Abbas v General Medical Council [2017] EWHC 51 (Admin)

Case No CO/3504/2016[2017] EWHC 51 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/01/2017
Before
MR JUSTICE NICOL
Between
Ali AbbasAppellantGeneral Medical CouncilRespondent
The Appellant in person for in personPeter Mant (instructed by GMC Legal) for RespondentHearing Hearing date: 12/01/2017
JudgmentMr Justice Nicol :
[1]In a decision dated 9th June 2016 the Medical Practitioners’ Tribunal Service (‘the Tribunal’) upheld most, but not all, of the complaints made against Dr Abbas by the General Medical Council (‘the GMC’). In consequence it found that his fitness to practice was impaired. It concluded that the appropriate sanction was erasure of Dr Abbas’s name from the medical register. In addition, it decided that, pursuant to Medical Act 1983 s.38, his registration should be suspended immediately. By his notice of appeal lodged on 8th July 2016 the Appellant has appealed against the Tribunal’s decision.[2]By an application notice dated 10th January 2017 the Appellant sought to adjourn the present hearing (which, in August 2016 had been listed for 12th January 2017). He gave as his reason that he was still seeking legal representation. The application came to my attention on 11th January 2017, the day before the hearing was due to take place. I asked Mr Mant, instructed on behalf of the Respondent, for its views. Time was short and I received brief submissions from Mr Mant opposing the application. In a written decision of 11th January 2017 I refused the application for similar reasons to those given by Mr Mant.[3]At the hearing on 12th January 2017, Dr Abbas appeared in person. He had been informed of my decision to refuse the adjournment request, but had not seen the decision itself with my reasons. In addition, Mr Mant had, through oversight (for which he apologised) failed to copy Dr Abbas in to his emailed submissions, as he recognised he should have done. In the circumstances, I considered that in fairness to Dr Abbas, I should reconsider his application for an adjournment afresh. I took account of his written application, Mr Mant’s written objections (which Dr Abbas was shown) and oral submissions from both Dr Abbas and Mr Mant. I nonetheless concluded that the application for an adjournment should still be refused for reasons which I gave orally and which echoed what I had said the previous day, but I made clear that I made my decision in the interests of justice to both parties to the appeal.[4]Thereafter, Dr Abbas made a second application to adjourn on grounds that he was in poor health. Mr Mant opposed this application and noted that: there was no medical evidence to support the application; the Appellant’s poor health had not been mentioned in the written application notice of only two days previously; Dr Abbas had been able to make his previous application without apparent difficulty; and allowance would no doubt be made in the course of the hearing if Dr Abbas experienced particular problems. I refused this second application for reasons which I also gave orally and in which I accepted the arguments advanced by Mr Mant. In the event, Dr Abbas did continue to make his oral submissions. I did make allowance for him by agreeing to two short adjournments (in addition to the lunch adjournment) during the course of the hearing, which lasted most of the day, and by agreeing, at one stage at his request, to allow him to continue to make his submissions while seated.[5]Dr Abbas is a specialist registrar in general medicine. The matters giving rise to the charges against him first arose while he worked as a locum at the Peterborough and Stamford NHS Foundation Trust (‘Peterborough Hospital’) between 2nd September 2013 and 17th January 2014. On 20th November 2013 it was alleged that the Appellant ignored a request from the son of a patient (referred to as ‘Patient B’) to help his father who appeared to have collapsed, and refused to provide such assistance on the grounds that Patient B was not his (the Appellant’s) patient. It was further said that he later refused to give his name to the son of Patient B and covered up his name badge to prevent the son from identifying him. Later on the same day, when asked by Deborah Cummings, a Deputy Sister at the Peterborough Hospital, the Appellant allegedly said that it was not his legal responsibility to respond to patients that were not his unless he actually interacted with or touched them. The Tribunal referred to these as charges 2 and 3. The terminology needs to be explained. The GMC set out its case against the Appellant in a document divided into numbered paragraphs. The Tribunal considered each paragraph (and where relevant each sub-paragraph) separately. It was not the case that each paragraph (or sub-paragraph) contained an allegation of misconduct: some were background facts. However, it is convenient to adopt the terminology and numbering as used by the Tribunal. The Tribunal heard evidence from Patient B’s son and from Francina Hildred, a ward clerk at Peterborough Hospital as well as the Appellant. The Tribunal found charges 2 and 3 proved.