Haydar Al Nageim v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 20 April 2021 |
| Neutral Citation | [2021] EWHC 877 (Admin) |
| Docket Number | Case No: CO/4875/2020 |
| Date | 20 April 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 877 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
As at Manchester Civil Justice Centre
1 Bridge Street West
Manchester, M60 9DJ
Mr Justice Julian Knowles
Case No: CO/4875/2020
Scott Ivill (instructed by BLM) for the Appellant
Peter Mant (instructed by GMC Legal) for the Respondent
Hearing date: 17 March 2021
Approved Judgment
Introduction
This is an appeal by Dr Haydar Al Nageim, the Appellant, under s 40 of the Medical Act 1983 against the decision of the Medical Practitioners Tribunal (MPT/the Tribunal) dated 4 December 2020 erasing his name from the register of medical practitioners that is kept by the Registrar of the General Medical Council (the GMC) under s 2 of the Medical Act 1983 (the MA 1983).
In a factual determination dated 16 March 2020 the Tribunal found misconduct proved against the Appellant relating to:
a. his dishonest use of on-call rooms and surgical day centre facilities at the Countess of Chester Hospital (the Chester Hospital);
b. his dishonest failure to notify the Royal Liverpool & Broadgreen University Hospital NHS Trust (the Royal Liverpool Hospital) of salary payments made to him over 27 months totalling £41 266.16 (net) which he knew had been made in error.
On 18 March 2020 the Tribunal found that the Appellant's fitness to practice was impaired by reason of his misconduct.
This appeal is against the sanction of erasure only. There is no appeal against the Tribunal's findings of fact or its determination of impairment.
I held a remote public hearing by Microsoft Teams on 17 March 2021. The Appellant was represented by Mr Ivill and the Respondent by Mr Mant. I am grateful to both of them for their written and oral submissions.
Factual background
At the relevant time, the Appellant was a junior doctor specialising in Trauma and Orthopaedics. Between 4 August 2010 and 2 August 2011, he was employed by the Chester Hospital.
Between August 2012 and February 2013, the Appellant worked as a locum in the Trauma and Orthopaedic Department at the Royal Liverpool Hospital.
Between February and August 2013, the Appellant was not working and lived with parents on the Wirral.
From 7 August 2013 until 5 August 2014, the Appellant was employed as a core surgical trainee in Trauma and Orthopaedics at Wrexham Maelor Hospital.
It was alleged that after the Appellant's employment with the Chester Hospital ended, on one or more occasions between July 2012 and February 2014, he provided false information and out-of-date identification in order to gain access to on-call rooms (used for overnight accommodation) and other Hospital facilities, such as the showers in the Jubilee Day Surgery Centre, and the Education Centre.
It was alleged that the Appellant knew that he was not entitled to access these facilities as he was no longer employed at the Hospital. It was also alleged that he knew that the information he provided to gain access (eg name and bleep number) was untrue, and that his actions had been dishonest.
It was further alleged that following the conclusion of his employment at the Royal Liverpool Hospital in February 2013, the Appellant wrongly continued to receive salary payments from that Hospital from 27 February 2013 until 29 April 2015. It was alleged that he knew he was still being paid when he was not entitled, and that he had failed to alert the Hospital about its error, and that his actions had been dishonest.
Matters first came to light on 23 February 2014 when the Appellant tried to gain access to an on-call room at the Chester Hospital but was refused entry by a suspicious security guard, and the police were called.
On 1 March 2017, the Appellant was interviewed under caution by fraud investigators from the Mersey Internal Audit Agency (MIAA) about his use of facilities at the Chester Hospital and the salary payments from the Royal Liverpool Hospital.
