General Medical Council v Dr Kennedy Krishnan

JurisdictionEngland & Wales
JudgeSycamore,His Honour Judge
Judgment Date20 November 2017
Neutral Citation[2017] EWHC 2892 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2490/2017
Date20 November 2017
Between:
General Medical Council
Appellant
and
Dr Kennedy Krishnan
Respondent

[2017] EWHC 2892 (Admin)

Before:

HIS HONOUR JUDGE Sycamore

(Sitting as a Judge of the High Court)

Case No: CO/2490/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Ivan Hare QC (instructed by GMC Legal) for the Appellant

David Morris (instructed by Radcliffes LeBrasseur) for the Respondent

Hearing date: 17 October 2017

Sycamore His Honour Judge
1

This is an appeal by the General Medical Council ("GMC") under section 40A of the Medical Act 1983 ("the Act") against the determination by the Medical Practitioners Tribunal ("MPT") on 27 April 2017:

i) that Dr Krishnan ("the Respondent") was not dishonest in relation to working for another employer while on sick leave; and

ii) that his fitness to practise was not impaired, on the ground that the MPT's decisions are not sufficient to protect the public.

2

The Respondent opposes the appeal and in his Notice purported to file a cross-appeal on the ground that:

The Tribunal was wrong in finding that the first (objective) part of the two-stage (Ghosh) test for dishonesty was met. It failed to take into account, adequately or at all, all the relevant facts and matters it was required to consider in applying the first part of the test. Had it done so it would not have been able safely to determine that the first part of the test was met.

3

I heard submissions from the parties on the 17 October 2017 and reserved judgment. A few days later the judgment of the Supreme Court in Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club) [2017] UKSC 67 was published. In the light of the relevance of that judgment to this case in relation to the test for dishonesty propounded in R v Ghosh [1982] QB 1053. I invited the parties to provide further written submissions. Both parties did so and I have considered those submissions in the course of preparing this judgment.

4

Although, in the light of the impact of the judgment in Ivey, I have determined that a number of the points relied on in oral submissions which would have featured in this judgment had Ivey not superseded the appeal and cross appeal fall away, I will nevertheless set out the history and background.

Cross-appeal

5

As a preliminary issue I was invited, with the agreement of the parties, to treat the Respondent's cross-appeal as an application for Judicial Review to be dealt with as a rolled up hearing and joined with the GMC appeal.

6

This was necessary because a consequence of the provisions of the Act is that the GMC has a more extensive right of appeal than does a medical practitioner. Section 40 of the Act provides a right of appeal to the medical practitioner and provides in part that:

"(1) The following decisions are appealable decisions for the purposes of this section, that is to say –

a) a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration …."

7

Section 40A of the Act provides a right of appeal to the GMC and provides, so far as relevant, that:

"(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal –

….

d) a decision not to give a direction under section 35D;

e) a decision under section 41 giving a direction that a person's name be restored to the register;

f) a decision not to give a direction under paragraph 5A (3D) or 5C (4) of Schedule 4."

8

Section 35D (3) provides:

"Where the Tribunal find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance".

9

As a consequence, the GMC has a right of appeal in this case even though there was no finding of impairment. Conversely the only mechanism a practitioner can use to challenge a warning or finding of impairment or finding of fact is by way of Judicial Review.

10

No point was taken by the GMC in relation to this and at the invitation of both parties I agreed to treat the cross-appeal as a rolled up hearing for Judicial Review joined with the GMC appeal.

Relevant Background

11

The Respondent is a registered doctor who qualified in 1987. At the relevant time he was working in Brent Urgent Care Centre ("Brent UCC"), run by Care UK. The allegations (as amended) against the Respondent were of misconduct. The case was heard by the MPT between the 18 and 22 April 2017. The two distinct particulars of the allegation (misconduct) were:

a) The Respondent sent an email on 31 March 2014 to Dr A of Care UK raising 17 instances where patient safety was a concern, but he did not provide sufficient details to identify the patients involved, nor did he provide such details at, or after, a meeting at Care UK on 2 April 2014; and

b) The Respondent worked as a locum GP for Med Team locum agency whilst on sick leave from Care UK in March and April 2013.

The safety concerns raised by the Respondent arose from his opinion that the nurses who were triaging patients at Brent UCC were inadequately trained.

12

A number of admissions were made by the Respondent at the MPT hearing. The MPT found allegation (a) proved and specifically in so finding rejected the Respondent's oral evidence to the MPT that he had left a document identifying the patients with a Mr Passaway, the manager at Brent UCC, after a meeting which took place on 2 April 2014. This can be found at paragraph 38 of the determination on facts dated 25 April 2017:

"38. In the circumstances the Tribunal rejects your sworn evidence that you left the documents on Mr Passaway's desk after the meeting on 2 April 2014 or subsequently, and it therefore finds this paragraph proved".

13

As to the allegation at (b) the Respondent made an admission and accepted that it was misleading. The Tribunal then went on to find that the Respondent failed to inform Care UK that he was undertaking locum GP work during the period when he was also on sick leave from his substantive post at Care UK.

14

The Tribunal did not find the Respondent's conduct to be dishonest. The legal assessor to the Tribunal, understandably at that time, advised the Tribunal Panel as to the approach it should adopt in determining dishonesty relying on the tests set out in Ghosh. Both parties agreed in their further submissions that Ivey applies to disciplinary proceedings such as these and sets out the correct test for dishonesty.

15

In applying the Ghosh test in reliance on the advice of the legal assessor the Tribunal found that the first limb of the test set out in Ghosh was fulfilled but was not so satisfied in respect of the second limb.

16

The Tribunal concluded that the allegations at both (a) and (b) constituted misconduct but did not find the Respondent's fitness to practise to be impaired as a result. These findings are set out in the Tribunal's determination on impairment dated 27 April 2017 at paragraphs 22 to 23 and paragraphs 24 to 32. In concluding as it did the Tribunal indicated that it placed great weight on the information provided by Dr Anthony Gallagher, a General Practitioner who worked with the Respondent at the Brent UCC. The MPT imposed a warning on the Respondent which can be found at paragraphs 9 to 14 of the determination on warning dated 27 April 2017.

Relevant Law

17

The parties were agreed as to the relevant law. Section 40A of the 1983 Act provides, as relevant:

"(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal —

….

(d) a decision not to give a direction under section 35D

(2) A decision to which this section applies is referred to below as a "relevant decision".

(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient —

(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the medical profession;

and

(c) to maintain proper professional standards and conduct for members of that profession.

….

(6) On an appeal under this section, the court may —

(a) dismiss the appeal;

(b) allow the appeal and quash the relevant decision;

(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or

(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court;

and may make such order as to costs …. as it thinks fit."

18

I was helpfully directed to the decision of the Divisional Court in General Medical Council v Jagjivan & Another [2017] EWHC 1247 (Admin), at [39] as to the process the court should adopt on an appeal of this nature:

"As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

'In summary:

i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious...

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