[6]Charge 4 alleged that the Capacity Co-ordinator of Peterborough Hospital, Jane Cronin, asked the Appellant to see a ‘medical outlier’ patient for whom the Appellant’s team was responsible and the Appellant refused. A ‘medical outlier’ patient was a medical patient who was being treated on a surgical ward. Initially, charge 4 was alleged to have occurred on 3rd January 2014. However, at the hearing, the Tribunal allowed the GMC to amend the charge to 28th November 2013. The Appellant accepted that he had refused to see the patient when requested to do so. He argued that the patient was not a medical outlier for whom he was responsible. The Tribunal accepted the evidence of Ms Cronin and of Dr Peter Turkington, a consultant in general and respiratory medicine and the expert instructed by the GMC, that this patient had been a medical outlier for whom the Appellant was responsible. It rejected the evidence of the Appellant that a member of the surgical team had accepted responsibility for the patient. It emphasised that Ms Cronin had specific responsibility for medical outliers and could be expected to identify such a patient from medical records. The Tribunal found this charge proved.[7]Between 23rd December 2013 and 31st January 2014 the Appellant worked as a locum specialist registrar in general medicine at the Royal Surrey County Hospital NHS Foundation Trust (‘Royal Surrey Hospital’).[8]Charge 6 concerned the Appellant’s treatment of Patient E on 30th January 2014 while he was at the Royal Surrey Hospital. It was alleged that he shouted at or spoke to Patient E in an aggressive manner, was dismissive of her concerns and was abrupt when she began to cry. It heard from Patient E herself, and from Ms Rebecca Mutlow, Senior Practice Development Sister at the Royal Surrey Hospital and accepted their evidence. It disbelieved the Appellant’s account of the incident. It found this charge proved.[9]Charge 7 related to another incident on 30th January 2014, this time in connection with Patient F. It was alleged that(a) the Appellant told Keri Lee, a sister at the Royal Surrey Hospital, to remove oxygen from Patient F when Patient F was suffering from pneumonia and severe Type 1 respiratory failure and required oxygen. It was also alleged that(b) the Appellant failed to record any signs of morphine toxicity, such as pinpoint pupils, in Patient F’s notes, despite having made a diagnosis of morphine overdose. The Appellant was also alleged(c) to have shaken Patient F aggressively and(d) failed to record in Patient F’s notes the results of any Glasgow Coma Scale assessment. The Tribunal had the evidence of Ms Lee, some medical records and the evidence of Dr Turkington. Ms Lee said that the Appellant had told her to remove the oxygen, which so concerned her that she made an entry in the notes. She had also been disturbed by the Appellant’s behaviour in shaking the patient and had also noted this. Dr Turkington said that pinpoint pupils was one of the signs of morphine toxicity which, if observed, should have been recorded, but which did not seem to have been. The Tribunal accepted their evidence. It rejected the Appellant’s evidence regarding (a) and (d) which it said was confusing. It also rejected the Appellant’s evidence that he had noted the pinpoint pupils in a part of the record which had been obscured in photocopying. It did not accept his evidence that he had shaken Patient F to keep her alive. It found all parts of charge 7 proved.[10]Charge 8 concerned the Appellant’s responses to the GMC’s allegations regarding Patient F and incorrect medical information contained in those responses. Charge 8(a) alleged that the Appellant had asserted in his witness statement that non-invasive ventilation ‘is contra-indicated in those people who are drowsy’ and Charge 8(b) referred to his written submissions in relation to Patient F in which it was said, ‘there is no evidence in the notes that the patient had ever been severely hypoxic’ although the medical records clearly revealed severe hypoxia. It was not disputed that the Appellant had made the statements concerned; the issue was whether they were medically incorrect. Dr Turkington gave evidence that the statement in (a) was incorrect if the patient was merely drowsy, as opposed to having severely impaired consciousness. Even then NIV might be considered if the intubation and ventilation were considered appropriate, as in the present case. Dr Turkington also considered that the arterial blood gas sample did reveal severe hypoxia. It found both parts of charge 8 proved.[11]Charge 9 alleged that the Appellant’s attitude towards, and communication with colleagues and patients had been disrespectful and inappropriate in a number of respects. The Tribunal found three of these sub-charges not proved. Thus it accepted that it was not inappropriate for the Appellant to refer to the Asian background of Patient B (charge 9(a)). It did not accept that the Appellant had failed to explain effectively his treatment plan for Patient H to Ms Mutlow (charge 9(c)(ii)); and it did not accept that the Appellant had failed adequately to communicate his treatment plan for Patient F to the nurses (charge 9(f)). It did find proved the remaining allegations in charge 9.