Dr N Karwal v General Medical Council

JurisdictionEngland & Wales
JudgeMrs Justice Rafferty
Judgment Date01 April 2011
Neutral Citation[2011] EWHC 826 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/5259/2010
Date01 April 2011

[2011] EWHC 826 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before : MRS JUSTICE RAFFERTY DBE

Case No: CO/5259/2010

Between
Dr N Karwal
Claimant
and
General Medical Council
Defendant

Alan Rawley QC (instructed by Furley Page & Co Solicitors) for the Appellant

Gemma White (instructed by GMC Legal) for the Respondent

Hearing date: 15 March 2011

Mrs Justice Rafferty

Mrs Justice Rafferty:

1

This is a statutory appeal by Dr Naveed Karwal under section 40 of the Medical Act 1983. She challenges both the Respondent General Medical Council ("GMC") Panel's finding that her fitness to practise was impaired and the sanction imposed. Although by way of rehearing, the appeal requires a review of the material and evidence before the Fitness to Practise Panel ("FTPP").

2

In Manchester in 2007 the hearing of charges alleging dishonesty against Dr Addy, the husband of the Appellant, and the Appellant was adjourned on the basis of the health of both, and restored to London in June 2008 against the Appellant alone. Dr Addy, unwell, was not proceeded against. In June 2008 the FTPP convicted the Appellant of three out of twenty-six allegations of dishonesty, concluding she had knowingly made to a professional colleague false representations about an investment scheme so as fraudulently to reassure him that £188,000 he had been promised would be paid.

3

The Panel found her conduct had been dishonest, falling below the standard expected of a registered medical practitioner, and likely to bring the profession into disrepute. It was not satisfied she had insight into her conduct and felt she had attitudinal problems about her involvement. It suspended her from the medical register for 12 months and directed a review which was held in December 2009 and March 2010.

4

In determinations dated 25 and 26 March 2010, the Panel found her fitness to practise impaired and she was further suspended for 9 months from the expiry of her then current suspension. The cumulative effect of the sanctions was a suspension of some 2 years and 9 months.

LEGAL FRAMEWORK

5

The case before the Panel was considered under section 35D of the Medical Act 1983 which reads where relevant as follows:

"(4) Where a Fitness to Practise Panel have given a

direction that a person's registration be suspended –

(a) under subsection (2) above;

….

Subsection (5) below applies.

(5) In such a case, a Fitness to Practise Panel may, if

they think fit –

(a) direct that the current period of suspension shall be extended for such further period from the time when it would otherwise expire as may be specified in the direction;…….."

6

The GMC's Indicative Sanctions Guidance of April 2009 explains that at a review the Panel needs reassurance that the doctor is fit to resume practice either unrestricted or with conditions. Paragraph 116 reads:

"It is important that no doctor should be allowed to resume unrestricted practice following a period of conditional registration or suspension unless the Panel considers that he/she is safe to do so. In some misconduct cases it may be self-evident that following a short period of suspension there will be no value in a review hearing. In most cases, however, where a period of suspension is imposed and in all cases where conditions have been imposed the Panel will need to be reassured that the doctor is fit to resume practice either unrestricted or with conditions. The Panel will also need to satisfy itself that the doctor has fully appreciated the gravity of the offence."

7

Findings of the Panel about reliability and truthfulness of a witness who gave evidence should be accepted unless material errors are clearly demonstrated: Pugsley v General Medical Council [2010] EWHC 2247 (Admin). In Raschid v General Medical Council [2007] EWCA Civ 46; 1 WLR 1460 in which the Court of Appeal considered the High Court's discretion on a section 40 appeal to vary the sanction imposed by a FTPP. Laws LJ at paragraph 19 said:

"…[since] the principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical 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."

At paragraph 20 he said:

"…the High Court will correct material errors of fact and of course 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…."

Thus, both in relation to the finding of impairment and to sanction, significant weight is to be afforded to the judgment of the Panel which exercised its professional judgment.

THE DETERMINATION

8

The key question at the December 2009 hearing was whether the Appellant had sufficient insight into or had "fully appreciated the gravity of" the offence. The Panel said it was:

"….satisfied that the responses given by you to Dr Barrett, Dr Rowlands, to Dr Wise's BIDR test, and to some extent Professor Mawgoud were at best disingenuous but, more likely, intended to mislead, and therefore dishonest. This evidences your lack of understanding of the seriousness of the matter and its potential impact. On the balance of probabilities, the Panel has determined that your behaviour continues to demonstrate lack of insight and real acceptance of the findings of dishonesty. The Panel has reminded itself of the findings of the Merrison report, and of the need to protect not only individual patients but also the collective confidence of the public in doctors as a whole. The Panel notes that the public interest includes not only such confidence but also the need to declare and uphold proper standards of conduct and behaviour. This Panel needs to satisfy itself that you have fully appreciated the gravity of the findings made against you, whether or not you accept them. It is the consideration of the Panel, exercising its own judgement that you do not have to confess to guilt, or accept guilt, in order to demonstrate insight. Rather, you have to appropriately recognise the issues in your case, which includes acknowledging that you have been found guilty, rather than trying to shy away, or mitigate from such a finding, even though you may choose to protest your continued innocence. To assert that you had been cleared, either wholly or in part, by the GMC is not, in this Panel's view, an indication of insight, nor is it an indication that you fully recognise or appreciate the gravity of the findings made, or the effect that your conduct has had on the reputation of, and confidence in, the profession. Accordingly, and in all, the circumstances, the Panel is not satisfied that you have any insight into the seriousness of the findings made, or the seriousness of your continued actions. The Panel, therefore, has determined that your fitness to practise continues to be impaired by reason of misconduct."

GROUNDS OF APPEAL

9

Advanced by Mr Alan Rawley QC who also appeared below, grounds of appeal are as follows:

i) Permitting, without warning or notice, the GMC to present a case of lack of insight

The finding of impairment was based on the Appellant's alleged lack of insight into her involvement in the fraud charges found proved against her. Lack of insight she concedes was a concern of the original FTPP in 2008, which required her to show her fitness to resume practice from the point of view of her mental and physical health and of her skills and knowledge as a doctor. Mr Rawley QC on her behalf criticised and criticises the GMC for, as he put it, having changed tack on the morning of the first day of the December 2009 hearing in seeking to prove impairment by lack of insight, without notice and over his objections.

The eventual finding was based on the evidence of two psychiatrists called by the GMC, Drs Rowlands and Barrett, who each said the Appellant had told him she had been completely cleared of any...

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2 cases
  • Dr Shah Shahin Ali v General Medical Council
    • United Kingdom
    • King's Bench Division
    • September 29, 2023
    ...and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment. See Karwal v GMC [2011] EWHC 826 (Admin) at paragraph 11 and Irvine v GMC [2017] EWHC 2038 (Admin) at paragraph 83. 19. In Amao v Nursing and Midwifery Council [2014] EWHC 147, th......
  • Dr Olumide Lookman Yusuff v General Medical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • January 10, 2018
    ...and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment. See Karwal v GMC [2011] EWHC 826 (Admin) at paragraph 11 and Irvine v GMC [2017] EWHC 2038 (Admin) at paragraph 83. 19 In Amao v Nursing and Midwifery Council [2014] EWHC 147, the u......

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