Doctor A.b. V. The General Medical Council
| Jurisdiction | Scotland |
| Judge | Sheriff Alastair Carmichael |
| Court | Sheriff Court |
| Docket Number | Raschid/Fatwani |
| Date | 31 January 2014 |
| Published date | 04 February 2014 |
Sheriffdom of South Strathclyde Dumfries and Galloway at Ayr
Decision of
Sheriff Alastair Carmichael
Sheriff of South Strathclyde, Dumfries and Galloway
in causa
Doctor AB,
PETITIONER
against
The General Medical Council
RESPONDENTS
McSherry, solicitor, for the Petitioner
Watt, solicitor, for the Respondents
26 July 2013, the Sheriff having resumed consideration of the case;
grants the Petitioner's appeal to the extent that the Registration Appeal Panel decision is quashed, refuses to grant the Petitioner a certificate of fitness to practice, directs that the matter be remitted to the Registrar per paragraph 5(4)(b) and (d) of schedule 3A of the Medical Act for reconsideration of the Petitioner's application for registration and orders that the case be put out for a hearing on expenses on a day to be fixed by the Sheriff Clerk.
NOTE
[1] This case is a summary application brought under the Medical Act 1983 ("the Act"). The Petitioner petitions the court to, "grant an order ordaining the Registration Appeal Panel of the General Medical Council to grant the petitioner a certificate of fitness to practice." That is expanded in the Petitioner's plea-in-law by the addition of the words "or do otherwise as it seems fit to the Court appropriate." In effect this means that this court would quash the Respondents' Registration Appeal Panel ("RAP") decision of 11 October 2012 that the Petitioner had failed to satisfy the registrar that his fitness to practice is not impaired, and thereafter substitute a finding that the Petitioner had satisfied the Registrar that his fitness to practice is not impaired - or do otherwise as seems fit.
[2] The case called before me over two days. There had been answers launched to the summary application and a record had been produced for the hearing. There were also written notes of arguments for the Petitioner and the Respondents, lists of authorities for both of the parties, the productions that the RAP had considered and a transcript of the Petitioner's evidence at the RAP hearing on 25th of September 2012.
BACKGROUND
[3] There was little of the background to this case that was in dispute. While there was no issue about what may constitute "impairment" of fitness to practice, I include information about that at the outset in order to put matters into context.
[4] The Respondents are the General Medical Council (GMC) which is statutorily responsible under the Act for the process of registration of doctors in the United Kingdom. Section 1 (1A) states that the main objective of the GMC in exercising its functions is to protect, promote and maintain the health and safety of the public.
[5] Part II of the Act makes it clear that a person who holds a recognised UK medical qualification is entitled to be registered as a fully registered medical practitioner as long as he or she satisfies the conditions laid out in section 10 of the Act. Those conditions include that the person must have then worked for a period of time at an approved medical institution and been granted a certificate that his or her service while so employed had been satisfactory. If a doctor wishes to practice as a registered medical practitioner in the UK then he or she must apply to the GMC for such registration. The application for registration is made by the applicant doctor to the GMC. That application is considered by the Registrar or an Assistant Registrar of the GMC, and if the doctor is dissatisfied with that decision then he or she can apply by way of appeal to the RAP.
[6] If the applicant doctor has an overseas qualification the process is governed by Part III of the Act (sections 19 to 29) entitled 'registration of persons qualifying overseas'. That registration will not be achieved unless the applicant doctor can satisfy the Registrar of the things that are listed in section 21B(1) (a) to (e). It is the requirement in section 21B(1)(c) that is at the heart of this case.
[7] Section 21B (1)(c) requires the applicant overseas doctor to satisfy the registrar 'that his fitness to practice is not impaired'. The Registrar (and, at an appeal the RAP) therefore cannot decide the matter of registration without first considering whether the applicant doctor has satisfied them that his fitness to practice is not impaired.
[8] What constitutes impairment of fitness to practice is defined for the purposes of the Act at section 35C(2). This states that a person's fitness to practice shall be regarded as 'impaired' for the purposes of the Act by reason only of five matters that are listed in subsections (a) to (e). For the purposes of this appeal it is the reason given in subsection (a) that is relevant, and that is, "misconduct".
