Dr Syed Ahmed v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pepperall |
| Judgment Date | 07 August 2019 |
| Neutral Citation | [2019] EWHC 2173 (Admin) |
| Date | 07 August 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4753/2018 |
[2019] EWHC 2173 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE FITNESS TO PRACTISE PANEL OF THE MEDICAL
PRACTITIONERS TRIBUNAL SERVICE
Manchester Civil & Family Justice Centre
1 Bridge Street, Manchester M60 9DJ
THE HON. Mr Justice Pepperall
Case No: CO/4753/2018
Andrew Colman (instructed by Radcliffes Le Brasseur) for the Appellant
Alexis Hearnden (instructed by the General Medical Council) for the Respondent
Hearing dates: 27 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE
Dr Syed Ahmed is a Consultant in Acute Medicine. He qualified as a doctor in Pakistan in 1985 and became fully registered with the General Medical Council (“the GMC”) in 1996. Between January 2007 and February 2016, he was employed by the Stockport NHS Foundation Trust as a consultant at the trust's Stepping Hill Hospital. In addition to his work on the Acute Medicine Unit, between March and May 2015 he provided consultant cover on additional wards, known as escalation wards, including A14 and C5.
In 2015, irregularities were identified in respect of Dr Ahmed's claims for payment for work done on the escalation wards. After internal investigation, Dr Ahmed was dismissed for gross misconduct and his case referred to the GMC.
Dr Ahmed was required to attend before a Fitness to Practise Panel of the Medical Practitioners Tribunal in order to answer allegations of professional misconduct. His case was heard over 16 days between 8 October and 1 November 2018. The tribunal found a number of allegations to have been proven. It concluded that Dr Ahmed's fitness to practise was impaired and directed that his name be erased from the medical register.
Dr Ahmed now appeals to this court pursuant to s.40 of the Medical Act 1983. He argues that the tribunal was wrong to find that he made knowingly false statements and that he acted dishonestly. He accepts, however, that if the tribunal's findings of fact stand then there are no separate grounds for challenging either its finding that his fitness to practise was impaired or the sanction imposed.
THE LAW
THE REGULATION OF DOCTORS
Public protection is at the heart of the regulation of doctors. Section 1(1A) of the Medical Act 1983 provides:
“The over-arching objective of the General Council in exercising their functions is the protection of the public.”
Section 1(1B) adds:
“The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public;
(b) to promote and maintain public confidence in the medical profession; and
(c) to promote and maintain proper professional standards and conduct for members of that profession.”
Allegations of professional misconduct are referred to a Fitness to Practise Panel of the Medical Practitioners Tribunal. The central question for the tribunal is whether the doctor's fitness to practise is impaired: s.35D of the Medical Act 1983. Misconduct was considered by the Court of Appeal in R (Remedy UK Ltd) v. The General Medical Council [2010] EWCA Civ 1245. Elias LJ said, at [37]:
“Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.”
In the event that some impairment is found, s. 35D(2) of the Act provides that the tribunal may, if it considers it appropriate, direct erasure, suspension for up to 12 months, the imposition of conditions for up to 3 years or the issue of a warning.
APPEALS
By section 40 of the Act, a doctor can appeal to the High Court against directions for erasure, suspension or the imposition of conditions. In Bhatt v. The General Medical Council [2011] EWHC 783, at [9], and in Yassin v. The General Medical Council [2015] EWHC 2955 (Admin), at [32], Langstaff and Cranston JJ respectively explained the proper approach to appeals under the 1983 Act. In Yassin, Cranston J said, at [32]:
“Appeals under section 40 of the Medical Act 1983 are by way of re-hearing (CPR PD52D, [19]) so that the court can only allow an appeal where the Panel's decision was wrong or unjust because of a serious procedural or other irregularity in its proceedings: CPR 52.11. The authorities establish the following propositions:
i) The Panel's decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];
ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin);
iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;
iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: Meadows v. General Medical Council [197], per Auld LJ;
v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 W.L.R. 577, [197], per Ward LJ;
vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed;
vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii);
viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407, [55]–[56];
ix) A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani & Raschid v. General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.”
Appeals challenging the tribunal's findings of fact pose particular difficulties for appellants. Leveson LJ observed in Southall v. The General Medical Council:
“… as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable (see Benmax v. Austin Motor Co. Ltd [1955] A.C. 370); more recently, the test has been put that an appellant must establish that the fact-finder was plainly wrong (per Stuart-Smith LJ in National Justice Cia Naviera SA v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep. 455 at 458). Further, the court should only reverse a finding on the facts if it ‘can be shown that the findings … were sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread’ (per Lord Hailsham of St Marylebone LC in Libman v. General Medical Council [1972] A.C. 217 221F more recently confirmed in R (Campbell) v. General Medical Council [2005] 1 W.L.R. 3488 at [23] per Judge LJ).”
In Gupta v. The General Medical Council [2002] 1 W.L.R. 1691 Lord Rodger said, at [10]:
“In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability of the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position.”
DISHONESTY
This case concerns allegations of dishonest claims for payment by a senior clinician. When assessing an allegation of dishonesty, a tribunal should follow the guidance given by Lord Hughes in Ivey v. Genting Casinos (UK) Ltd [2017] UKSC 67; [2018] A.C. 391, at [74]:
“When...
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