“101. The breadth of the section 40 appeal and the appellate nature of the court's jurisdiction was recognised by the Judicial Committee of the Privy Council in Ghosh and set out at [33] and [34] of the judgment of the Board given by Lord Millett. At [33] Lord Millett noted that the statutory right of appeal of medical practitioners under section 40 of the 1983 Act "does not limit or qualify the right of the appeal or the jurisdiction of the Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee." 102. Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court: i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act; ii) the jurisdiction of the court is appellate, not supervisory; iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal; iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances; v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration. 103. The courts have accepted that some degree of deference will be accorded to the judgment of the Tribunal but, as was observed by Lord Millett at [34] in Ghosh, "the Board will not defer to the Committee's judgment more than is warranted by the circumstances". In Preiss, at [27], Lord Cooke stated that the appropriate degree of deference will depend on the circumstances of the case. Laws LJ in Raschid and Fatnani, in accepting that the learning of the Privy Council constituted the essential approach to be applied by the High Court on a section 40 appeal, stated that on such an appeal material errors of fact and law will be corrected and the court will exercise judgment but it is a secondary judgment as to the application of the principles to the facts of the case ([20]). In Cheatle Cranston J accepted that the degree of deference to be accorded to the Tribunal would depend on the circumstances, one factor being the composition of the Tribunal. He accepted the appellant's submission that he could not be "completely blind" to a composition which comprised three lay members and two medical members. 104. In Khan at [36] Lord Wilson, having accepted that an appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence, approved the approach and test identified by Lord Millett at [34] of Ghosh. 105. It follows from the above that the Judicial Committee of the Privy Council in Ghosh, approved by the Supreme Court in Khan, had identified the test on section 40 appeals as being whether the sanction was "wrong" and the approach at the hearing, which was appellate and not supervisory, as being whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate. ….. 112. Appropriate deference is to be paid to the determinations of the MPT in section 40 appeals but the court must not abrogate its own duty in deciding whether the sanction imposed was wrong; that is, was it appropriate and necessary in the public interest….”
“19. ….As it seems to me the fact that a principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel. That I think is reflected in the last citation I need give. It consists in Lord Millett’s observations at paragraph 34 of Ghosh v GMC[2001] 1 WLR 1915 , page 1923G: “The board will afford an appropriate measure of respect to the judgment in the committee whether the practitioner’s failing amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee’s judgment more than is warranted by the circumstances.” 20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”
“72. Reading the Tribunal's findings as a whole, it was clearly of the view that the Appellant had further work to do in order to gain full insight into his behaviour and to remediate it, and that the period of suspension had to be sufficient to allow that work to be completed and to be presented at a review hearing. Given the appropriate level of deference which I must afford to the Tribunal's determination, I am unable to say that a figure of nine months was wrong. I can take it the Tribunal knew the sort of timescales that would be necessary to allow the doctor to complete the necessary work and, in light of that work, to ensure the public and profession was fully protected. 73. I readily acknowledge that a period of nine months' suspension will seriously impact on the Appellant's career and to that extent it represents a punishment. However, as Sir Thomas Bingham MR said in Bolton, supra, p. 598 the intention of disciplinary proceedings is often not punitive even if they have that effect.”
“Taking a proportionate approach to imposing sanctions 20 In deciding what sanction, if any, to impose the tribunal should consider the sanctions available, starting with the least restrictive. It should also have regard to the principle of proportionality, weighing the interests of the public against those of the doctor (this will usually be an impact on the doctor’s career, e.g. a short suspension for a doctor in training may significantly disrupt the progression of their career due to the nature of training contracts). 21 However, once the tribunal has determined that a certain sanction is necessary to protect the public (and is therefore the minimum action required to do so), that sanction must be imposed, even where this may lead to difficulties for a doctor. This is necessary to fulfil the statutory overarching objective to protect the public.”
“17. In overview the single Grounds (sic) of Appeal advanced is as follows: Ground 1: The Tribunal made serious errors in their determinations on sanction. In particular, they misapplied the Court of Appeal case of ADIL and failed properly [to] take into account the immediate suspension order passed by the 2021 Tribunal and give appropriate credit for it in assessing the length of the suspension.”
