good starting point to recall Dr Briscoe and ask him additional questions. The tribunal acknowledged that it may be difficult to portray how Dr Brookman had come across when giving evidence without providing Dr Briscoe with transcripts of his evidence. However, the tribunal considered that it was worth trying to resolve its concerns without taking a lengthy adjournment for a health assessment and thereby not reaching any decision on facts during the allotted time for this hearing. The tribunal therefore determined to recall Dr Briscoe via telephone link. 38. Having heard Dr Briscoe’s additional evidence, and further submissions, the tribunal considered whether to adjourn the hearing before its deliberations on facts and to direct a health assessment. The tribunal found Dr Briscoe’s additional evidence to be helpful and it had resolved most of its reservations. In particular, the tribunal noted that Dr Briscoe opined that he did not think that Dr Brookman was suffering from any mental health condition that prevented him from knowing the difference between right and wrong at material times. Following Dr Briscoe’s evidence the tribunal was reassured that it would be appropriate to continue with the hearing without a further health assessment. 39. The tribunal paid particular attention to Dr Brookman’s reaction when the possibility of an adjournment for an health assessment was mooted. It noted that he became very concerned and, although he confirmed he would co-operate with a further health assessment, he also said that he might not feel able to participate in the remainder of the hearing. 40. In all the circumstances, the tribunal decided that it would not adjourn the hearing to direct a health assessment and would move to hear closing submissions and to make its determination on facts.”

• Potential impact of medication on Dr Brookman’s decision-making now, and in the last three years

• Potential dependence on medication

• Potential impact of stopping medication

• Impact of stress on mental health

• Impact of Dr Brookman working one day a week as an F1 doctor, whilst also working as a lecturer

• Assessment of potential autistic tendencies

[85]For completeness, I refer to the Tribunal’s findings on health in paragraphs 192 and 193 of its factual findings:- “192. The tribunal noted that on 5 May 2016 Dr Bickerton diagnosed Dr Brookman as suffering from a Depressive Disorder, without psychosis in full remission (F 32.5). The tribunal noted that Dr Brookman did not dispute Dr Bickerton’s evidence. The tribunal accepted Dr Bickerton’s evidence and it therefore found paragraph 31 proved. 193. The tribunal noted that on 19 May 2016 Dr Briscoe diagnosed Dr Brookman as suffering from an episode of depression (F32.1), now resolved, and an episode of hypomania (F30.0), now resolved. The tribunal noted that Dr Brookman did not dispute Dr Briscoe’s evidence. The tribunal accepted Dr Briscoe’s evidence and it therefore found paragraph 32 proved.”

Legal approach to ground 2

[86]I do not accept Mr. Dunlop’s submission that an appeal court could not properly interfere with the Tribunal’s decision because this was simply a matter of case management. Likewise, it cannot be said that ground 2 merely involves a challenge to the exercise of a discretion as to whether an application for an adjournment should be granted (as in Dhillon v Asiedu

[2012] EWCA Civ 1020

). Instead, the Tribunal itself was concerned about the ability of the Appellant to represent himself in the hearing, a point going to the fairness of the proceedings, and also the adequacy of the information before them to be able to make proper findings on a range of issues.

[87]In Cheatle v GMC

[2009] EWHC 645 (Admin)

Cranston J summarised the principles applicable to appeals under section 40 against a decision of a tribunal. A principal purpose of the proceedings before a tribunal is to preserve and maintain public confidence in the profession rather than “retributive justice.” Given the grave issues at stake, the basis upon which the court may intervene is not confined to public law grounds for judicial review. An appeal is by way of rehearing, albeit not de novo. The Court must give “such weight as is appropriate in the circumstances” to the fact that the appeal is brought from the decision of a specialist tribunal whose understanding of what is expected of the medical profession commands respect, the tribunal had the benefit of hearing and seeing the witnesses, and questions of primary and secondary fact and overall value judgments are matters upon which tribunals may reasonably differ. But in considering whether a tribunal’s decision is “wrong”, the court’s focus must be calibrated to the matters under consideration. The degree of deference will depend upon the circumstances. For example, respect should generally be accorded to matters of professional judgment, which may include issues such as the seriousness of any misconduct and fitness to practise. But as regards findings of fact, the Court’s role is not different in a section 40 appeal as compared with other appeals. Although an appellate court is reluctant to characterise as “wrong” findings of fact which turn upon the tribunal’s ability to assess the credibility or reliability of a witness from what they have seen and heard, the court is entitled to correct a material error of fact, for example where it decides that there was no or insufficient evidence to support a finding.

[88]In addition, the tribunal must comply with its obligation to give reasons for its decision. The reasons must show how the decision-maker has grappled with the main issues advanced by the parties, or otherwise raised in the appeal, and why they have either lost or won (Cheatle at paragraphs 29 - 31). The effect of the 2004 Rules is that persons facing grave outcomes for their professional careers are entitled to know in clear terms why decisions on impairment and sanctions have been reached. But common law requirements of procedural fairness may also require reasons to be given in relation to findings of fact. The Respondent accepted that this was a case where the Tribunal’s duty to give reasons applied also to its findings of fact.

Conclusions

[89]On the state of the evidence by the end of Day 9 of the hearing, the Tribunal was undoubtedly correct to have identified the concerns which affected its ability to make findings. This was a fundamental issue which went to the Tribunal’s ability not only to assess whether to accept the evidence given by the Appellant on the non-patient allegations, and to make findings of fact on those allegations, but also its subsequent decisions on misconduct, impairment and sanction. It is apparent from the transcript that when the Tribunal raised its concerns on Day 9, it appreciated that the process might result in findings which were seriously adverse to the Appellant and with consequential implications for impairment and sanction. But as paragraph 43 of “Sanctions Guidance” states:

“The tribunal should be aware that cultural differences and the doctor’s circumstances (e.g. their ill health) could affect how they express insight. For example, how they frame and communicate an apology or regret.”

This guidance is important because if a Tribunal finds that a doctor’s insight into his misconduct is insufficient, it may go on to conclude that there is a substantial risk of that misconduct being repeated in the future, which in turn may lead to the imposition of the most serious sanction. That is precisely what happened in the present case (see paragraphs 59 – 61 above).

[90]Although the GMC urged upon the Tribunal the view that the Appellant had ceased to be mentally unwell by February 2016, or certainly by May 2016, that did not address the Tribunal’s concerns about the effect of the medication which the Appellant had been taking (and was still taking even at the time of the hearing) upon his decision-making during the hearing and in the three years preceding it. By the end of day 9 there was no evidence before the Tribunal to contradict what the Appellant had said about the effects which the medication had had. In its decision the Tribunal did not state that it rejected his evidence on that subject. It did not deal with it.

[91]Instead, the Tribunal’s decision to proceed without obtaining a further health assessment before making findings of fact on the allegations (including dishonesty) or before reaching decisions on misconduct, impairment and sanction rested on two points. First, there was Dr Briscoe’s additional evidence on day 10 (see paragraph 38 of the decision) that:- “…. he did not think that Dr Brookman was suffering from any mental health condition that prevented him from knowing the difference between right and wrong at the material times.” Second, the Tribunal paid “particular attention” to Dr. Brookman’s reaction when an adjournment for a further health assessment was mooted (paragraph 39 of the decision).

[92]Although I recognise that the Tribunal was not placed in an easy position, I have nevertheless reached the clear conclusion that the Tribunal’s decision to rely upon these two points and not to adjourn to obtain a health assessment addressing the concerns it had raised, was both “wrong” and unjust because of a serious procedural irregularity (CPR 52.21). I do so after giving such deference as is appropriate in the circumstances of this case to the professional expertise of the Tribunal. Despite that expertise, the Tribunal had serious concerns, which they purported to resolve by placing heavy reliance upon only two points identified in its decision. Furthermore, the Tribunal gave no reasoning or conclusions in relation to Dr Briscoe’s evidence as a whole, in particular the evidence he gave in answer to the Tribunal’s own questions and the unresolved disconnect between that evidence and his brief opinion given in re-examination. Furthermore, the Tribunal merely stated that Dr Briscoe’s evidence had resolved most of their concerns. Given the self-evident importance of these matters, it was unsatisfactory in any event that the Tribunal did not explain which matters it considered to be resolved and why, and which matters remained unresolved, why that was so, and why it was unnecessary for those issues to be resolved.

[93]I conclude that the Tribunal proceeded to make findings which were adverse to the Appellant on the non-patient allegations, misconduct, impairment of fitness to practise, and sanction without having sufficient evidence to address the concerns it had correctly identified so that it was able to make proper findings. In the circumstances of this case, the Tribunal’s decisions in relation to those allegations, misconduct, impairment and sanction were “unjust” to the Appellant because of a procedural irregularity, namely the failure to obtain the additional health assessment. Furthermore, the Tribunal’s decisions were unfair to the Appellant because of a failure to give adequate reasons addressing the concerns it had raised (see paragraph 92 above) and their implications for the findings it went on to make. In summary, I reach those conclusions for the following reasons:-(i) It was unacceptable for Dr Briscoe to be asked to give further evidence on the concerns raised without him having read the allegations and, given that he had not attended the preceding hearings, the relevant transcripts. This was particularly important, because his earlier instructions had been to consider the Appellant’s state of health at the time of his examination in May 2016, rather than at the time of the allegations;

(ii) Dr Briscoe stated twice that the concerns raised by the Tribunal suggested that it was necessary for the Appellant’s mental health to be reassessed. He did not retract that opinion;

(iii) Dr. Briscoe accepted that a possible side effect of the medication taken by the Appellant was that he could ignore things that were important. Although that evidence was given in the context of the Appellant not opening correspondence from the GMC, it was plainly also relevant to the way he reacted to the imposition of the IOT’s conditions. In that context, there was evidence from the Appellant that he was particularly concerned about the possibility that the allegations by the patient would lead to his being suspended at the hearing on 1 July 2014. There was a suggestion that in the aftermath of that hearing he was elated by the “good news” that he was not to be suspended. Dr Briscoe’s evidence gave strong support for requiring a health assessment. Alternatively, the Tribunal failed to take this significant evidence into account in its decision or to express any reasoning on it;

(iv) Dr Briscoe expressed clear concerns about the Appellant’s ability to represent himself in the hearing. When pressed on this subject in relation to the effect of the medication, Dr Briscoe hesitated to give an opinion over the telephone. That was another clear indication that a further examination of the Appellant and health assessment was required. The transcript confirms that the Tribunal had to assist the Appellant in understanding, for example, allegations that he had “failed” to act in a particular way. This was of crucial importance to the issue whether the Appellant had been under an obligation to disclose specific information and whether he understood that point, during the hearing and also at the relevant time. In a case where the Appellant was acting in person, and the side effects of the medication he was taking may have adversely affected (a) the manner in which he reacted (e.g. to communications from GMC going as far back as July 2014) and (b) his ability to represent himself, it would have been artificial to draw a distinction between the Appellant’s ability to conduct his case (eg by making submissions) and his giving evidence about the non-patient allegations. The evidence from Dr Briscoe about the possible effects of the medication was therefore also relevant to assessing the Appellant’s state of mind when dealing with the allegations concerning his conduct in July 2014 and his conduct regarding Swansea University. These were additional strong reasons for requiring a further health assessment to be carried out. The Tribunal failed to deal with these matters both in its decision not to order that assessment and in its findings on the allegations, misconduct, impairment and sanction;

