Dr Eric Brew v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Gosnell |
| Judgment Date | 10 September 2014 |
| Neutral Citation | [2014] EWHC 2927 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 September 2014 |
| Docket Number | Case No: CO/17580/2013 |
[2014] EWHC 2927 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Combined Court Centre, Oxford Row, Leeds
His Honour Judge Gosnell
(sitting as a Judge of the High Court)
Case No: CO/17580/2013
Mr Lee Gledhill (instructed by Lester Morrill inc. Davies Gore Lomax Solicitors) for the Appellant
Mr Simon Phillips QC (instructed by GMC Legal) for the Respondent
Hearing date: 28 th August 2014
This appeal is brought by the appellant pursuant to section 40 Medical Act 1983 against a sanction of erasure made by the Medical Practitioners Tribunal Service Fitness to Practise Panel (FTPP) on 21 st November 2013. The decision was made after a four day hearing where the appellant was represented and gave evidence. The facts of this case are somewhat unusual in that in addition to claiming that the decision to erase him was unjust and disproportionate the appellant also claims that as a consequence of the negligent advice he received from the barrister who appeared for him below (who did not appear on this appeal) the original hearing was procedurally unfair leading to an unjust conclusion.
The Facts
The underlying facts concerning the original disciplinary proceedings are mainly agreed. The appellant is a doctor and in 2011 was employed at Leicester Royal Infirmary as an ST4 Trainee in Acute Medicine. This meant he was a qualified doctor in the fourth year of specialist training. He had previously been employed at Kettering General Hospital before February 2011. On 8 th June 2011 the appellant received an email from Dr Jonathan Barratt the Head of School for the East Midlands (South) Postgraduate School of Medicine advising him that his e-portfolio containing records of various medical assessments evidencing his experience and training was inadequate. The appellant was told it would be reviewed on 27 th June 2011 and if it remained inadequate he would be asked to attend an Annual Review of Competency Progression (ARCP) panel on 1 st July 2011.
Between 13 th and 22 nd June 2011 the appellant accepts that he falsified 18 clinical assessment entries on his e-portfolio on four separate occasions giving the impression that the named assessors (mainly supervising consultants) had been involved in the completion of those entries when he now accepts they were not. When he was asked about these entries at the ARCP panel on 1 st July 2011 he falsely informed its members that he had taken a week off work to visit the consultants at Kettering General Hospital and had "sat down" with the named assessors who had all been involved in the completion of the entries in relation to his e-portfolio. The appellant did not correct this false information directly with the ARCP panel that day but went straight to the hospital at Kettering where he sought to meet with the consultants whose assessments he had forged in order to apologise to them. Not surprisingly, one of the consultants contacted his then current employers who referred the appellant to the Respondent's Fitness to Practise Panel in the light of their concerns about the probity of the appellant's conduct. The appellant admitted what he had done and expressed regret.
The hearing before the FTPP
The appellant has been permitted by order of Her Honour Judge Coe QC dated 28 th April 2014 to rely on fresh evidence in this appeal and has filed a further statement dated 25 th March 2014. In his statement he explains that when he realised he was about to face disciplinary proceedings he approached a local solicitor who instructed a local barrister, neither of whom had experience of hearings before the FTPP. He contended that he had always accepted he had been dishonest, both in completing the e-portfolio entries and in lying to the ARCP panel and that shortly before the hearing he had confirmed to his solicitor that he intended to accept all the charges brought against him.
On the first morning of the tribunal hearing he met with his barrister who advised him that if he accepted that he had been dishonest then his fitness to practise was automatically impaired and that he would not be able to explain to the panel what had happened. He was therefore advised to deny the third charge which was the allegation that his conduct had been dishonest. He admitted the first two charges which related respectively to the creation of the false entries on the e-portfolio and the giving of false information to the ARCP panel. The hearing proceeded on a contested basis with the appellant giving evidence and being cross-examined. Not surprisingly perhaps, the panel found that his conduct was dishonest in both respects. The panel then went on to find that his fitness to practise was impaired by his dishonesty which they found to be serious. At this point the appellant claims he had a discussion with his barrister in which he questioned the tactical approach which the barrister had recommended and he decided to tell the panel that he accepted he had been dishonest and had realised this as soon as he left the ARCP panel on 1 st July 2011. He asserts that by this point in time the panel had formed a negative view of him particularly due to his failure to accept he had been dishonest at an earlier stage in the hearing. Although his barrister continued to represent him and submitted that a short suspension might be a sufficient sanction the panel resolved to erase him from the medical register. After the hearing the barrister recommended an appeal but felt that he may have a conflict of interest and could not personally conduct it.
The Law
Counsel for both parties have prepared very helpful skeleton arguments which set out the appropriate legal tests. There was little if any disagreement between them as to the relevant principles. Mr Justice Mostyn has helpfully summarised them in Luthra v General Medical Council [2013] EWHC 240 (Admin) as follows:
2. "The appeal is governed by CPR 52.11(3) which provides:
"The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court"
3. I have been given a bundle of authorities but the principles have all been succinctly captured by Laws LJ in the decision of Raschid v General Medical Council [2007] 1 WLR 1460 .
4. Taking the reasoning of Laws LJ in combination with CPR 52.11(3) the governing principles are:
i) I can only overturn the decision of the FTPP if I am satisfied that it was either wrong or unjust because of a serious procedural or other irregularity in its proceedings ( CPR 52.11(3))
ii) In determining whether the decision was wrong I must pay close regard to the special expertise of the FTPP to make the required judgment (Raschid paras 16, 19).
iii) Equally, I must have in mind that the exercise is centrally concerned with the reputation and standards of the profession, and the protection of the public, rather than the punishment of the doctor (paras 16, 18).
iv) The High Court will correct material errors of fact and 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 (para 20).
v) Where the appeal is against a sanction (as here) my decision must not constitute an exercise in re-sentencing or the substitution of one view of the merits for another (paras 21, 22).
5. In considering factor (iii) I remind myself of the words of Sir Anthony Clarke MR in General Medical Council v Meadow [2006] EWCA Civ 1390 [2007] 1 QB 462 at para 32:
"the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.""
There is very little authority dealing with how to approach an appeal brought on the basis of incompetent representation. Counsel for the appellant relied on the decision of Mr Justice Moses as he then was in R on the application of Aston v Nursing and Midwifery Council [2004] EWHC 2368 (Admin). He first dealt with how the topic was approached by the Court of Appeal Criminal Division and then opined:
10. "In the context of part 52, rule 11, the test is not safety. The appellant need not show that the decision was wrong, but he must show that the decision was unjust. The decision will only be unjust if the incompetence led to irregularities which rendered the process of the trial unfair or the conclusion unsafe.
11. However, in the case before me both sides agree that the court should not allow the appeal unless the incompetence was of such a degree as to be described as Wednesbury unreasonable. That concept is not easily applied to the question of the incompetence of an advocate, but I take the Vice President's reference to Wednesbury unreasonable to mean that the conduct of the advocate must be such that he or she took such decisions and acted a way in which no reasonable advocate might reasonably have been expected to act.
12. But that by itself, as I have said, is not enough. It must further be shown that that wholly inadequate conduct did affect the fairness of the process. Only then could the conclusion of the committee be shown to be unjust."
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