“the decision is not sufficient (whether as a finding or a penalty or both) for the protection of the public.”
“(a) to protect the health, safety and well-being of the public; (b) to maintain public confidence in the profession concerned; and (c) to maintain proper professional standards and conduct for members of that profession.”
“70. If the Court decides that the decision as to the penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate. No doubt any comments made by the Court about those findings will receive due consideration by the disciplinary tribunal if, at a later stage, it has occasion to review the standing of the practitioner. 71. If the Court decides that the decision as to penalty was ‘wrong', it must allow the appeal and quash the relevant decision, in accordance withCPR 52.11 (3)(a) and section 29(8)(b) of the Act. It can then substitute its own decision under section 29(8)(c) or remit the case under section 29(8)(d). 72. It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant toCPR 52.11 (3)(b) and section 29(8)(d) of the Act. … 76. The test of whether a penalty is capable of appearing unduly lenient [now “not sufficient for the protection of the public”] in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of the disciplinary proceedings, could reasonably have imposed … in any particular case under section 29, the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate, having regard to the petition’s conduct and the interests of the public.”
“… 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 professions and sanctions, with diffidence … 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 itself and thus attach less weight to the expertise of the Tribunal…”
“… an evaluative decision based on many factors, a type of decision sometimes referred to as “a multi-factorial decision”
“(1A) The over-arching objective of the General Council in exercising their functions is the protection of the public. (1B) The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives (a) to protect, promote and maintain the health, safety and well-being of the public, (b) to promote and maintain public confidence in the medical profession, and (c) to promote and maintain proper professional standards and conduct for members of that profession.”
“Maintaining public confidence in the profession Patients must be able to trust doctors with their lives and health, so doctors must make sure that their conduct justifies their patients trust in them and the public’s trust in the profession . . . Although the tribunal should make sure the sanction it imposes is appropriate and proportionate, the reputation of the profession as a whole is more important than the interests of any individual doctor.”
“Patients must be able to trust doctors with their lives and health. To justify that trust you must show respect for human life and make sure your practice meets the standards expected of you in four domains. Knowledge, skills and performance • Make the care of your patient your first concern. Safety and quality • Protect and promote the health of patients and the public. 16. In providing clinical care you must: • prescribe drugs or treatment, including repeat prescriptions, only when you have adequate knowledge of the patient’s health and are satisfied that the drugs or treatment serve the patient’s needs • provide effective treatments based on the best available evidence • consult colleagues where appropriate … • check that the care and treatment you provide for each patient is compatible with any other treatments the patient is receiving, including (where possible) self-prescribed over-the-counter medications …”
“Together with the patient, you should make an assessment of their condition before deciding to prescribe a medicine. You must have or take an adequate history, including: a. any previous adverse reactions to medicines b. recent use of other medicines, including non-prescription and herbal medicines, illegal drugs and medicines purchased online, and c. other medical conditions. … You should reach agreement with the patient on the treatment proposed,explaining: a. the likely benefits, risks and burdens, including serious and common side effects b. what to do in the event of a side effect or recurrence of the condition c. how and when to take the medicine and how to adjust the dose if necessary, or how to use a medical device d. the likely duration of treatment e. arrangements for monitoring, follow-up and review, including further consultation, blood tests or other investigations, processes for adjusting the type or dose of medicine, and for issuing repeat prescriptions. You should check that the patient has understood the information and encourage them to ask questions to clarify any concerns or uncertainty. You should consider the benefits of written information, information in other languages and other aids for patients with disabilities to help them understand and consider information at their own speed and to retain the information you give them. … If you prescribe for a patient, but are not their general practitioner, you should check the completeness and accuracy of the information accompanying a referral. When an episode of care is completed, you must tell the patient’s general practitioner about: a. changes to the patient’s medicines (existing medicines changed or stopped, and new medicines started, with reasons) b. length of intended treatment c. monitoring requirements d. any new allergies or adverse reactions identified, unless the patient objects or if privacy concerns override the duty, for example in sexual health clinics. … If a patient has not been referred to you by their general practitioner, you should also: a. consider whether the information you have is sufficient and reliable enough to enable you to prescribe safely, for example, whether: i you have access to their medical records or other reliable information about the patient’s health and other treatments they are receiving ii you can verify other important information by examination or testing b. ask for the patient’s consent to contact their general practitioner if you need more information or confirmation of the information you have before prescribing. If the patient objects, you should explain that you cannot prescribe for them and what their options are. … You are responsible for any prescription you sign, including repeat prescriptions for medicines initiated by colleagues, so you must make sure that any prescription you sign is safe and appropriate. You may prescribe only when you have adequate knowledge of the patient’s health and are satisfied that the medicines serve the patient’s needs. You must consider: a. the limitations of the medium through which you are communicating with the patient b. the need for physical examination or other assessments c. whether you have access to the patient’s medical records”
“I always knew I must prescribe properly. I have been a consultant for many years before coming into practice … I realised there was a problem and that’s why I wrote to BMA myself to ask for advice and I know this is the case.”
“… but in this case it is a business deal between two business people. I was only a pawn in this, I think. I didn’t even consider – all I know is what I already told you. I really thought I’m doing some humanitarian help to people suffering in other countries, and if that’s what God has want me to do, I simply will do it. There was no fraud intended. No financial gain intended. Nothing other than just helping on humanitarian grounds and that’s always in my mind.”