The allegations against the Appellant were set out in [10] of the Tribunal's factual determination:
“That being registered under the Medical Act 1983 (as amended):
Countess of Chester Hospital NHS Foundation Trust
1. After your employment with the Countess of Chester Hospital NHS Foundation Trust (‘Chester Hospital’) had ended on 2 August 2011:
a. on the dates set out in Schedule 1, on one or more occasion you provided false information in the Accommodation Key Book in order to gain access to an on-call room at Chester Hospital (‘On Call Room’), in that you gave:
i. a false name;
ii. a false bleep/contact number
b. on the dates set out in Schedule 2, on one or more occasion you provided false information in Accommodation Allocation of Room forms in order to gain access to an On Call Room, in that you gave:
i. false identification details;
ii. a false bleep/contact number;
c. on the dates set out in Schedule 3, on one or more occasion you used an On Call Room
d. you used your Chester Hospital identification badge to access the:
i. Jubilee Day Surgery Centre, on the dates set out in Schedule 4;
ii. Education Centre, on the dates set out in Schedule 5;
e. on 23 February 2014 you attempted to gain access to an On Call Room.
2. You knew that the information you provided as set out at paragraphs 1ai, 1aii, 1bi, and 1bii was untrue.
3. Your actions as described at paragraphs 1a and 1b were dishonest by reason of paragraph 2.
4. You knew that after 2 August 2011 you were no longer an employee at Chester Hospital and were therefore not entitled to use the On Call Room(s), Jubilee Day Surgery Centre or the Education Centre.
5. Your actions as described at paragraphs 1c, 1d, and 1e were dishonest by reason of paragraph 4.
Royal Liverpool & Broadgreen University Hospital Trust
6. Between 27 February 2013 and 29 April 2015 you received the salary payments at set out in Schedule 6 from Royal Liverpool and Broadgreen University Hospital NHS Trust (‘Royal Liverpool’) when you were no longer an employee of Royal Liverpool (‘the Payments’).
7. You failed to alert Royal Liverpool to the fact that you had received the Payments after your employment had ended.
8. You knew that you were no longer an employee of Royal Liverpool and were therefore not entitled to receive the Payments.
9. Your actions as described at paragraph 7 were dishonest by reason of paragraph 8.
And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”
I need not set out the dates in the various Schedules; suffice it to say that they specified a large number of dates between July 2012 and January 2014.
The Appellant admitted some of the allegations against him, namely, [1c], [1d(i)], [1(d)(ii), [1e] and [6]. He denied the other allegations.
The Tribunal heard from a number of witnesses on behalf of the GMC and the Appellant, and received a quantity of documentary evidence. It found the following allegations not proved: [1(a)(i)], [1(a)(ii)], [1(b)(i)], [1(b)(ii)], [2], [3], [4] (in respect of the Education Centre); [5] (in relation to [1(d)(ii)]).
Of the allegations which the Appellant had denied, the Tribunal found the following proved: [4] (in relation to the on-call rooms and the Jubilee Day Surgery Centre); [5] (in respect of [1(c)], [1(d)(i)] and [1(e)]; [7]; [8]; and [9]). In holding that the Appellant had acted dishonestly ( per [5] and [9]), the Tribunal applied the test for dishonesty in Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2018] AC 391, [74]:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
In relation to [4] and the on-call rooms the Tribunal found:
“40. Dr Al Nageim's explanation about his entitlement to use On Call Rooms at Chester when no longer employed by the Trust was that he was an NHS worker and he did not know that the facilities were not generally available for use, including by those who were no longer employed by Chester Hospital. For the six dates where Dr Al Nageim admits he used the rooms, he was employed at Wrexham Hospital, but, with the exception of gaining rest on 17 February 2014, Dr Al Nageim accepted that his use of the rooms was not connected to his work. The Tribunal was not persuaded that Dr Al Nageim's belief about his entitlement to use the rooms was genuine. Dr Al Nageim is clearly an intelligent man and by 2013 had been a doctor and linked to the NHS for a number of years. The On Call Rooms were designated as such for a reason; as stated within the Accommodation Room form, they were for the use of those on call or on medical attachments. Dr Al Nageim was neither on call for Chester Hospital or on a medical attachment. He chose to show an out-of-date Chester Hospital photo ID, rather than his current Wrexham Hospital ID which is not consistent with his alleged genuine belief that any NHS worker can use the facilities.
41. Under cross-examination, the exploration by Mr Moran about Dr Al Nageim's alleged beliefs about the NHS were shown to be highly improbable and unreasonable; Dr Al Nageim said that he believed, at...
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