[12]Thus the Tribunal accepted that, on 28th November 2013, the Appellant had been rude to Ms Cronin, had failed to co-operate with her and had shouted at her as she walked away (charge 9(b)). It accepted evidence from Ms Cronin to this effect and rejected the conflicting evidence from the Appellant. It accepted that the Appellant had on 29th January 2014 been dismissive of Ms Mutlow’s concerns about Patient H’s condition, having heard her evidence and rejected the Appellant’s evidence that Ms Mutlow’s panic level had been out of proportion (charge 9(c)(i)). This also led to the Tribunal finding that the Appellant’s witness statement about the same incident had been condescending, patronising and unsupported by the evidence (charge 9(d)). It found that various passages in the Appellant’s witness statement about the behaviour of other doctors’ treatment of Patient E were disrespectful and inappropriate (charge 9(e)). On 30th or 31st January 2014 the Appellant had been asked to lower his voice. Charge 9(g) alleged that he had responded by saying ‘it doesn’t matter, these patients are either old or deaf.’ The Tribunal accepted the evidence of Ms Lee that the Appellant had spoken these words, which was supported by her entry in the medical records. It rejected his explanation for why he was speaking loudly. The words were disrespectful and inappropriate.[13]Charge 9(h) concerned the Appellant’s witness statement of 15th July 2014. In this statement the Appellant had said in relation to the allegations concerning Patients E, F and H that ‘interestingly all three cases came from the same nurse’ and that ‘these cases are brought up as retaliation of previous night incident or to hide her own incapacity’. The Tribunal regarded this as an allegation that Ms Mutlow had been lying and critical of her professional competence. The Tribunal found, on the contrary, that Ms Mutlow had not been lying and that she was a competent and professional nurse who had the best interests of her patients at heart.[14]Charge 10 alleged that the Appellant’s communication and attitude as set out in charges 3, 4, 6, 7(a) and 7(c) had been disrespectful and inappropriate. The Tribunal found this charge proved.[15]Following referral of the complaints to the GMC, it began an investigation. The Appellant was asked by to complete and return an Employer Details Form (‘EDF’) by three letters from the GMC in March and April 2014. Charge 11 alleged that the Appellant had failed to do so. The Appellant said he had been out of the country in February and March 2014, that he informed the GMC of this fact on the telephone. He said he posted the forms to the GMC and also handed them to the GMC at the time of the Interim Orders Panel (‘IOP’) hearing on 3rd December 2014. The Tribunal heard evidence from Michael Hudspith, a GMC Investigation Officer, who had checked the GMC records and there was nothing to say that the Appellant was out of the country or any communication from the Appellant to say that he had returned the form. The IOP had been presented with a document entitled, ‘Recent Work History’ and not a completed EDF. The Tribunal found this charge proved.[16]At a hearing of the IOP on 15th July 2014 the following exchange took place, ‘Miss Dunning: how many locum agencies are you registered with? Dr Abbas: I only work with ID Medical. Miss Dunning: Just the one? Dr Abbas: Yes, but they have sub-agency.’[17]Charge 13 alleged that in giving these responses the Appellant had given a false impression since he had additionally registered with Triple West Medical (‘TWM’) locum agency and had been in email correspondence with them the previous month (i.e. June 2014) when the Appellant had indicated that he was available for work. The Appellant told the Tribunal that he had made a mistake when answering questions from the IOP. The Tribunal did not accept his explanation. There was no room for error: the question was unambiguous. The Tribunal considered that the Appellant was obfuscating when he said that he had not been commissioned for work with other agencies, yet did not deny being registered with them. The Tribunal found charge 13 proved.[18]At its hearing on 15th July 2014, the IOP imposed conditions on the Appellant’s registration. These included the following:
‘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 … 6. You must obtain the approval of the GMC before accepting any post for which registration with the GMC is required… 8. You must inform the following parties that your registration is subject to the conditions listed at (1) – (7) 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 appointment, 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 your application).’
