Council for the Regulation of Health Care Professionals v General Medical Council and Another (Basiouny)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goldring |
| Judgment Date | 10 November 2006 |
| Neutral Citation | [2006] EWHC 2784 (Admin),[2005] EWHC 68 (Admin) |
| Docket Number | Case No: CO/1370/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 November 2006 |
[2006] EWHC 2784 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon. Mr Justice Goldring
Case No: CO/1370/2006
Robert Jay Q.C. (instructed by Baker & McKenzie Solicitors) for theAppellant
Robert Englehart Q.C. (instructed by the Legal Department of the GMC) for theRespondant GMC
Christina Lambert (instructed by Legal Department of the Medical Defence Union) for the Respondant Dr Saluja
Mr Justice Goldring :
Introduction
On 26 August 2005 Dr. Saluja was charged with serious professional misconduct.
On 19 January 2006 the Fitness to Practise Panel (FPP) which heard the charge stayed the proceedings as an abuse of process on the basis of entrapment. Three other similar applications by three other doctors failed. The Council now seeks to appeal the stay. Two issues are raised. First, do I have jurisdiction to hear the appeal? Second, if so, was the FPP manifestly wrong in the decision it reached.
The allegations
The charge is self explanatory. As material, it read as follows:
"On 14 November 2003 at [your surgery] at 117 Fulborne Road, London E17, you were consulted by Rachel Dobson, an undercover journalist posing as a patient…Ms Dobson asked you to provide her with a sickness certificate…[she] told you that she wanted the certificate to…enable her to take time off work [and] have a holiday…[She] made it clear to you that illness was not the basis for her request for a certificate…You advised [her] to make an appointment with you nearer the time. …You suggested to [her] that at that future consultation…she could state that she was suffering from 'stress or depression or whatever you feel like'…that she should not mention that she wanted to have a holiday…'I can guarantee that I will give it [the certificate] you at that time'…
You had no basis upon which reasonably to conclude that Miss Dobson was suffering from an illness which could properly give rise to the issuing of the certificate …
Your actions as outlined above were…inappropriate… dishonest… an abuse of your position…
And that in relation to the facts alleged you have been guilty of serious professional misconduct."
The transcript of the conversation
Ms Jobson surreptitiously recorded what was said between her and Dr. Saluja. I shall only refer to part of what was said. The recordings were not very clear.
She said she was trying to get some time off work: that she had been told she needed to get a note to do that. She was wondering what the procedure would be. Dr. Saluja's initial reaction was that
"We normally give a medical certificate after the first week…you need to give a medical reason."
Ms Dobson made it plain that she did not want to work over Christmas. Dr Saluja suggested she speak to her employer. She said that she needed a note. A friend had suggested
"sort of, privately I might be able to pay a fee in order to get a private note, as an option."
This interchange took place.
"When do you want that, actually? I want to get it to make sure that I have the week of Christmas off. You must come at that time, then I'll give it to you at that time I can't do it now."
Dr Saluja said he could give her a certificate "If she had a valid problem from today." When she offered more money he said
"No we can't do that…if it is at that time if you can give us a medical reason then fine we can give it to you…"
She said she didn't want to give a medical reason. She wanted time off work, that is why she went "sort of privately." Dr Saluja said that he couldn't do it at that time (November) for Christmas. This interchange took place.
"We've got to give a medical reason…it can be stress or depression, whatever you feel like…
No, No, I understand that, but you could for example say it was stress or something like that.
That's fine, we can do it but at that time.…
… my boyfriend's basically given me about £1,000 to get a note… Is there any way I could get a note with that to guarantee that I've definitely got the time…I just really, really want to get the time off.
We can do it…at [Christmas]…not…now…I can't give it today. I'll have to give it to you at that time. I can guarantee that I can give it to you at that time…not that much in advance."
Ms Dobson asked,
"How much would a certificate like that cost at the time?
Normally it is not very costly, but we've got to see what problem you are having at that time…and what medical condition you are having."
When Dr Saluja asked her if she was there privately she said she was. She was not unhealthy. She needed a holiday. Dr Saluja said,
"What we can do in your scenario, we can document that you are suffering from stress nearer the time I can give you medical certification at that time…Supposing you don't need it, that's fine."
Dr Saluja said that for £1,000 he could not provide a certificate in advance. He could provide one a couple of days before,
"If you let me know and tell me you have a problem.
…the reason I want to have one is because I want to have a holiday…
…[you] should not tell me. If you tell me then I perhaps won't be able to do it. The best thing is just to take it easy and let me know at that time and we can issue. I need to know that, yes you are not well then I'll issue a certificate – not now…
A patient can come to me and tell me "look I'm having this problem and I want a sick note" and the patient might be going on holiday or whatever he was going to do, it's not my concern…
Do you understand that?
…So if I come the week before?
Yes that's fine … we'll give documents…
OK and then I'll pay at that time? Do you want me to pay today for the consultation?
Yes for consultation…
So at the moment your feeling stressed about work is it?
Yes, well, not so much at the moment.
Well for domestic purposes …"
Dr Saluja began to write some notes, presumably for the medical records. He said Ms Dobson could see him before Christmas.
"…I can assure you that if you still have the problem then I can give you [the certificate] no problem. It's not a very big deal. But…not in advance. [It looks] very abnormal for me to tell you now that yes you will be sick at that time."
The General Medical Council relied upon the recording. Ms Dobson was present to give evidence.
The legal framework
By Section 35(D) of the Medical Act 1983,
"(1) Where an allegation against a person is referred…to a[n] [FPP], subsection (2) and (3) below shall apply.
(2) Where the Panel find that the person's fitness to practise is impaired they may, if they think fit —
(a)…direct that the person's name shall be erased from the register;
(b) direct that his registration…shall be suspended…
(c) direct that his registration shall be conditional…"
Because Dr. Saluja's case had been referred to the Professional Conduct Committee before the coming into force of section 35(D), it fell to be dealt with by the FPP under section 36 of the Act. For present purposes it is agreed to make no difference. The possible sanctions are identical and the power to impose them similarly expressed.
Section 25 of the National Health Service Reform and Health Care Professions Act 2002 created the Council. The history and the Council's general functions are referred to in detail in the judgment of the Court of Appeal in CRHCP v. General Medical Council [2005] 1 WLR 1 at paragraphs 5–7.
By section 26,
"(3) The Council may not do anything in the case of any individual in relation to whom –
(a) there are, are to be or have been proceedings before a committee of a regulatory body…, or
(b) an allegation has been made to the regulatory body or one of its committees…which could result in such proceedings.
(4) Subsection (3) does not prevent the Council from taking action under section 28 or 29, but action under 29 may only be taken after the regulatory body's proceedings have ended."
By Section 29(1),
"This section applies to –
…(c) a direction by a [FPP] under section 35(D) of the Medical Act 1983…that the fitness to practise of a medical practitioner was impaired otherwise than by reason of his physical or mental health…"
By Section 29,
"(2) This section also applies to –
(a) a final decision of the relevant committee not to take any disciplinary measure [under Section 35D of the Medical Act 1983]…
(3) The things to which this section applies are referred to below as "relevant decisions."
(4) If the Council considers that –
(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both, or
(b) a relevant decision falling within subsection (2) should not have been made,
and that it would be desirable for the protection of members of the public for the Council to take action under this section, the Council may refer the case to the relevant court…
…(8) the court may –
(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee…or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court,
and may make such orders as to costs … as it thinks fit."
Jurisdiction
The Council accepts that the FPP had the power to stay proceedings...
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