(v) Although Dr. Briscoe ruled out a severe autistic syndrome, he did not rule out a milder form of autism. However, he pointed out that a diagnosis would depend upon substantial tests being carried out. He then gave some evidence in the context of the patient allegations, but not the other allegations. He did not suggest that autism would be irrelevant to the latter, although the Tribunal had made it clear to him that that was the context in which he was being recalled to give further evidence. Instead, he said that in the light of all that he had heard that morning, the Appellant should have a further psychiatric evaluation. The Tribunal failed to deal with these matters both in its decision not to order that assessment and in its findings on the allegations, misconduct, impairment and sanction;

(vi) The Tribunal was obviously wrong to place any significant weight on, let alone pay “particular attention” to, the Appellant’s opposition to an adjournment. The reasons for that opposition did not address the Tribunal’s main concerns about the adequacy of the evidence on his mental health and medication, or indeed the evidence that Dr Briscoe had just given. Dr Briscoe was concerned that the Appellant should not be representing himself whilst on the medication. The Appellant did not think that he was in a good position to comment on his mental health. Indeed, his cross-examination of Dr. Briscoe strongly suggests that he did not understand at that stage the significance of the issues which the Tribunal had raised. I have reached the conclusion that it was wrong, if not irrational, for the Tribunal to place so much weight (or indeed any significant weight) on the Appellant’s views, as set out in paragraph 39 of its decision, particularly when they are put in the context of the material set out above. Moreover, it is plain that the real motive for the Appellant’s opposition to an adjournment was his strong desire to obtain a decision that week on the allegations by the patient. This was further evidence that he was not in a position to grasp the potential seriousness of the other allegations. The Tribunal wrongly placed reliance upon the Appellant’s view without taking into account his motive for putting it forward and its implications for the issues it had raised;

(vii) The only other evidence that the Tribunal relied upon was Dr Briscoe’s evidence that he did not think that the Appellant had been suffering from any mental condition which prevented him from knowing the difference between “right and wrong” at the relevant times (paragraph 38 of the decision), although that is not quite how Dr Briscoe had put it (see paragraph 78 above). This was wholly unsatisfactory. As the Legal Assessor was right to point out, the Tribunal had to be cautious about relying upon this evidence as a reason for deciding that no further health assessment was required. It had only come out in re-examination in response to some brief cross-examination by the Appellant which was in itself troubling. The witness had merely said in re-examination that the Appellant’s mental illness had not caused him to lose the ability to know the difference between right and wrong. But the witness had not read through the allegations and his somewhat unfocused remark did not grapple with the issue whether the medication had caused or contributed to some relevant impairment at the material time, such as a failure to appreciate the significance of his obligations under the IOT’s conditions, or the wording of his emails or his reactions to others. Thus, the evidence in re-examination did not materially detract from what the same witness had previously said about the possible side effects of the medication and the need for a further assessment. It was therefore inappropriate for the GMC to “cherry pick” this evidence in re-examination, and for the Tribunal to accept their submission, a fortiori where the doctor was a litigant in person whose ability to represent himself had been seriously doubted. The Tribunal failed to test that evidence during the hearing against what had previously been said by Dr. Briscoe on Day 10 or to deal with that earlier evidence in its reasons. The Tribunal failed to deal with these matters both in its decision not to order that assessment and in its findings on the allegations, misconduct, impairment and sanction;

(viii) Furthermore, the evidence from Dr. Briscoe in re-examination did not deal with the Tribunal’s concern that there was a lack of information to deal with the possible effects of autism, even if not a severe condition. The Tribunal failed to deal with this point, both in its decision not to order that assessment and in its findings on the allegations, misconduct, impairment and sanction;

(ix) Having decided not to adjourn the proceedings so that a further health assessment could be carried out, the Tribunal failed to take into account all or any of the points set out above when reaching any of its findings on the allegations, for example that the Appellant’s explanations for his conduct lacked plausibility, or that the Appellant had been aware of the conditions or other “obligations” (or reckless in relation to those matters), or that he had acted deliberately and therefore dishonestly. These matters ought to have been considered when the Tribunal evaluated the evidence and gave their reasons on the main points;

(x) In any event, these errors tainted the Tribunal’s findings on the extent to which the Appellant had shown insight into his conduct and its assessment of the risk of that conduct being repeated. As a result, the Tribunal was not in a position to apply paragraph 43 of Sanctions Guidance (see paragraph 89 above);

(xi) It also follows that the Tribunal’s conclusions that the Appellant’s conduct was serious enough to amount to misconduct, that his fitness to practise was thereby impaired, and that no lesser sanction could be imposed than erasure, cannot stand;

(xii) Having received evidence casting doubt on whether the Appellant was fit to represent himself because of the medication he was taking, the Tribunal did not revisit that issue when it reconvened in February 2017 to receive evidence and submissions on impairment and sanction.

[94]I therefore uphold ground 2 to the extent set out above. The errors tainted all the significant allegations which the Tribunal found to be proven and formed the basis for their findings of misconduct, impairment of fitness to practise and the sanction or erasure. For these reasons alone, the appeal must succeed and the Tribunal’s decision set aside. Given the insufficiency of evidence on crucial issues, I am unable to reach a view as to what ought to have been the outcome of the proceedings before the Tribunal. I consider below the order which the court should make, after taking into account the outcome of the remaining grounds of appeal.

[95]It could be said that since the appeal must succeed in any event, it is unnecessary for the Court to go through each of the remaining grounds, particularly 1 and 3 to 6. However, they were argued at some length and, on balance, I should give my response to those grounds, so that the Appellant may understand why, taken separately and in the way they were argued by counsel, they do not succeed. This may also be relevant to costs. Ms. Newbegin argued grounds 1 and 3 to 6 with barely any reliance upon the mental health and medication issues raised under ground 2. Although it seems to me that this approach was unrealistic, I will approach those grounds in the way that she has invited me to do, to see whether they have any merit as additional complaints.

Ground 1

[96]Ground 1 involved a number of challenges to various parts of the Tribunal’s factual findings. It fell into nine sub-grounds. I should repeat that this part of the Appellant’s argument did not rely to any material extent upon the issues concerning the Appellant’s health and medication raised under ground 2. For that reason only, I have examined and responded to the complaints made under ground 1 in the same way, as if the Tribunal’s handling of those issues had been free from criticism and, therefore, as if they had had no impact on the Appellant’s case before it, although, in my judgment, that was plainly not the position.

Ground 1(a) – Whether the Appellant notified the Trust of the conditions

(a) – Whether the Appellant notified the Trust of the conditions

[97]This ground relates to the Tribunal’s finding that the Appellant did not notify the Trust of the conditions imposed by the IOT in his telephone conversation with Ms. Rust on 1 July 2014 and therefore its conclusion that allegations 8 and 9 were made out (see paragraphs 43 to 44 above).

[98]Ms. Newbegin submitted that:-(i) The Appellant gave evidence that he had notified the IOT conditions to the Trust in the telephone conversation with Ms. Rust on 1 July 2014;

(ii) Ms. Rust did not deny in her evidence that the conversation alleged by the Appellant had taken place;

(iii) The Tribunal made no findings on the credibility of the Appellant on this point;

(iv) There was therefore no basis for the Tribunal to find that the Appellant did not tell Ms. Rust or Ms. Gunner about the conditions;

(v) The Appellant asked the Tribunal that a witness statement be obtained from Ms. Gunner. The Tribunal’s failure to require Ms. Gunner to be called was a serious breach of procedural fairness;

(vi) There was no basis for the Tribunal to find that the Appellant knew that he had not notified the Trust about the conditions on 1 July 2014 as a basis for inferring dishonesty.

[99]I will summarise my conclusions on this ground. Point (i) is correct (see e.g. paragraph 109 of the Tribunal’s decision and transcript for Day 7);

[100]As to point (iii), Ms. Rust was unable to say whether the Appellant mentioned the conditions during the telephone conversation on 1 July, whether to Ms. Gunner or herself (transcript Day 5 and paragraph 110 of the Tribunal’s decision);

[101]The Tribunal made it plain that it did not accept the Appellant’s evidence on this point (see paragraphs 110 and 111 of its decision). It relied upon the emails which showed that although the Appellant had worked at DVH on 3 and 4 July 2014, on 7 July Ms. Gunner expressed the Trust’s annoyance that it had not previously been told about the conditions. That complaint would not have been made if the Trust had been told by the Appellant about the conditions on 1 July, before he carried out locum work on 3 and 4 July. The Trust cancelled his appointment on 7 July because of the conditions once they knew about them (see email from Ms. Clark to the Appellant on 7 July 2014, paragraph 18 of her first witness statement and her evidence on Day 5).

[102]The Tribunal’s reasoning has to be read as a whole. At paragraph 118 of its decision the Tribunal found that the Appellant’s statement in his email of 7 July 2014 that he had spoken to the Trust about the conditions on 1 July was untrue and something he knew to be untrue. At paragraphs 167 to 170 the Tribunal reached the conclusion that the Appellant deliberately chose not to disclose the conditions to the Trust. They found his explanations implausible. In other words, it is obvious that the Tribunal did not believe the Appellant’s evidence on this point. This can also be seen in paragraph 25 of the Tribunal’s findings on misconduct. It concluded that the Appellant acted in this way “because otherwise the Trust might not have allowed him to start his new post in the Urology Department in July 2014. Thereby, he was dishonest.”

[103]It follows that Ms. Newbegin’s points (iii), (iv) and (vi) are misconceived. The same applies to her submission at paragraph 112 of her skeleton that the Tribunal had been obliged to treat the Appellant’s email of 7 July as showing an honest belief on his part that he had notified the Trust about the conditions in the conversation on 1 July, because any other view would be irrational. That contention is itself unreasonable. It overlooks the fact that the Appellant’s email was only sent as a response to Ms. Clark’s email on 7 July at 11.24 and therefore the logical possibility that that part of the Appellant’s email could have been self-serving. In that context, it is also relevant that that email gave no response to Ms. Clark’s complaint about the email sent to her by the Appellant on 1 July 2014, only 1 hour after the communication of the conditions to the Trust was supposed to have taken place.

