General Medical Council; v Asef Zafar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Davis |
| Judgment Date | 08 April 2020 |
| Neutral Citation | [2020] EWHC 846 (Admin) |
| Date | 08 April 2020 |
| Docket Number | Case No: CO/2396/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 846 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
and
Mr Justice Holgate
Case No: CO/2396/2019
Mr Ivan Hare QC (instructed by GMC Legal) for the First Appellant
Ms Fenella Morris QC (instructed by Browne Jacobson) for the Second Appellant
Ms Mary O'Rourke QC (instructed by RLB London) for the Respondent
Hearing date: Wednesday, 11 March 2020
Approved Judgment
Introduction
The respondent to this appeal, Asef Zafar, is a doctor. By a determination of the Medical Practitioners Tribunal (“MPT”) of 24 May 2019, his registration was directed to be suspended for a period of twelve months. Each of the appellants, the General Medical Council (“GMC”) and the Professional Standards Authority for Health and Social Care (“the Authority”), appeal against such determination. They maintain that, in all the circumstances, such a sanction was entirely unjustified and insufficient to protect the public and the only proper sanction was and is erasure.
There is one very unusual feature about this appeal. The Allegation advanced by the GMC before the MPT – the Authority played no part in those proceedings below – was expressed to be founded on a decision made in the High Court by Garnham J on 5 October 2018, whereby Dr Zafar was adjudged to have been in contempt of court in ten identified respects; and when he was on the same date committed to prison for six months, suspended for two years. However, that sentence, by permission of the trial judge himself, was then the subject of an appeal by the claimant in the underlying proceedings, Liverpool Victoria Insurance Co. Limited (“LVI”). It argued that the sentence of Garnham J was unduly lenient. In a detailed judgment handed down on 19 March 2019 and which has since been reported ( [2019] EWCA Civ 392, [2019] 1 WLR 3833) the Court of Appeal allowed the appeal. It agreed that the sentence was unduly lenient: albeit it indicated that, in the circumstances, a declaration to that effect would suffice and thus it did not actually increase the sentence. The unusual feature of the present appeal is that that decision of the Court of Appeal, which antedated the final hearing in the MPT by some two months, was not made known to the panel of the MPT determining the case. On the contrary, it was withheld from the MPT by the agreement of those then representing the parties, who at that stage were the GMC and Dr Zafar.
It is now said by the GMC and by the Authority that that was gravely wrong. The MPT should have been apprised of the Court of Appeal decision for the purposes of its consideration of sanction; and this court should itself have regard to it for that purpose. That is disputed on behalf of Dr Zafar. It is said that it was correct not to place the Court of Appeal decision before the MPT; and in any event, where this happened by agreement between the parties, the appellants should not, and cannot properly, be permitted now to adduce the Court of Appeal decision as a form of fresh evidence in this court.
Before us, the GMC appeared by Mr Ivan Hare QC. The Authority appeared by Ms Fenella Morris QC. Dr Zafar appeared by Ms Mary O'Rourke QC. None of them had appeared in the MPT proceedings below.
Background Facts
The background facts are fully recounted in the reserved judgment of Garnham J in the contempt proceedings before him, following a nine day hearing: [2018] EWHC 2581 (QB). That judgment was immediately followed by his decision on sentence (albeit, of course, it was not a criminal sentence as such). I will give only a brief summary of the background facts here.
Dr Zafar was at all material times employed within the NHS as a General Practitioner. In addition, however, he engaged on his own account in private practice, providing medical reports for low-level personal injury claims. He, remarkably, seems to have developed a system where he apparently could examine a patient or client and produce a report in the space of approximately 15 minutes. He was to say that he might produce some 5,000 reports a year, with an annual gross income of around £350,000. Quite how he was able to fit all this around his NHS responsibilities is not clear: and at all events it seems that his NHS premises were frequently used for his private medico-legal practice. The judge, in his sentencing remarks, in fact was to describe this medico-legal practice as a “report writing factory.” Dr Zafar started his medico-legal practice in 2006. He continued with it until October 2018.
