“That being registered under theMedical Act 1983 (as amended): Countess of Chester Hospital NHS Foundation Trust 1. After your employment with the Countess of Chester Hospital NHS Foundation Trust (‘Chester Hospital’) had ended on2 August 2011 : a. on the dates set out in Schedule 1, on one or more occasion you provided false information in the Accommodation Key Book in order to gain access to an on-call room at Chester Hospital (‘On Call Room’), in that you gave: i. a false name; ii. a false bleep/contact number b. on the dates set out in Schedule 2, on one or more occasion you provided false information in Accommodation Allocation of Room forms in order to gain access to an On Call Room, in that you gave: i. false identification details; ii. a false bleep/contact number; c. on the dates set out in Schedule 3, on one or more occasion you used an On Call Room d. you used your Chester Hospital identification badge to access the: i. Jubilee Day Surgery Centre, on the dates set out in Schedule 4; ii. Education Centre, on the dates set out in Schedule 5; e. on23 February 2014 you attempted to gain access to an On Call Room. 2. You knew that the information you provided as set out at paragraphs 1ai, 1aii, 1bi, and 1bii was untrue. 3. Your actions as described at paragraphs 1a and 1b were dishonest by reason of paragraph 2. 4. You knew that after2 August 2011 you were no longer an employee at Chester Hospital and were therefore not entitled to use the On Call Room(s), Jubilee Day Surgery Centre or the Education Centre. 5. Your actions as described at paragraphs 1c, 1d, and 1e were dishonest by reason of paragraph 4. Royal Liverpool & Broadgreen University Hospital Trust 6. Between27 February 2013 and29 April 2015 you received the salary payments at set out in Schedule 6 from Royal Liverpool and Broadgreen University Hospital NHS Trust (‘Royal Liverpool’) when you were no longer an employee of Royal Liverpool (‘the Payments’). 7. You failed to alert Royal Liverpool to the fact that you had received the Payments after your employment had ended. 8. You knew that you were no longer an employee of Royal Liverpool and were therefore not entitled to receive the Payments. 9. Your actions as described at paragraph 7 were dishonest by reason of paragraph 8. And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
“40. Dr Al Nageim’s explanation about his entitlement to use On Call Rooms at Chester when no longer employed by the Trust was that he was an NHS worker and he did not know that the facilities were not generally available for use, including by those who were no longer employed by Chester Hospital. For the six dates where Dr Al Nageim admits he used the rooms, he was employed at Wrexham Hospital, but, with the exception of gaining rest on17 February 2014 , Dr Al Nageim accepted that his use of the rooms was not connected to his work. The Tribunal was not persuaded that Dr Al Nageim’s belief about his entitlement to use the rooms was genuine. Dr Al Nageim is clearly an intelligent man and by 2013 had been a doctor and linked to the NHS for a number of years. The On Call Rooms were designated as such for a reason; as stated within the Accommodation Room form, they were for the use of those on call or on medical attachments. Dr Al Nageim was neither on call for Chester Hospital or on a medical attachment. He chose to show an out-of-date Chester Hospital photo ID, rather than his current Wrexham Hospital ID which is not consistent with his alleged genuine belief that any NHS worker can use the facilities. 41. Under cross-examination, the exploration by Mr Moran about Dr Al Nageim’s alleged beliefs about the NHS were shown to be highly improbable and unreasonable; Dr Al Nageim said that he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. The Tribunal found that the alleged belief of Dr Al Nageim to not be genuinely held and that it was not a credible position for him to adopt …”
“55. … In respect of this matter, the only real dispute between parties is about the conversation which took place between Mr Bowker and Dr Al Nageim. It was Mr Bowker’s evidence that when speaking Dr Al Nageim, he told Mr Bowker that he had just left Arrowe Park Hospital on the Wirral. This was the hospital closest to Dr Al Nageim’s home, but a hospital where he has never been employed. The GMC’s case is that Dr Al Nageim has not disclosed any identifiable details about the female to avoid further questioning about the purpose of his enquiry about room availability and that Dr Al Nageim panicked during his conversation with Mr Bowker and told him he had been at Arrowe Park Hospital, rather than at the cinema. Dr Al Nageim refutes Mr Bowker’s version of events and sought to discredit his evidence because Mr Bowker incorrectly recalled that on23 February 2014 Dr Al Nageim was driving a dark BMW when he was in fact driving a dark Mercedes. 56. The Tribunal having heard oral evidence from Dr Al Nageim and Mr Bowker preferred the account of Mr Bowker. Mr Bowker had no reason to be dishonest and had recorded, contemporaneously, his account of his conversation with Dr Al Nageim in a Datix form following the incident. In contrast, the Tribunal concluded that Dr Al Nageim’s account of the events of that night could not be relied upon or given much weight. It considered his claim not to remember any details of the female he had spent the evening with to be improbable. It further considered his explanation that she had been unable to find her way to the motorway without assistance until her phone recharged sufficiently to use the navigation function, when she had previously found her way to the cinema to be improbable. The Tribunal was not persuaded that the inability to tell the difference between a BMW and a Mercedes was such that it could not place weight on Mr Bowker’s account of the events of that night. Accordingly, the Tribunal was satisfied on the balance on probabilities that Dr Al Nageim had acted as the GMC alleged, in that he had not only attempted to gain access to an On Call Room on23 February 2014 but that he had been less than honest in his account of that evening.”