“The Relevant Legal Principles 28. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision of impairment is a matter for the Tribunal’s judgement alone. 29. The Tribunal must determine whether Dr Ahmedsowida’s fitness to practise is impaired today, taking into account Dr Ahmedsowida’s conduct at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. 30. Whilst there is no statutory definition of impairment, the Tribunal is assisted by the guidance provided by Dame Janet Smith in the Fifth Shipman Report. The Tribunal noted that any of the following features are likely to be present when a doctor’s fitness to practise is found to be impaired: a. ‘Has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or b. Has in the past and/or is liable in the future to bring the medical profession into disrepute; and/or c. Has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or d. Has in the past acted dishonestly and/or is liable to act dishonestly in the future.’ 31. The Legally Qualified Chair (‘LQC’) advise the Tribunal to consider to the case of Yeong v GMC[2009] EWHC 1923 (Admin) , also cited in CHRE v NMC & Grant[2011] EWHC 927 (Admin) which states that in some cases the misconduct may breach fundamental principles to such an extent that a finding of impairment is justified simply to maintain public confidence on the profession. Where a Tribunal considers that fitness to practise is impaired for such reasons, and it requires a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally, efforts made by the practitioner to address his problems and to remediate may be of far less significance. 32. The LQC also referred the Tribunal to the cases of Yussuf v GMC[2018] EWHC 13 (Admin) and Sawati v GMC[2022] EWHC 283 (Admin) . With regard to the former, he advised that the principles in that case had some bearing although it must have in mind that Yussuf specifically was a case concerning reviews of substantive sanction orders, and there had yet been no initial finding of impairment in this case. He advised the following principles may be relevant, adapting from Yussuf and bearing in mind the Order of Kerr, J: i. The Tribunal cannot go behind and would not re-open the findings of fact; ii. The doctor is entitled to have defended the case: no account of that fact should be taken into account, nor anything concerning manner of defence; iii. The doctor is entitled to not accept the Tribunal’s findings; iv. Alternatively, the doctor is entitled to say that he accepts the findings in the sense he does not seek to go behind them while still maintaining a denial of the conduct underpinning the tribunal’s findings (the Tribunal noting that Dr Ahmedsowida did not say he denied everything in this case); v. When considering whether fitness to practise is impaired, it is relevant for the tribunal to know whether or not the doctor admits the misconduct (and the factual findings); vi. Admitting the Misconduct is not a ‘condition precedent’ (i.e. a pre-requisite) to establishing that the doctor (i) understands the gravity of the misconduct and (ii) is unlikely to repeat it; vii. A want of candour at a hearing may be a relevant consideration but whether there had been such, and the relevance was a matter for the Tribunal to determine. 33. In relation to Sawati, the LQC advised that there were certain principles set out in the judgement regarding how the Tribunal must consider a defence by a doctor which has been rejected in the Tribunal’s findings. He advised that the Order of Kerr J had directed the Tribunal’s approach to the doctor’s defence of the case, and the Tribunal was bound by this. However, the third summarised principal in paragraph 109 of the Sawati judgement still had relevance, namely: (iii) ‘how far 'lack of insight' is evidenced by anything other than the rejected defence’. 34. The Tribunal noted that dishonesty is said to be difficult to remediate. It reminded itself that there is acknowledged to be a ‘spectrum’ of dishonesty and where this case fell should be considered in light of the detailed findings. However, as set out in Bolton v The Law Society [1993] ECWA Civ 32, dishonesty in professionals is regarded as a serious matter.”
“36. The Tribunal considered that Dr Ahmedsowida’s behaviour amounted to a pattern of repeated dishonesty in order to cover up issues and this serious dishonesty persisted between July 2017 and May 2018. Dr Ahmedsowida was not honest about his skills, experience and capabilities and hid information from colleagues that would have allowed them to make informed and possibly different decisions about appointments to clinical roles and suitable candidates. In doing so he risked putting himself in positions where he could not safely manage and treat patients. 37. In his submissions, Mr Gledhill suggested that Dr Ahmedsowida’s actions had caused “no harm”
“71. The Tribunal considered that all four limbs of Dame Janet Smith’s test, as set out above, are applicable in this case. Dr Ahmedsowida had created an unwarranted risk of harm by failing to follow instructions and failing to be honest in providing information about his past clinical experience. His actions risked bringing the profession into disrepute, if the public became aware of the dishonesty, and he had breached the fundamental tenet of honesty amongst the profession and acted dishonestly. The issue for the Tribunal was the extent to which it could be satisfied from the serious findings of misconduct and the evidence of remediation, that Dr Ahmedsowida was ‘highly unlikely’ to repeat the misconduct.”