[19]Charge 14(a) alleged that in July 2014 the Appellant had accepted a post at University Hospitals Coventry and Warwickshire (‘UHCW’) without obtaining the approval of the GMC in breach of condition 6. Charge 14(b) alleged that between July and November 2014 the Appellant had accepted a post at UHCW but had not notified the GMC and did not provide the contact details as required by condition 1.[20]Mr Hudspith gave evidence to the Tribunal that the GMC was told by UHCW on 15th November 2014 that the Appellant was working there as a locum. Mr Hudspith said that there was no record of the GMC being asked to approve the appointment, nor was there any record that the GMC had been previously notified by the Appellant or that the Appellant had given it UHCW’s contact details. The Tribunal rejected the Appellant’s explanation that he was not, as a locum, employed by the UHCW or the locum agency. Conditions 1 and 6 set by the IOP had been broken. Charges 14(a) and (b) were proved.[21]Charge 14(c) alleged that the Appellant had breached a further condition set by the IOP in July 2014 (i.e. condition 8) because he had not informed TWM of the conditions of his registration. The Tribunal found that this charge had not been proved because Oz Oruc, the Managing Director of TWM, who gave evidence to the Tribunal, conceded that not all contact with the Appellant may have been logged.[22]Charge 14(d) alleged that the Appellant had failed to inform UHCW of the conditions of his registration in breach of condition 8 as set by the IOP. The Tribunal had a witness statement from Lorraine Nye, Human Resources Business Partner at UHCW which said that the Appellant had not informed her or a member of UHCW staff that his registration was subject to conditions. It accepted that evidence and found Charge 14(d) proved.[23]Charge 15 alleged that the Appellant’s conduct as set out in charges 13 and 14 was(a) misleading and(b) dishonest.[24]Since the Tribunal had found charge 14(c) not proved, it correctly found that the further allegations in respect of that matter in Charge 15 fell away. It did, however, have to consider whether the Appellant’s conduct in relation to Charges 13, 14(a), 14(b) and 14(d) were misleading and dishonest. It reminded itself that a heightened examination of the evidence was appropriate given the seriousness of the allegation of dishonesty. It reminded itself that the Appellant was of previous good character. However, it also noted that the Appellant had failed to engage with the GMC and complete an EDF and had failed to be open and transparent with the Tribunal. The Appellant was an intelligent professional who should be able to understand the conditions of his registration. It took account of his level of experience with the NHS and the GMC. The conditions were plain. Had there been any doubt, the Appellant had the responsibility to contact the GMC for clarification. It dismissed as incredible, the Appellant’s explanation that he had been unable to find a line manager at UHCW. The Tribunal found that the Appellant had not informed those he should have done of the conditions on his registration because he would not then have been employed. He had not told the GMC because he realised that they would tell the locum agencies and employers for whom he was working. The Tribunal was also in no doubt that the Appellant was fully aware that the information he had given the IOP was inaccurate. It had been dishonest and designed to mislead the IOP. The breaches of the IOP’s conditions which the Tribunal had found proved were deliberate and dishonest.[25]In considering the question of impairment the Tribunal noted that its findings covered four categories of misconduct: disrespectful and inappropriate attitude towards colleagues and patients; concerns regarding the Appellant’s clinical care of Patients B and F; the Appellant’s dishonesty; and the Appellant’s disregard for the GMC’s investigation and the IOP’s conditions. It referred to the document ‘Good Medical Practice’.[26]The Tribunal concluded that the Appellant’s fitness to practice was impaired. He had no insight into the matters which had been brought before the Tribunal. He had presented no evidence of remediation and no insight into his shortcomings. His misconduct had put patients at risk of harm and brought the profession into disrepute. He had breached fundamental tenets of the profession. His integrity could not be relied upon.