“57. The Tribunal concluded that Dr Al Nageim did know more about the identity of the female than he admitted, and he knew that when he said to Mr Bowker that he had just left Arrowe Park Hospital, that was incorrect. The Tribunal was satisfied on the balance of probabilities that Dr Al Nageim’s actions on23 February 2014 would be considered dishonest according to the ordinary standards of reasonable and honest people because he had attempted to gain access to an On Call Room to which he was not entitled, and he had inaccurately told Mr Bowker that he had just left Arrowe Park Hospital.”
‘I thought that was a kindness that had been mentioned to me when I was leaving, so at a meeting that I had prior to leaving I was told I would continue to be paid and so I thought that was part of what had happened’
‘… that because I had been struggling and they had noticed that I had been struggling that they were going to ease my work load but they would also continue to pay me and so and then until you know they would ease my work loads until February and then I could take some time out … And I understood that as being such and then when the payments continued I was very grateful and I just continued with just trying to sort out my life … She didn’t make clarification of how long that payment was going to be for’
‘At the time I received it, I was grateful for it and continued to receive it and I didn’t question it because why would I question a gift horse …’
“74. The Tribunal has already determined that Dr Al Nageim failed to alert Royal Liverpool to the salary payments after his employment had ended. It has discounted his stated belief that the payments were a ‘kindness’ or a ‘loan’ and concluded that this was not genuinely held and that it was unreasonable. The Tribunal has ascertained that, subjectively, Dr Al Nageim knew that he was not entitled to the salary payments and that they were being made to him in error. 75. The Tribunal therefore went on to consider whether, by the standards of ordinary decent people, Dr Al Nageim’s actions in knowing he was not entitled to the payments he received from Royal Liverpool, and not alerting them to the error was dishonest. 76. The Tribunal considered that even if either of Dr Al Nageim’s explanations regarding his receipt of the salary payments had been accepted, ordinary, reasonable and honest people would have considered his actions dishonest. 77. The Tribunal considered that any reasonable and honest person believing the salary payments were a loan would expect a written agreement and formal terms to have been agreed in advance. If such terms were not disclosed, any reasonable person would enquire about them, which Dr Al Nageim conceded he did not do. Instead he unquestioningly accepted the payments and acted to address the error only following his interview with MIAA, despite him being in receipt of other NHS salaries from August 2013 onwards. The Tribunal considered that being in receipt of two salaries for 20 of the 27 months he received the payments and not alerting Royal Liverpool would rightly, be considered dishonest by ordinary, reasonable and honest people. 78. The other explanation offered by Dr Al Nageim was that the salary payments were issued as a ‘kindness’ to assist him during a period of relative financial hardship during the time he was not employed following his contract at Royal Liverpool ending. However, having started another post six months later, ordinary decent people would expect that, having secured a new salaried position, Dr Al Nageim would have, at that point, confirmed with Royal Liverpool that he was no longer in need of the financial assistance. Having not alerted Royal Liverpool and allowed the payments to continue following a return to salaried employment, considering them a ‘safety net’ , would again be considered to be dishonest by ordinary reasonable and honest people. 79. However, the Tribunal had concluded that Dr Al Nageim knew that he was not entitled to the payments and was receiving them in error. It concluded that Dr Al Nageim failed to alert Royal Liverpool to their error during his receipt of the salary payments, or for almost two years after they had stopped. The Tribunal concluded that to have received such a large sum over a long period and not to have alerted Royal Liverpool to it, would be considered dishonest by ordinary, reasonable and honest people. Therefore, it found paragraph 9 of the Allegation proved.”
