General Medical Council v Dr Iheanyi Chidi Nwachuku and Another A Renewed Application for Permission to Seek Judicial Review
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 10 August 2017 |
| Neutral Citation | [2017] EWHC 2085 (Admin) |
| Docket Number | CO/778/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 August 2017 |
[2017] EWHC 2085 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
ADMINISTRATIVE COURT
CO/778/2017
Co/1824/2017
In The Matters of: An Appeal Under Section 40A of The Medical Act 1983
A Renewed Application for Permission to Seek Judicial Review
— and —
Ivan Hare QC (instructed by GMC Legal) for the Appellant
Charles Foster (instructed by RadcliffesLeBrasseur) for the First Respondent
Fenella Morris QC (instructed by PSA) for the Second Respondent
Hearing dates: 8 th June 2017
Approved Judgment
In this matter the General Medical Council ("GMC") appeals under section 40A of the Medical Act 1983 against the determination by the Medical Practitioners Tribunal ("the MPT") on 19 January 2017: (i) not to find Dr Nwachuku's fitness to practise impaired by reason of his misconduct; and (ii) to issue a warning rather than impose a more serious sanction, on the ground that the MPT's decisions are not sufficient to protect the public.
Dr Nwachuku opposes the appeal and seeks judicial review of the MPT's decisions: (i) that his conduct was dishonest; and (ii) that a warning should be imposed in respect of dishonesty.
On 25 May 2017 permission to apply for judicial review was refused by the single judge on paper. The oral renewal hearing has been treated as a rolled-up hearing of the application for permission and the merits of the judicial review claim.
Relevant background
Dr Nwachuku is a registered doctor and in October 2015 he was in the final year of specialist training as a GP trainee at Woolston Lodge Surgery, Southampton (ST3 level).
His contract of employment dated 5 August 2015 provided for a fixed period of employment of 12 months as a GP Trainee.
Clause 8 and Appendix 1 of the contract provided that Dr Nwachuku's normal working week (excluding out-of-hours training) comprised ten sessions each of four hours. Of those ten sessions, seven were at the surgery premises at 66 Portsmouth Road, Woolston, Southampton. The agreed arrangement included two sessions every Monday, each of four hours, one in the morning and one in the afternoon/evening.
Clause 14 permitted Dr Nwachuku to undertake additional work outside the surgery with the agreement of his supervisor:
"With the agreement of your trainer/educational supervisor, you may arrange to undertake any duties or professional activities outside those of the practice whether remunerated or not. Agreement will not be unreasonably withheld. Any medical duties or appointments outside the practice area must not compete with the trainer/educational supervisor's practice or impinge on your contracted duties with the practice, or upon your GP speciality training. This applies equally whether such duties are remunerated or not. Such duties should not lead to a breach in UK Working Time Regulations…"
From about 2011, Dr Nwachuku was registered for locum work with Athona Recruitment Limited, a medical recruitment agency. He did not seek permission to carry out such work from Dr Moe Moe Kyaw-Lwin, his supervisor at the surgery.
On 9 October 2015, the agency booked Dr Nwachuku to provide Senior House Officer ("SHO") locum cover at the Royal National Orthopaedic Hospital in Stanmore for three nights from 8pm to 8am on each of Friday 9 October 2015, Saturday 10 October 2015 and Sunday 11 October 2015.
The email from the agency dated 9 October 2015, confirming the booking, stated that Dr Nwachuku was required to submit authorised time sheets for his locum work to the agency. Any breaks were to be clearly marked on the time sheet so that they could be deducted from the remunerated hours.
Dr Nwachuku's time sheet for the weekend of 9 th to 11 th October 2015 stated that he had worked from 8pm to 8.30am on each of Friday, Saturday and Sunday nights, a total of 37.5 hours. Dr Nwachuku signed the declaration on the form stating that the information on the form was correct and complete.
On the evening of Sunday 11 October 2015, during handover, Dr Nwachuku presented his time sheet for weekend working to Karan Malhotra, at that time an orthopaedic registrar (ST6) on call at the hospital, for approval. He asked Dr Malhotra to sign it that evening because Dr Malhotra had a theatre list on Monday and might be unable to attend the handover meeting the following morning. Dr Malhotra signed the time sheet.
