Dr Muhamad Mutiy Fayaz Siddiqui v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 08 July 2015 |
| Neutral Citation | [2015] EWHC 1996 (Admin) |
| Docket Number | Case No: CO/1727/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 July 2015 |
[2015] EWHC 1996 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/1727/2015
The Appellant appeared in person
Emily Neill (instructed by GMC Legal) for the Respondent
Hearing date: 8 July 2015
Introduction
This is an appeal by the Appellant Dr Muhamad Siddiqui under section 40 of the Medical Act 1983 as amended ("the 1983 Act") against the decision of a Fitness to Practise Panel of the General Medical Council ("the GMC") made on 25 February 2015 to erase his name from the medical register.
The Parties
The GMC is a body charged by the 1983 Act with various functions relating to medical practitioners, including keeping a register of all those who practise medicine in the United Kingdom (section 2 and Part IV) and investigating allegations that a registered doctor's fitness to practise is impaired (Part V).
Such investigations are conducted under the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (SI 2004 No 2608) ("the Rules"). Under those Rules, where an allegation that a registered medical practitioner's fitness to practise is impaired, having given the practitioner an opportunity to respond to the allegation, case examiners must decide what action to take of those steps listed in rule 8(2) which include referring allegations for determination by a Fitness to Practise Panel. By rule 15, where there is a referral to a Panel, then a notice of hearing must be served on the practitioner, which must "particularise the allegation against the practitioner and the facts upon which it is based" (rule 15(2)(a)).
From 11 June 2011, the GMC established the Medical Practitioners Tribunal Service ("the MPTS") as an adjudication arm. The MPTS arranges and manages Fitness to Practice Panels more or less independently of the GMC, although it does not have a separate legal personality and the GMC funds and is ultimately responsible for the service. The GMC is therefore the appropriate respondent to this appeal.
The Appellant was a registered medical practitioner, employed as a Clinical Fellow in Paediatric Surgery at the University Hospital Southampton NHS Foundation Trust between June 2012 and November 2013. At the same time, he operated a private Mobile Children's Circumcision Service in which he carried out circumcisions on babies in their home for parents who wished their sons to undergo the procedure for religious or cultural reasons.
The Fitness to Practise Hearing
A number of separate complaints were made to the GMC, by parents and post-procedure treating hospitals, about the Appellant's conduct in relation to that circumcision service. Complaints concerning the performance of a circumcision on four baby boys (Patients A, B C and D) between June 2012 and November 2013 which formed the basis of 47 separate charges against the Appellant, that were in due course referred to a Fitness to Practise Panel. I will look at the charges in more detail in due course but, by way of broad example, it was said in respect of all or most of these patients that the Appellant performed each of these procedures without insurance and without being registered with the Care Quality Commission ("the CQC"); he failed to obtain informed consent from the child's parents; he failed adequately to take a medical history or carry out a full medical examination, including weighing the patient; he failed to provide adequate aseptic conditions in which to carry out the procedure; and, it was alleged, he failed to ensure immediate access to proper resuscitation facilities.
The charges were referred to a Fitness to Practise Panel, who heard the matter between 2 and 24 February 2015. The Panel comprised the usual chair and two other members, assisted by a Legal Assessor. The Appellant represented himself; the GMC was represented by Ben Fitzgerald of Counsel.
At the outset of the hearing, there were a number of procedural applications.
First, the GMC applied to amend the charges against the Appellant, in substance to:
i) Update the words alleged to have been said in a conversation between the Appellant and the father of Patient C. The original charge had been drafted on the basis of the recollection of the father, but the Appellant produced a recording of the call which enabled the charge to be more accurate and indeed to reflect the evidence which the Appellant provided. The Appellant consented to this change.
ii) The GMC proposed that, in respect of two visits to Patient D's house, the dates should read "on or about 2 November" and "on or about 3 November" in light of uncertainty as to the precise dates on which the circumcision of Patient D took place. The Appellant did not dispute that he attended Patient D's home and performed a circumcision on two occasions. The only issue was whether the dates in the charge should read "on" or "on or about".
