Dr Collen Nkomo v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] EWHC 2625 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/271/2019 |
| Date | 09 October 2019 |
[2019] EWHC 2625 (Admin)
Mr Justice Julian Knowles
Case No: CO/271/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MANCHESTER DISTRICT REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Rob Kearney (instructed by Olliers Solicitors Ltd) for the Appellant
Peter Mant (instructed by General Medical Council) for the Respondent
Hearing dates: 5 June 2019
Approved Judgment
The Honourable Mr Justice Julian Knowles
Introduction
This is an appeal by Dr Collen Nkomo against the decision of the Medical Practitioners Tribunal of 20 December 2018 erasing his name from the register of medical practitioners that is kept by the Registrar of the General Medical Council (the GMC) under s 2 of the Medical Act 1983 (the MA 1983). The GMC is the statutory regulator of the medical profession.
The appeal is brought pursuant to s 40 of the MA 1983.
The factual background
Dr Nkomo qualified as a doctor in Zimbabwe in 2002 before coming to the United Kingdom and becoming a British citizen. Between 2013 and 2015 he worked as a locum general practitioner at various times through various employment agencies. He was very well paid.
On 26 October 2015 Dr Nkomo was convicted at Manchester and Salford Magistrates Court of motoring offences relating to an incident on 8 February 2015 when he was stopped by the police on suspicion of drunk driving. He failed to provide a sample of breath at the roadside and on two occasions whilst in custody. He was convicted of failing to provide a specimen contrary to s 7(6) of the Road Traffic Act 1988. He was sentenced on 13 November 2015 to 60 hours of unpaid work and was disqualified from driving for two years. He did not report these charges or his conviction to the GMC at the time.
On 30 May 2017 Dr Nkomo was convicted at Manchester Crown Court of fraud by false representation contrary to ss 1 and 2 of the Fraud Act 2006. The particulars of the offence alleged that he had failed to provide full and accurate details of his income to the Child Support Agency in connection with maintenance payments for his child. On 24 July 2017 he was sentenced to 20 months imprisonment suspended for 24 months. The background was that between April 2013 and July 2014, Dr Nkomo made a series of representations to the CSA, in correspondence and over the telephone, to the effect that he was not working in the UK, or that he was just setting up a company, or that he was out of the country, when in fact he was working regularly in the UK as a locum doctor for a number of agencies with an income in excess of £200 000. He maintained his dishonest account when he was interviewed under caution on 3 December 2015, although he later pleaded guilty to fraud. As a result of the fraud, he avoided child maintenance payments that should have been made, totalling about £40 800.
Dr Nkomo self-referred to the GMC in respect of both convictions on 14 August 2017.
The Tribunal heard Dr Nkomo's case over four days between 17 December 2018 and 20 December 2018. He admitted the convictions and sentences, and the fact that he failed to notify the GMC without delay of the charges and subsequent convictions and sentences. In total, he admitted six misconduct matters.
The Tribunal directed itself in relation to impairment by reference to the decision in Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin) which requires a two-stage approach. First, the Tribunal must consider whether the facts as found amount to misconduct. Second, the Tribunal has to consider whether the misconduct is sufficiently serious to amount to impairment.
The Tribunal found that Dr Nkomo's fraud conviction related to sustained dishonesty and that this amounted to misconduct which impaired his fitness to practice. It said the motoring conviction alone would not have led to a finding of impairment.
In relation to sanction, the GMC submitted that the only appropriate sanction was erasure given the seriousness of Dr Nkomo's misconduct and convictions, in particular, his misconduct for fraud, which involved a loss of some £40 800. The GMC said there were few mitigating factors and Dr Nkomo had shown limited insight.
Dr Nkomo accepted that suspension would be an appropriate sanction but argued against erasure. He placed particular reliance on the GMC's Sanctions Guidance which, he submitted, distinguished between ‘sustained acts of dishonesty’ for which suspension was appropriate and ‘dishonesty which is persistent and/or covered up’ for which erasure was appropriate. The Tribunal found the following aggravating factors including: the seriousness of the fraud conviction, involving as it did criminal dishonest conduct over two years and seven months; that the primary victim of his dishonesty was his child; that he had failed to report either matter; he only had partial insight into his offending; and that he gained financially from his offending. It found the following mitigating factors ( inter alia): his personal circumstances, including the breakdown of his relationship; that there were no issues with his clinical competence; he had begun repaying child maintenance arrears; a low risk of re-offending; a degree of insight; the effect of a more severe sanction; and expressions of remorse.
