Dr Krishantha Jasinarachchi v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 31 October 2014 |
| Neutral Citation | [2014] EWHC 3570 (Admin) |
| Date | 31 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1702/2014 |
[2014] EWHC 3570 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester M60 9DJ
Mr Justice Stewart
Case No: CO/1702/2014
Simon Hilton (instructed by DAC Beachcroft LLP) for the Appellant
Iain Steele (instructed by GMC Legal) for the Respondent
Hearing dates: 23 October 2014
The Fitness to Practice Panel (FTPP)
The General Medical Council (GMC) conducted an investigation concerning the Appellant's fitness to practice which concluded in a hearing between 5 March 2014 and 13 March 2014 before a Fitness to Practise Panel (FTPP). The FTPP determined that A had committed misconduct and that his fitness to practise was therefore impaired. This is not in issue.
What is in issue is the FTPP's decision that A's registration be suspended for a period of 6 months.
The Findings of the FTPP
The allegations and facts admitted and therefore found proved by the FTPP were as follows:
"Paragraph 1:
Between December 2011 and April 2012 you were employed as an ST1 GP Trainee at Bugbrooke Medical Practice, Northampton…
Paragraph 2(a):
On 2 March 2012 you completed a Cremation 4 medical certificate in respect of Patient A and you:
(a) Failed to attend Hollowell Funeral Directors to examine the patient A's body…
Paragraph 2(b):
(b) Falsely stated on the certificate that you saw the body of the deceased on 2 March 2012 and performed an external examination…
Paragraph 2(d):
(d) Falsely stated in a telephone call with Mr E of the surgery at 15:44 on 2 March 2012 that you had been to see Patient A's body at the Funeral Directors, or words to that effect…"
Paragraph 2(e):
(e) Failed to alert the surgery or anyone connected to the care of Patient A that you had not seen Patient A's body prior to the telephone call with Mr E at 15:44 on 2 March 2012…
Paragraph 2(f):
(f) Failed to make alternative arrangements in order for the medical certificate in respect of Patient A to be properly completed..
Paragraph 3(a):
In January 2012 you completed a death certificate for Patient B and you:
(a) recorded the incorrect cause of death
Paragraph 3(b):
(b) Failed to complete and sign the death certificate book stub…
Paragraph 4:
In February 2012 you completed a death certificate for Patient C and you failed to sign the death certificate book stub…
Paragraph 5(a)
In March 2012 in respect of your treatment of Patient D you:
(a) Failed to complete a Shared Care…form…
A disputed allegation which was found proven against him:
Paragraph 2(c):
(c) Falsely stated in a telephone call with Hollowell Funeral Directors at 13:59 on 2 March 2012 that you had seen Patient A's body after her death, or words to that effect …"
The major focus of the sanction imposed by the FTPP was the misconduct in respect of Patient A, and it is that misconduct which has formed the basis of the submissions before me. 1 Further, it was the allegations of dishonesty 2 which were central to the FTPP's decision.
Bases of Appeal
Essentially there are two bases of Appeal.
The first basis is that on the evidence and information before them the FTPP imposed an excessive and disproportionate sanction. A submits that any suspension was wrong in principle. A says that if this ground succeeds the court should substitute a lesser sanction exercising its power under section 40(7)(c) of the Medical Act 1983 (the Act).
The second ground is that, since the FTPP's decision, matters have come to light concerning the practical consequences of suspending a trainee doctor's registration. It is said that this casts a fresh light on the determination, making it unduly harsh and disproportionate and that this cannot have been envisaged by the FTPP. If this basis succeeds, and the first ground does not, A invites the court to remit his case for further consideration on the issue of sanction exercising the power under section 40(7)(d) of the Act.
I set out in the Appendix to this judgment:
(i) Relevant provisions of the Act
(ii) Relevant sections of the Indicative Sanctions Guidance (the Guidance). 3
In summary the Act:
• Sets out the main objective of the GMC 4
• Defines impairment of a person's fitness to practice 5
• Provides for sanctions to be imposed by the FTPP 6
• Contains relevant provisions as to appeals to the High Court 7
The Guidance:
• Clarifies the purpose of imposing a sanction 8
• Sets out non exhaustive factors which may make suspension appropriate 9
• Makes statements regarding dishonesty by doctors 10
The Civil Procedure Rules (CPR)
This is a statutory appeal and is therefore governed by CPR Rule 52. PD52(D) provides that appeals under section 40 of the Act "Will be by way of re-hearing". It is common ground that, despite this, the test for quashing the decision remains as set out under CPR 52.11(3)(a), namely:
"(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong… 11
As regards Ground 2, it is accepted by A that he needs permission from the Court to adduce fresh evidence. CPR 52.11(2) provides:
"(2) Unless it orders otherwise, the appeal court will not receive –
….
(b) evidence which was not before the lower court."
Principles in relation to sanctions imposed on professionals.
In Raschid v GMC12 the Court of Appeal said:
"The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor…. In Marinovitch v GMC…Lord Hope giving the judgment of the Board said:
"28. In the appellant's case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession."
"29. That is not to say that their lordships may not intervene if there are good grounds for doing so…"
19..… As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel…"
"20. These strands in the learning then…constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course 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.""
The Raschid principles have been qualified in numerous cases. I shall cite only one, namely Naheed v GMC13 where Parker J said:
"The legal framework for this appeal is now familiar. The appeal to this court is by way of re-hearing, but the burden is still on the appellant to establish a material error of fact or law. The principal purpose of the panel in relation to sanction is the preservation and maintenance of public confidence in the profession rather than the dispensing of retributive justice. The court must accord, therefore, a certain degree of respect or deference to the judgment of the professional panel when it comes to the imposition of sanctions…The exercise of professional judgment is especially important when it comes to sanction… However, if this court despite paying such respect is satisfied that the sanction is clearly inappropriate, then this court must interfere — see Salsbury v Law Society [2009] 1 WLR 1286 at paragraph 30 by Jackson LJ."
Background Facts
On 2 March 2012, A was working a half day at the Bugbrooke Medical Practice at Northampton. He was in his first year of training (ST1). He was due to fly to Australia that evening to visit his parents. In the morning his GP Supervisor gave him the task of completing a Death Certificate and Cremation 4 Certificate for Patient A who had recently died. The Cremation Certificate required the doctor to attend on and examine the body of the deceased. As a result of having to see other patients and because of limited time, given his travel involved in getting from Northampton to Heathrow, he realised by about 1pm that he would not have sufficient time to visit Patient A who was at a funeral parlour some 40 minutes drive away. He then telephoned the funeral parlour and the Crematorium asked whether it was strictly necessary for him specifically to attend, or whether it was sufficient that he could do so on the basis that he had seen her days before her death. He was then unambiguously advised by the crematorium that he had to attend. Nevertheless, he completed the cremation certificate, falsely stating that he had seen Patient A at 1pm on 2 March 2012 and had conducted an external examination.
A left the practice at about 2pm, leaving the form behind. At 13:59 he had told the Funeral Directors in a telephone call that he had seen Patient A's body after her death. Over the next few hours there were telephone conversations between the funeral...
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