[104]Ms. Newbegin’s submissions also ignore the evidence given by the Appellant to the Tribunal. On page 29 of the transcript for Day 27 he clearly stated in his evidence in chief that he had not done any more than tell the Trust that conditions had been imposed; he did not tell them what the conditions were. In cross-examination the Appellant was challenged about the plausibility of his assertion that he had told Ms. Rust about the existence of the conditions, but not their content (see e.g. pages 53-5 of the transcript for Day 8). It was also put to him more than once in cross-examination that he had deliberately decided not to mention the conditions so as not to damage his prospects of obtaining employment (see e.g. transcripts for Day 5 at pages 55 and 61 and Day 9 at page 26).

[105]Ms. Newbegin’s point (v), that the Tribunal acted unfairly by reaching findings adverse to the Appellant without requiring Ms. Gunner to give evidence (or at least steps being taken to that end) is based upon the decision of the Divisional Court in R (Bonhoeffer) v General Medical Council

[2011] EWHC 1585 (Admin)

. The circumstances of that case were very different from the present one. There, it was alleged that an eminent paediatric cardiologist had committed a number of sexual assaults on young male adults and children when undertaking charitable work in Kenya. The evidence on the majority of the allegations came from one source, a man in his late 20s living in Kenya. That witness had repeatedly said that he was willing to travel to the UK in order to give evidence in person. However, the GMC decided instead to apply for hearsay evidence to be given in the form of transcripts of video-taped interviews with that witness and even multiple hearsay. This was said to be justified because if the witness had given live evidence, whether in the UK or by video-link, he would have been at risk of reprisals in Kenya. The Tribunal allowed the hearsay evidence to be given, in part because of the serious nature of the allegations. The High Court allowed the doctor’s appeal on the basis that the Tribunal’s decision to admit the hearsay evidence had been irrational on a number of grounds and unfair and also because, in the particular circumstances of the case, it had been improper to deprive the doctor of the opportunity to cross-examine this crucial witness. The allegations against the doctor in that case were serious and effectively amounted to criminal offences, the evidence of the absent witness was of crucial importance and the Tribunal had failed to assess the risk to him if he had given live evidence.

[106]In the present case, the GMC did not seek to rely upon the evidence of Ms. Gunner as a witness or hearsay evidence of interviews with her. Ms. Newbegin’s complaint simply relates to the GMC’s reliance upon the email from Ms. Clark of 7 July 2014 and her evidence to the same effect that Ms. Gunner telephoned her on that day to complain that the Trust had not been informed about the conditions. She also relied upon the Appellant’s request to the Tribunal at page 14 of the Transcript for Day 11 that a witness statement be obtained from Ms. Gunner to “see whether or not she heard me say that the conditions were from a standard list”. But he then accepted once again that he would not have attempted to recite the conditions to her during the conversation. It will be recalled that the single telephone call he relied upon only lasted one minute 40 seconds.

[107]I do not accept, therefore, that the Tribunal’s findings on this part of the case depended wholly or mainly on the evidence given by Ms. Clark about Ms. Gunner’s annoyance on 7 July 2014 that the Trust had not previously been told about the conditions. There was unchallenged evidence that before the IOT’s meeting on 1 July, the Trust was intending to cancel the Appellant’s locum post on 30 June because of what it understood to be a forthcoming hearing which could affect the Appellant’s ability to practise from 2 July. It was because of the Appellant’s reassurance that he was only going to attend a meeting which would not affect his ability to practise, which Coyles passed on to the Trust, that the latter agreed on 30 June 2014 to retain the Appellant as a locum with effect from 2 July. There was also unchallenged evidence that(a) on 3 and 4 July the Appellant worked at DVH and

(b) on 7 July the Trust cancelled any further work by him because of the conditions. Pithily expressed, that was the straightforward line of reasoning which paragraph 110 of the Tribunal’s decision adopted. Plainly, the Tribunal would also have been aware of the cross-examination of the Appellant on his “good news” email to Coyles on 1 July which omitted any reference to conditions on registration (see e.g. paragraphs 105 and 166 of the decision).

[108]I have also noted the email sent by the Appellant to Coyles on 9 July 2014 (see paragraph 38 above) and the cross-examination of the Appellant on that document. In these circumstances, it is impossible to suggest that it was unfair for the Tribunal to have regard to the hearsay evidence about Ms. Gunner’s reaction on 7 July to discovering the existence of the conditions, or a breach of

Article 6(1) of the ECHR

. Moreover, it cannot be said that the Tribunal’s conclusions in this case on misconduct, impairment of fitness to practise and sanction depended wholly or mainly on hearsay evidence.

[109]As the Court of Appeal pointed out in Southall v GMC

[2010] EWCA Civ 407

at paragraph 47, the Tribunal’s findings of primary fact, particularly those founded upon an assessment of the credibility of a witness, are virtually unassailable. The Tribunal heard and saw the evidence and was in a much better position to weigh the evidence given than the Court (Gupton v GMC

[2002] 1WLR 1691

). Ignoring at this stage the points I have accepted under ground 2, I am unable to say that the Tribunal arrived at conclusions which were not open to it on the evidence put forward. The reasoning given was adequate (see also paragraph 55 of Southall) and no error has been demonstrated (see also Yassin v GMC

[2015] EWHC 2955 (Admin)

at paragraph 32).

Ground 1(b) – Failure to take into account material considerations

(b) – Failure to take into account material considerations

[110]In his email to Ms. Clark dated 7 July 2014 the Appellant described the attempts he made to contact persons employed by the Trust after the IOT hearing on 1 July 2014, notably Miss Scheiner, the Medical Director, and Dr. Ashraf. It is said that the Tribunal failed to take these matters into account when deciding that the Appellant’s failure to notify the Trust about the conditions was dishonest.

[111]This complaint is hopeless. These points were barely raised by the Appellant before the Tribunal (see transcript for Day 8 page 54). They were referred to in the Appellant’s email to Ms. Clark dated 7 July 2014. However, Dr. Ashraf was away and in any event the email states that the Appellant was merely intending to ask him to act as his educational supervisor. There was no mention of notifying the conditions. The meeting with Miss Scheiner did not take place until 9 July 2014. The emails to set up the meeting did not mention the fact that conditions had been imposed. Before the meeting took place, Ms. Gunner had found out about the conditions and the Appellant’s locum appointment had been cancelled. The Appellant had worked for the Trust on 3 and 4 July without, according to the Tribunal’s findings, notifying the Trust of the conditions to which his registration was subject.

[112]Ms. Newbegin’s submission also overlooks the Tribunal’s findings which properly had regard to the emails sent by the Appellant on 1st, 2nd, 7th and 9 July 2014. The Tribunal decided that the Appellant had deliberately claimed in his email of 7 July (as well as in his evidence before the Tribunal) that he had notified the Trust in a conversation on 1 July, which he knew to be untrue. It is impossible to suggest that when the Tribunal went on to conclude that that amounted to dishonest conduct, its conclusion was perverse because of the two matters raised under ground (b). Likewise, the omission in the decision of any direct reference to these two points is of no consequence.

Ground 1(c) – The consequences of grounds 1(a) and 1(b)

(c) – The consequences of grounds 1(a) and 1(b)

[113]Ms. Newbegin submits that the consequences of the flaws alleged under grounds 1(a) and 1(b) is that the Tribunal’s findings that allegations 12, 14(a) and (b) and 30(a) and (b) were tainted and could not be upheld. As I have rejected grounds 1(a) and (b), ground 1(c) must also be rejected.

[114]Before leaving ground 1(c) I should mention paragraph 117(c) of the Appellant’s skeleton which sought to argue that because the Appellant believed that he had told the Trust about the conditions on 1 July 2014, the Tribunal’s finding under allegation 14(a) (wrongly referred to as allegation 13) in respect of Coyles was tainted. The premise is incorrect given that ground 1(a) has failed. In any event, I do not accept that if the Tribunal had concluded that the Trust had been told about the conditions on 1 July (or that the Appellant believed he had done so) that allegation 7(b), and the Tribunal’s findings following on from it, were of no significance. Given the way in which the Appellant had misinformed Coyles about the purpose of the hearing on 1 July, both on 30th June and in the email dated 1 July following the hearing (see paragraphs 26 and 34 above), no criticism can be made of paragraph 166 of the Tribunal’s decision. The reassurances which the Appellant had given to Coyles on 30 June, and which Coyles then passed on to the Trust, had resulted in the Trust revoking its initial decision to cancel the Appellant’s locum work. It is absurd for Ms. Newbegin to imply that Coyles did not need to know the correct position once the IOT hearing had taken place and conditions had been imposed. The nature of the Appellant’s email to Coyles on 1 July 2014 and allegation 7(b) raised serious issues.

Ground 1(d) – Whether the Appellant was obliged to notify Coyles of the conditions

[115]Allegation 7(b) criticised the Appellant for failing to notify Coyles of the conditions in his email sent on 1 July 2014. The Tribunal concluded that the conditions did not set any timescale for the Appellant to inform “current employers about the conditions” and did not require him to inform Coyles “immediately after they were imposed”. For that reason, it decided that the Appellant had not breached the conditions through failing to notify Coyles (see paragraphs 106 and 124).

[116]However, the Tribunal decided (in paragraph 107 of its decision) that by not notifying Coyles of the conditions, the Appellant had failed to comply with his obligation under the terms of the declaration he signed with the agency when he applied to register with them for locum work on 17 March 2014 (see paragraphs 22 and 41 above).

[117]Ms. Newbegin relied upon the statement by Cranston J in Cheatle v GMC

[2009] EWHC 645 (Admin)

at paragraph 28 that an allegation of a “failure” by a doctor depends, by implication, upon the existence of a duty or obligation with which the doctor has failed to comply, and therefore cannot be established if no such obligation exists.

[118]In relation to allegation 7(b), the Tribunal rejected the Appellant’s contention that he was not employed by Coyles at the time of the IOT hearing because he had been assigned to work for the Trust. It found that he was still on the agency’s books and remained so until November 2015 (paragraph 107 of decision). That essentially factual conclusion is not challenged in the appeal. It follows that at the relevant time the Appellant was under an obligation to Coyles to comply with his declaration as set out in paragraph 22 above. It also followed that in sending the email of 1 May to Ms. Clark, the Appellant failed to comply with that obligation.

[119]This analysis is not now challenged by the Appellant. Instead, Ms. Newbegin advances two complaints:-(i) The Tribunal improperly relied upon the Appellant’s declaration because no reference was made to that point in allegation 7(b);

(ii) There was no evidence that the Appellant had read or considered the declaration so as to found an allegation of dishonesty in relation to allegation 7(b). For the reasons set out below I reject both points (i) and (ii).

[120]Reference has been made to judicial statements that serious allegations, such as allegations of dishonesty, should be clearly particularised so that the person against whom it is made knows how the allegation is put, and when the hearing takes place the allegation should be fairly and squarely put to him so that he can seek to answer it (see Fish v GMC

[2012] EWHC 1269 (Admin)

at paragraph 69). The first requirement enables the party facing an allegation to prepare for the hearing. The second seeks to ensure that that party has a fair hearing. As Cranston J put it in Yassin v GMC at paragraph 25 “the key is fairness”. The principles have been restated by the Divisional Court in Williams v Solicitors Regulation Authority

[2017] EWHC 1478 (Admin)

at paragraphs 70 to 76, where the point is also made that these principles involve some flexibility and are not mechanistic. The requirement is to achieve fairness in the circumstances of the case.

