General Medical Council v Joseph Nyamasve
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWHC 1689 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5808/2017 |
| Date | 27 March 2018 |
[2018] EWHC 1689 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Nicklin
CO/5808/2017
Mr I Hare QC (instructed by GMC Legal) appeared on behalf of the Appellant.
THE RESPONDENT was not present and was not represented.
This is an appeal by the GMC against a decision of the Medical Practitioners Tribunal on 24 November 2017. I have given a little bit of detail about the case in the judgment I gave earlier today in relation to the question of whether the court should proceed in the doctor's absence.
The respondent is Dr Joseph Nyamasve, who I'll refer to as “the doctor”. The MPT heard the GMC's case against the doctor between 21 and 24 November 2017. The allegation against the doctor was that his fitness to practise was impaired, and I quote now from the charges against him:
“Being registered under the Medical Act 1983 as amended:
(1) On 3 January 2012 [he] relinquished [his] licence to practise.
(2) Between 1 July 2013 to 16 August 2013 [he] worked as a locum at the Royal Derbyshire Hospital in a role which required a licence to practise.
(3) After 3 January 2012 [he] failed to inform:
(a) the locum agency, NC Healthcare Ltd
(b) the Royal Derbyshire Hospital
that [he] did not have a licence to practise.
(4) [His] conduct at paragraph 2, 3(a) and 3(b) was dishonest.”
The doctor did not attend the hearing before the MPT and therefore did not give evidence. The MPT found at the conclusion of the hearing, firstly, that the particulars of the allegation were proved and on that basis, secondly, that the doctor's fitness to practise was impaired.
The findings as to fitness to practise were as follows:
“The Tribunal has considered each outstanding paragraph of the allegation separately and has evaluated the evidence in order to make its findings on the facts.
Paragraph 1
The Tribunal has been provided with documentary evidence and witness statements to support the allegation, that on 3 January 2012, Dr Nyamasve relinquished his licence to practise. The Tribunal accepts the witness statements both oral and documentary from Ms Nicola Bylo. Notably, the Tribunal took account of Ms Bylo's written statement that she recorded Dr Nyamasve had activated his GMC online account and relinquished his licence on 3 January 2012. The Tribunal considered the GMC automated response given to Dr Nyamasve confirming that his licence to practise was removed on 3 January 2012. The Tribunal also took into account the documentary evidence of Dr Nyamasve's application to restore his licence to practise, received by the GMC on 2 March 2012, where he states he voluntarily relinquished his licence. On the basis of this evidence, the Tribunal concluded that it was clear Dr Nyamasve had taken steps to relinquish his licence to practise. It further noted that Dr Nyamasve undertook steps to restore his licence to practise, showing he understood the previous action he had taken. Accordingly, the Tribunal found paragraph 1 proved.
Paragraph 2
The Tribunal considered the documentary evidence put before it, notably Dr Sturrock's witness statement in which he details that Dr Nyamasve was employed to work at the Trust from 1 July 2013 to 16 August 2013. The Tribunal noted that Dr Sturrock states that a licence to practise was required for the role Dr Nyamasve undertook. The Tribunal were further satisfied with the evidence of timesheets that detailed of invoices and payments matching the chronology of his work for the period outlined in paragraph 2. The Tribunal took into account email correspondence between Dr Nyamasve and NC Healthcare Ltd in which it lists supplementary documents that Dr Nyamasve should have provided in order to undertake his locum post. The Tribunal also considered the police interview, in which Dr Nyamasve makes the admission that within the time frame of 1 July 2013 to 16 August 2013 he knew that a current licence to practise was required to enable him to work at the Royal Derbyshire Hospital.
On the basis of this evidence, the Tribunal found that Dr Nyamasve understood he was required to have a licence to practise when employed as a locum physician at the Royal Derbyshire Hospital. Accordingly, the Tribunal found paragraph 2 of the Allegation proved.
Paragraph 3.a.
