Harry Nduka v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] EWHC 1396 (Admin) |
| Docket Number | Case No: CO/116/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 June 2017 |
[2017] EWHC 1396 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/116/2017
The Appellant appeared in person, assisted by a Mackenzie friend, Pious Oppong
Rory Dunlop (instructed by the General Medical Council) for the Respondent
Hearing date: 17 May 2017
Approved Judgment
The Appellant appeals pursuant to section 40 of the Medical Act 1983 against the determination of the Medical Practitioners Tribunal ("the Tribunal"), on 15 December 2016, that his fitness to practise was impaired by reason of misconduct and directing that he should be suspended from the register for 4 months.
The Appellant is a doctor who obtained his MBBS degree from the University of Ibadan, Nigeria in 1992. He came to the UK in 1998, passed the Professional and Linguistic Assessments Board test and registered with the General Medical Council ("the GMC"). He began working as a doctor in the UK in 1999, and he has worked as a specialist registrar in obstetrics and gynaecology in a number of hospitals.
The Tribunal found that he had been guilty of misleading and dishonest conduct by making three separate job applications in which he failed to declare that he was the subject of an ongoing fitness to practise investigation, when asked this question on the online application forms. The Tribunal concluded that his fitness to practise was impaired by reason of this misconduct. His attitude, lack of insight, denial of any wrongdoing meant that the possibility of similar conduct could not be excluded. The Tribunal imposed a sanction of suspension for a period of 4 months, to signal the seriousness of this misconduct to the Appellant, the profession and the public.
Charges
The Tribunal determined the following charges against Dr Nduka:
" Conviction
1. You failed to notify the General Medical Council ('GMC') of the convictions you received on 15 January 2008 at Horseferry Road Magistrates' Court as described at Schedule Found Not Proved
Salisbury NHS Trust
2. On or before 3 October 2012 you submitted an online application via 'NHS jobs' for a vacancy for a Locum Specialist Registrar in Obstetrics and Gynaecology at Salisbury NHS Trust ('the Salisbury application') and in doing so you:
a. failed to declare in the Salisbury application that you had convictions as set out in Schedule 1; Found Not Proved
b. answered 'no' on the Salisbury application in response to the question 'are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue. Found Not Proved
3. On 5 October 2012 during an interview at Salisbury District Hospital for the position described at paragraph 2, you failed to declare that you had convictions as set out in Schedule 1. Found Not Proved
East a nd North Hertfordshire NHS Trust-2013 recruitment
4. On or around 26 August 2013 you applied for a Clinical Fellow (Registrar Level) post in Obstetrics and Gynaecology via 'NHS jobs' to East and North Hertfordshire NHS Trust ('the first ENHT application') and in doing so you:
a. failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved
b. answered 'no' on the ENHT application in response to the question 'are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue. Found Not Proved
c. failed to declare that you were the subject of an ongoing fitness to practise investigation by the GMC which you became aware of on or around 30 July 2013; Found Proved
d. answered 'no' on the ENHT application in response to the question 'are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?' which:
i. was untrue; Found Proved
ii. you knew to be untrue. Found Proved
e. failed to declare that you had been suspended from the register by an Interim Orders Tribunal (IOT) on 13 August 2013. Found Not Proved
5. On 6 September 2013 during an interview at East and North Hertfordshire NHS Trust for the position described at paragraph 4, you failed to declare that you were convicted of the offences as set out in Schedule 1. Found Not Proved
Kings College Hospital NHS Trust
6. On or around 21 November 2014 you applied for a vacancy as a Locum Speciality Registrar in Obstetrics and Gynaecology via 'NHS jobs' to Princess Royal University Hospital (part of King's College Hospital NHS Foundation Trust) ('the Kings College application') and in doing so you:
a. failed to declare that you were convicted of the offences set out in Schedule 1; Found Not Proved
b. answered 'no' on the Kings College application in response to the question 'are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue Found Not Proved
c. failed to declare that you were the subject of an ongoing fitness to practise investigation by the GMC which you became aware of on or around 30 July 2013; Found Proved
d. answered 'no' on the Kings College application in response to the question 'are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?' which:
i. was untrue; Found Proved
ii. you knew to be untrue Found Proved
e. failed to declare that you were 'currently' the subject of an interim order of conditions reviewed and maintained by an IOT on 24 October 2014; Found Proved
f. stated that the interim order of conditions had 'now expired' which:
i. was untrue; Found Proved
ii. you knew to be untrue. Found Proved
East a nd North Herts-2015 Recruitment
7. On 15 April 2015 you applied for a vacancy as a Senior Clinical Fellow (Registrar Level) in Obstetrics and Gynaecology via 'NHS jobs' to East and North Hertfordshire NHS Trust ('the second ENHT application') and in doing so you:
a. failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved
b. answered 'no' on the second ENHT application in response to the question 'are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue. Found Not Proved
c. failed to declare that you were the subject of an ongoing fitness to practise investigation which you became aware of on or around 30 July 2013; Found Proved
d. answered 'no' on the second ENHT application in response to the question 'are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?' which:
i. was untrue; Found Proved
ii. you knew to be untrue. Found Proved
8. On 21 May 2015 during an interview at East and North Hertfordshire NHS Trust for the position described in paragraph 7, you failed to declare that you:
a. were convicted of the offences as set out in Schedule 1; Found Not Proved
b. were the subject of an ongoing fitness to practise investigation by the GMC. Found Not Proved
9. On 23 November 2015, as part of the pre-employment checks for the position described at paragraph 7, you completed and signed a form entitled 'confidential declaration form' ('the form') and in doing so you;
a. failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved
b. answered 'no' on the form in response to the question 'are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue. Found Not Proved
c. answered 'no' on the form in response to the question 'have you been investigated by the Police, NHS CFSMS or any other Investigatory Body resulting in a current or past conviction or dismissal from your employment or volunteering position?' which:
i. was untrue; Found Not Proved
ii. you knew to be untrue. Found Not Proved
10. Your actions as described in paragraphs 1–9 were:
a. misleading;
Paragraph 10(a) in relation to 4(c), 4(d)(i)&(ii), 6(c), 6(d)(i)&(ii), 7(c) and 7(d)(i)&(ii); Found Proved in its entirety
Paragraph 10(a) in relation to 6(e) & (f)(i)&(ii); Found Proved in its entirety
b. dishonest.
Paragraph 10(b) in relation to 4(c), 4(d)(i)&(ii), 6(c), 6(d)(i)&(ii), 6(e)&6(f)(i)&)(ii) 7(c) and 7(d)(i)&(ii); Found Proved in its entirety
And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct."
None of the charges in relation to the Appellant's convictions were upheld by the Tribunal. The convictions in Schedule 1 were for driving with excess alcohol and, without a licence and insurance, on one occasion on 31 August 2007. He was convicted on 15 January 2008. In the light of the Appellant's evidence that he had attended the GMC's offices in October 2008 and orally informed an employee of the convictions, the Tribunal was not satisfied that the GMC had made out its case that he failed to notify the GMC, as alleged in paragraph 1 of the charges. The Tribunal also concluded that the Appellant was not under a legal obligation to disclose the convictions when he made his job applications, because they were spent convictions, and the information was not required in order to assess his...
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