At 5am on Monday 12 October 2017 Dr Nwachuku attempted to leave the hospital before the end of his shift, so that he could return to Southampton in time for his Monday morning shift which started at 8.30am. He failed to arrange alternative cover and failed to notify anyone that he was leaving. An anaesthetist registrar, who was called to site a cannula in a patient when Dr Nwachuku indicated that he had to leave, alerted others, he was stopped at the main gate and required to contact Dr Malhotra. He explained to Dr Malhotra that he needed to leave so that he could get to Southampton to start his GP shift. Dr Malhotra protested that this was dangerous and unprofessional conduct but Dr Nwachuku left the hospital at about 6am.
Despite leaving early, he submitted his signed time sheet to the agency claiming that he had worked until 8.30am on Monday 12 October 2015. The time sheet was amended following a complaint from the hospital and Dr Nwachuku was not paid for the hours he did not work.
The disciplinary proceedings
The following allegations against Dr Nwachuku were referred to the MPT:
i) "On 9–12 October 2015, you undertook three night-shifts of locum work ("the Locum Shifts") through Athona Recruitment ("the Agency") at the Royal National Orthopaedic Hospital ("the Hospital"). You:
a) failed to obtain the consent of your GP trainer/educational supervisor, Dr A, to undertake the Locum Shifts;
b) left the Hospital at or around 06:00 on 12 October 2015 despite:
i) being contracted to work until 08:00 on 12 October 2015;
ii) failing to conduct an adequate handover;
iii) the Hospital being without Senior House Officer cover on your departure;
iv) being asked not to leave by the orthopaedic registrar on duty Dr [Malhotra];
c) submitted a claim form for the Locum Shifts, in which you stated you had worked until 08:30 on 12 October 2015 when you had not;
d) informed your Deanery, Health Education England Wessex, that you had told the Agency that you had to leave the Hospital at 06:00 on 12 October 2015 when you had not done so;
e) did not allow a sufficient rest break between the end of the Locum Shifts and the commencement of your full-time GP training role.
ii) Your conduct as set out at paragraphs i)c) and i)d) above was:
a) misleading;
b) dishonest.
And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct."
On 16 – 19 January 2017 the MPT held a disciplinary hearing under the GMC Fitness to Practise Rules 2004 to determine the above allegations. Dr Nwachuku was represented by counsel, Mr Foster, who also represents him in these proceedings.
Dr Nwachuku admitted the allegations at paragraphs i)a) — c) and e). He also admitted that the submission of the false time sheet was misleading but denied that it was dishonest.
The MPT found that the allegation at paragraph i)d) was not proved. An email from the agency showed that, at the time of the booking, it had been aware that Dr Nwachuku would leave before the end of his shift on Monday 12 October 2015 but failed to give such information to the hospital. Based on that evidence, the MPT was satisfied that it was more likely than not that Dr Nwachuku had informed the agency of the need to leave early on Monday morning prior to commencing his post at the hospital. Therefore, he was neither misleading nor dishonest when he told the Deanery that he had informed the agency in advance of his early departure.
The MPT found that Dr Nwachuku's conduct in submitting the false time sheet was dishonest as set out in paragraphs 35 to 38 of the decision:
"The tribunal noted that you submitted this form ahead of completing the last shift out of the three for which you had been contracted. However, you knew that you were unable to stay beyond 06:00 on 12 October 2015 due to other employment commitments. On 11 October 2015 you submitted a timesheet which was clearly inaccurate because it claimed you had worked hours that you knew you had not been working, and had no intention of working. The tribunal concluded that a reasonable and honest person would consider submitting a timesheet stating that you had worked until 08:30 when you had not done so to be dishonest, because it gave information that plainly overstated the number of hours you were intending to work.
The tribunal went on to consider whether you knew that your conduct was dishonest when you submitted your timesheet.
The tribunal noted that you were provided with several opportunities to ensure that Dr Malhotra knew you had to leave by 06:00 on 12 October 2015. In his evidence to the tribunal Dr Malhotra stated that he had asked you, albeit in a joking manner, whether you were planning on staying until the end of the shift, as he had signed the timesheet in advance. The tribunal considered that this was an opportunity for you to have acknowledged your intended early finish or to have corrected your timesheet to accurately reflect your intention. The tribunal also heard from you that his was a quiet and uneventful night at the Hospital....
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