The Tribunal found no evidence that Dr Nyamasve had informed NC Healthcare that he had relinquished his licence to practise. The Tribunal noted the police interview in which Dr Nyamasve made the admission that he knew he would not have been given the locum position had he informed NC Healthcare of his licence position. The Tribunal did note, however, that NC Healthcare's policies and procedures regarding checking documents were poor, and that they could not demonstrate robust record keeping and governance systems. This was explained by a number of office moves, change of servers and loss of records within the agency itself.
The Tribunal took note of Mr Ali's oral evidence in which he confirmed that had the agency known Dr Nyamasve did not have a current licence to practise, they would have not appointed him as a locum. Furthermore, the evidence that Dr Nyamasve made a second application to regain his licence to practise shortly after registering with the agency, coupled with the admission made in interview under caution, satisfied the Tribunal that Dr Nyamasve understood he had relinquished his licence and knew that if he told NC Healthcare, it would have been unlikely he would have gained employment through them. Accordingly, the Tribunal found paragraph 3.a. proved.
Paragraph 3.b.
The Tribunal took into account the witness statement provided by Dr Nigel Sturrock, in which he stated that the Trust would have expected Dr Nyamasve to have a licence to practise and inform if he did not. It was clear from the evidence put before the Tribunal, that Dr Nyamasve had not informed the Royal Derbyshire Hospital of his status. The Tribunal took into account the time sheets provided which detailed payments from 1 July 2013 to 15 August 2013, when Dr Nyamasve was working at the Royal Derbyshire Hospital, demonstrating that Nyamasve worked when he did not have a current licence. Accordingly the Tribunal found paragraph 3.b. proved.
Paragraph 4
The Tribunal determined that Dr Nyamasve relinquished his licence to practise and knew the impact that would have on his ability to practise medicine. The Tribunal was satisfied that Dr Nyamasve was aware that he had a professional obligation to provide details of his lack of licence to practise to his locum agency and the Royal Derbyshire Hospital and failed to do so.
He made two applications to restore his licence to practise. As Dr Nyamasve did not provide the relevant documentation to the GMC within the relevant time frame, his applications were unsuccessful, but that did not deter him from registering with an agency or ultimately undertaking clinical work. The Tribunal found, that Dr Nyamasve was under obligation to tell NC Healthcare and at Royal Derbyshire Hospital he had no licence well before he undertook any clinical employment. The Tribunal concluded that Dr Nyamasve's second application to restore his licence to practise was shortly after he registered with NC Healthcare and thus was acting dishonestly in not informing them of his status. It further noted Dr Nyamasve's admission in the police interview, in which he was legally represented in which he stated:
“I was very careful the way I treat[ed] patients… [as] I knew I did not have my licence.”
The Tribunal concluded that Dr Nyamasve was aware he would not be able to work without a current licence to practise. The Tribunal has considered Dr Nyamasve's admissions and the prevailing evidence, finding his actions under Allegations 2, 3.a. and 3.b. were dishonest. The Tribunal was satisfied that the standard of proof was met and it was clear that Dr Nyamasve knew the consequences of working as a doctor without a licence to practise, finding that he did so dishonestly. Accordingly, the Tribunal has found paragraph 4 proved.”
At to impairment, the MPT found:
“10. The Tribunal has determined that Dr Nyamasve acted dishonestly in working as a locum Specialist Doctor and not informing the agency or hospital that he was not in possession of a licence to practise. The facts found proved breached GMP (2006) paragraphs 56, 57 and 59, as well as the revised guidelines in 2013, paragraphs 55 and 56. The failure to inform NC Healthcare Ltd took place over a number of months and Dr Nyamasve had a number of opportunities to disclose HIS position before he started working at the Royal Derbyshire Hospital. Dr Nyamasve's motivation was financial, by his own admission, saving money in not obtaining a licence to practise whilst then receiving remuneration in a clinical post to clear his debts…
13. The Tribunal has found that Dr Nyamasve acted dishonestly and undertook work knowing that he did not have a licence to practise risking patient safety. The...
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