“1. In August 2006 you were employed as a Locum Consultant in Obstetrics and Gynaecology by Bro Morgannwg NHS Trust at the Princess of Wales Hospital, Bridgend (“the hospital”) 2. On9 August 2006 Patient A underwent an emergency Caesarean Section at the hospital, performed by Dr Fran Rushworth, Locum Consultant in Obstetrics and Gynaecology 3. On attending theatre at Dr Rushworth’s request, she informed you that a. on opening Patient A’s abdominal peritoneum, she had found a considerable volume of dark brown blood within the peritoneal cavity, b. she had found the blood in the abdominal cavity prior to making an incision in the uterus, c. the source of the bleeding was extra-uterine, d. a litre of blood had been drained from Patient A, e. the blood appeared to be draining from the right upper quadrant, f. she suspected the bleeding was coming from Patient A’s liver, g. she intended to carry out a laparotomy on Patient A to try and identify the source of the bleeding; 3. You a. did not pay sufficient attention to Dr Rushworth’s description of Patient A’s bleeding, b. cancelled the attendance of the consultant surgeon, who had been called to attend the laparotomy, … e. were dismissive of [Dr Rushworth’s] concerns; 4. Patient A was subsequently transferred to the intensive care unit where you were the on-call consultant with responsibility for her care through the night of 9/10 August 2006 5. The obstetric registrar, Dr Obi Mba, discussed the condition of Patient A with you on at least two occasions during the night of 9/10 August 2006 . You were advised that a. Patient A’s haemoglobin was falling despite transfusion, b. Patient A’s abdominal girth was increasing, c. there was persisting and significant loss of blood through the abdominal drains; 6. You did not a. attend in person on Patient A, b. actively seek information on Patient A’s progress, c. make any entry in Patient A’s medical records while she was in intensive care, d. liaise with general surgical colleagues considering Patient A’s deteriorating condition; 7. Your actions at paragraphs 4 (a), (b), … and (e) and 7 (a), (b), (c) and (d) were a. not in the best interests of Patient A, b. below the standard to be expected of a reasonably competent Locum Consultant in Obstetrics and Gynaecology;” a. on opening Patient A’s abdominal peritoneum, she had found a considerable volume of dark brown blood within the peritoneal cavity, b. she had found the blood in the abdominal cavity prior to making an incision in the uterus, c. the source of the bleeding was extra-uterine, d. a litre of blood had been drained from Patient A, e. the blood appeared to be draining from the right upper quadrant, f. she suspected the bleeding was coming from Patient A’s liver, g. she intended to carry out a laparotomy on Patient A to try and identify the source of the bleeding; a. did not pay sufficient attention to Dr Rushworth’s description of Patient A’s bleeding, b. cancelled the attendance of the consultant surgeon, who had been called to attend the laparotomy, … e. were dismissive of [Dr Rushworth’s] concerns; a. Patient A’s haemoglobin was falling despite transfusion, b. Patient A’s abdominal girth was increasing, c. there was persisting and significant loss of blood through the abdominal drains; a. attend in person on Patient A, b. actively seek information on Patient A’s progress, c. make any entry in Patient A’s medical records while she was in intensive care, d. liaise with general surgical colleagues considering Patient A’s deteriorating condition; a. not in the best interests of Patient A, b. below the standard to be expected of a reasonably competent Locum Consultant in Obstetrics and Gynaecology;”
“9. On24 November 2007 you submitted an application form to Carmathenshire NHS Trust for the post of Locum Trust Registrar in Obstetrics and Gynaecology a. in response to the question on the application form, “Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or any other country”
“Erasure may well be appropriate when the behaviour involves any of the following factors (this list is not exhaustive): - Particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor. … - Abuse of position/trust (see Good Medical Practice paragraph 57 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”).” … - Dishonesty, especially where persistent and/or covered up (see further guidance at paragraphs 105-111 below. - Abuse of position/trust (see Good Medical Practice paragraph 57 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”). - …” - Particularly serious departure from the principles set out in Good Medical Practice i.e. behaviour fundamentally incompatible with being a doctor. … - Abuse of position/trust (see Good Medical Practice paragraph 57 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”).” … - Dishonesty, especially where persistent and/or covered up (see further guidance at paragraphs 105-111 below. - Abuse of position/trust (see Good Medical Practice paragraph 57 “you must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession”). - …”
“The Panel has found that Dr Nooh’s conduct, in relation to his clinical care of Patient A on 9/10 August 2006 and his conduct in relation to completing three separate application forms for employment between24 November 2007 and23 December 2007 , demonstrated serious and repeated breaches of the principles set out in Good Medical Practice (2001 and 2006 editions, applicable at the time). Furthermore, the Panel has received documentary evidence which demonstrated that Dr Nooh omitted the details of two of his most recent employers from the application forms he completed. It is of the view that this was both inaccurate and misleading for any prospective employers and compounded his dishonesty. The Panel considered that by his actions Dr Nooh put his own interests before those of patients. The Panel considered that his actions constituted a serious abuse of the public’s and patients’ trust in the medical profession and as a consequence of them patients could have been placed at unnecessary risk of harm.” “Furthermore, the Panel has seen no evidence to suggest that Dr Nooh has recognised the seriousness of, or made any attempt to remedy, his failings. In the light of all the evidence presented to it, the Panel has concluded that Dr Nooh’s behaviour is fundamentally incompatible with him continuing to be a registered medical practitioner. In all the circumstances of this case, the Panel has concluded that a period of suspension would not be sufficient, proportionate nor in the public interest.”
