Dr Samuel Nwogbo v General Medical Council
| Jurisdiction | England & Wales |
| Judge | HHJ Stephen Davies |
| Judgment Date | 06 September 2012 |
| Neutral Citation | [2012] EWHC 2666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5104/2012 |
| Date | 06 September 2012 |
[2012] EWHC 2666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Stephen Davies
Sitting as a Judge of the High Court
Case No: CO/5104/2012
The Appellant appeared in person.
Mr David Pievsky (instructed by the GMC) appeared on behalf of the Defendant.
INTRODUCTION
This is an appeal by the appellant, Dr Samuel Nwogbo, against the decision of a fitness to practise panel of the General Medical Council which was made on 16 April 2012 following a hearing lasting five days. In that decision they found a number of allegations which had been made against him proved. They went on to find that as a result his fitness to practise as a doctor was impaired, and finally they found that the appropriate sanction was to direct that his name be erased from the medical register.
Although the grounds advanced by the appellant on this appeal are extremely wide-ranging, I consider that the two most significant questions I have to decide are as follows. First, whether or not there was a proper reasoned basis for each of the eight separate findings of dishonesty made against the appellant by the panel; second, having regard to the allegations against the appellant which the panel found proved and which findings survive this appeal process, whether the decision on sanctions should stand should be varied or should be remitted to a fitness to practise panel for fresh determination.
I begin this judgment by summarising the allegations made against the appellant and the panel's findings. There were in broad terms two separate areas of complaint made against him. The first was that he had been charged and convicted of an offence of assault upon his then wife. Although the appellant denied and continues to deny that he was guilty of that offence, he could not deny and indeed he admitted that he had been charged and convicted of that offence by the magistrates whose decision was upheld on appeal to the Crown Court. That conviction was duly proved and thus, pursuant to Rule 34(3) of the General Medical Council (Fitness to Practise) Rules 2004, it was conclusive evidence that he had committed the offence in question.
The second area of complaint, which was less straightforward, was that he had been guilty of misconduct in that he had acted misleadingly and dishonestly by failing to notify relevant matters following on from that assault to various other parties, specifically to the GMC itself, to the trust by whom he was employed on a permanent basis, to a number of trusts for whom he had worked on a temporary basis as a locum, and to certain locum agencies with whom he had registered to obtain locum work. The panel found a number, but by no means all, of these complaints proved and, importantly, found that in relation to the GMC, in relation to his permanent employer, in relation to two of the trusts for whom he had worked as a locum, and in relation to one of the locum agencies with whom he had registered, that he had acted dishonestly in failing to notify them of the relevant matters in question.
Having made those findings, the panel went on to find, as I have said, that his fitness to practise was impaired by reason of his conviction and by reason of his dishonest misconduct as they had found it to be. They then proceeded to consider the question of sanction and decided that the only appropriate and proportionate sanction in their view was to strike the appellant's name from the medical register and also to suspend him pending that decision coming into effect.
The claimant was entitled under section 40 of the Medical Act 1983 to appeal those decisions to the High Court. In fact what he did was to issue proceedings under Part 8 of the Civil Procedure Rules seeking to challenge almost every aspect of the panel's decision. In support of his application he lodged written grounds amounting to a detailed critique of the panel's decisions, which spans some 35 pages and some 26 appendices.
When the claim form was placed before Hickinbottom J for directions, he ordered that the claim should proceed by way of a statutory appeal under Part 52 of the Civil Procedure Rules and that the claim form should stand as the Appellant's Notice, and he also ordered that the case should proceed to hearing on 17 July 2012, which is when it came on before me.
The appellant, who had represented himself before the panel, also represented himself before me. He had failed to comply with the further direction of Hickinbottom J that he should lodge and serve a skeleton argument and any additional evidence by 10 July 2012. However the defendant, through its counsel Mr Pievsky, had produced a skeleton argument which responded to the grounds as attached to the claim form. It became clear at a relatively early stage on the day of the hearing that in the circumstances one day would not be sufficient to deal with this case. Accordingly, I allowed the appellant that full day to open his appeal and I adjourned the case to the first available date to allow the respondent the time to respond and the appellant to reply, and I also gave the appellant permission to lodge and serve a skeleton argument following the first day's hearing in which he could include any further submissions which he might wish to make, and he took the opportunity to do so. I also gave Mr Pievsky permission to put in a supplemental skeleton in response and he did so as well.
On the second day of the hearing, 4 September 2012, Mr Pievsky took the morning to present his response to the appeal and the appellant had the full afternoon to reply. I therefore consider that the appellant has had a reasonable opportunity to present his arguments both orally and in writing to me and to respond orally to those arguments advanced by Mr Pievsky. I have no doubt that the appellant would have liked even longer to argue this case before me. It is evident that he feels extremely strongly about this case and that he would have wished to have made detailed submissions about most, if not all, aspects of the decision. However, I did explain to him at the outset that his task, in accordance with the criteria governing appeals such as this, was to persuade me that the decision of the panel was either wrong or unjust due to a serious procedural or other irregularity and that was what he should focus his attention on. To his credit that is what he attempted to do, proving himself to be an extremely determined advocate in his own cause.
THE DECISION
I should begin by referring to the decision itself, which in accordance with usual practice was read out at the hearing and subsequently set out in a written letter sent to the appellant. After stating certain preliminary matters it began by setting out the 24 individual allegations brought against the appellant and setting out its findings in relation to each allegation. It then contained a section headed "determination on facts", which comprised nine pages in the letter in which the panel gave their reasons for reaching their findings in relation to each allegation. The panel then addressed and determined the issue of impairment in a section comprising five pages in the letter, and finally they addressed and determined the question of sanction in a section also comprising five pages; the letter therefore running to some 22 pages in total.
THE CHRONOLOGY
In order to understand the issues raised on this appeal I will refer briefly to the chronology of relevant events which formed the subject matter of the allegations. The history begins on 31 March 2010, which is the date of an incident in which the appellant's then wife alleged that he had assaulted her at their home. The appellant always admitted that there had been an incident, but he also always denied and continues to deny that he was guilty of any assault. At the time the appellant was employed by the Clatterbridge Centre for Oncology NHS Foundation Trust where he held a staff grade position in oncology.
On 21 April 2010 he was charged by the Greater Manchester Police with an offence of assault arising out of that incident. On 15 June 2010 the General Medical Council sent the appellant an email enclosing an earlier letter dated 2 June 2010 in which they advised the appellant that they had been informed by the Greater Manchester Police of the charge and in which they complained that the appellant had failed to inform them about that charge. In that regard they referred to paragraph 58 of a publication known as Good Medical Practice, which provided that a doctor must inform the GMC "without delay" if anywhere in the world he or she had "accepted a caution, being charged with or found guilty of a criminal offence, or if another professional body had made a finding against your registration as a result of fitness to practise procedures". Their complaint was that the appellant had failed to inform them without delay of the fact that he had been charged with a criminal offence.
Good Medical Practice is a publication produced by the General Medical Council, the purpose of which, as stated at page 5 under the heading "How Good Medical Practice applies to you", is said to describe what is expected of all doctors registered with the GMC. It continus :
"It is your responsibility to be familiar with Good Medical Practice and to follow the guidance it contains."
I will make further reference to that publication in the course of this judgment.
It is accepted that in May...
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