[27]The Tribunal heard submissions on sanction from the GMC and from the Appellant. It considered (in ascending order of seriousness) the possible sanctions it could impose, bearing in mind the March 2016 edition of the ‘Sanctions Guidance’. It accepted that the Appellant’s clinical skills were good and took into account the testimonials on his behalf. However, the actions which gave rise to the charges had occurred over a period of time; there had been a blatant disregard for the GMC’s guidance in relation to professional standards; the Appellant’s misconduct had put patients at risk of harm and brought the profession into disrepute; the Appellant’s evidence to the Tribunal had been unreliable and obfuscatory, his attitude and behaviour during the hearing demonstrated a continuing lack of insight and was designed to cover up his dishonesty and avoid responsibility for deliberate breach of the IOP conditions to enable him to continue to earn a living. The appropriate sanction was erasure. The Tribunal recognised that this would deprive the Appellant of the opportunity to work as a doctor in the UK. However, that consequence was overborne by the overarching objective of protecting, promoting and maintaining the health and wellbeing of the public, confidence in the profession and proper professional standards.[28]As I have said, the Appellant represented himself throughout these proceedings. His Notice of Appeal included 6 ‘grounds of appeal’ which were somewhat generic and unspecific and 61 ‘arguments in support of the appeal.’ He elaborated and, to some extent, supplemented these in his oral submissions.[29]I can gather and group the Appellant’s submissions as follows: i) The Tribunal was wrong to reject his applications for adjournments. He was representing himself. He should have been allowed a further opportunity to obtain legal representation. Furthermore, important documents were missing from the GMC’s disclosure. He should have been allowed a further opportunity to obtain expert evidence in response to that of Dr Turkington and a linguistics expert. ii) He was given insufficient time to cross-examine Dr Turkington. iii) The evidence against him was from the treating nurses rather than doctors. iv) Important documents were missing from the case and, for those relating to Patient F, the copies of the document available had an important part which was missing. v) Dr Turkington was biased in his evidence against him. vi) Dr Turkington was wrong in some of his evidence to the Tribunal. vii) The Tribunal ought not to have allowed some witnesses (particularly Ms Mutlow) to give evidence via videolink. viii) The Tribunal did not take sufficient notice of the threats which were made to the Appellant by the son of Patient B and the reasonable steps that the Appellant then took to avoid a confrontation. ix) There were a number of individual criticisms of other pieces of evidence against him. x) The sanction of erasure was disproportionate.[30]On an appeal such as this, the Court’s task is to decide whether the decision of the Tribunal was(a) wrong or(b) unjust because of a serious procedural or other irregularity in the proceedings – see Civil Procedure Rules r.52.21(3).[31]The appeal is not confined to issues of law. It can include issues of fact. However, the appeal is not an entire re-run of the proceedings before the Tribunal. The applicable principles were summarised by Sir Stephen Silber in Gosalakkal v General Medical Council [2015] EWHC 2445 at [14] when he said, ‘Those established principles are that: “(i) The Court must have in mind and give such weight as appropriate in the circumstances to the following factors -(a) The body from which the appeal lies is a specialist tribunal whose understanding of what the profession expects of its members in matters of medical practice deserves respect;(b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and(c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers” – Meadows v GMC [2007] QB 462 [197] per Auld LJ; (ii) “The Appeal Court conducting a review of the trial Judge’s decision would not conclude the decision was wrong simply because it is not the decision the Appeal Judge would have made had he or she been called on to make it in the court below. Something more is required than personal unease and something less than perversity has to be established… I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit with which reasonable disagreement about the conclusions to be drawn from the evidence is permissible.” (Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 [197] per Ward LJ; (iii) “The difficulty or ease with which that test could be satisfied will depend on the nature of the finding under attack. If the challenge is the finding of a primary fact, particularly founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow” (ibid); (iv) “First, as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses are virtually unassailable” (Southall v GMC [2010] EWCA Civ 407 [47], per Leveson LJ with whom Waller and Dyson LJJ agreed); and (v) “Since a principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the profession decision-making body in the shape of the Panel.” (Fatnani and Raschid v GMC [2007] EWCA CIV 46 [19], per Laws LJ.)’ (a) The body from which the appeal lies is a specialist tribunal whose understanding of what the profession expects of its members in matters of medical practice deserves respect; (b) The Tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides; and (c) The questions of primary and secondary facts and the over-all value judgment made by the Tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers” – Meadows v GMC [2007] QB 462 [197] per Auld LJ;[32]Understandably, in the context of deciding what sanction is appropriate, a finding of dishonesty is of particular significance, especially if it is persistent and combined with a lack of insight. In such circumstances, ‘nothing short of erasure is likely to be appropriate’ – see Naheed v GMC [2011] EWHC 702 (Admin) at [22] per Parker J. Plainly, the individual circumstances of the case must be considered and there can be no universal or inflexible rules in this context. As Blake J. said in Atkinson v GMC [2009] EWHC 3636 (Admin) at [13], ‘erasure is not necessarily inevitable and necessary in every case where dishonest conduct by a medical practitioner has been substantiated. There are cases where the panel, or indeed the court on appeal, have concluded in the light of the particular elements that a lesser sanction may suffice and it is the appropriate sanction bearing in mind the important balance of the interests of the profession and the interests of the individual. It is likely that for such a course to be taken, a panel would normally require compelling evidence of insight and a number of other factors upon which it could rely that the dishonesty in question appeared to be out of character or somewhat isolated in its duration or range, and accordingly there was the prospect of the individual returning to practice without the reputation of the profession being disproportionately damaged for those reasons.’[33]Dishonesty in relation to the IOP (or, I would add, the GMC as regulator) is taken very seriously as well – see for instance Belal v GMC [2011] EWHC 2859 (Admin) at [71] (b) per Lloyd Jones J.[34]In considering the Appellant’s grounds of appeal, I turn first to his arguments that the Tribunal was wrong not to have granted the adjournments he requested. I do not accept that it was wrong in this regard. As to the Appellant’s absence of legal representation, the Tribunal pertinently noted that the Appellant was on state benefits and was only likely to be able to obtain pro bono representation, but he provided no evidence of his efforts to obtain such representation. The Tribunal was also entitled to observe that the allegations against the Appellant were serious and there was a public interest in dealing with them expeditiously. The Tribunal was entitled to reach the view that fairness to both parties (including the Appellant) did not require him to be given a further opportunity to seek representation. The Appellant’s second application for an adjournment (again to obtain legal representation but this time he sought an adjournment for only a few days) was also refused for good and sound reasons. In any event, it is wholly unclear as to how such a short adjournment would have assisted the Appellant to obtain legal representation.[35]In my judgment the Tribunal was also entitled to reject the adjournment application because of missing papers. As the Tribunal said, the charges to which some of the absent papers related (e.g. in relation to Patient H) concerned the Appellant’s attitude and behaviour towards the patient, as to which the missing papers would be of no assistance. In so far as there had been a dispute regarding dates (see Charges 4 and 9(b)), the GMC accepted that the date it had initially given was wrong and it applied for, and was granted, permission to amend the charge. The amendment put the incident in question on a date over which there was no dispute. So far as the other missing papers were concerned, the GMC said that it had provided to the Appellant all the documents in its possession. The Royal Surrey Hospital (at which Patients F and H had been) told the GMC that it had provided all the papers in its possession. In these circumstances, the Tribunal was entitled to conclude that no purpose would be served by an adjournment.