Dr Sumido Fernando v General Medical Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Patterson
Judgment Date21 May 2014
Neutral Citation[2014] EWHC 1664 (Admin)
Docket NumberCase No: CO/30/2014

[2014] EWHC 1664 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Patterson

Case No: CO/30/2014

Between:
Dr Sumido Fernando
Appellant
and
General Medical Council
Respondent

Adrian Darbishire QC and Rachna Gokani (instructed by Direct Access) for the Appellant

Ivan Hare (instructed by GMC Legal) for the Respondent

Hearing dates: 9th May 2014

Mrs Justice Patterson

Introduction

1

This is an appeal under section 40 of the Medical Act 1983 from a decision of a fitness to practice panel (FPP) of the Medical Practitioners Tribunal Service (MPTS) dated 6 th December 2013 to impose a sanction of erasure from the medical register of the appellant.

2

The appellant submitted that there should be a derogation from CPR 39.2 and parts of the hearing should be heard in private due to the need to consider personal medical information. The respondent did not disagree.

3

Given the nature of the information and the complaint from which the appellant suffered I agreed that the public should be excluded from parts of the hearing.

4

The finding by the FPP that the appellant's fitness to practice was impaired is not disputed.

5

The appellant's submission is that the FPP has imposed a disproportionate sanction, namely, erasure. Suspension was appropriate in the circumstances of the appellant.

Factual background

6

The hearing took place between the 2 nd–6 th December 2013. The appellant faced 14 allegations. Most related to, or followed on from, the appellant presenting a fraudulent prescription at a Sainsbury's store in August 2012 in that although made out by the appellant it was for a fictitious patient and purported to be signed by a different doctor. The appellant intended to obtain and use the 12 tablets the subject of the prescription for himself. On the 3 rd January 2013 the appellant was cautioned for a criminal offence for fraud by dishonest false representation contrary to sections 1 and 2 of the Fraud Act 2006 in relation to the presentation of the prescription the previous August.

7

After the appellant's arrest on the 3 rd August 2012 his house and car were searched and prescription pads found from seven other medical practices. The appellant had, on one occasion, written out a prescription knowing that there was no patient of that name and signed it with a false name. Again, he had intended to use the prescription to obtain listed drugs for himself. The other prescription pads had not been returned to the relevant medical practices.

8

Between the 1 st March 2012 and 7 th August 2012, the appellant had allowed his professional indemnity cover to lapse.

9

When the appellant told his fellow partners at his medical practice of his arrest in August 2012 he failed to inform them of the reason for it and falsely led them to believe that his arrest related to a road traffic offence. He failed to disclose his lack of professional indemnity insurance. It was not until October that he was candid with his partners on the matters that he was facing.

10

Further, the appellant had applied to join the performers list of Hampshire PCT in 2009 but failed to disclose that two earlier employments, one in 2008 and another with a different practice group in Guildford between the 2 nd April 2009 and July 2009 were terminated due to unsatisfactory probation periods.

11

The FPP concluded that the appellant's misconduct and the caution that he had received had brought the medical profession into disrepute. His misconduct had breached fundamental tenets of the medical profession and the appellant had acted dishonestly in the past. The panel considered whether his behaviour was remediable but accepted that dishonesty by its nature was difficult to remedy. It was not satisfied that the appellant would not be dishonest in the future. In the circumstances the panel concluded that his fitness to practice was impaired on the basis of his criminal caution and his misconduct. The finding of impairment is accepted by the appellant as an appropriate finding for the panel to make.

12

As part of their determination of the facts the panel took into account witness statements from two of the partners at the medical practice where the appellant had been a partner, a statement from Mr Andrew Marshall, an investigating officer with Surrey Police and a statement from Ms Amanda Cophee who was the associate director in charge of revalidation at the Hampshire PCT.

