General Medical Council v Theodoropoulos
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Lewis |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] EWHC 1984 (Admin) |
| Docket Number | Case No: CO/710/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2017 |
[2017] EWHC 1984 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewis
Case No: CO/710/2017
Eleanor Grey Q.C. (instructed by the Senior Legal adviser for the General Medical Council) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 21 June 2017
Approved Judgment
INTRODUCTION
This is an appeal by the General Medical Council ("the Council") against a decision made by the Medical Practitioners' Tribunal ("the Tribunal") on 12 January 2017. By that decision, the Tribunal directed the suspension of registration of the respondent, Dr Theodoropolous, from the medical register for a period of 12 months. The Council appeals on the basis that that decision was wrong and the appropriate sanction was erasure of the respondent's name from the medical register.
The respondent did not attend the appeal hearing and, in the circumstances outlined in detail below, a preliminary question arises as to whether it is appropriate for this court to hear and determine the appeal in his absence.
THE FACTUAL BACKGROUND
The Allegations
The respondent is a consultant ophthalmologist who is, it seems, a Greek national and has had a private practice in Athens. He has practised in the past in the United Kingdom and was registered as a medical practitioner pursuant to the provisions of the Act. That registration lapsed when he returned to Greece in about 2005. In March 2015, his name was restored to the register. Registered medical practitioners are required to obtain a licence to practise. A licence may be refused if the person concerned has not demonstrated a knowledge of English: see regulation 3 of the General Medical Council (Licence to Practice and Revalidation) Regulations Order of Council 2012 ("the Regulations") made pursuant to sections 29A and 29B of the Medical Act 1983 ("the Act"). Section 49A of the Act provides that it is a criminal offence punishable by a fine if person who does not have a licence to practise holds himself out as having such a licence.
Details of registered medical practitioners are maintained by the Council on a data base. There is provision for practitioners to access the data base but they cannot alter the data base itself. The respondent was shown on the data base as a registered medical practitioner "without a licence to practise". He was accused of accessing the data base, using software to amend the version that appeared on the screen on the computer used to access the data base so that the entry appeared to read "with a licence to practise", and printed out that altered version. The record stored in the electronic data base itself was not altered. The respondent was said to have sent of copy of the altered version to an agency, ID Medical, with a view to seeking employment as a locum.
Proceeding were brought against him in the Tribunal alleging that the respondent's fitness to practice was impaired by reason of misconduct pursuant to section 35D of the Act. The allegation was in the following terms:
"That being registered under the Medical Act 1983 (as amended):
1. On 18 March 2015 the GMC sent you an email confirming that:-
a. your application for restoration to the register with Full registration without a licence to practice had been granted from 18 March 2015;
b. you must make sure that your status on the register is appropriate for the type of work or post in which you are planning to practice;
c. you must be registered and licensed to work as a doctor in the UK.
2. On a date between 18 March 2015 and 14 July 2015 you:
a. accessed your certificate of proof of entry on the register ("the Certificate") from your GMC online account.
b. amended the Certificate so that it stated that you had "Full registration in APS with a licence to practise" from 18 March 2015 ('the Amended Certificate');
3. On 14 July 2015 you provided a copy of the Amended Certificate to locum agency, ID Medical;
4. You submitted the Amended Certificate to ID Medical despite knowing that:
a. you did not have a licence to practise;
b. the Amended Certificate was falsified.
5. Your actions as described in paragraphs 2 to 4 were:
a. misleading;
b. dishonest."
The respondent sent a detailed, five-page e-mail, dated 10 August 2015 denying the allegations. He contended that there was no evidence that he had altered the certificate. He said that he had only printed the certificate that appeared on the Council's website and sent it to ID Medical. He suggested that a member of the staff of the Council must, mistakenly, have made the alteration.