“(a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession.”
“Q So from beginning to end of this process you have been critical in a variety of ways, some of which I have highlighted. Yes? A This building is composed of probably four or five storeys: if your base is weak the whole building will collapse. Q Let me ask that question again. Maybe you did not understand. You are critical, or you were critical in the way that I have attempted to highlight in a variety of ways, of the process from beginning to end? A What is built on false pretence is wrong. Q I will take that as a yes, and you continue to be critical of that process? A Yes.”
“29. The Tribunal bore in mind the advice given by the Legal Assessor. He reminded the Tribunal that an applicant is not to be restored to the Register unless, in the Tribunal’s judgement, the doctor is fit to return to unrestricted medical practice. He referred the Tribunal to Guidance for doctors on restoration following erasure by a medical practitioners tribunal. 30. The Tribunal recognised it must not go behind the findings of the original Panel concerning the facts found proved and the finding of misconduct and dishonesty. However, it is for this Tribunal to decide whether your fitness to practise remains impaired. 31. In reaching its decision in respect of your application, the Tribunal gave careful consideration to all the circumstances of your case. These included: your application for restoration dated31 March 2016 ; the circumstances which led to your erasure; the determination of the previous Panel; your levels of insight into the criticisms of your conduct that led to your erasure; any remedial action you have undertaken since your erasure including steps you have taken to keep your knowledge and skills up to date; the evidence you gave, and the representations you made to the Tribunal.”
“32. The Tribunal has noted that you fully aired your grievances concerning the original Panel’s decision to proceed in your absence in the course of your appeal to the High court, and that the Panel’s decision to proceed in your absence was upheld. Having considered all the evidence,the Tribunal has concluded that, had the details of your health condition as contained in your doctor’s letter dated11 August 2009 been submitted to the GMC in advance of the hearing on13 July 2009 , it is very likely that the hearing would have been adjourned until such time as you were fit to attend. That this did not happen was in no way the fault of the GMC or the Panel. However, this Tribunal has been able to receive and consider evidence adduced by you which was not available to the original Panel.”
“33. Throughout its deliberations, the Tribunal took account of the statutory overarching objective of protecting the public, which includes protecting the health, safety and wellbeing of the public, maintaining public confidence in the profession, and promoting and maintaining proper professional standards and conduct for the members of the profession. The Tribunal also bore in mind its duty to apply the principle of proportionality, weighing the interests of the public with your own interests. 34. The Tribunal bore in mind that, should it determine to restore your name to the Medical Register, there is no provision for this to be on the basis of anything other than unrestricted registration. The onus of persuading the Tribunal that you are fit to practise and should be returned to the Medical Register is on you. 35. The Tribunal considered all the evidence provided by you to demonstrate the steps you have taken to remedy your wrongdoings and to keep your medical knowledge and skills up-to-date.”
“37. The Tribunal considered the reasons given for your erasure. The Panel cited serious and repeated breaches of the principles set out in Good Medical Practice, and the fact that you had put your own interests before those of patients. It also stated that your actions constituted a serious abuse of the public’s and patients’ trust in the medical profession and as a consequence patients could have been placed at an unnecessary risk of harm. The Panel found no evidence that you had recognised the seriousness of your actions, or made any attempt to remedy them.”
“38. In your oral evidence in relation to Patient A, you explained to the Tribunal how you had made your diagnosis of disseminated intra-vascular coagulation (DIC) which Dr Rushworth and the GMC expert witness accepted had been reasonable. Because of the diagnosis, you had thought a laparotomy was not appropriate and indeed that it could put Patient A at serious risk of harm. Therefore you sent the patient to the ICU to be treated conservatively. In your evidence, you stood by the clinical decisions that you made at the time. You accepted that your manner towards Dr Rushworth may, in the heat of the moment, have come across to her as dismissive and that at this time your teamworking and communication skills were lacking. 39. Although the Tribunal was of the view that you might have explained your actions more fully to your colleagues that night, it did not consider that your conduct at the time was as troubling as the Panel had concluded. In reaching this conclusion, the Tribunal has had the benefit of additional evidence which you have provided at this hearing.”
