Dr Abayomi Lukman Sanusi v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Mrs Justice Theis DBE,Lord Justice David Richards |
| Judgment Date | 16 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1172 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2018/1677 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT SITTING AT LEEDS
MR JUSTICE KERR
[2018] EWHC 1388 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice David Richards
Lady Justice Simler
and
Mrs Justice Theis
Case No: C1/2018/1677
The Appellant appeared in person
Jenni Richards QC and Alexis Hearnden (instructed by The General Medical Council) for the Respondent
Hearing date: 25 June 2019
Approved Judgment
Introduction
This appeal arises out of a decision of the Medical Practitioners Tribunal (“the Tribunal”) made on 18 October 2017. The Tribunal found a number of allegations amounting to serious misconduct proven against the Appellant, Dr Abayomi Lukman Sanusi, including a finding of dishonesty in relation to an application for employment as a doctor, and found that his fitness to practise was impaired. At the same hearing, which the Appellant did not attend, the Tribunal imposed the sanction of erasure from the register.
The Appellant appealed the Tribunal's findings in relation to sanction only. At a hearing on 20 April 2018 before Kerr J the Appellant's counsel argued that the Tribunal's decision was wrong and unjust because the Tribunal should have considered adjourning at the sanction stage to enable the doctor to produce evidence of remediation, insight or remorse that might be relevant to sanction. He argued that the Tribunal's failure to do so meant no such evidence was available for consideration. In addition, certain documents sent by the Appellant to the Respondent and relevant to sanction, were not made available to or considered by the Tribunal. In these circumstances, the proceedings were procedurally unfair and the sanction imposed was wrong and disproportionate. Kerr J dismissed the appeal. His reasons for so doing are summarised below.
The Appellant, who now acts in person, appeals from that decision with permission to do so on two grounds (by order of Leggatt LJ dated 31 December 2018) as follows:
i) whether the Tribunal should have notified the Appellant of its findings of misconduct and given him an opportunity to make submissions before proceeding to sanction;
ii) whether the Judge was right to find that the process by which the sanction decision was reached was not rendered unfair by the failure of the Respondent to provide the Tribunal with evidence which the Appellant had asked to have taken into account in mitigation?
Factual background
The Appellant qualified as a doctor in Turkey in 2003, and arrived in the UK soon afterwards and began working as a doctor. With effect from 25 October 2010 he started work at the Friarage Hospital, Northallerton, part of the South Tees Hospital NHS Foundation (the “South Tees Trust”), as a Registrar in General Surgery.
In October 2012 concerns were raised in relation to the Appellant's clinical care of Patient A, a 67 year old admitted for elective repair of an incisional hernia in October 2012. No disciplinary action took place at that time. Further concerns arose in January 2014 when Patient C, a 92 year old was admitted with severe pain in the right calf. The Appellant was alleged not to have assessed Patient C's condition sufficiently when requested to do so by two colleagues and to have failed to communicate adequately with them. Internal disciplinary action was taken on this occasion and resulted in a final written warning being placed on the Appellant's file.
On 25 December 2014 Patient F (a 72 year old) was admitted as an emergency with severe abdominal pain and constipation. The Appellant's management of Patient F led to concerns that he failed to assess and manage the patient. Internal disciplinary action was taken once again. Although the disciplinary panel concluded that the appropriate sanction was a final written warning, the Appellant's live final written warning in respect of Patient C led to the conclusion that dismissal was appropriate.
By letter dated 3 July 2015, the South Tees Trust dismissed the Appellant, giving him notice to expire on 20 December 2015. On 8 July the Appellant's conduct was referred by the South Tees Trust to the Respondent. By letter dated 14 July 2015, the Respondent notified the Appellant that he was being investigated and enclosed documents arising from the referral.