“Risk of repetition 77. The Tribunal considered that the seriousness and persistence of the dishonesty as found by the 2021 Tribunal in this case pointed to attitudinal issues and a willingness to be dishonest, in the past. The Tribunal was also concerned that the findings, such as in relation to the failure to follow instructions demonstrated an over confidence in his own skills and experience and an unwillingness to respect senior colleagues. 78. The Tribunal considered how these concerns affected its assessment of whether there remains a risk of repetition. In doing so, the Tribunal acknowledged that there is no evidence of any repetition since the time of the events and that these proceedings have had a salutary effect on Dr Ahmedsowida. 79. The Tribunal concluded that it had not received sufficient evidence which could satisfy it that he has developed full insight into this or has reflected on the causes of such behaviour or put in place sufficient preventative measures to ensure there is no repetition. It concluded that a structure has been devised by Dr Ahmedsowida but he has not yet sufficiently accessed that plan or structure to complete his remediation. Given that his insight remains incomplete, and he has not fully remediated his misconduct, the Tribunal could not be assured that he is highly unlikely to repeat his misconduct at this stage, and therefore some risk of repetition remains.”
“It may also be appropriate to take into account periods of interim suspension insofar as the sanction is intended to mark the gravity of the offence so as to send a message to the profession and to the public.”
“35. The Tribunal carefully considered the factual and misconduct findings of the 2021 Tribunal and the Order of the High Court together with its own determination on impairment and the submissions advanced by the parties. The Tribunal balanced the public interest with Dr Ahmedsowida’s interests. 36. The Tribunal noted that suspension has a deterrent effect and can be used as a signal to the doctor, the profession and the public about what is regarded as behaviour unbefitting of a registered doctor. It also acknowledged that suspension is an appropriate response to misconduct which is sufficiently serious that action is required in order to protect members of the public or maintain public confidence in the profession. 37. When considering whether suspension is the appropriate sanction in this case, the Tribunal had regard to all of the circumstances. It acknowledged that the misconduct was serious, but Dr Ahmedsowida has expressed remorse for his behaviour, and taken steps towards remediating his misconduct, including providing reflective statements and undertaking targeted CPD courses. 38. The Tribunal accepted and took into account the advice it had received. It understood from the case of Simawi and the cases referred to in that judgement, that dishonesty is regarded seriously, particularly where persistent and covered up. This point is also made in the SG, at paragraph 128. The latter states: “128 Dishonesty, if persistent and/or covered up, is likely to result in erasure” 39. The Tribunal also considered that the case of Bolton makes clear that the reputation and standing of the profession is an important matter and may outweigh the plight of the individual. Therefore, the Tribunal considered, the misconduct and impairment found in the case warranted the Tribunal to consider a high sanction. 38. [paragraph numbering incorrect here] The Tribunal noted from the SG that the same key considerations which relate to the question of whether suspension is appropriate also feature in respect of considering whether to erase a doctor’s registration, in this misconduct case, namely the serious breach of GMP. The Tribunal considered that the facts of the case also satisfied a number of the factors in the SG which indicate erasure might be appropriate. One key factor appeared to be whether the behaviour was ‘fundamentally incompatible’ with being a doctor. 39. [paragraph numbering incorrect here] The Tribunal considered that this still allowed it to consider the full circumstances of the case. This included a full assessment of the doctor’s fitness to practise and his attempts at remediation. It noted that the indicators that suspension might be appropriate included: “e No evidence that demonstrates remediation is unlikely to be successful, eg because of previous unsuccessful attempts or a doctor’s unwillingness to engage. f No evidence of repetition of similar behaviour since incident. g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.” 40. The Tribunal took into account that, in the unusual circumstances of this case, Dr Ahmedsowida had been given the opportunity of a period of almost two years, in which to demonstrate his remediation. He had been able to work again as a doctor without restriction, from December 2021 until the present. There had been no further concerns raised with his practice and no evidence of repetition. 