[36]The Appellant’s third adjournment request was made at the conclusion of the GMC’s evidence and was for the purpose of him having the opportunity to instruct an expert to give evidence in reply. However Dr Turkington’s first report had been served approximately 18 months before the hearing. The Tribunal was plainly entitled to decide that, if the Appellant had wished to rely on expert evidence in rebuttal, it was incumbent on him to take steps to obtain it long before the close of the GMC’s case. It was also right to observe that the Appellant had not explained how he was likely to obtain such evidence in the 6 – 8 weeks for which he had sought the adjournment. Again, there was no unfairness to the Appellant in this decision which cannot be said to have been wrong.[37]In his arguments in support of his appeal, the Appellant said that his ‘request for a Linguistic expert was ignored.’ No such request ever appears to have been made to the Tribunal and, if the Appellant had thought such evidence was necessary, it was, in any case, for him to adduce it.[38]I do not accept that the Tribunal treated the Appellant unfairly in connection with his cross examination of Dr Turkington. Dr Turkington gave his evidence in chief at an earlier stage in the hearing. He was recalled for cross examination on 21st March 2016. He had to return to his hospital that afternoon, but he was recalled again on the following day (22nd March 2016) for further cross examination. Before releasing Dr Turkington on 22nd March, the chair of the Tribunal established that the Appellant had no further questions. There is no evidence that the Appellant’s cross examination was cut short. From time to time during the cross examination, the chair intervened to clarify the nature of the question. Although the Appellant had the transcript of Dr Turkington’s cross examination in advance of the appeal hearing, he did not submit that any particular intervention was inappropriate or unfair. I conclude that the Appellant did have a fair opportunity to test the evidence of Dr Turkington by cross examination.[39]The Appellant’s allegation that Dr Turkington was biased against him was entirely unsubstantiated. Dr Turkington had, of course, been instructed by the GMC, but, as an expert, he owed the usual obligations of such a witness to the Court. His first report included the usual declaration by an expert witness showing that he understood what those duties were. As Mr Mant illustrated, in the course of his evidence Dr Turkington did make some concessions in the Appellant’s favour. As the Tribunal noted ‘he was very balanced and clear about the aspects of your care of which he was not critical’. Overall, the Tribunal found Dr Turkington to be ‘patient, fair, clear and credible’.[40]It was the case that the GMC relied on the evidence of some nurses and did not call any of the other doctors who had been on duty at the times of the various incidents on which the charges were based. However, this takes the Appellant’s case nowhere. The evidence which the GMC did call was sufficient for the Tribunal to find most of the charges proved. Had the Appellant thought that any of the doctors on duty at the relevant times would have been able to give evidence in support of his contentions, he could have arranged for them to be called (I was told that there are, if necessary, powers to compel the attendance of witnesses before a Tribunal). Dr Turkington gave expert evidence as to the standard of care which the Appellant had provided (where this was relevant to the charges).[41]I have already referred to the absence of some documentation in the context of the Appellant’s applications for adjournments. To the extent that documents were missing which he regarded as important, it was open to him to submit that the GMC had not proved one or more of its charges. Nonetheless, the Tribunal found proved those charges which I have mentioned. As the authorities to which I have referred make clear, these primary findings of fact, based in whole or in part on oral testimony will be difficult to displace on an appeal. Despite the Appellant’s oral and written submissions, I am not persuaded that any of them (even taking into account the potential significance of the missing documents) fell outside the range which was open to the Tribunal.[42]Charge 7 was the charge in relation to which there were two copies of the Appellant’s medical notes. Charge 7(b) alleged that the notes had failed to record any sign of morphine toxicity, such as pinpoint pupils. The Appellant’s evidence was that he had written ‘pinpoint pupils’ in the notes, but this was obscured by labels which had been stuck on the notes before they were photocopied. The Tribunal rejected this explanation. It said that it was highly unlikely that the Appellant would have written this observation in the tiny area obscured by the labels. In my judgment, this was the kind of judgment which it was open to this specialist Tribunal to reach. There was no unfairness or any other error in it doing so.