[121]However, the Court may withhold a remedy for procedural unfairness if the appellant cannot show that he has thereby suffered significant prejudice (see e.g. Ouseley J in R (Mid-Counties Co-operative Limited) v Wyre Forest D.C.

[2009] EWHC 964 (Admin)

at paragraphs 94-96 and 104-105; Hopkins Developments Ltd v Secretary of State

[2014] PTSR 1145

at paragraphs 49 and 62). A key consideration is whether the appellant has had a proper opportunity to state his case on a point decided against him (see Williams at paragraph 76). In this appeal the Appellant has not sought to show that there is something further he would have wished to say about the subject of non-compliance with the declaration he signed. The Appellant has not filed any witness statement.

[122]Allegation 7(b) told the Appellant that he had failed in his email of 1 July 2014 to tell Coyles about the conditions. That carried with it the obvious implication that he had been obliged to do so. It was plain that as a matter of fact the Appellant did not inform Coyles about the conditions in the email. Towards the beginning of the Tribunal’s hearings (on Day 3 at page 1 of the transcript) it was made clear to the Appellant that he had the opportunity to put forward a case as to why he was under no obligation to do something which, it was alleged, he had “failed” to do.

[123]The Appellant made his “statement” to the Tribunal on this part of the case on Day 7. He said to them (pages 7-8 of the transcript) that after the hearing of the IOT his solicitor had told him to do five things, one of which was that he “should write to the locum agencies enclosing the conditions”. At that point he did not contend that he was under no obligation to do this, whether by reference to the terms of the IOC’s conditions or otherwise.

[124]During cross-examination of the Appellant it was put to him that the imposition of conditions by the IOT fell within the scope of the declaration he had signed on his registration form with Coyles dated 17 March 2014 (page 40 of transcript for Day 8). The question was put several times to the Appellant in order to clarify his position, namely that(a) he did not consider his obligation under the declaration to apply at any time when he was merely registered with Coyles but not working in a post which they had obtained for him and

(b) in any event he was unaware of his obligation under the declaration around the time of the IOT hearing (page 41 of transcript). It was also put to the Appellant that he had deliberately decided not to tell Coyles about the conditions in his email of 1 July 2014 (transcript for Day 8 at p.56). His answer was that he thought he had done that by sending a text (see also page 61). It was also put to the Appellant that in his email of 9 July 2014 to Coyles he deliberately down played what had happened at the hearing before the IOT (transcript Day 8 pages 60-62). In response to both lines of questioning the Appellant said that in the light of the IOT hearing he had decided at that stage not to accept any more work through locum agencies including Coyles. The Appellant’s evidence continued on Day 9 of the hearing, at the end of which the Chair of the Tribunal gave an opportunity for the Appellant to consider overnight whether there was any further evidence he would wish to present the following day.

[125]The findings made by the Tribunal arose from the issues which were raised during the evidence. They did not accept the Appellant’s attempt to suggest that his declaration did not apply once Coyles had assigned him to work for the Trust. Coyles needed to know about the conditions given that the Appellant was to begin working for the Trust on 2 July 2014 in accordance with the placement they had organised (paragraphs 105 and 107). The Tribunal also found that the Appellant’s conduct in sending the email on 1 July misled Coyles into believing that no conditions or restrictions had been imposed on his ability to practise. It found that he had told Coyles on 30 June 2014 that the hearing on 1 July would only be a meeting which would not affect his ability to practise. He sought to give the same impression to Coyles in his email sent a few days later on 9 July. The Tribunal found that the Appellant knew that his statements in that email the subject of allegation 10 were untrue and made dishonestly (paragraphs 119-121 and 170). In part, that conclusion was based upon the GMC’s letter to the Appellant dated 17 June 2014. The effect of those statements was misleading in essentially the same way as the Appellant’s conversation with Coyles on 30 June. The Tribunal was entitled to reach the conclusion in paragraph 166 of its decision that following the hearing on 1 July the Appellant ought to have corrected the misleading impression given to Coyles on 30 June about the effect on his ability to practise by telling them about the conditions that had been imposed. That needed to be done immediately because Coyles had found him the appointment at the Trust which was to start on 2 July. The Tribunal concluded that his decision not to do so was deliberate (as had been suggested to him in cross-examination) and, in these circumstances, was dishonest (paragraph 166). This was consistent with the Tribunal’s conclusion that for the same motive he deliberately chose not to tell the Trust about the conditions on 1 July 2014 (see paragraphs 167 to 170 and also paragraph 125 of the Tribunal’s decision on misconduct).

[126]Once again the Appellant’s criticism fails to read the Tribunal’s decision as a whole and ignores the close relationship between its findings on several of the allegations which were found to involve misleading and dishonest conduct. Once the decision is read properly it can be seen that allegation 7(b) (and the related allegations) were adequately particularised and there was no unfairness in this aspect of the procedure leading up to the Tribunal’s conclusions on these matters.

[127]As to Ms. Newbegin’s point (ii) (see paragraph 119 above), it can be seen that the Tribunal reached proper conclusions that the Appellant’s sending of the email to Coyles on 1 July 2014 was misleading and dishonest because he deliberately chose not to correct the assurances he had given to Coyles on 30 June. Having reached those conclusions on the evidence, there was no need for the Tribunal to deal with the Appellant’s evidence that he was unaware of the obligation in his signed declaration around the time of the IOT hearing. But, once again, this conclusion disregards the points which I have accepted under ground 2, which undermine the Tribunal’s findings in this part of its decision.

Ground 1(e) – Non-compliance with condition 10(c)

(e) – Non-compliance with condition 10(c)

[128]Condition 10(c) required that for locum appointments the Appellant should inform his immediate line manager at his place of work of the conditions at least 24 hours before starting work. There is no dispute about the fact that the Appellant worked a locum shift at DVH on 3 July 2014, shortly after the conditions had been imposed on his registration. Ground 1(e) is solely directed towards paragraph 125 of the Tribunal’s decision (see paragraph 46 above). Ms. Newbegin relies upon paragraphs 126 to 133 of her skeleton (which was the only amendment to the grounds for which permission was granted).

[129]Under allegation 8 (linked to allegation 9) the Tribunal had already found that the Appellant had failed to notify the Trust about the conditions on 1 or 2 July. In paragraph 125 it upheld allegation 13 that this omission was a breach of the conditions by reference to condition 10(c).

[130]Ms. Newbegin makes a variety of complaints to the effect that the Tribunal did not investigate who the line manager was or enquire what steps were taken by the Appellant to inform his line manager “or the nearest equivalent”. These points are hopeless. It is plain from the transcript that the Appellant told the Tribunal that he had sought to tell Dr. Ashraf, the consultant with whom he had been working, but he was on leave and so he suggested (on Day 11 at page 15 of the transcript) that he did not have an immediate line manager.

[131]Putting to one side the forensic chaff in the skeleton, the real complaint is that the Tribunal erred in law because neither Ms. Rust or Ms. Gunner, who were rota managers for the Appellant, could properly be treated as line managers for the purposes of condition 10(c) and so the Tribunal was not entitled to find allegation 13 proven, nor allegation 30, and so this part of the case against the Appellant could not found a determination of misconduct leading to erasure in the later stages of the decision.

[132]There is a complete air of unreality about the Appellant’s new argument. It is plain from the evidence and the Tribunal’s decision that before the IOT hearing, the rota managers had been taking decisions on 30 June about whether the Appellant’s locum appointment would or would not be cancelled according to the information given by Coyles about the hearing on 1 July and the consequences for his ability to practise. The Tribunal found that on 1 and 2 July the Appellant knew that his registration was subject to restrictions and that this outcome therefore altered the position as he had represented it to Coyles, and thus the Trust, on 30 June. He appreciated that the Trust should be informed about the existence of the conditions on 1 July (see paragraph 104 above and page 28 of the transcript for Day 7). Given that the rota managers were dealing with the issue of whether he should be allowed to take up the post depending upon the outcome of the IOT hearing, it is absurd to suggest that they could not be considered as line managers for the purpose of condition 10(c). Otherwise, if the Tribunal had accepted that the conditions were notified during the telephone conversation on 1 July, condition 10(c) would not have been satisfied. The simple fact is that, according to the Tribunal’s findings, the Appellant did not tell any line manager at the Trust, or indeed anyone there, about the conditions before he carried on working at DVH.

Ground 1(f) – Allegation 9

(e) Ground 1(f) – Allegation 9

[133]In connection with the Tribunal’s finding that allegation 9 was proven, Ms. Newbegin repeated the complaint that the Tribunal failed to require evidence to be obtained from Ms. Gunner. I have already rejected this complaint under ground 1(a). Ms. Newbegin accepted that ground 1(f) does not raise any additional issue.

Ground 1(g) – Allegations 10, 12 and 30

(g) – Allegations 10, 12 and 30

[134]Ground 1(g) relates to the email to Coyles sent by the Appellant on 9 July 2014 (see paragraphs 50 to 51 above). The Tribunal found that key statements made in that email about the IOT hearing were untrue, that the Appellant had known them to be untrue, and that his conduct was both misleading and dishonest.

[135]Paragraph 136 of the Appellant’s skeleton is no more than a challenge to the factual findings made by the Tribunal dressed up as a series of considerations which the Tribunal failed to take into account. It is necessary to read allegation 10 as a whole. Ms. Newbegin focuses on the meeting/hearing issue and neglects 10(c) in which the Appellant was still seeking to maintain that the IOT had simply been concerned with starting a process of investigation.

[136]In fact, it is plain from the Tribunal’s decision that it did have the substance of the Appellant’s points in mind and did not attribute to them the weight that the Appellant does. The Appellant was cross-examined about the email. The Tribunal found his evidence lacked plausibility (paragraph 170). I see no basis for treating the Tribunal’s findings as perverse as Ms. Newbegin asks me to do.

[137]Paragraph 137 incorrectly asserts that(a) Coyles were notified by the Appellant of the conditions two days earlier on 7 July 2014 and

(b) were aware of the conditions in any event on that date. There is no evidence to support point (a), and I agree with Mr. Dunlop that the unchallenged evidence of Ms. Clark (paragraph 19 of her first witness statement) contradicts point (b). At all events there is no basis for me to interfere with the Tribunal’s findings in relation to the email of 9 July 2014.