The Tribunal correctly approached its sanction determination by working its way up the list of potential sanctions in the manner required by the Sanctions Guidance. It held that suspension would not be appropriate because it found that Dr Nkomo's behaviour lay at the top end of the spectrum of gravity of misconduct. It had regard to Theodoropoulos v General Medical Council [2017] EWHC 1984 (Admin), in which the Court held (a) the importance of honesty and integrity in the medical professions is generally recognised in the case law; (b) findings of dishonesty lie at the top end of the spectrum of misconduct; (c) the case law recognises that where a doctor engages in deliberate dishonesty and lacks insight, erasure may in practical terms be inevitable; (d) the misconduct need not take place in a clinical setting before it renders erasure rather than suspension the appropriate sanction.
The Tribunal rejected suspension for the reasons it gave at [41] namely: Dr Nkomo's fraud lasted two years and seven months; it deprived his ex-partner and son of at least £40 800; he compounded matters by failing to report it; he only had partial insight; and he had made little acknowledgement of the impact his actions may have had on the profession as a whole. It therefore held that his misconduct lay at the top end of the spectrum.
The Tribunal addressed erasure as a sanction at [42] et seq. It had regard to [108] and [109] of the Sanctions Guidance. At [44] it held that Dr Nkomo's dishonesty was fundamentally incompatible with being a doctor, and said that this issue was, according to [97(a)] and [109(a)] of the Sanctions Guideline, the critical issue in determining whether erasure or suspension was the appropriate sanction. It rejected the arguments based on a supposed distinction between ‘sustained’ and ‘persistent’ dishonesty. At [51]–[52] the Tribunal concluded:
“The Tribunal concluded that Dr Nkomo's behaviour is fundamentally incompatible with continued registration given the serious, deliberate, and dishonest nature of the Fraud Conviction, and the length of time for which he delayed informing the GMC of both the Driving and the Fraud Convictions. Paragraph 109(a)(b) and (h) [of the Sanctions Guidance] all indicate that erasure is the appropriate sanction in such circumstances. The Tribunal considered that any lesser sanction, including suspension would not fulfil the over-arching objective, as it would fail to mark the seriousness of [the Registrant's] conduct, and thus undermine public confidence in the medical profession and undermine proper professional standards. In light of the guidance in the case law and the SG as to the weight to be given to the mitigating factors in this case, the Tribunal considers that it could not justify a lesser sanction.
52. The Tribunal has therefore determined that erasure is the only sufficient sanction which would maintain public confidence in the profession and send a clear message to the profession and the public that Dr Nkomo's misconduct constituted behaviour unbefitting and fundamentally incompatible with that of a registered doctor.”
Grounds of Appeal
Dr Nkomo does not challenge any of the Tribunal's findings on the facts or impairment. His appeal is against the sanction only. He submits that the appropriate sanction was one of suspension, not erasure.
Two grounds are raised in the notice of appeal, namely that the Tribunal:
a. Failed to give due weight and consideration to the circumstances prevailing at the material time in 2012 and 2013 leading him into his conduct with the CSA; and
b. Failed to adequately distinguish between standards of conduct meriting suspension as a sanction as opposed to erasure.
In his helpful Skeleton Argument and oral submissions Mr Kearney on behalf of Dr Nkomo focussed on the second of these grounds of appeal. He said that this was a case that fully deserved suspension, but the further step of erasure was wrong.
He pointed to [91] to [106] of the Sanctions Guidance, which prescribe the factors relevant to the imposition of suspension as the appropriate sanction. He said that [93] provides that suspension may be appropriate where there is acknowledgement of fault and where the tribunal are satisfied that the behaviour is unlikely to be repeated. He said this was such a case, and he relied on the finding that there was a low risk of re-conviction and that Dr Nkomo was remorseful. He said that...
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