41. The Tribunal was satisfied that Dr Ahmedsowida had put a great deal of effort into his CPD and his reflective statements. It considered that he has not gone far enough along the process of remediation which he has himself identified. However, the Tribunal did not consider that it had before it evidence that such a process would be unsuccessful, if the doctor continues with it. 42. The Tribunal accepted that Dr Ahmedsowida has a degree of insight, although it requires further development. The first part of the development of insight had been Dr Ahmedsowida’s acceptance that the findings of misconduct had been made, his apology and expression of remorse. He had set out in his reflective statements a recognition of the effect of the misconduct on the profession and the public. The Tribunal has set out above in its determination on Impairment how Dr Ahmedsowida has further work to do to persuade a Tribunal that he has fully remediated. The Tribunal acknowledged that, as had been stated in Giele, there can be a public interest in returning a doctor to practice, in an appropriate case. 43. The Tribunal therefore determined that suspension of his registration was the appropriate sanction. It considered that suspension will serve as a deterrent to warn that his conduct is unacceptable. A period of suspension would also allow for Dr Ahmedsowida to carry on with his remediation, the outcome of which will then be considered by a further Tribunal at a later point, as the Tribunal will direct a review of the order. 44. The Tribunal concluded, taking all matters into account, that allowing for the remediation that Dr Ahmedsowida has commenced and the prospect that he may be successful in remediating his past misconduct, his conduct is not fundamentally incompatible with registration. 45. The Tribunal is satisfied that suspension would be sufficient to meet the overarching objective and, in particular promoting and maintaining public confidence and proper professional standards in the medical profession. The Tribunal considered that an informed member of the public would be aware not only of the doctor’s misconduct, but also of the history of the remediation on which Dr Ahmedsowida had embarked and the fact that he had been in work for a considerable period since the High Court appeal without further incident. 46. The Tribunal took into account that a period of suspension will have a serious effect on Dr Ahmedsowida, professionally, financially and personally. It acknowledged the evidence that had been given about the effect of the previous period of immediate suspension on Dr Ahmedsowida and the submission made by Mr Gledhill. However, the Tribunal considered that it was bound to apply a serious sanction, in light of the serious misconduct which had occurred. The Tribunal balanced Dr Ahmedsowida’s interests with the public interest and found that the sanction of suspension was proportionate. 47. Having decided that Dr Ahmedsowida’s conduct was not fundamentally incompatible with continued registration as a doctor, the Tribunal determined that a period of suspension was the least sanction which met the level of impairment. Accordingly, the Tribunal considered that erasure was unnecessary and would therefore be disproportionate in the circumstances.”
“Length of Suspension 48. Having determined to impose a period of suspension on Dr Ahmedsowida’s registration, the Tribunal went to on to consider the length of the period of suspension. It considered the following paragraphs of SG: ‘100 The following factors will be relevant when determining the length of suspension: a) the risk to patient safety/public protection b) the seriousness of the findings and any mitigating or aggravating factors c) ensuring the doctor has adequate time to remediate. 101 The Tribunal’s primary consideration should be public protection and the seriousness of the findings. Following any remediation, the time all parties may need to prepare for a review hearing if one is needed will also be a factor’ 49. The Tribunal considered that a sufficient period of suspension is needed to allow time for Dr Ahmedsowida to complete his remediation. In addition, there is a need to mark the seriousness of Dr Ahmedsowida’s misconduct and to declare and uphold proper standards of behaviour, taking into account the aggravating and mitigating factors in this case. 50. Having taken all these matters into account the Tribunal determined to impose a twelve-month period of suspension on Dr Ahmedsowida’s registration. It considered that the case, involving as it does, persistent dishonest conduct, was serious. Therefore a period of twelve months is proportionate to the gravity of the findings of the Tribunal and would be sufficient to send a signal to Dr Ahmedsowida, the wider profession and the public. 51. The Tribunal considered the submission that Dr Ahmedsowida had already served a period of immediate suspension of approximately eight months, from the conclusion of the 2021 Tribunal in April 2021 until the successful appeal in December 2021. The Tribunal accepted the submission that the cases of Adil and Lusinga demonstrated that it, in an appropriate case, it could take this period into account in determining the length of suspension. 52. The Tribunal noted, however, paragraph 101 of Adil. The Tribunal considered that the suspension in this case is required for a period sufficient to return Dr Ahmedsowida to fitness to practise, to mitigate the risk and to protect the public whilst his remediation continues. In the circumstances, the Tribunal did not consider that it is appropriate to take into account the previous period of immediate suspension when determining the length of this suspension. It therefore did not take the previous immediate suspension into account.”