“40. You have accepted that you should have made clinical notes when visiting Patient, A in the ICU, and that when the Registrar called you twice during the night after Patient A had been transferred to ICU, you should have attended on the second call. The Tribunal is satisfied that the taking of these further steps by you would not have changed the course of Patient A’s management but that these steps would have reassured your colleagues. 41. In the view of the Tribunal, your recognition of these failings does constitute a degree of insight into your actions. 42. The Tribunal has concluded that since you maintain to this day that your diagnosis of DIC was a reasonable one in all the circumstances and that the decision not to perform a laparotomy that night was sound you should not be punished further for any lack of insight on this matter. 43. In arriving at this conclusion, the Tribunal noted that following the handover the following morning Mr Dharmasiri took the patient back into theatre (thereby departing from your management plan) and opened her up only to find no evidence of bleeding. Mr Dharmasiri then summoned the general surgeons to perform a laparotomy and again they found no evidence of bleeding. The CT scan of the patient’s abdomen was carried out after these procedures. It showed nothing that called for further surgical intervention and the patient continued to be managed conservatively.”
“45. In your evidence you accepted that you completed the application forms for locum employment incorrectly, but you did not accept dishonesty. You emphasised to the Tribunal that in relation to the Carmarthenshire Trust application form which you filled out incorrectly, when this was drawn to your attention you attended a meeting with the Trust and apologised. Your evidence was that, until it was drawn to your attention, you had not realised your error. 46. The Tribunal took the view that the facts that led to your finding of dishonesty were within a narrow compass and that the dishonesty was limited in nature – there is no evidence that it extended beyond the form-filling identified by the Panel.”
“48. The Tribunal accepts your evidence of what you have done since your erasure. You have been practising in Egypt since your erasure and also worked for approximately three months in Dubai. You have produced certificates of good standing issued by the regulatory bodies of these countries. You have produced numerous testimonial and “thank you” cards and letters from patients. You also presented testimonials from colleagues and fellow professionals. You explained how you have actively participated in 17 international, national, and regional training courses, scientific meetings, and conferences over the last five years. You have had 12 research papers published in international peer-reviewed journals. You have regularly featured in an Egyptian TV public education medical programme for the National Ministry of Health in Egypt. You have been a reviewer for several international peer-reviewed journals. You have received numerous international conference speaker invitations as well as editorial board membership invitations. 49. From the evidence presented, it was clear to the Tribunal that you have kept your knowledge and skills up to date and sought to improve your communication skills. It gave limited weight to your testimonials, but nonetheless it found the body of evidence you provided to be reassuring and compelling in relation to your clinical skills and competency as a doctor. It recognised that you have a record of some 35 years work in the field of gynaecology and obstetrics and have had an otherwise highly successful career. The Tribunal noted that the quality of your work has been recognised in Egypt through your promotion to Emeritus Professor. The Tribunal was reassured by the extensive evidence you presented of your continued work in obstetrics and gynaecology. The Tribunal was further reassured by the opinion of the Clinical director in Obstetrics and Gynaecology at Kingston Hospital NHS Foundation Trust, where you completed a week of clinical attachment in January 2017, that your “knowledge was consistent with someone who has been practising O&G at a senior level for many years.”
“50. The Tribunal was of the view that you do not pose a risk to patients. Given the sanction already imposed the Tribunal has concluded that the public’s trust in the profession would not now be undermined by your restoration to the register. The Tribunal therefore determined that it would be in the public interest for your name to be restored to the Medical Register.”
“(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public. (4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient— (a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the medical profession; and (c) to maintain proper professional standards and conduct for members of that profession.”
“39 As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council[2006] EWCA Civ 1390 ;[2007] QB 462 ; Fatnani and Raschid v General Medical Council[2007] EWCA Civ 46 ;[2007] 1 WLR 1460 ; and Southall v General Medical Council[2010] EWCA Civ 407 ;[2010] 2 FLR 1550 ) as appropriately modified, can be applied to section 40A appeals. 40 In summary: i) Proceedings under section 40A of the 1983 Act are appeals and are governed byCPR Part 52 . A court will allow an appeal underCPR Part 52.21 (3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'. ii) It is not appropriate to add any qualification to the test inCPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128. iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)[2002] EWCA Civ 1642 ;[2003] 1 WLR 577 , at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd[2007] UKHL 23 ,[2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47). iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: seeCPR Part 52.11 (4). v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council[2016] UKSC 64 ;[2017] 1 WLR 169 , at paragraph 36. vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMCandSouthall[2005] EWHC 579 (Admin) ; [2005] Lloyd's Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC[2001] UKPC 29 ;[2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances". vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public. viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).”