The Panel agreed and directed those amendments be made.
Second, the Appellant applied to adjourn the hearing. His main ground for doing so was that he required further time to obtain legal advice, particularly in relation to the proposed amendments to the charges; but he also submitted that the GMC had not given full disclosure, and there had been recent changes in the expert evidence which he needed more time to consider. The application was refused in a written determination dated 2 February 2015, the first day of the hearing (Day 1), in which the Panel found that the hearing could continue immediately without any injustice or unfairness to the Appellant.
Third, the Appellant asked to attend the hearing on certain days by means of video link or telephone because he was responsible for caring for his mother. The GMC did not object; and the Panel acceded to the request. As a result, the Appellant attended some sittings by telephone.
As required by rule 17(2) of the Rules, the Panel approached its substantive task in three stages, namely (i) the fact-finding stage, (ii) the impairment stage and (iii) the sanction stage, making separate determinations on each on 23–24 February 2015.
In respect of the fact-finding stage, having considered the charges and allowed the minor amendments to which I have referred, the Panel proceeded to hear evidence from Mr and Mrs A, the parents of Patient A; Mr and Mrs B, the parents of Patient B; Dr C, the father of Patient C; and Mrs D, the mother of Patient D. Those witnesses, of course, gave evidence particularly about what had happened when the Appellant had attended their respective homes to perform a circumcision upon their respective children. The Panel also heard evidence from Sharon Hunter and Justin Hyatt of the GMC, and Sara Passmore of the CQC; and Mark Woodward, a Consultant Paediatric Urologist at Bristol Children's Hospital, who revised the circumcision on Patient D.
In addition, the Panel heard evidence from three experts instructed on behalf of the GMC:
i) Kalpana Patil, a paediatric surgeon who provided evidence in relation to Patient A;
ii) Naved Kamal Alizai, a paediatric surgeon who provided evidence in relation to Patients B, C and D; and
iii) Robert Walker, a consultant anaesthetist.
The Appellant also gave evidence over the course of a number of days.
Before it withdrew to deliberate, the Legal Assessor gave the Panel legal advice on a number of matters, including the burden and standard of proof, and both the test for dishonesty and the specific approach to the standard of proof in relation to allegations of dishonesty.
The Panel handed down its factual determination on 23 February 2015 (Day 16). I deal with the substance of that determination below (paragraph 31 and following). Suffice it here to say that a large proportion of the charges – but far from all – were found to have been proved.
The factual determination was emailed to the Appellant. He had been informed by email that he should attend the hearing on Day 16 at 9.30am. He was contacted by telephone on the morning of that day, when the Panel adjourned to give him time to read the factual determination and digest it, before the hearing resumed at 1.30pm as it proposed. During the telephone call, the Legal Assessor and Mr Fitzgerald discussed with the Appellant whether he would wish to submit further evidence in respect of the impairment and sanction stages, and the only information which he said he wished to provide was a further testimonial which was duly provided to the Panel. The Panel made it clear to the Appellant that it proposed to resume the hearing at 1.30pm that day, when the Appellant would be called to joint the hearing by telephone. He was told that he should be prepared to resume then.
However, when a number of attempts to call the Appellant were made after 1.30pm, he could not be contacted. He did not answer his phone. The Panel Secretary then emailed the Appellant, and attempted yet again to call him, but without success.
Given the inability to reach the Appellant in the circumstances I have described, the GMC submitted that the Appellant was absenting himself voluntarily from the proceedings and invited the Panel to proceed in his absence. Following advice from the Legal Assessor and further deliberations, the Panel determined to do so.
At the second stage (impairment), Mr Fitzgerald made submissions, and he invited the Panel to read the additional testimonial. The Panel...
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