“However, the Tribunal also had regard to Dr Al Nageim's evidence, noting that he persistently maintained in his MIM interview, his witness statement and his oral evidence before the Tribunal that all of his actions were taken at both Royal Liverpool and Chester Hospital with the belief that he was acting legitimately and honestly based on what he was entitled to as an NHS worker. The Tribunal was concerned that Dr Al Nageim has consistently maintained this sense of entitlement in explaining his actions at Chester Hospital and his receipt of salary payments from Royal Liverpool.”
“7. Mr Moran [counsel for the GMC] conceded that, given the time that has elapsed since the impairment stage of these proceedings, Dr Al Nageim has had a lot of time to reflect. He submitted that it would be churlish not to recognise the impressive body of evidence provided by Dr Al Nageim that speaks to his character, clinical skills and knowledge and the steps he has taken. Mr Moran submitted that this evidence was worthy of serious consideration. However, he submitted that the Tribunal could not ignore its own key findings that Dr Al Nageim had continued to deny his dishonesty during the hearing. Further, he submitted that Dr Al Nageim had been found by the Tribunal to have been less than honest in his evidence to it, which compounded his original dishonesty.”
“… the main reason for imposing any sanction is to protect the public and that sanctions are not imposed to punish or discipline doctors, even though they may have a punitive effect. Throughout its deliberations, the Tribunal has applied the principle of proportionality, balancing Dr Al Nageim’s interests with the public interest.”
“24. In considering insight, the Tribunal was invited to conclude by Mr Moran, on behalf of the GMC that Dr Al Nageim had failed to tell the truth to the Tribunal on five occasions. Mr Moran had referred the Tribunal to five paragraphs of its own determination on the Facts. He reminded the Tribunal that, in relation to Chester Hospital, it had found that it was ‘was not persuaded that Dr Al Nageim’s belief about his entitlement to use the rooms was genuine’. In relation to the On Call Rooms, Dr Al Nageim said that ‘he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. The Tribunal found that the alleged belief of Dr Al Nageim to not be genuinely held and that it was not a credible position for him to adopt’ and that, in relation to the Jubilee Day Centre, ‘the Tribunal was not persuaded that Dr Al Nageim genuinely believed he could use the shower facilities, in a clinical area of a hospital he was not employed by, for non-clinical purposes’. Further, the Tribunal had concluded that Dr Al Nageim’s evidence about23 February 2014 had been ‘less than honest’. Regarding the salary payments from Royal Liverpool, ‘the Tribunal concluded that Dr Al Nageim did not genuinely believe he was entitled to the salary payments’. 25. The Tribunal considered its determinations and the evidence it had heard on these points again and was satisfied that Dr Al Nageim had not given the Tribunal a true account on five occasions in the course of his evidence at the first stage of these proceedings. 26. Taking all of the above into account, the Tribunal concluded that Dr Al Nageim’s insight into his misconduct was now developing. It concluded that Dr Al Nageim had sufficient insight into the gravity and seriousness of his actions, their impact on public confidence and the profession and that he had reflected on, and put strategies into place to ensure he did not repeat his behaviour. However, the Tribunal was not satisfied that Dr Al Nageim had developed any insight into his actions in not telling the truth, particularly to this Tribunal; nor had he reflected on his assertion that another witness in this case, Mr Bowker, had been incorrect about what had occurred on23 February 2014 and had sought to discredit his account.”
“30. The Tribunal considered which of these factors had the most weight. It considered that it was particularly concerning that Dr Al Nageim admitted that if Royal Liverpool had not completed the audit that raised the issue of the salary payments, he would not have alerted them himself, despite 27 months passing and NHS monies being received by him. Further, the Tribunal had concluded that Dr Al Nageim had not told the truth in his evidence in March 2020. The Tribunal acknowledged there were persuasive mitigating factors in this case, in that Dr Al Nageim was now developing insight, some of which was already good, and understood the gravity and impact of what he had done. The Tribunal accepted that there was strong evidence of Dr Al Nageim’s skill as a clinician and that there is a public interest in keeping otherwise competent doctors on the medical register.”
“92. … Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession).”
“124. Although it may not result in direct harm to patients, dishonesty related to matters outside the doctor’s clinical responsibility (eg providing false statements or fraudulent claims for monies) is particularly serious. This is because it can undermine the trust the public place in the medical profession. Health authorities should be able to trust the integrity of doctors, and where a doctor undermines that trust there is a risk to public confidence in the profession. Evidence of clinical competence cannot mitigate serious and/or persistent dishonesty. 125. Examples of dishonesty in professional practice could include: - a defrauding an employer … … 128. Dishonesty, if persistent and/or covered up, is likely to result in erasure ...” in erasure ...”