Ground 1(h) – Allegation 22(a) - Swansea University

(g) Ground 1(h) – Allegation 22(a) - Swansea University

[138]Under allegation 22(a) the Tribunal decided that the Appellant failed to inform Swansea University about his employment at Bournemouth University. Ms. Newbegin suggests that the Tribunal failed to identify any obligation on the part of the Appellant to disclose that information when he completed the application forms and that there was no such obligation. She suggests that its findings under allegation 30 that the Appellant’s conduct was dishonest in this regard were therefore perverse. Ms. Newbegin asserted that the evidence from Swansea University had focused on a failure to disclose the IOT conditions, rather than the employment with Bournemouth University, but that is contradicted by paragraph 182 of the Tribunal’s decision.

[139]In cross-examination the Appellant was unable to explain why he had referred on the application forms to his recent work for SGS College Bristol (which had only started 9 days before the applications were made), but not the longer employment at Bournemouth University between September 2015 and January 2016 (page 16 of the transcript for Day 9). When dealing with the allegation of dishonesty, the GMC’s counsel cross-examined the Appellant on paragraph 71 of Good Medical Practice (see page 28 of transcript for Day 9), which was relied upon by the Tribunal (in paragraph 134 of its decision in relation to allegation 16(b) – see paragraph 52 above).

[140]The Tribunal was plainly entitled to treat the application form as asking for relevant information on employment history which included Bournemouth University and that, applying paragraph 71 of the GMP, the Appellant had been obliged to provide that information in order to give an honest account of himself and not to be misleading. The Tribunal found that this was a further example of a deliberate failure to give information which amounted to dishonesty, on this occasion because of a concern that revealing information would harm his chances of being employed by Swansea University (paragraphs 181 to 182 of the decision – see paragraph 54 above).

Ground 1(i) – Allegation 28(b) - Swansea University

(h) Ground 1(i) – Allegation 28(b) - Swansea University

[141]Essentially the facts are not in dispute. The University wrote to the Appellant on 26 April 2016 to offer him a teaching post. They then discovered that conditions had been imposed on his registration as a doctor and asked the Appellant to attend an informal fact-finding meeting on 9 May 2016 so that he could clarify the position with regard to the conditions and so that the University could “fully understand the situation”. According to Dr. Cutter, the Appellant accepted that he had not previously mentioned the conditions because he was concerned that that might result in him not being offered the job (see paragraph 37 of her witness statement). The notes of the meeting and the witness statements show that the Appellant explained at some length the nature of an ongoing investigation into a complaint by a patient. Ms. Cotgias said that the Appellant “was very forthcoming about the reasons why the conditions had been imposed on his registration. He explained that this was due to the patient complaint that had been made against him … and he went into detail about the nature of the complaint” (paragraph 20 of witness statement). She added that the University asked the Appellant to provide a timeline for the resolution of these matters by the GMC in case the outcome was unfavourable to him, because that could have implications for the University. The Appellant responded that there would be a hearing in September/October 2016 and Ms. Cotgias understood that this was “in relation to the patient complaint” (paragraph 26 of witness statement).

[142]It is perfectly obvious from the evidence before the Tribunal, including material disclosed in advance of the hearing, that the fact-finding meeting was concerned not merely with the simple fact that conditions had been imposed or the content of those conditions, but also why they were in place. Understandably, the University made it clear that they needed to know whether the outcome of GMC’s process might have implications for the University’s employment of the Appellant. Moreover, in his cross-examination the Appellant was asked why he had told Swansea University that the conditions and GMC investigation related to the complaint by a patient, without ever mentioning that the proceedings and the conditions had also become concerned with an investigation into his probity. The Appellant’s response in cross-examination was that interviewers were interested in patient complaints but not probity (see paragraphs 4 to 12 of the IOT’s decision made on 4 December 2014 and pages 26 to 28 of the transcript for Day 9).

[143]References in paragraphs 151 to 158 of the Appellant’s skeleton to the evidence are very selective or inaccurate. For example, the thrust of Ms. Cotgias’s witness statement was clear, if read as a whole, and yet she was not called as a live witness because neither the Appellant nor the Tribunal had any questions to put her (paragraph 14 of decision). When the evidence of Dr. Cutter and Professor Phillips is read as a whole (pages 3 to 27 of transcript for Day 4) it is plain that the University’s concerns were not limited to the existence and content of the conditions. They were concerned about wider matters such as the Appellant’s honesty, that he should continue to be registered by the GMC, and the implications of the GMC’s process. To some extent, the Appellant appreciated that the University was interested in the reasons for the investigation and the conditions imposed because he sought to give details and reassurances about the complaint by a patient.

[144]The allegation in paragraph 28(b) was clear, namely that the Appellant had failed to provide accurate information to the University in the meeting on 9 May 2016 about why the conditions had been imposed. It was clear that the non-disclosure of one of the main reasons for the imposition of the conditions, the probity issue, rendered the information supplied by the Appellant “inaccurate”. Moreover, the Appellant should have read allegation 28(b) together with allegation 29(b), that the Appellant knew that the information he provided “did not include the correct position” about the reasons for the conditions. In other words it was incomplete. This failure to refer to the probity issue was put to the Appellant when he was cross-examined.

[145]In the circumstances, the complaints raised do not entitle the Court to interfere with the Tribunal’s findings on allegation 28(b) (in paragraphs 156 to 159 and 186 to 187 of its decision). Taking into account the GMP, the Tribunal was entitled to decide that the failure to refer to the probity issue meant that the explanation the Appellant gave to the University did not represent the true or accurate position about the reason for the conditions. The Tribunal then went on to find that the Appellant had deliberately proffered a partial explanation so as not to put Swansea University on notice of matters arising from his employment and dismissal by Bournemouth University and that conduct was dishonest. I reject ground 1(i).

[146]Accordingly, I reject ground 1 in its entirety.

Ground 3

[147]Ms Newbegin’s submissions relating to ground 3 were advanced as a separate argument which disregarded the matters raised under ground 2. For that reason only, I will deal with them in the same way. She raises two points. First, it is submitted that the Tribunal failed to apply the law on dishonesty as laid down in R v Ghosh

[1982] QB 1053

and Twinsectra v Yardley

[2002] UKHL 12

. It is said that the Tribunal failed to consider(a) whether the Appellant’s behaviour was dishonest by the ordinary standards of reasonable and honest people, and also whether

(b) the Appellant appreciated that that was so. Second, it is submitted that the Tribunal erred in law when in paragraph 163 of its decision it said:- “When deciding whether his conduct was dishonest, in the context of an alleged failure to disclose information, the Tribunal first considered whether Dr. Brookman knew that he was under an obligation to disclose information or whether he was reckless in deliberately not checking whether he was under such an obligation. The Tribunal then went on to consider whether he decided, in those circumstances, not to disclose.” Ms. Newbegin submits that recklessness of that type is insufficient to found a finding of dishonesty.

The Ghosh issue

[148]I agree with Mr. Dunlop that the legal directions given to the Tribunal were for the most part sound. First, the Legal Assessor told the panel that allegation 30(a), to the effect that the Appellant’s conduct had been misleading, did not address the subjective intention required for dishonesty. Paragraph 162 of the decision is consistent with that understanding. Second, the Legal Assessor specifically advised the Tribunal on the objective and subjective components which must both be satisfied to establish dishonesty. Third, he gave impeccable directions on the cogency of the evidence needed to prove dishonesty to the civil standard of proof, applying Re H

[1996] AC 563

, 586-7; Re B

[2009] 1 AC 11

, 17-21 and Lawrance v GMC

[2015] EWHC 586 (Admin)

at paragraph 35.

[149]The mere fact that the Tribunal did not explicitly refer to the two stage test in its reasons does not in itself amount to an error. This Court should proceed on the basis that the Tribunal acted in accordance with the directions it received unless it can positively be shown that it acted inconsistently therewith (Piglowska v Piglowski

[1999] 1WLR 1360

, 1372 and see more recently Mordue v Secretary of State for Communities and Local Government

[2016] 1WLR 1243

paragraphs 19-20 and 27-28).

[150]In addition, I gratefully adopt the views of Singh J in Uddin v GMC

[2012] EWHC 2669 (Admin)

at paragraph 31:- “The second observation to bear in mind is that even in the criminal context it is not general practice to give the so-called Ghosh two-part direction. In many cases, the advice which is given now by the Judicial College to judges who sit in the Crown Court is that no direction is required on the meaning of dishonesty. One context in which the twofold Ghosh direction may be required is where, on behalf of a defendant in criminal proceedings, an issue is raised whether he or she realised that the conduct charged was dishonest by the standards of reasonable and honest people. In many cases, there will be no such issue of fact raised. It will be perfectly apparent that if the conduct alleged did take place then it clearly was dishonest. The real issue in many cases may be whether the conduct took place and with what state of mind. For example, was a false representation made? But even if it was, was it done knowing that it was false or may it have been, for example, innocent or even a negligent mistake?” (emphasis added).

[151]As Lord Lane CJ pointed out in Ghosh itself at

[1982] QB 1053

“If it was dishonest by those standards [the objective test] then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly.”

He went on to say that the subjective test arises if a person says “I did not know that anybody would regard what I did as dishonest”, but, of course, the tribunal of fact may not believe him when he says that. In R v Roberts

(1987) 84 Cr. App R. 117

the Court of Appeal confirmed that in a criminal case the subjective test does not arise unless the defendant says something along these lines (see also R v Price

(1990) 90 Cr. App R. 409

[152]The corollary of this principle that is that a person does not avoid a finding of dishonesty by saying that he did not consider that what he was doing was dishonest by his own standards. This was explained in Twinsectra, relying upon what had been said by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan

[1995] 2 AC 378

at p.389C:- “Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another’s property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour. Further, at p.391 A-C, Lord Nicholls said:

“Ultimately, in most cases, an honest person should have little difficulty in knowing whether a proposed transaction, or his participation in it, would offend the normally accepted standards of honest conduct. Likewise, when called upon to decide whether a person was acting honestly, a court will look at all the circumstances known to the third party at the time. The court will also have regard to personal attributes of the third party, such as his experience and intelligence, and the reason why he acted as he did.”

[153]Initially Ms. Newbegin submitted that the Tribunal failed even to apply the objective test for dishonesty. She said that they had simply considered whether the Appellant had acted “deliberately” as distinct from “dishonestly”. But it follows from the authorities cited that if a person deliberately does something which is objectively dishonest (a fortiori if it is obviously so) and does not say that he did not appreciate that anybody would regard what he did as dishonest, then the essential ingredients of dishonesty are present and the reasoning can be expressed very pithily.

[154]The Legal Assessor gave a good example of this approach when referring to paragraph 71 of the GMP (quoted in paragraph 52 above) at page 29 of the transcript for Day 11:- “”You must make sure that any documents you write are not false or misleading”, again a failure to do that could be dishonest but it could also be consequent upon carelessness or ignorance. “You must not deliberately leave out relevant information”, if the information left out is relevant and was deliberately left out I would suggest that that would satisfy the objective test on dishonesty. It would then be for Dr Brookman to advance an argument based on the subjective test but he has not done so.” This was in the context of alleged non-disclosures in applications made to Bournemouth University and to Swansea University. Rightly this approach was not criticised by Ms. Newbegin (although she does go on to argue that issues were raised which required the Tribunal to apply the subjective test).