[43]The Appellant did not argue that a witness could never give evidence via video-link. Since the Tribunal had a discretion to allow a witness to give evidence in this manner, whether it should do so or not was a case management issue with which this court would be very slow to interfere. Of course, the hearing must still be fair to the parties, but the Appellant did not, and could not have, argued that the decision to allow Ms Mutlow to give evidence via videolink led to the hearing being unfair. The Tribunal gave clear and careful reasons for reaching its conclusion that she should be allowed to do so. Its decision was certainly not perverse.[44]The son of Patient B gave evidence to the Tribunal. He accepted that he had behaved aggressively towards the Appellant at the time of the incident. He accepted that he had panicked when the Appellant refused to help his father. However, the Tribunal rejected the Appellant’s evidence that the son of Patient B had been waiting outside the hospital with friends and family and that the Appellant was consequently afraid for his safety. These are assessments of the weight to be given to competing oral testimony. For reasons already given, this, an appellate court, which has not heard the witnesses, will be very slow to conclude that the findings are wrong. I do not do so.[45]I agree with Mr Mant that the remaining (and, indeed many of the preceding) criticisms of the Tribunal’s decision fail to grapple with the most serious findings against the Appellant, namely that his conduct in relation to charge 13, 14(a), 14(b) and 14(d) was dishonest. Few, if any, of the Appellant’s grounds of appeal or arguments in support of the appeal impugn this finding. As Mr Mant agreed in the course of his oral submissions, the nature of the conditions which the IOP attached to the Appellant’s registration in July 2014 are capable of objective determination. However, I have no doubt that the Appellant’s position (to use a neutral term) with UHCW was a ‘a post’ for the purposes of conditions 1 and 6. Furthermore, in order to work as a locum in that hospital, he obviously had to be a doctor. It was therefore ‘a post…for which registration with the GMC is required’. I agree with Mr Mant, therefore, that the Tribunal correctly interpreted these conditions.[46]There were then questions of fact as to whether the Appellant had complied with those conditions. In so far as charges 14(a), 14(b) and 14(d) were concerned the Tribunal found that he had not. In my judgment those findings are unassailable.[47]Charge 13 (the false impression given to the IOP in July 2014 as to the agencies with which the Appellant was registered) is a little different. I was shown the transcript of the IOP hearing. So far as what was then said, I am in as good a position as the Tribunal. However, the Tribunal also had the Appellant’s oral evidence as to why he gave the answer that he did. It was for them (rather than me) to make an assessment of whether to accept that explanation. The Tribunal rejected his evidence. I do not find they were wrong to do so.[48]Charge 15 then required the Tribunal to consider whether, by his conduct in relation to charges 13, 14(a), 14(b) and 14(d) the Appellant had acted dishonestly. It concluded that he had. In my judgment, that conclusion was open to the Tribunal. The Tribunal was not wrong to reach it.[49]As the authorities I have cited make clear, where, as in this case, there has been persistent dishonesty, erasure is a likely sanction. It may be otherwise if there is insight or some other combination of circumstances which would mean a lesser sanction would be appropriate. However, as Mr Mant said, in the present case the Tribunal found that the Appellant lacked any insight into his errors. Putting the matter at its lowest, I could not possibly say that erasure was not a sanction open to the Tribunal. The Appellant argued that there may be different degrees of wrongdoing, meriting different levels of sanction. Of course that is right. It is also right, as the Tribunal acknowledged, that the Appellant was previously of good character. However, on the findings that the Tribunal made and was entitled to come to, he had been dishonest, not just on one occasion, but on a number of them and over a considerable period. He had dishonestly misled the IOP and he had dishonestly breached conditions on his registration. In those circumstances, it would have been surprising if the Tribunal had concluded that a lesser sanction than erasure was appropriate.[50]For all the reasons which I have given and despite the helpful submissions in writing and orally of the Appellant, this appeal is dismissed.

Cited in 1 later judgment