The Tribunal's Hearing and Determinations
On 9 January 2017, the Tribunal convened to hear the allegations. The respondent was not present. Rule 31 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004/2608 ("the Rules") provides power for the Tribunal to proceed to determine the allegation against the practitioner if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with the rules. The Tribunal first considered whether it was satisfied that all reasonable efforts had been made to notify the Respondent and decided that it was. The Tribunal then considered whether to continue with the hearing in the respondent's absence and decided to do so. There is available a full transcript recording the submissions relating to both of those matters and the Tribunal's decision and reasons are recorded in its written determination.
The Tribunal then considered the allegations. It heard oral evidence from officers at the Council dealing with the operation of the website and received documentary evidence in the form of e-mail correspondence between the respondent and the ID Medical agency. The Tribunal found that the Council's witnesses were honest, credible and reliable witnesses. The Tribunal also expressly confirmed that it had read and taken into account the respondent's e-mail of the 10 August 2015 setting out his account of events.
The Tribunal found that the respondent had accessed his certificate on the register on a date between 18 March 2015 and 14 July 2015 and had amended it so that, instead of reading "Full registration in APS without a licence to practise", it read "Full registration in APS with a licence to practise". The Tribunal also found that he had provided a copy of the amended certificate to ID Medical on 14 July 2015 knowing that he did not have a licence to practise and knowing that the amended certificate was falsified. The Tribunal found that the respondent's actions had been misleading and dishonest (save that it was not dishonest or misleading in itself in accessing the website). Full reasons are given for those conclusions in the Tribunal's written determination. In paragraphs 36 and 37 of their determination, the Tribunal said this:
"36. In respect of sub-paragraph 2(b), the tribunal found that between 18 March 2015 and 14 July 2015 Dr Theodoropoulos amended the Certificate so that it read 'with a licence to practise' instead of 'without a licence to practise'. The tribunal was satisfied that amending the Certificate in that way was misleading because by doing so anyone reading the Certificate would be under the impression that he had a licence to practise when he did not. In his written representations, dated 10 August 2015, Dr Theodoropoulos made no admission that he had amended the Certificate. The tribunal did not accept that. The tribunal has found that an amendment was made and that the amendment was made by Dr Theodoropoulos. The tribunal was satisfied that there could have been no other intention behind the amendment other than a deliberately dishonest intention to procure himself a job for which, in the absence of a licence to practise, he was not eligible. It therefore found paragraph 5 as it relates to sub-paragraph 2(b) proved.
"37. In respect of paragraphs 3 and 4, the tribunal found that on 14 July 2015 Dr Theodoropoulos submitted the Amended Certificate to ID Medical by email, despite knowing that the did not have a licence to practise and despite knowing that the Amended Certificate was falsified. By doing so, Dr Theodoropoulos sent a healthcare recruitment company responsible for placing locum doctors, a document which stated the opposite of the truth in respect of him having a licence to practise. He knew this to be untrueand he also knew that the Amended Certificate was falsified. The tribunal was satisfied that it was perfectly apparent that Dr Theodoropoulos's actions in his respect were both misleading and dishonest. It therefore found paragraph 5 as it relates to paragraphs 3 and 4 proved."
The Tribunal then determined that the facts found amounted to misconduct. In its determination on that issue it said that:
"9. Having considered the facts found proved in light of the principles contained in [Good Medical Practice], the tribunal was satisfied that by submitting the Amended Certificate to ID Medical in order to gain employment for which he was not eligible, Dr Theodoropoulos breached a fundamental tenet of the medical profession, namely to act with honesty and integrity at all times. The tribunal was satisfied that the public must have trust in doctors and the Dr Theodoropoulos's actions undermined that trust. The tribunal also takes the view that there is a public interest in maintaining the integrity of the medical register. By submitting a falsified certificate of proof of entry on the register to a healthcare recruitment company, Dr Theodoropoulos's actions could have led to a doctor without a licence to practise medicine in the UK, practising when he...
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Dr Abayomi Lukman Sanusi v The General Medical Council
...lack of insight, the case law recognises that in practical terms, a finding of erasure may be inevitable: see GMC v Theodoroupoulos [2017] EWHC 1984 (Admin); [2017] 1 WLR 4794 (Lewis J at paragraphs 35 to 40), which helpfully summarises the importance of honesty in the medical profession ......
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