[155]It is helpful to summarise the Tribunal’s findings on dishonesty:-(i) Allegation 7(b) On 1 July the Appellant misled Coyles by failing to notify them before he began his locum work on 2 July (whether in his email of 1 July or at all) that conditions had been placed on his registration and ability to practise, so as to correct the assurances he had given to Coyles on 30 June. Those assurances should have been corrected irrespective of whether the Appellant was aware of the declaration he had signed in March 2014. The Appellant deliberately chose not to inform Coyles about the conditions.

(ii) Allegations 8 and 9 The Tribunal decided (paragraph 167) that the Appellant knew about his obligation under the IOT’s conditions to notify the Trust of the conditions timeously (i.e. before beginning work in the Urology Department) because (a) he was present when the conditions were imposed and (b) that was implicit in his evidence that he did not mention the conditions in his email of 2 July, because he had notified them to the Trust in his telephone call on 1 July. Thus, in the final event, the Tribunal made a finding of actual knowledge, and not constructive knowledge based on the notion of recklessness (notwithstanding paragraphs 128 and 163 of the decision). The Tribunal disbelieved the Appellant’s claim that he had so notified the Trust on 1 July (paragraphs 109 to 111 and 167) and concluded that he knew that it was untrue (paragraph 118). It decided that, in the light of its rejection of the Appellant’s evidence about the telephone conversation, he had deliberately chosen not to disclose his conditions to the Trust.

(iii) Allegation 10 The Tribunal found that the statements made in the email to Coyles of 9 July 2014 were untrue and that the Appellant knew them to be untrue (paragraphs 119 to 121). That email was sent in the context of an investigation as to why the Trust had not been informed by Coyles of the conditions on 1 or 2 July. In the absence of a plausible explanation for making untrue statements in that context, the Appellant’s conduct was dishonest (paragraph 170).

(iv) Allegation 22(a) In the light of paragraph 71 of GMP (to which the Legal Assessor had referred in part of his directions on dishonesty in the same context), the Tribunal found that the Appellant had been obliged to include his employment and dismissal at Bournemouth University in his application to Swansea University for employment (paragraph 142). It was important for the latter to know about this history. The Appellant was aware of the need to give full and frank disclosure to prospective employers such as Swansea University because of his experience at Bournemouth. He considered that he might not be successful in getting a job at Swansea if he told them about his employment record at Bournemouth and so he deliberately omitted this information.

(v) Allegation 28(b) The Tribunal found that the Appellant did raise the IOT’s reason for imposing conditions at the meeting with Swansea University on 9 May 2016, but failed to be completely open and honest with them. He failed to refer to the concerns about his probity. The Tribunal then found that this failure was deliberate so as to avoid Swansea University becoming aware of his dismissal at Bournemouth (paragraphs 156 to 158, 161 and 186-187 of the decision).

[156]The Court should read these findings in the context of the legal directions which the Tribunal had been given and the legal principles I have summarised. The factual context was a professional man dealing with(a) the effect of decisions taken by a disciplinary body about his ability to practise on his relationship with the body he was to work for (and the agency organising that work) and

(b) the supply of relevant information by him to support an application for employment. The findings of the Tribunal were consistent with the proper application of the law on dishonesty. Viewed properly in context, the findings involve “dishonesty” according to the ordinary standards of reasonable and honest people. The reasoning of the Tribunal does not suggest that they applied any inappropriate legal approach. There was no need for the Tribunal to use any particular incantation or mantra to the effect that the misconduct was objectively dishonest. The Tribunal found that the Appellant had deliberately acted in a manner which they plainly regarded as objectively dishonest, and he did not suggest that he had not appreciated at the time that anybody would regard the conduct as dishonest.

[157]At the hearing Ms. Newbegin did not pursue any further her initial suggestion that the Tribunal failed to apply the objective test for dishonesty. In responding to the grounds of appeal, Mr. Dunlop, quite understandably, was under the impression that it had not been suggested that the Tribunal had failed to deal with the subjective test (see paragraph 64(2) of his skeleton). However, in the Appellant’s skeleton produced shortly before the hearing this point was raised, but solely in relation to the findings on allegation 10 (see paragraph 180). The oral submissions for the Appellant then widened this line of argument effectively to cover the main allegations which led to erasure.

[158]I have carefully revisited all of the transcript references given by Ms. Newbegin to show that the evidence given by the Appellant raised the issue of the subjective test for determination by the Tribunal. In my judgment there is no foundation for this complaint. I will simply summarise my conclusions:-(i) Allegation 7(b) Although the Appellant said that around 1 July 2014 he did not give any thought to the declaration he had signed, the Tribunal’s findings on dishonesty did not depend in this instance on breach of either the conditions or the declaration. Instead, it found that the Appellant made a deliberate decision not to correct the erroneous impression he had given to Coyles on 30 June in order to retain his locum appointment (paragraph 166 and paragraph 25 of the decision on misconduct). It follows that the Tribunal did not accept the faint suggestion in the Appellant’s evidence that he thought he had sent a text to Ms. Clark to correct that impression.

(ii) Allegations 8 and 9 The Appellant referred to the attempts he made in early July to contact Dr. Ashraf and the Medical Director (although the communications were non-specific). But the Tribunal found that he knew of his obligation under the conditions to notify the Trust. It disbelieved the Appellant’s evidence about the telephone conversation on 1 July (which in any event, even on his own evidence, did not involve passing on the content of any of the conditions, let alone the key ones). The Tribunal decided that the Appellant deliberately chose not to inform the Trust for the same motive. In the circumstances these unsuccessful attempts to contact two other persons, where the Tribunal disbelieved the Appellant’s evidence on actual notification and decided that that was a matter of deliberate choice, did not call for the subjective test in Ghosh to be applied.

(iii) Allegation 10 The Tribunal rejected the Appellant’s evidence about what he had meant by the terms criticised in his email of 9 July 2014. The Tribunal found that he knew at the time that that language was untrue. It was not suggested to the Tribunal that on such findings members of the public would not consider that behaviour to have been dishonest.

(iv) Allegation 22(a) Ms. Newbegin referred to attempts by the Appellant to suggest in his evidence that he did not mind Swansea University knowing about his employment in Bournemouth and did not know why he had not referred to it in his application form. This and other evidence did not make it necessary for the Tribunal to consider the subjective test in Ghosh because the Appellant was disbelieved by the Tribunal. It found that the Appellant deliberately chose not to reveal this information to Swansea University.

(v) Allegation 28(b) The Appellant suggested that he had considered prospective employers to be interested in complaints raised by patients but not concerns raised about a doctor’s probity. But the Tribunal did not believe this evidence from the Appellant, essentially for the same reason as under allegation 22(a).

[159]Thus, this long exercise carried out by Ms. Newbegin to show that the Appellant’s case had engaged the subjective test in Ghosh, ignored the basis upon which the Tribunal had reached it conclusions and was pointless. The Tribunal did not err by not referring to the subjective test in its decision.

Recklessness

[160]Having regard to the passages cited from Royal Brunei Airlines, I am not persuaded that recklessness is relevant to dishonesty as explained in Ghosh and Twinsectra. But this issue was not dealt with in any detail by counsel and I prefer not to express a concluded view about it. Fortunately, I do not need to do so, because it is plain that none of the critical findings made by the Tribunal against the Appellant depended upon any conclusion that he was reckless as regards his awareness of the IOT’s conditions and/or the declaration he had signed and/or other obligations to disclose information (see e.g. paragraph 167).

Conclusion

[161]It is plain from the discussion under ground 2 above that the mental health and medication concerns raised by the Tribunal, and to some extent accepted by Dr. Briscoe, and the consequent need for a further health assessment, might well have affected the Tribunal’s conclusions on such matters as the plausibility of the Appellant’s explanations and his awareness of his obligations to disclose certain information. However, those points have not been raised in this part of the Appellant’s case and I reject the Appellant’s free-standing arguments advanced under ground 3.

Ground 4

[162]As I have already explained, on 25 October 2016 (Day 10) when the Tribunal raised the question whether a further health assessment should be carried out on the Appellant, he expressed his wish that the allegations by the patient be resolved by the end of that week and said that he could not imagine any circumstances in which he would return to the hearing. At the end of the proceedings on 26 October (Day 11) the Tribunal adjourned the hearing to recommence for 4 days from 21 February 2017 (page 37 of transcript for Day 11). The Chairman carefully explained to the Appellant the procedure that would be followed for the delivery by the Tribunal of its findings of fact and the completion of the following stages dealing with misconduct, impairment of fitness to practise and sanction, as appropriate.

[163]At the hearing on 21 February 2017 the Appellant did not attend. The Tribunal sat in camera that day. When it reconvened in public on 22 February, it concluded that the Appellant had been properly served with notice of the hearing dates. No criticism is made of that decision. The GMC’s counsel pointed out that the Appellant had not made any application for the hearing to be adjourned and that in any event an adjournment was unlikely to result in him attending. After having reviewed all the circumstances, the Tribunal decided to proceed in his absence. No criticism is made of that decision either. The Tribunal said this:- “7. The tribunal has borne in mind that the discretion to proceed in the absence of a doctor should be exercised with the utmost care and caution. It also bore in mind the need to balance Dr Brookman’s interests with the public interest. … 10. In reaching its decision, the tribunal balanced the need for fairness to the doctor, including his right to be present, with the public interest in proceeding with the case. It bore in mind that there has been no application from Dr Brookman for an adjournment, and it did not consider that an adjournment would secure his attendance at any future hearing due to his personal circumstances. The tribunal concluded that it would be in the interests of all parties to proceed in Dr Brookman’s absence.” The Tribunal explicitly stated that it drew no adverse inference from the Appellant’s absence (paragraph 11).

[164]The Appellant’s criticisms now focus on the manner in which the Tribunal thereafter allowed the Appellant to participate. On 15 February 2017 the Appellant sent an email to the GMC’s solicitors stating that(a) he would not be able to attend the hearing in person and

(b) that he had arranged to take 21 and 22 February 2017 off work, and therefore by implication not 23 and 24 February for the remaining two days of the hearing. He also expressed concern on behalf of himself and his current employer as to the length of time which the proceedings had taken since 2013.

[165]The Appellant had said that he would be at his computer on 21 and 22 February, presumably at home, and able to participate electronically or to speak on Skype. On 16 February the GMC’s solicitor responded that, having checked with MPTS, the Appellant would not be able to use Skype, because it was not considered to be secure. She said that if he did not attend, and the Tribunal decided to proceed in his absence, it would be a matter for them as to what to do about sending him information during the hearing. She warned that if the Tribunal did proceed in his absence, there was no obligation to send that person updates during the course of the hearing. She therefore suggested that it would be beneficial to the Appellant for him to attend the hearing at least on 21 February so as to be able to receive the decision on the factual findings in person, to give any further evidence for the next stage, hear the GMC’s submissions and to make his own submissions in response. She suggested that the Appellant would then be in a position to decide whether to attend the hearing further. Alternatively, the email explained that the Appellant could apply to use a video link via a company approved by the MPTS, but that would be at his cost.