“I even talked to my colleagues, “Do you know what, I did a silly thing, I made a mistake.”
“50. The Tribunal took the view that Professor Lingam’s misconduct, though serious, was capable of remediation. It considered the submissions of Professor Lingam that the misconduct had largely been the result of his naivety and misguided, but genuine, belief that his role was to transcribe the Prescriptions as part of humanitarian efforts, to assist patients in other countries. In making its decision on impairment, the Tribunal noted that it had not been supplied with evidence of specific learning opportunities that had been undertaken to remediate his misconduct, or personal reflections into the impact of his actions. 51. The Tribunal was concerned that Professor Lingam appeared to have taken no steps, between the time of the incident and now, to improve his understanding of his misconduct, as well as the impact it would have on public trust in the profession. The Tribunal noted that Professor Lingam appeared quite confused when asked specific questions relating to his misconduct and the reasoning for his actions. It noted that while Professor Lingam accepted that his actions amounted to misconduct and that what he did was wrong, the explanations he provided were unclear and he did not appear to fully understand why his actions were “wrong”.”
“73. In reaching its decision, the Tribunal has taken the S[anctions] G[uidance] into account and paid careful regard to the overarching objective. The Tribunal reminded itself that 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 Professor Lingam’s interests with the public interest. Aggravating and Mitigating Factors 74. The Tribunal has already set out its decision on the facts and impairment which it took into account during its deliberations on sanction. Before considering what action, if any, to take in respect of Professor Lingam’s registration, the Tribunal considered and balanced the aggravating and mitigating factors in this case. 75. The Tribunal identified the following aggravating factors: • The serious nature of the misconduct, creating serious risk of harm to patients and the public; • That Professor Lingam was in a position of leadership at the Clinic, engaging other doctors to be involved in similar behaviour; • Professor Lingam has not provided evidence of targeted remediation to the Tribunal. 76. Having identified aggravating factors in this case, the Tribunal identified the mitigating factors to be: • Making full admissions to the Allegation from the outset and fully engaging in the proceedings; • The events in question took place nearly 8 years ago and the conduct has not been repeated; • Professor Lingam has complied with the conditions imposed by the IOT for the past 7 years; • Professor Lingam has had no previous findings of misconduct; • The allegations do not relate to dishonesty; 77. The Tribunal carefully considered these features throughout its deliberations in considering the appropriate and proportionate sanction to impose. The Tribunal considered each sanction in ascending order of severity, starting with the least restrictive. No action 78. The Tribunal first considered whether to conclude the case by taking no action. It noted that taking no action following a finding of impaired fitness to practise is only appropriate in exceptional circumstances. The Tribunal determined that there were no exceptional circumstances in this case and that, given the seriousness of its findings, it would not be sufficient, proportionate, or in the public interest to conclude this case by taking no action. Conditions 79. The Tribunal next considered whether to impose conditions on Professor Lingam’s registration. The Tribunal noted that conditions may be appropriate and workable in certain circumstances, including where a doctor has been open, honest and has shown insight. It also noted that conditions may be appropriate where the Tribunal is satisfied that the doctor will comply with them and has the potential to respond positively to their work being supervised. 80. The Tribunal carefully considered imposing the more serious sanction of suspension, which would have a deterrent effect and may be appropriate in order to send a signal to Professor Lingam, the profession, and the public about what is regarded as behaviour unbefitting a registered doctor. The Tribunal took the view that a period of suspension would be a disproportionate sanction in this case, particularly given the passage of time since the events which make up the Allegation. 81. The Tribunal was mindful of the seriousness of the misconduct identified in this case, but also, the length of time that Professor Lingam had successfully complied with the conditions imposed by the IOT – almost eight years – which had had a significant impact on him. It took the view that whilst Professor Lingam had not yet developed full insight, he appeared, in both his submissions and oral evidence, to be developing his insight and would continue to comply with the restrictions imposed. In the circumstances, the Tribunal did not view a period of suspension as necessary to satisfy the three limbs of the overarching objective and would be a disproportionate response to the misconduct established. 82. The Tribunal was of the view that conditions could be drafted which could properly protect, promote and maintain the health, safety and wellbeing of the public, by allowing Professor Lingam to continue working while at the same time improving his insight and undertake targeted remediation to further diminish the risk of repetition. The Tribunal concluded that embarking on a process that would allow Professor Lingam to return to practice safely was in the interests of Professor Lingam and the wider public, who would ultimately continue to benefit from his skills and experience. 83. In view of the above, the Tribunal concluded that Professor Lingam’s misconduct could adequately be marked with a period of conditional registration. The Tribunal determined that conditions would uphold the overarching objective, whilst at the same time, adequately mark the seriousness with which it viewed Professor Lingam’s actions. Further, a period of conditional registration would allow Professor Lingam to continue to work towards completing his journey of remediation, and to be able to demonstrate, with objective evidence, that he has learnt from his past failings and that he has implemented steps to address them. 84. The Tribunal therefore determined to impose the following public conditions upon Professor Lingam’s registration … [etc]” [Emphasis has been added.]
“42. The discipline of fully addressing the application of the Sanctions Guidance to the facts, and clearly articulating reasons for any departure determined upon, is itself the surest route to a secure assessment of gravity of misconduct and hence of proportionality. Shortcuts must be resisted, particularly where they risk being – or, as importantly, being seen to be – unduly influenced by considerations of personal mitigation.”