General Medical Council v Patel
| Jurisdiction | England & Wales |
| Judge | Dight CBE |
| Judgment Date | 19 January 2018 |
| Neutral Citation | [2018] EWHC 171 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2684/2017 |
| Date | 19 January 2018 |
[2018] EWHC 171 (Admin)
HIS HONOUR JUDGE Dight CBE
(Sitting as a Judge of the High Court)
CO/2684/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
APPEARANCES
Mr I Hare QC (instructed by the General Medical Council) appeared on behalf of the Appellant.
Mr R Lambis (instructed by RadcliffesLeBrasseur) appeared on behalf of the Respondent.
THE JUDGE:
This is an appeal by the General Medical Council under s.40A(1)(d) of the Medical Act 1983 (“the Act”) against the decision of the Medical Practitioners Tribunal (“MPT”) dated 12 th May 2017 not to take any action following misconduct proceedings which had been taken against the respondent whom I will refer to as “the doctor”.
The sole issue before me is the narrow one of whether the MPT was wrong to make the decision to take no action. The sole statutory ground of appeal relied on by the GMC is that they consider that the decision is not sufficient as to penalty for the protection of the public in accordance with ss.40A(3) of the Act and they invite the court to quash the MPT's decision to take no action, and to remit the case to the MPT to reconsider the question of sanction in accordance with ss.40A(6)(d).
The factual background in brief is as follows. Between 6 th and 9 th March 2015, the doctor was contracted by the NHS to work as an ST5 anaesthetic registrar on call during the day shift between 8.00 a.m. and 8.00 p.m. at Charing Cross Hospital, but he also agreed to provide locum cover at the private unit of the Charing Cross Hospital on three of those four days, namely 7 th, 8 th and 9 th March 2015. He did not work on 6 th March because of ill health.
On 10 th March 2015, the doctor submitted a claim form for undertaking work as a locum at the private unit from 8.00 p.m. to 8.00 a.m. from 6 th to 9 th March. This alleged duplication was investigated by the Imperial College Healthcare NHS Trust, and a formal disciplinary hearing was held on 23 rd April 2015, following which the doctor was given a final warning by the Trust which was to last for 12 months.
The doctor himself referred the matter to the GMC, as a result of which he faced an allegation of impairment by reason of misconduct. The allegations made against the doctor, as amended, were as follows.
First, that between 6 th and 9 th March 2015 he was contracted by the NHS to work as an anaesthetic registrar at the Charing Cross Hospital. The doctor admitted this and it was found proved by the MPT.
Second, he also agreed to provide locum cover for a private unit at the Charing Cross Hospital on 7 th, 8 th and 9 th March when he knew he was already contracted to work for the NHS. The doctor admitted this on a limited basis, namely that he had agreed to the locum shifts only to the extent that he could do so without prejudicing his commitments to his NHS role at the same site. The MPT rejected this and found the allegation proved.
Third, that on 10 th March 2015, he claimed for locum work in the private unit from 8.00 p.m. on 6 th March until 8.00 a.m. on 9 th March when (a) he did not work on 6 th March, and (b) he worked overlapping shifts with the NHS on 7 th to 9 th March. The doctor admitted this allegation, and the MPT found the allegation proved.
Fourth, that his actions in allegations 2 and 3 were (a) misleading, and (b) dishonest. The doctor admitted that the actions in allegation 3 were misleading and dishonest. The MPT, however, found it proved in respect of both allegations 2 and 3, holding that his employers in the NHS had been misled by his actions. The doctor accepted misconduct but not impairment, but the panel found that his fitness to practise was impaired because of his misconduct.
The hearing took place in two stages between 5 th and 8 th December 2016, and between 10 th and 12 th May 2017. The MPT heard evidence from witnesses, including the doctor who gave evidence at all the stages of the hearing in December 2016 and May 2017, and the MPT made separate findings of fact in respect of each.
In respect of the doctor himself, the MPT made the following findings, recorded in their determination as to the facts which was dated 8 th December 2016. First in para.7, as follows:
“The Tribunal's view was that you were a willing and forthcoming witness, keen to assist the Tribunal by telling your version of events. However, the Tribunal noted that on a number of occasions you did not directly answer the questions that were put to you. The Tribunal could not be certain whether this was as a result of you being nervous, or because you were deliberately avoiding answering those questions.”
Later, in respect of a series of emails that had been written by him about his NHS work, the panel said this in para.24 of the same set of findings:
“The Tribunal has considered your evidence in which you said that the emails sent by you on 7th and 9th March 2015 were referring to your NHS work and not your private locum cover. However, for the reasons set out above, it does not accept your explanation that you were not referring to private work in the email correspondence. It was clear to the Tribunal that you were offering yourself the private shifts and that, in fact, you were not formally booked for the private shifts, you believed yourself to be so. When asked by the Tribunal about your use of the word ‘booked’ you accepted that you would not use this word in relation to your NHS work. You said that you believed you had not been booked for private work that weekend but the Tribunal's view was that this assertion was not borne out by the documentary evidence.”
In para.25 they considered the evidence of a Dr Goburdhun and conversations or communications that are said to have taken place between the doctor and Dr Goburdhun. Towards the end of para.25 it is apparent that the Tribunal preferred the evidence of Dr Goburdhun to that of the doctor. In paras.28 and 29 the panel made further adverse findings in respect of the doctor's credibility.
The ultimate conclusion was that while the doctor was guilty of misconduct and had been dishonest and his fitness to practise was impaired, nevertheless because of the existence of exceptional circumstances, it was appropriate not to take any action against him by way of sanction. The findings of the MPT fall into three parts, including the part that I have already referred to. They made separate determinations as to the facts which I have just mentioned on 8 th December 2016, as to impairment on 11 th May 2017, and as to sanction on 12 th May 2017.
In respect of impairment on 11 th May 2017, they said in paras.12–14 as follows:
“12. It has found proved that you agreed to provide locum cover to the private until at Charing Cross (‘the private unit’) on 7, 8 and 9 March 2015 when you were already contracted to work for the NHS on those dates.
13. It has been found proved that you did not work on 6 March 2015 and you knew that you had not worked in the private unit on 6 March 2015. You also knew that you had worked overlapping shifts for the NHS and the private unit on 7, 8 and 9 March 2015. On 10 March 2015 you subsequently submitted a claim form for the private locum work; this contained a false claim for payment which you knew to be false. Your actions in this regard were found to be misleading and dishonest.
14. In the Tribunal's view you breached the principles of probity contained within the GMP as outlined above. You behaved dishonestly twice and could have profited personally from your dishonest claim for payment if it had been processed. The Tribunal was in no doubt that this falls seriously short of the standards of conduct that the public and patients are entitled to expect from all registered medical practitioners. It concluded (and it was accepted by you) that the matters admitted and found proved were sufficiently serious to amount to misconduct.”
The panel then went on to consider the issue of remediation setting out its thought processes from para.21 onwards of its determination on the related question of impairment. The doctor accepted, as I have already mentioned, that his actions had been misleading and dishonest and he had admitted misconduct, but he denied impairment because, it was said on his behalf, that he had not put patients at risk in simultaneously covering his NHS role and the private unit because he was on call for the NHS over that period in any event.
The MPT rejected that argument and found that the doctor had put patients at risk of harm because he had not informed his NHS employers about his commitment to the private unit. And because there was a possibility that he could have been required to be in two separate places at the same time, as a consequence, they held that it brought his profession into disrepute and that his fitness to practise was impaired because of his misconduct.
In looking at remediation they held as follows from para.23 of the second tranche of their...
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