[166]The Appellant did not respond to these points until he sent an email at 10.36 on 20 February 2017. Just before that email, the GMC’s solicitor had asked whether the Appellant was going to attend the next day, and if not it would be useful to know the reasons why. She also said that an application would be made to proceed in his absence. The Appellant replied to the effect that he could not attend for any part of that week, because he could not afford to travel to or stay in Manchester. He stated that he had reached his limit for loans and credit cards and was behind with his rent and mortgage. No supporting evidence was provided at that stage. The Appellant also sent an email to the Tribunal’s Clerk to the same effect.

[167]On 20 February 2017 the Tribunal announced that it would not be ready to hand down its factual determination at 2pm on 21 February and so the parties were “released” until 11am on the following day. At 13.29 on 22 February the Tribunal’s Co-ordinator sent an email to the Appellant explaining that the Tribunal had decided to proceed in his absence. A copy of their factual findings was attached to the email. The Appellant was given until 15.10 to send any written evidence on whether his fitness to practise was impaired. The Tribunal also required the GMC to submit any evidence on that subject within the same timescale and thereafter would hear submissions from the GMC’s counsel. The Appellant was asked to send any written submissions on impairment by no later than 9.15am the following day. The Tribunal stated that it would not be possible to hear from the Appellant by Skype/video but it would consider any written submissions he wished to make.

[168]The Appellant responded that he had only received the determination at 14.40 and could not send any evidence to the Tribunal within 30 minutes. He did not say how long he would need. The Co-ordinator replied at 15.23 stating that the Tribunal had decided that the Appellant should have until 9.15am the following day to submit any evidence and/or submissions upon which he wished to rely in relation to the “impairment” issue. The email also stated that the GMC was not going to produce any evidence at that stage and the Tribunal would hear counsel’s submissions on impairment shortly.

[169]The Appellant did not respond to that email to complain about the procedure being followed. In particular, he did not suggest that the time he had been allowed under 9.15am on 23 February for his submissions on impairment would be inadequate. There is no basis for the implicit criticism in the Appellant’s skeleton as to the time limit imposed by the Tribunal.

[170]In the afternoon of 22 February 2017 the GMC did indeed submit written submissions to the Tribunal on impairment. The GMC’s counsel presented those submissions orally to the Tribunal, at the end of which counsel asked whether its document would be sent to the Appellant. The Chair responded that they would not be sent to him because the Tribunal was proceeding in his absence. If the Appellant had wished to hear those submissions he ought to have been present (page 16 of the transcript for Day 18). Ms. Newbegin criticised the Tribunal’s refusal to send the GMC’s written submissions to the Appellant so that he could take them into account in preparing his own submissions. However, it should be noted that the Tribunal did remind itself of the need to inform the Appellant when subsequent stages were reached and that he could make representations if he wished. The Tribunal than adjourned until 9.30am on 23 February 2017.

[171]When the hearing resumed the next day, the Appellant had sent a document dealing with impairment at 7.58. He did not suggest that he had had insufficient time to deal with that issue or make any request for more time. The GMC’s counsel made brief oral submissions in response, because of the “evidence” which the Appellant had put forward. No objection has been, nor could be taken to that procedure being followed, given that the decision to proceed in the Appellant’s absence is not being criticised.

[172]At 17.16 on 23 February the Tribunal sent an email to the Appellant attaching its decision that his fitness to practise was impaired and that the Tribunal would proceed to the sanctions stage the following day. The email gave the Appellant until 9.15am the next day to submit any further documents and/or submissions in relation to sanction. The Appellant did not reply to say that the time allowed was inadequate or to ask for more time. In fact, he did not send any further submissions, although it does appear that he had dealt with the subject to some extent in his submissions sent that morning (see page 9 of transcript for Day 20).

[173]At the hearing on Friday 24th February the GMC’s counsel made oral submissions based upon the written documents it handed up to the Tribunal at that stage dealing with the issues of sanction and immediate suspension. The Tribunal also received advice from its Legal Assessor. The Appellant did not make any submissions that day. The Tribunal announced its decisions to direct erasure and to make an immediate order of suspension.

[174]Ms. Newbegin submits that this procedure was unfair, because the Appellant was not supplied with written copies of the documents submitted by the GMC on 22 and 24 February and because he was not allowed by the Tribunal to participate in the proceedings on 23 or 24 February by telephone, if not by Skype. I reject these complaints. As I have said, the Appellant makes no complaint about the Tribunal’s decision to proceed in his absence.

[175]Neither rule 31, nor any other provision of the 2004 Rules, lays down any requirement for the Tribunal to pass on to the practitioner material which is presented to the Tribunal orally or in writing during any part of the hearing which it legitimately decides to conduct in his absence. There is also no requirement to inform the practitioner as to what has been said orally in his absence. The preparation of a transcript would unduly hold up the continuation of the hearing. The rules do not require a summary to be provided. Again this would unduly delay the conduct of the hearing where, by definition, it has been decided (and in the present case the Appellant accepts), that the hearing may continue in the absence of the practitioner, without any infringement of the common law principles of fairness. Although procedural rules do not necessarily exhaust the requirement of fairness, this analysis applies equally to any broader considerations of procedural fairness. Ms. Newbegin has produced no authority to the contrary.

[176]As for the criticisms directed to the procedure followed on 23 and 24 February, I entirely agree with Mr. Dunlop that they are hollow. The evidence before the Court is that the Appellant made arrangements to take time off work solely on 21 and 22 February, but not 23 or 24 February. He has given no proper justification for that decision and so cannot complain about his non-participation in the proceedings on 23 and 24 February, whether in person or (if the Tribunal had taken a different view) by telephone.

[177]Finally, although the Appellant was available at home on 22 February, he has not demonstrated any unfairness by the Tribunal refusing to allow him to participate by telephone. He was able to make those submissions which he wished to make arising from the Tribunal’s findings of fact. The only additional aspect which a telephone link could have enabled the Appellant to address were the oral submissions by GMC’s counsel that day. But, as I have explained, in a situation where there is no challenge to the decision to proceed in the absence of the practitioner, this does not give rise to any legitimate complaint. Viewed overall, the circumstances here were very different from those in Lawrance v GMC

[2015] EWHC 586 (Admin)

[178]For all these reasons I reject ground 4.

Ground 5

[179]This ground involved a number of complaints about the Tribunal’s approach in its findings on misconduct and impairment of fitness to practise, but without raising the matters advanced under ground 2. In addition, Ms. Newbegin decided not to pursue paragraphs 193 and 194 of the skeleton, which either covered points which have been dealt with under other grounds or were unarguable. For example, the suggestion that the Tribunal treated dishonesty as always amounting to misconduct or impairment was hopeless.

[180]Paragraph 195 of the Appellant’s skeleton alleges that the motive for the Appellant’s dishonesty in relation to Coyles and the Trust, namely to avoid his locum appointment being cancelled, was not put to him in cross-examination. It plainly was.

[181]There is nothing in the complaint in paragraph 196 of the skeleton that the Tribunal should not have relied upon the Appellant’s admission of dishonesty in relation to the non-disclosure of his employment with Bournemouth University to Swansea University (see paragraph 26 of the decision on misconduct and impairment). It is also said that the Tribunal failed to apply the correct legal definition of dishonesty. But the Appellant’s counsel fails to read the decision properly and as a whole. The Tribunal has already reached its findings on dishonesty in its determination of the facts and allegations. That earlier reasoning correctly applied the law on dishonesty as I have already explained under ground 3. The sentence now criticised by counsel was not relied upon by the Tribunal for that purpose. It simply referred to the Appellant’s reaction to that determination in his email of 23 February 2017.

[182]I reject the suggestion in paragraph 197 of the skeleton that the Tribunal committed the solecism of equating lack of integrity with dishonesty. Read properly neither paragraph 28 of the decision on misconduct nor the Tribunal’s reasoning as a whole says anything of the kind.

[183]Paragraphs 202 to 205 of the Appellant’s skeleton criticise the Tribunal’s findings on impairment and its handling of the issue whether the Appellant had shown sufficient insight into his misconduct. Putting to one side matters to do with the Appellant’s mental health and medication from 2014 through to the time of the hearing (which have been dealt with under ground 2 above), the Appellant alleges that the Tribunal failed to take into account a number of considerations. The short answer is that a number of these matters were in fact dealt with. Others were obvious points and there is no reason to infer that they were disregarded by the Tribunal.

[184]For these reasons I reject ground 5.

Ground 6

[185]The Appellant seeks to criticise paragraphs 33 to 34 of the Tribunal’s decision on impairment, where the Tribunal found that his fitness to practise was impaired by reason of his adverse physical or mental health. However, as Mr. Dunlop pointed out, the decision to direct erasure was not based upon this part of the Tribunal’s reasoning at all and to that extent the criticisms here are irrelevant. In paragraph 26 of its decision on sanction the Tribunal found that if health had formed the only reason for deciding that fitness to practise was impaired, then the Tribunal would have imposed conditions on his registration. That, of course, did not happen and so ground 6 provides no substantive basis for allowing the appeal. It is a theoretical point. Moreover, it should not be overlooked, that when Dr. Briscoe was recalled to give further evidence on day 10, he did not depart from his earlier view that, in terms of health, the Appellant remained fit to practise, subject to conditions to ensure adequate supervision.

Ground 7

[186]Once again I put to one side in this part of the judgment the mental health and medication issues which have already been dealt with under ground 2. In paragraph 9 of is decision on sanction the Tribunal took into account its earlier findings on impairment, which so far as misconduct was concerned, related essentially to its findings on insight and the risk of repetition of dishonesty in the future. Of course, matters of mitigation did not feature in that analysis.

[187]The decision of the Tribunal to direct erasure, the most serious sanction available, necessitated that it should grapple with all the important points of mitigation in the Appellant’s favour. This was all the more important as the Appellant was unrepresented and clearly not coping well with the process by the end of Day 9 or in February 2017. Only four points of mitigation were listed in paragraph 11 of the decision on sanction, although the Appellant had relied upon other matters, in addition to mental health issues. They are listed in paragraph 213 of Ms. Newbegin’s skeleton. In my judgment, those matters are sufficiently important that they ought explicitly to have been taken into account by the Tribunal, evaluated and weighed in the balance. In my judgment they were not and that failing tainted the subsequent process of reasoning which led to the decision to direct erasure.

[188]For example, the allegations raised by the patient against the Appellant must have been very distressing for the Appellant, and indeed his wife. It is plain from the transcript that he was especially anxious about those matters. The Tribunal rejected the allegations. In the circumstances of this case, however, they failed to address in their decision a point which was plainly material, namely the extent to which the Appellant’s behaviour was influenced not only by the state of his mental health (and medication) at the time, but also the stress and pressure he experienced in having to deal with the allegations by the patient.