Meanwhile on 1 July 2015 the Appellant submitted an electronic application form for employment as a Specialty Doctor in General Surgery at Rotherham NHS Foundation Trust (the “Rotherham Trust”) performing the same duties as he had done with the South Tees Trust. The form asked no specific questions about written warnings or disciplinary allegations or findings, and none were disclosed by him. He gave as his reason for leaving the South Tees Trust, “ Termination of contract. Personal difficulty contributed to by personality differences with an influential consultant.” The Tribunal was later to find that the Appellant would not necessarily have known that he had been dismissed at the time the form was submitted; and that nothing recorded on the form gave the impression that he had not previously had written warnings.
On 30 July 2015 the Appellant attended an interview with the Rotherham Trust. The Appellant was not asked any direct questions about disciplinary warnings at interview. However, by then he had been informed of his dismissal with notice by letter dated 3 July. Dr Garner of the Rotherham Trust, who interviewed him, later gave evidence that questions were asked of the Appellant about the circumstances of his departure from the South Tees Trust and he responded that there was an ongoing investigation in relation to one incident, but had chosen to resign from his post because of the intolerable working situation with a colleague. These statements were subsequently found to be untrue by the Tribunal since, whether or not the Appellant intended to exercise his internal rights of appeal against dismissal, the internal disciplinary investigation had concluded and he had been dismissed with notice. Further, it was alleged he told Dr Garner at interview, that the investigation by South Tees Trust was mainly down to personality clashes. This too was held by the Tribunal to be untrue.
Dr Garner also said that the Appellant gave the impression at interview that the Respondent's investigation was a “minor formality” and that he was awaiting the “all-clear”. While this was not in fact true, the Tribunal had regard to the Respondent's letter and concluded (in light of its statement that, “The majority of cases are closed with no action at the end of the investigation.”) the Appellant had probably persuaded himself that the Respondent's investigation was a formality and that he would be vindicated. The formal charge relating to this aspect of the dishonesty allegations was therefore found not to be proved.
Although a conditional offer of employment was made by Rotherham Trust following the interview, it was subsequently withdrawn, and by email dated 8 September 2015 the Appellant was told that this was because he did not give “full details of [his] fitness to practise history and reason for leaving [his] previous role” in his application form or at interview. Rotherham Trust indicated that they would be discussing the discrepancy further to determine whether to refer this to the Respondent. Ultimately this incident was referred to the Respondent and was the subject of a number of charges (5(a) to 5(e)). Findings of misleading and dishonest conduct were made in relation to some (though not all) of the untrue statements proved to have been made by the Appellant at interview with Dr Garner on 30 July 2015.
In October 2015 the Appellant commenced employment as a Specialty Doctor in breast surgery at Doncaster and Bassetlaw Hospitals NHS Foundation Trust. Both of his clinical supervisors (Dr Olubowale and Dr Kolar, both Consultant Breast Surgeons) provided positive clinical supervisor report letters to the Respondent about him.
The Appellant left that post on 3 October 2016 and took up a position as a trainee GP in February 2017. His clinical supervising doctor was Dr Alison Roberts. She too provided a positive testimonial letter about the Appellant, describing him as a “ very reliable and punctual member of the team who has always completed all tasks set for him.” Although some areas of clinical concern were identified, she said the Appellant “ always keenly addressed concerns with on-line and other sources of learning and updates”.
The Respondent's investigation
The Appellant was sent a ‘rule 7’ letter dated 11 October 2016. This set out the draft charges to be sent to the Respondent's case examiner, who would determine whether and if so on what basis, the Respondent should proceed to the Tribunal with disciplinary allegations against the Appellant.
The Appellant responded in detail to the rule 7 letter, providing, in tabular form, his summary response to each allegation and a more detailed explanation. Within that document he made clear that he did not agree with the allegations relating to Patients A, C and F. He gave his own detailed account of what had occurred.
So far as concerns the application for employment at Rotherham Trust, he disagreed with the allegations of deliberate misleading and dishonesty, maintaining he had disclosed his situation at South Tees Trust on the application form and at the time of the interview, and although he had notice of termination of his contract by the time of the interview, he had been informed of a right to appeal and intended “ to go through the appeal process, win it (that is achieve a reversal of termination of my contract), and then submit my resignation thereby...
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