13

The panel proceeded to consider the issue of sanction. The panel heard evidence from the appellant and took into account submissions by counsel on his behalf and for the GMC. The panel began its decision as follows,

"Whilst the panel has considered the submissions made, it has exercised its own judgment as to the appropriate sanction, if any, to impose on your registration. Throughout its deliberations, the panel has borne in mind that its primary duty is to protect the public interest. The public interest includes amongst other things the protection of patients, the maintenance of public confidence in the profession and the GMC as its regulator, and the declaring and upholding of proper standards of conduct and behaviour within the profession. It has also taken into account the guidance provided within the ISG [Indicative Sanctions Guidance].

The panel has applied the principle of proportionality, weighing the public interest against your own interests. The panel recognises that the purpose of sanctions is not to be punitive, although they may have a punitive effect, but to protect patients and the wider public interest."

14

The panel went through the hierarchy of possible sanctions. The panel found that taking no action would be wholly inappropriate and that no conditions could be formulated to address the matters in the case which involved dishonesty and serious misconduct.

15

The panel then turned to consider the question of suspension.

16

The panel considered the advice at paragraphs 69–75 of the Indicative Sanctions Guidance (ISG) which was that a serious breach of Good Medical Practice (GMP) where the misconduct was found is not fundamentally incompatible with continued registration. But in addition, the panel had to be satisfied that the doctor had insight and did not pose a significant risk of repeating behaviour.

17

The panel acknowledged that the appellant had made full admissions and had undertaken work to keep his professional knowledge and skills up to date. The panel noted the appellant's apology to the doctor whose name he had forged and the testimonials that had been presented on his behalf. They continued [16C to 17D],

"This case involves numerous acts of dishonesty. The panel considers that your dishonest acts have been persistent and covered up.

In January 2001 you received a caution and in May 2002 a criminal conviction, both for shop lifting. The panel considers that your contact with the criminal justice system whilst you were still a medical student particularly your appearance in a Magistrates' Court ought to have been sufficient to impress upon you that dishonesty was to be avoided in future. As you must have been all too well aware these acts did have the potential to end your medical career before it had properly started.

In 2009 you completed an application form to register with the Hampshire PCT which, as already described, was inaccurate. You have candidly admitted that this was in effect a self serving and dishonest act. The panel notes the handwritten entries entreating the PCT to keep the matters of your caution and conviction confidential. The panel accepts that you did properly declare them. It is concerned, however, that you felt the need to express the wish to keep them confidential when open and honest behaviour is a requirement for doctors.

In 2011 you completed a prescription form that you had retained for two drugs that you wanted. This prescription was incomplete and was not presented, but the patient information on it was entirely false. You clearly had had in mind the intent to present it at some stage.

You were detected presenting a false prescription in August 2012, arrested and detained at a police station where you were interviewed. During your interviews you did not immediately give full and accurate details of your actions. Following your arrest you allowed your partners at the Victoria Practice to believe that you had been involved in a road traffic matter. You made what were effectively successive partial admissions to your partners and were not fully open with them until a practice meeting in October 2012. During this period you quite deliberately understated the seriousness of those issues which you did reveal.

You behaved in a similar manner in the PCT panel hearings, failing to be frank, open and honest. You told the panel this was driven by your fear for your job and your career.

The Panel accepts that these matters, which you brought upon yourself, would at the very least have caused anxiety to you. However, you had multiple opportunities and sufficient time to reflect upon your actions and fully inform all the relevant parties. You did not do this in a timely manner. The fact that your partners and the PCT were initially accepting of your explanations is a clear example of the trust that is placed in doctors, trust that you betrayed.

When asked by the panel why you did not write a private prescription for yourself you said you did not want to be seen as self medicating nor did you want the pharmacist to know your condition. Instead you presented a false prescription and were arrested. At no time...

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1 cases
  • Dr Krishantha Jasinarachchi v General Medical Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 31 October 2014
    ...[2002] EWCA 1390 at paragraph 120 12 [2007] EWCA Civ. 46; [2007] 1 WLR 1460 13 [2011] EWHC 702 (Admin) 14 cf Fernando v GMC [2014] EWHC 1664 (Admin), in particular paragraphs 78 and 92. 15 cf see also Naheed at paragraph 25; Sharief v GMC [2009] EWHC 3737 (Admin) at paragraph 24 16 It has......

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