“38. The Tribunal considered what the appropriate and proportionate sanction would be in this case. The Tribunal was of the view that if the Allegation found proved had related to Dr Al Nageim’s actions at Chester Hospital only, in his use of facilities to which he was not entitled, erasing him from the medical register would have been disproportionate, particularly in light of the steps he has taken towards insight and remediation in the last nine months. However, the Tribunal remained concerned that Dr Al Nageim had continued not to tell the truth in his evidence about Chester Hospital, what he believed his entitlement to be and the actions of others who he asserted had been incorrect. 39. The Tribunal had heard submissions from both parties that Dr Al Nageim’s dishonesty regarding to the salary overpayment amounted to acts of omission rather than commission. The Tribunal was not satisfied that this was an entirely accurate representation of Dr Al Nageim’s actions. At Chester Hospital, Dr Al Nageim sought access to facilities that the Tribunal found he knew he was not entitled to use. In regard to the salary payments from Royal Liverpool, the Tribunal accepted that Dr Al Nageim’s evidence that he was not aware of payments for the first few months. However, when he did become aware of those payments and subsequently became employed again by another NHS Trust, the payments continued and only stopped when Royal Liverpool discovered the error. He chose to allow the payments to continue. Further, Dr Al Nageim conceded in evidence that had this not occurred, he would not have sought to raise the issue with Royal Liverpool himself. Dr Al Nageim received£41,266.16 (net) of NHS money over a 27 month period, during which time he travelled abroad and commenced a new salaried position at a different NHS Trust. 40. The Tribunal concluded that Dr Al Nageim’s actions represented a particularly serious departure from GMP, in that honesty is a fundamental tenet of the profession, and he had been persistently dishonest over a period of years, including not telling the truth during this hearing. While his insight was now developing, Dr Al Nageim showed no insight during the earlier stage of these proceedings and has yet to demonstrate any insight into all aspects of his dishonesty. 41. The Tribunal determined that it was the scale of Dr Al Nageim’s dishonesty regarding the salary payments from Royal Liverpool that was key to its consideration as to whether Dr Al Nageim’s actions were fundamentally incompatible with continued registration. The Tribunal considered the extent of Dr Al Nageim’s dishonesty in relation to the salary payments from Royal Liverpool, coupled with the additional dishonesty relating to misuse of Chester Hospital facilities and his lack of honesty in his evidence to the Tribunal. Given the persistent nature of his dishonesty, the Tribunal concluded that Dr Al Nageim’s actions were fundamentally incompatible with continued registration. 42. The Tribunal concluded that, having knowingly received money to which he was not entitled and acted dishonestly with two separate NHS Trusts, erasure from the medical register was the only appropriate and proportionate sanction in this case. It determined that any lesser sanction would not promote and maintain public confidence in the medical profession, or uphold proper professional standards and conduct for members of the profession. The remediation, insight and clinical competence of Dr Al Nageim did not outweigh this conclusion. 43. The Tribunal therefore determined that Dr Al Nageim’s name be erased from the Medical Register.”
“(d) fail to tell the truth 14 during the hearing (see paragraph 72 of Good medical practice).”
‘Acting as a witness in legal proceedings (2013) GMC, London.’
“It seems to me that an accused person has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or an enhanced sanction.”
“(3) The appeal court will allow an appeal where the decision of the lower court was - (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”
“The purpose of FTP [fitness to practice] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP [Fitness to Practice Panel] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”
“Where a judge draws inferences from his findings of primary fact which have been dependent on his assessment of the credibility or reliability of witnesses, who have given oral evidence, and of the weight to be attached to their evidence, an appellate court may have to be similarly cautious in its approach to his findings of such secondary facts and his evaluation of the evidence as a whole.”
“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, ‘La vérité est dans une nuance’), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”
“That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts.”
“An appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence. In a case such as the present, the committee's concern is for the damage already done or likely to be done to the reputation of the profession and it is best qualified to judge the measures required to address it …”
“The Sanctions Guidance contains very useful guidance to help provide consistency in approach and outcome in MPTs and should always be consulted by them but, at the end of the day, it is no more than that, non-statutory guidance, the relevance and application of which will always depend on the precise circumstances of the particular case ..”