[9] The GMC booklet Good Medical Practice contains information encouraging doctors to stay up-to-date with developments and contains a section on probity. That section on probity contains the quote, 'probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism'. That is linked with the general information in the booklet that patients should be able to trust doctors with their lives and health and in order to justify that trust doctors must show respect for human life and must....be honest and open and act with integrity... (and be) personally accountable for their professional practice and must always be prepared to justify their decisions and actions.
[10] The GMC Registration Decisions Guidance of June 2008 gives some pointers about the questions of fitness to practice and what may amount to misconduct. Under the heading 'medical professionalism' it refers at paragraph 196 to the GMC publication Good Medical Practice and underlines that probity is important for registered doctors and that "probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism.' It stresses at paragraph 197 that doctors must make sure that their conduct at all times justifies their patients trust in them and the public's trust in the profession. Paragraph 198 refers to a Table 1 identifying factors that the registrar may wish to consider when dealing with matters relating to the applicant's conduct, property or integrity.
Table 1 includes;
Issue on which our advice is sought
1 Whether, in the light of a conviction or caution or misconduct, the applicant's fitness to practice is considered to be impaired.
Factors to consider
2 Whether it is a single occurrence or there is a pattern of dishonesty
3 Whether the applicant declared the matter when applying for registration
4 If not, whether his or her explanation for not doing so is reasonable or whether it suggests that he or she was intending to mislead
5 The seriousness of the offence and the extent to which it brings, or could bring, the profession into disrepute
6 whether the applicant has shown remorse
7 whether the applicant has shown insight into the seriousness of his or her behaviour and how it reflects on the profession
12 where appropriate, whether the doctor's actions and/or omissions were:
a. dishonest and sufficiently inappropriate and/or serious to warrant a finding that the applicant's fitness to practice is impaired
b. Misleading and whether that was due to miss understanding or lack of care rather than dishonesty
[11] The Petitioner is a doctor of medicine who now resides in Scotland. He holds the degree of Bachelor of Medicine and Bachelor of Surgery from a Nigerian University, awarded on 4 July 2005. The governing body for medical practitioners in Nigeria - and in some respects the equivalent of the GMC - is the Medical and Dental Council of Nigeria (MDCN). He was issued with a provisional registration certificate by the MDCN on 12th of September 2005. He then undertook his internship training between 6 March 2006 and 6 February 2007 in Nigeria. A certificate of full registration was required for a doctor to work in other than an internship capacity. The Petitioner applied 3 months late to the MDCN for his full registration on 23 August 2007 - and it was granted the same day. He was fined what appears to have been a fixed penalty sum for this late application. Meanwhile the Petitioner worked as a locum doctor between 6 February 2007 and 1 October 2007 without holding full registration. Specifically, he did not have a full registration between 6th of February 2007 and 23rd of August 2007. This period of unregistered practice was at the Z (private) Hospital in Nigeria. The MDCN issued the Petitioner with a Certificate of Good Standing dated 14th of December 2011 but this was done in ignorance of the fact that he had worked at the Z Hospital as a locum doctor without full registration. The MDCN would not have issued that certificate of good standing if it had known he had practised in a non-internship post without holding full registration.
[12] On 15 December 2011 the Petitioner submitted online the GMC application form applying for registration under section 21B of the Act. The Petitioner submitted the certificate of good standing from the MDCN in support. The Petitioner answered 'no' to all of the questions regarding fitness to practice and by ticking the relevant box, including the question 'have you ever been fined, given a warning or reprimanded by any medical, health, social care or any other regulator in the UK or another country?' In a declaration section at the end of the form he confirmed that the information that he had provided in this application form was correct and true. In this form the Petitioner stated inter alia that he had completed his internship in Nigeria on 5 February 2007, had been registered with the MDCN since 12th of September 2005 and had worked as a medical officer from 2nd of October 2007. This left a gap in his medical work between 5th of February 2007 and 2 October 2007. The Petitioner did not mention his period of employment (without being fully registered) as a locum doctor at the Z...
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