The matters giving rise to the civil contempt proceedings brought against him by LVI occurred in the following circumstances.
In December 2011 a Mr Iqbal, a taxi driver, was involved in a road traffic accident. The other driver was insured by LVI. Mr Iqbal sought compensation for the injuries and loss which he said that he had suffered and approached a claims management business. A firm of solicitors, TKW, was in due course instructed to pursue a claim against the other driver.
Dr Zafar was then instructed by TKW, via a company called Med-Admin Limited, to prepare a medico-legal report. The solicitor involved on behalf of TKW was Mr Khan. Dr Zafar in due course, on 17 February 2012, examined Mr Iqbal for around 15 minutes at his surgery. This was about 11 weeks after the collision. He produced his report, dictating it in the presence of Mr Iqbal. In the report, he recorded Mr Iqbal saying that he had mild pain and stiffness at the time but they had resolved, after a course of pain-killers, around a week after the accident. Dr Zafar reported that Mr Iqbal had fully recovered from his injuries and that examination showed his neck to be normal. Under the heading “Prognosis” it was reported that there had been full recovery. The report was signed by Dr Zafar electronically. It contained the usual Declaration and Statement of Truth. Those included statements as to his awareness of Part 35 of the Civil Procedure Rules, as to his obligations as an expert and as to the opinion expressed being his true, complete and independent professional opinion.
Mr Iqbal, on receipt of the report by post, expressed unhappiness with it. He among things said that, although the acute symptoms had abated, he had been experiencing on-going symptoms. Mr Khan in due course sent an e-mail to Med-Admin, which was forwarded on 24 February 2012 to Dr Zafar, reporting Mr Iqbal's comments and stating that Mr Iqbal was still suffering severe to moderate pain in his neck and upper back. Dr Zafar was asked whether it was likely that he would recover in the next six to eight months and “if so, can you please amend your report in respect thereof”.
Dr Zafar was reminded by one of his secretaries of what he had said in his first report. Nevertheless, that same day and without further examination of Mr Iqbal, Dr Zafar produced a second report. This report, however, continued to bear the date of 17 February 2012. It made no mention whatsoever of the first report. It continued to include the same Declaration and Statement of Truth. However, by this second report it was now said that the pain and stiffness of Mr Iqbal in the neck area persisted and “will fully resolve six to eight months from the date of the accident.”
On receipt of this revised report, Mr Khan commenced proceedings on behalf of Mr Iqbal in the County Court, placing reliance on the revised report. During August 2013, a paralegal at TKW sent a proposed trial bundle to the defendant's solicitors. This bundle (by mistake, from TKW's point of view) included Dr Zafar's first report. In due course an amended bundle was sent, this time including the revised report. However, the discrepancies were noted by the defendant's lawyer and raised with the District Judge, who directed enquiries to be made.
An enquiry agent instructed by LVI then contacted Dr Zafar by telephone. There was a meeting. The upshot was that Dr Zafar on 20 August 2013 signed a witness statement, containing a Statement of Truth, to the effect that the original report was the correct report and that the alterations contained in the revised report had been made by someone else without his permission.
However on 5 September 2013, and following a discussion with LVI's solicitor, Dr Zafar changed his account. He now said that he should not have made his witness statement of 20 August 2013. He now accepted that he had, using the services of his secretary, amended the first report. But he claimed that the first report had only related to Mr Iqbal's “acute” symptoms. He made a further witness statement on 22 October 2013, again with a Statement of Truth, to this effect. This among other things stated that the revised report (which he had produced himself) was the correct one.
The further course of Mr Iqbal's proceedings are not relevant for present purposes. What is relevant is that LVI thereafter initiated contempt proceedings against Mr Khan, Dr Zafar and two other individuals. False, or falsely inflated, claims are the bane of every insurer. It is entirely laudable that they take active steps to expose and deter such conduct.
The Decision of Garnham J
(a) Contempt
The matter came before Garnham J for hearing in July 2018. Although this was a civil contempt claim, the standard of proof to be applied was the criminal standard, as is requisite in such cases. After a lengthy hearing, the judge rejected the claim...
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