“39. The Tribunal had heard submissions from both parties that Dr Al Nageim’s dishonesty regarding to the salary overpayment amounted to acts of omission rather than commission. The Tribunal was not satisfied that this was an entirely accurate representation of Dr Al Nageim’s actions. At Chester Hospital, Dr Al Nageim sought access to facilities that the Tribunal found he knew he was not entitled to use. In regard to the salary payments from Royal Liverpool, the Tribunal accepted that Dr Al Nageim’s evidence that he was not aware of payments for the first few months. However, when he did become aware of those payments and subsequently became employed again by another NHS Trust, the payments continued and only stopped when Royal Liverpool discovered the error. He chose to allow the payments to continue. Further, Dr Al Nageim conceded in evidence that had this not occurred, he would not have sought to raise the issue with Royal Liverpool himself. Dr Al Nageim received£41,266.16 (net) of NHS money over a 27 month period, during which time he travelled abroad and commenced a new salaried position at a different NHS Trust.”
“24. In considering insight, the Tribunal was invited to conclude by Mr Moran, on behalf of the GMC that Dr Al Nageim had failed to tell the truth to the Tribunal on five occasions. Mr Moran had referred the Tribunal to five paragraphs of its own determination on the Facts. He reminded the Tribunal that, in relation to Chester Hospital, it had found that it was ‘was not persuaded that Dr Al Nageim’s belief about his entitlement to use the rooms was genuine’. In relation to the On Call Rooms, Dr Al Nageim said that ‘he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. The Tribunal found that the alleged belief of Dr Al Nageim to not be genuinely held and that it was not a credible position for him to adopt’ and that, in relation to the Jubilee Day Centre, ‘the Tribunal was not persuaded that Dr Al Nageim genuinely believed he could use the shower facilities, in a clinical area of a hospital he was not employed by, for non-clinical purposes’. Further, the Tribunal had concluded that Dr Al Nageim’s evidence about23 February 2014 had been ‘less than honest’. Regarding the salary payments from Royal Liverpool, ‘the Tribunal concluded that Dr Al Nageim did not genuinely believe he was entitled to the salary payments’. 25. The Tribunal considered its determinations and the evidence it had heard on these points again and was satisfied that Dr Al Nageim had not given the Tribunal a true account on five occasions in the course of his evidence at the first stage of these proceedings. 26. Taking all of the above into account, the Tribunal concluded that Dr Al Nageim’s insight into his misconduct was now developing. It concluded that Dr Al Nageim had sufficient insight into the gravity and seriousness of his actions, their impact on public confidence and the profession and that he had reflected on, and put strategies into place to ensure he did not repeat his behaviour. However, the Tribunal was not satisfied that Dr Al Nageim had developed any insight into his actions in not telling the truth, particularly to this Tribunal; nor had he reflected on his assertion that another witness in this case, Mr Bowker, had been incorrect about what had occurred on23 February 2014 and had sought to discredit his account.”
“Dr Al Nageim did not tell the Tribunal the truth in his evidence in March 2020 and did not demonstrate any insight into this.”
“41. The Tribunal determined that it was the scale of Dr Al Nageim’s dishonesty regarding the salary payments from Royal Liverpool that was key to its consideration as to whether Dr Al Nageim’s actions were fundamentally incompatible with continued registration. The Tribunal considered the extent of Dr Al Nageim’s dishonesty in relation to the salary payments from Royal Liverpool, coupled with the additional dishonesty relating to misuse of Chester Hospital facilities and his lack of honesty in his evidence to the Tribunal. Given the persistent nature of his dishonesty, the Tribunal concluded that Dr Al Nageim’s actions were fundamentally incompatible with continued registration.”
“59. I have set out above at para 14 an extract from para 31 of the impairment decision. I draw attention to the sentence: ‘In particular, Mr Towuaghantse failed to accept any of the Coroner's findings’ (my emphasis). 60. In similar vein in para 32 of the sanctions decision the MPT said this: ‘The Tribunal noted Mr Towuaghantse's change of stance as the hearing progressed. There was more evidence of insight provided at the sanction stage than at the preceding ones in that Mr Towuaghantse had placed more emphasis on his own failings than before. However it could not ignore the fact that, particularly at the first stage of the hearing when the Tribunal was considering the facts, Mr Towuaghantse had tried to attribute to others at least some of the responsibility for what had happened to Patient A. In the judgment of the Tribunal, that was a particularly regrettable feature of the case.’ (my emphasis)” ‘The Tribunal noted Mr Towuaghantse's change of stance as the hearing progressed. There was more evidence of insight provided at the sanction stage than at the preceding ones in that Mr Towuaghantse had placed more emphasis on his own failings than before. However it could not ignore the fact that, particularly at the first stage of the hearing when the Tribunal was considering the facts, Mr Towuaghantse had tried to attribute to others at least some of the responsibility for what had happened to Patient A. In the judgment of the Tribunal, that was a particularly regrettable feature of the case.’ (my emphasis)”
“In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.”