[189]To this extent only, I uphold ground 7 in addition to ground 2. For these reasons the decision to direct erasure cannot stand.

Ground 8

[190]When the Tribunal came to decide that an immediate suspension order should have been imposed, it relied not only upon the public interest considerations, notably the necessity to maintain public confidence in the medical profession and to uphold proper standards and conduct within the profession, but also the seriousness of the Appellant’s misconduct and the risk of repetition. The conclusions I have reached under grounds 2 and 7 also taint the Tribunal’s decision to impose immediate suspension. The order should not have been made. Moreover, because the decision on erasure cannot stand, the legal foundation in section 38 for the immediate suspension of the Appellant is removed.

Conclusions

[191]The appeal is allowed under grounds 2, 7 (in part) and 8. The directions for erasure and the immediate order of suspension must therefore be quashed.

[192]The parties were asked to seek to agree an order for the disposal of the appeal to the High Court and also to consider how the proceedings before the Tribunal should now be handled.

[193]The appeal has succeeded in part because of the Tribunal’s decision not to obtain further medical evidence and errors made in the reasoning it gave. These matters affected findings made by the Tribunal on the allegations, misconduct, impairment and sanction. Plainly, therefore, the Court is not at this stage able to substitute an alternative outcome to that determined by the Tribunal under section 40(7)(c) of the 1983 Act. Accordingly, the parties are agreed that the options available to the court are either to remit the case to the MPTS for them to arrange for a Tribunal to dispose of the case in accordance with the directions of the court (section 40(7)(d)) or simply to allow the appeal without any remitter and quash the directions made by the tribunal (section 40(7)(b)). The Appellant contends that the case should not be remitted.

[194]In the draft judgment circulated to the parties I raised the question whether it would be in the public interest for the allegations which were wrongly upheld by the Tribunal to be pursued further against the Appellant. I did not express a view as to how that question should be answered, but did suggest that the following considerations were relevant (subject to any submissions about these or any other matters):-(i) The patient allegations have been rejected;

(ii) Only a limited number of allegations were upheld by the Tribunal and they did not concern the treatment of patients;

(iii) Any further proceedings in the Tribunal would need to be heard by a fresh panel and so the whole matter would have to be completely reheard;

(iv) Further medical evidence might result in a tribunal rejecting allegations which had previously been considered to be made out (including those relating to dishonesty and misconduct), or reaching different conclusions on impairment and sanction, particularly when all mitigating circumstances are addressed. Dishonesty, even if it were to be established, might not be so serious or have such an effect on fitness to practise in the future as to warrant erasure. There is a real possibility that the sanction of erasure or even suspension may not be justifiable. In this context, it is relevant that the Appellant has suffered suspension since February 2017;

(v) A further hearing would involve substantial additional delay. Already more than 3 years have lapsed since the GMC started to investigate the patient’s allegation.

(vi) The effect of the delay has been serious for the Appellant and his family, in terms of stress, effect on career opportunities and financial matters.

[195]In a situation of this kind the Respondent might have contended, for example, that the allegations which the Tribunal had previously found to be proven were supported by evidence of sufficient cogency and /or were sufficiently serious, that the public interest in them being reconsidered at a fresh hearing overrode the above considerations and any other factor pointing against remitter.However, the Respondent has not taken that stance. In an exchange of written submissions, the Respondent has stated that in the circumstances of this case it does not seek to persuade the Court to remit the matter for a fresh hearing. It is content that the court should instead proceed to allow the appeal under section 40(7)(b) without remitter, for the reasons set out in paragraph 194 above. In the particular circumstances of this case and for those reasons, I agree that this is the right course for the court to take. The Respondent also very properly points out that the court’s decision on this issue is highly fact-sensitive and that no help is to be gained from other decisions cited by Ms Newbegin in which the court had refused to remit. I emphatically agree with that last submission and would add that I do not consider that it would be helpful for my decision to allow this appeal without remitting the case to the MPTS to be cited in any future appeal, for the very same reason.

[196]In written submissions dated 22 September 2017 Ms Newbegin advanced some 12 or so additional reasons as to why I should refuse to remit the case. I will not prolong this judgment by going through these points. I do not accept that they have any bearing on my decision, because they do not add materially to the reasons in paragraph 194 above, or because they attract no weight or are even unsound. In most respects I agree with the succinct reasons given by Mr Dunlop in his submissions dated 26 September 2017.

[197]In my draft judgment I raised two further points. First, I found it difficult to understand why it should have been necessary for some 2½ years to elapse before the hearing began in order to deal with the limited range of allegations in this case. Second, it was also difficult to understand why the weaknesses in the evidence of the patient and her husband could not have been identified during the investigation and a more realistic view taken of the chances of proving allegations 1 to 5 (even on the civil standard of proof). The Respondent’s Solicitors have provided a detailed chronology and Mr Dunlop has added some brief submissions.

[198]Notwithstanding that assistance, I still remain concerned about both of these aspects. The fairly detailed and lengthy chronology does not of itself justify why it took so long for these relatively brief and straightforward allegations to be dealt with by the MPTS, or why the weaknesses in the patient’s complaint were not identified well before the matter proceeding to a hearing. For example, the fact that the Bournemouth and the Swansea allegations arose whilst the initial investigation into the examination in October 2013 and the events of July 2014 was under way does not in my judgment justify the overall delay. The allegations made by the patient was of a very serious nature and needed to be resolved (along with the July 2014 allegations) as soon as possible. The Appellant is understandably concerned, for example, that further witness statements relating to essential factual aspects of the patient allegations were not obtained until towards the end of 2015 and from the ward matron until January 2016. A similar timescale applies to the July 2014 allegations. However, although these are matters which ought to be reviewed independently for the MPTS, to see whether any delay was truly justified and if not whether these were merely isolated incidents, I do not rely upon them in order to arrive at my decision in this case.

[199]The appeal is allowed under section 40(7)(b) of the Medical Act 1983 without remitter of the case to the MPTS. The directions of the Tribunal that the Appellant be erased from the Medical Register and that he be the subject of an immediate order of suspension, together with all findings of the Tribunal which were adverse to the Appellant, are quashed.

Costs

[200]The only remaining issues relate to the costs of the appeal and of the Appellant’s application under CPR 52.19. The parties have dealt with these matters in an exchange of written submissions. They have agreed that the court should deal with these matters without a hearing and the amount of any costs payable by a summary assessment. Although I have had regard to all the various points raised by each side, it is unnecessary for me to refer to each and every one in order to reach my conclusions.

[201]The Claimant seeks to recover £14,440 plus VAT, a total of £17,277, excluding the costs incurred for the application under CPR 52.19. The general rule and starting point is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.2(2)(a)). Plainly the Appellant is the successful party. The appeal is allowed and the court is granting the substantive relief he sought. “Real weight” should therefore be given to the success of the winning party. But the court will also have regard to the factors listed in CPR 44.2(4), including whether a party has been successful on only part of its case and “the conduct of the parties”. The conduct of a party includes conduct before as well as during the proceedings. In this respect I have had regard to paragraph 44x 3.17 of the Civil Procedure. It is also relevant to consider whether it was reasonable for a party to raise or pursue an issue and the manner in which a party has pursued his case (CPR 44.2(5)).

[202]In my judgment, it was unreasonable for the Respondent to seek to defend ground 2. The errors of law were obvious from, in particular, the transcript and the reasons given by the Tribunal on the health issues. The defence put forward did not really grapple with the issues which the Appellant raised. Furthermore, I should not overlook the fact that the Respondent’s submissions during the hearing persuaded the Tribunal to agree that Dr Briscoe should be recalled and then to continue with the hearing without requiring a further health assessment, by reference to only a small part of what that witness had said. This was wholly unsatisfactory because the errors tainted the making of all the key findings adverse to the Appellant. The process and therefore the end result was unjust. Having led the Tribunal into error, the Respondent has persisted in seeking to uphold the decision in the High Court, whereas an objective appraisal of ground 2 and what had taken place ought really to have resulted in a submission to judgment on at least that ground and the appeal being allowed without the need for a full hearing.

[203]But the Appellant is not free from criticism either, as earlier parts of this judgment make plain. A great many issues were raised unnecessarily. Several were hopeless. Despite the criticisms made in the draft judgment, for example the large number of unmeritorious, even unarguable, points pursued, Ms. Newbegin seeks to maintain her stance. She submits that “it is not surprising that a large number of points were run” and asserts that because the Appellant’s ability to practise his chosen profession and his livelihood were at stake “it is right in such cases that all points are taken” (emphasis added). I do not know whether that somewhat emotive submission reflects a view more generally held by practitioners in this field. Whether or not that is the case, there is no justification whatsoever for her submission and it must be emphatically rejected by the court. Professional people appealing against a disciplinary decision do not hold a privileged position in the courts as compared with other litigants, giving them a licence to use the court’s resources in order to pursue bad points, worse still to do so at inordinate length. The consequences of a decision by a professional tribunal may well be very severe for the person affected, and indeed their families, but the same is also true of many other decisions affecting citizens and corporations (including their employees and customers) which come before the courts, whether as individuals or as part of a large group. In an appeal against the decision of a professional tribunal, just as in any other litigation before the Administrative Court, it is the duty of counsel to ensure that the points which are pleaded and subsequently pursued, taking into account any response from the Respondent, are properly arguable, a fortiori in a regime where no permission or filter stage exists to weed out bad points

[204]However, in this case I do not agree with the Respondent that no costs should be allowed in respect of the skeleton at all. Parts of the skeleton were necessary and of assistance to the court. Furthermore, a good deal of the costs were necessarily incurred in any event in relation to ground 2, part of ground 7 and ground 8, the preparation of the bundles and courts fees being obvious examples. I do not propose to reduce the hourly rate for the Appellant’s Solicitor. Given the nature of the case it was reasonable to employ a Solicitor in London at grade 1. I also see no basis for criticising the item of £900 for her perusal of “substantial documentation” for 3 hours.

[205]In the summary assessment of costs for this case it is necessary for the court to use a “broad brush.” There should be a deduction to reflect the unreasonable manner in which the Appellant presented his case, but bearing in mind the observations in paragraph 202, the deduction should be less than it would otherwise have been. Having regard also to the extent to which the costs incurred were proportionate and reasonable, I reduce the Appellant’s costs by 35% to arrive at £11,230.05 inclusive of VAT.

[206]I have considered the submissions regarding the costs of both parties in respect of the application under CPR 52.19. The Appellant withdrew the application and has given no proper justification has been given for his conduct of the matter or why the Appellant should not be required to pay the Respondent’s costs. There will therefore be a set-off of £1,886.76 including VAT. The net effect of these decisions is that the Respondent will be ordered to pay the Appellant’s costs in the sum of £9,343.29 inclusive of VAT.