“99. ….. Insofar as the purpose of the sanction is to punish the practitioner or deter him from repetition of the conduct in question, it is a matter of common fairness that account should be taken of the punitive and deterrent effect of having already been deprived of the ability to practice for a period under temporary suspension orders. To that extent there is a direct analogy with sentencing for criminal conduct in which time spent in prison on remand is automatically credited against the sentence imposed for the offence. 100. It may also be appropriate to take into account periods of interim suspension insofar as the sanction is intended to mark the gravity of the offence so as to send a message to the profession and to the public. If, for example, there were a contrite practitioner with full insight into misconduct which was sufficiently serious to warrant suspension, the necessary message could be sent to the profession and the public by the tribunal making clear that the gravity of the misconduct needed to be marked by a suspension of a stated length; but that in fairness to the practitioner, he should be allowed to return to practice immediately, or within a lesser period, by reason of his already having been deprived of the ability to do so in the period prior to the imposition of the sanction. Messages depend upon the terms in which they are sent, and tribunals ought to be able to frame their decisions in language which enables the appropriate message to be sent whilst ensuring fairness to the practitioner in question. 101. However where, or insofar as, the suspension is required to return the practitioner to fitness to practise, and/or to mitigate the risk of further commission of the misconduct, and/or for the continued protection of the public from harm, periods of interim suspension may have little or no relevance. In those cases the length of suspension is tailored to what is necessary for the removal of impairment, removal of risk of repetition, and maintaining the safety of the public. Time already spent suspended from practice has no direct bearing on the length of a suspension which is necessary to achieve these objectives. To give credit for time away from practice under interim suspension orders in such cases would be likely to undermine those objectives in protecting the public from harm, promoting professional standards in the profession and promoting and maintaining trust in the profession. 102. This is consistent with the decision of Dingemans J, as he then was, in Kamberova v Nursing and Midwifery Council[2016] EWHC 2995 (Admin) and his reasoning at [36] and [40]. We were referred to the remarks made by Eady J in Ujam v. General Medical Council[2012] EWHC 683 (Admin) at [5] and Silber J in Abdul-Razzack v General Pharmaceutical Council[2016] EWHC 1204 (Admin) at [84]-[85]. They were saying no more than the particular purposes of professional sanctions mean that there is no universal analogy with periods of imprisonment served on remand. That point is well made. It does not mean, however, that time spent suspended under interim orders should generally be ignored, and it may be required to be taken into account in favour of the practitioner within the framework of the sanctioning objectives in the ways I have suggested. 103. In this appellant’s case the suspension was required to rehabilitate him so as to remedy his continued impairment to practice through lack of insight; to remove or mitigate the risk of further commission of the misconduct; and for the protection of the public from harm. The six month period was necessary for those objectives, to which the period spent suspended under interim suspension orders was irrelevant. In those circumstances there was no error in the Tribunal failing to reduce it on account of the interim suspension orders. I would reject ground 3.”
“Immediate orders 172 The tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor. The interests of the doctor include avoiding putting them in a position where they may come under pressure from patients, and/or may repeat the misconduct, particularly where this may also put them at risk of committing a criminal offence. Tribunals should balance these factors against other interests of the doctor, which may be to return to work pending the appeal, and against the wider public interest, which may require an immediate order. 173 An immediate order might be particularly appropriate in cases where the doctor poses a risk to patient safety. For example, where they have provided poor clinical care or abused a doctor’s special position of trust, or where immediate action must be taken to protect public confidence in the medical profession. …… 178 Having considered the matter, the decision whether to impose an immediate order will be at the discretion of the tribunal based on the facts of each case. The tribunal should consider the seriousness of the matter that led to the substantive direction being made and whether it is appropriate for the doctor to continue in unrestricted practice before the substantive order takes effect.”
“The Tribunal’s Determination 6. In reaching its decision, the Tribunal has exercised its own judgement, and has taken account of the principle of proportionality. The Tribunal has borne in mind that it may impose an immediate order where it is satisfied that it is necessary for the protection of members of the public, is in the public interest, or is in the best interests of the practitioner. 7. The Tribunal had regard to the following paragraphs of the SG: [The Tribunal set out SG paragraphs 172, 173, 178]. 8. The Tribunal noted that Dr Ahmedsowida had been working as a competent doctor since January 2022 and considered that the imposition of an immediate order was not necessary for the protection of the public. 9. The Tribunal also considered that the public interest had been met by the substantive order. 10. Further, the Tribunal noted that the GMC had not submitted that such an order was necessary. 11. In the circumstances the Tribunal determined that the imposition of an immediate order on Dr Ahmedsowida’s registration was not necessary to protect the public or to satisfy the wider public interest. There was no suggestion that an immediate order was in the doctor’s interest. 12. This means that Dr Ahmedsowida’s registration will be suspended from the Medical Register 28 days from the date on which written notification of this decision is deemed to have been served, unless he lodges an appeal. If Dr Ahmedsowida does lodge an appeal he will remain free to practise unrestricted until the outcome of any appeal is known.”
“The Guidance recognises that the effect of an order of immediate suspension is to impose an additional period of suspension upon a doctor because he or she will normally not be suspended until the expiry of 28 days or, if an appeal is brought, until the appeal has been disposed of. The statutory test for the imposition of an immediate order is either (a) that it is necessary for the protection of members of the public, or (b) that it is in the public interest, or (c) that it is in the best interests of the practitioner.”