“17. Their Lordships find the inclusion in the charge of allegations that Dr Misra gave information he knew to be untrue rather puzzling. The substantive allegations against Dr Misra were that he had been informed of each of the four telephone calls and requests for home visits. Dr Misra had admitted being informed of only two of them. So there was a substantive issue as to whether he had been informed of the other two. If he were to maintain his denial at the hearing and be believed that would be an end of the issue. If his denial were to be disbelieved then the Committee would have to consider his conduct regarding Mrs Berryman on the footing that he had received four requests to visit her but had failed to do so and on the footing also that he had lied on oath about two of the telephone calls. What the GMC's point was in adding to the charge first an allegation that he had earlier told the same lie to Mr Berryman and secondly that the lie had been repeated in his solicitor's letter to the GMC is not clear. Their Lordships enquired of Mr Greene, counsel for the GMC, whether it was a general GMC practice where charges of professional misconduct were being made to add to the factual allegations on which the charges were based an allegation of dishonesty in the event that the respondent doctor had had the temerity to deny any of the factual allegations. Counsel told their Lordships that it was not the general practice and that he was not aware of a previous case where that had been done. No explanation of why it was thought right to add the allegations of dishonesty in the present case was offered. In their Lordships' opinion the addition of the allegations of dishonesty in the present case was unnecessary and oppressive. The allegations added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him.”
“64. A strict textual interpretation of this passage would confine the oppressive conduct to the formulation of charges based on the registrant's forensic reaction to the initial complaint in the pretrial period. But the underpinning reasoning surely applies equally to the situation, as here, where a registrant has doughtily defended allegations against him in the fact-finding phase. It surely leads to say that it is equally oppressive for that defence by the registrant to be used against him in the impairment and sanctions phases.”
“71. It is hard to square these statements with Lord Scott's comments in Misra. In the criminal sphere there is no principle of a plea in aggravation by the prosecutor whereby he seeks an enhanced sentence because the defendant's defence was rejected as untrue. A plea of not guilty attracts no aggravation; a plea of guilty, however, attracts mitigation. In my opinion that axiom should equally apply in disciplinary proceedings. I can see, were a defence to be rejected as blatantly dishonest, then that would say something about impairment and fitness to practise in the future. But there would surely need to be a clear finding of blatant dishonesty for that to be allowed. Absent such a finding it would, in my judgment, be a clear encroachment of the right to a fair trial for the forensic stance of a registrant in the first phase to be used against him in the later phases.”
“41. … Dr Al Nageim said that he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. It accepted that Dr Al Nageim may have been unaware that a cost was charged internally for the use of such rooms in 2014. Nevertheless, the Tribunal found that Dr Al Nageim knew he was not entitled to use the On Call Rooms at Chester Hospital in the manner that he did.”
“68. The Tribunal was not persuaded that Dr Al Nageim genuinely believed the salary payments were a ‘kindness’ or a ‘loan’. His evidence about the payments was inconsistent; his MIAA interview in March 2017, makes no reference to his understanding that the payments were a loan, and his witness statement from February 2020, makes no reference to the payments being made as a ‘kindness’ . Dr Al Nageim’s description of the conversation with the lady from Royal Liverpool offering him ‘help’ could not reasonably be interpreted as a reference to a loan of over£67,000 of public money. 69. The Tribunal was not persuaded that Dr Al Nageim genuinely believed that he received the salary payments after sharing the personal circumstances and concerns he had shared with Royal Liverpool staff at the14 December 2012 meeting … … 73. Having concluded that Dr Al Nageim knew that he was not entitled to the salary payments and that it was his genuinely held belief that they were being made in error, it follows that Dr Al Nageim did have a duty to alert Royal Liverpool to the payments. Therefore, having not alerted Royal Liverpool, Dr Al Nageim did fail in his actions. Accordingly, the Tribunal found paragraphs 7 and 8 of the Allegation proved.”