Malhar Soni v The General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde |
| Judgment Date | 25 February 2015 |
| Neutral Citation | [2015] EWHC 364 (Admin) |
| Docket Number | Case No: CO/1530/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 February 2015 |
[2015] EWHC 364 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holroyde
Case No: CO/1530/2014
Mr Peter Herbert OBE (instructed by direct access) for the Appellant
Miss Gemma White (instructed by GMC Legal) for the Respondent
Hearing dates: 11 th, 12 th December 2014
This is an appeal by Mr Malhar Soni against the decision of a Fitness to Practise Panel ("the Panel"). The General Medical Council ("GMC") had referred to the Panel, pursuant to section 35C of the Medical Act 1983, an allegation that Mr Soni's fitness to practise was impaired by reason of his misconduct. The Panel having heard the evidence found serious misconduct and impairment proved, and exercised its power under section 35D of the Act to suspend Mr Soni's registration for a period of 6 months. That suspension has not taken effect, having been deferred pending the outcome of this appeal.
The powers of this court on appeal are set out in section 40 of the Medical Act 1983. So far as is material for present purposes, that section provides –
"(7) On an appeal under this section from a Fitness to Practise Panel, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or
(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,
and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.
…
(9) On an appeal under this section from a Fitness to Practise Panel, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not."
The effect of CPR Part 52, PD 22.3 is that an appeal under s.40 of the 1983 Act is by way of rehearing. By CPR 52.11, this court will allow an appeal where the decision of the lower tribunal was wrong or unjust because of a serious procedural or other irregularity in the proceedings before the lower tribunal. I accept the submission of Mr Herbert, who appeared on behalf of Mr Soni, that I should apply the principles which Langstaff J, in Bhatt v GMC [2011] EWHC 783 (Admin), conveniently summarised (after a review of the authorities) in the following terms:
"… although the court will correct errors of fact or approach:
(i) it will give appropriate weight to the fact that the Panel is a specialist tribunal, whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect;
(ii) that the tribunal has had the advantage of hearing the evidence from live witnesses;
(iii) the court should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body;
(iv) findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are close to being unassailable, and must be shown with reasonable certainty to be wrong if they are to be departed from;
(v) but that where what is concerned is a matter of judgement and evaluation of evidence which relates to police practice, or other areas outside the immediate focus of interest and professional experience of the FTPP, the court will moderate the degree of deference it will be prepared to accord, and will be more willing to conclude that an error has, or may have been, made, such that a conclusion to which the Panel has come is or may be 'wrong' or procedurally unfair."
I begin with an outline of the circumstances in which the allegation was made, and of the lengthy chronology of these proceedings.
Between December 2005 and May 2011 Mr Soni was employed by East and North Hertfordshire NHS Trust ('the Trust') as a consultant ophthalmologist at the Queen Elizabeth II Hospital, Welwyn Garden City ("the hospital"). The work of the hospital was primarily concerned with NHS patients, and the treatment of private patients at the hospital formed only a small part. There were however a number of consultants, in various disciplines, who saw and treated private patients, and Mr Soni was one of them.
There was a system for the payment by private patients of the appropriate fees both for the services of the consultant concerned and for the use of the Trusts's premises and resources. I will refer to that system in more detail later in this judgment.
The GMC's allegation against Mr Soni related to his treatment, between 5 th February and 11 th April 2008, of five private patients, all of whom were elderly and suffering from wet age-related macular degeneration. The patients concerned were listed in a schedule annexed to the written allegation. Mr Soni saw each of them on a number of occasions in a consulting room at the hospital, and there administered injections of a drug known as Lucentis. Mr Soni's diary for the relevant period contained entries in relation to each occasion on which the five patients were treated. It was however alleged that no record of their treatment had ever been passed to the Private Patient office at the Trust, and that the Trust had not received the appropriate payments in respect of their attendances at the hospital. In summary, it was alleged that those private patients had been treated by Mr Soni on Friday afternoons in circumstances which amounted to their being "under the radar" so far as the Trust was concerned.
It appears that the first person to be concerned about Mr Soni's actions was Mrs Jean Aldridge, who was at the material time a Senior Sister in the Ophthalmology Department. She made some initial inquiries, and in about May 2008 the Trust began an investigation into possible fraud on the part of Mr Soni.
It should be noted that there was also a concern as to the room in which Mr Soni had administered the injections. It appears there was a difference of opinion within the profession as to whether or not such injections should only be administered in an operating theatre or designated clean room. It is unnecessary for me to consider that issue, or other points relating to the location and suitability of the room, which are not relevant to the decision which this court has to make. It should however be borne in mind as a factor which was of concern to the Trust, because it related to patient safety.
On 6 th November 2009 Mr Soni was informed by the Local Counter Fraud Specialist that the investigation had been completed. It had concluded that there was insufficient evidence to proceed to any criminal charges relating to "discrepancies in the records held by the Trust regarding Lucentis treatments that you have administered", but that there was sufficient evidence to refer the matters generally to the GMC to consider what if any further action should be taken. The letter also indicated that the Trust might consider whether an internal disciplinary investigation was necessary.
In May 2010 the Trust started a further internal investigation, and a year later arranged an internal disciplinary hearing against Mr Soni. In May 2011 Mr Soni resigned from the Trust. The Trust nonetheless continued with its case, and found that Mr Soni had committed acts of gross misconduct, such that he would have been summarily dismissed if he had still been employed.
On 11 th January 2012 the GMC wrote to Mr Soni saying that it had decided to conclude the case with no further action against him. However, the Trust wrote to the GMC on 13 th February 2012 urging it to review that decision, and expressing concerns which principally related to the nature of the investigation and the Trust's continuing concerns as to patient safety. The GMC offered to meet representatives of the Trust and did so on 4 th April 2012. As a result, the GMC decided to re-open the case, more than 18 months after it had closed it.
So it was that the hearing before the Panel eventually took place in late February and early March 2014, some 6 years after the events giving rise to the allegation. By very unfortunate coincidences of timing, Mr Soni had two other matters which were causing him great anxiety at that time. It is unnecessary to go into personal details. It suffices to say that two members of his immediate family were experiencing serious medical problems. At the outset of the hearing, leading counsel applied on his behalf for a postponement of the hearing so that Mr Soni could defend the allegation against him without having his attentions diverted by those other serious concerns. The application was refused, but the timetable of the hearing was altered, and other arrangements made, to enable Mr Soni to be with a member of his family in London, rather than at the hearing in Manchester, on a number of days. Sadly, that person's position worsened during the course of the hearing, with the result that his concerns were such that he felt unable to give evidence when the time came for him to do so. His counsel informed the Panel that Mr Soni (who was present in the hearing room) was simply not in the right frame of mind to give evidence, and said
"I made my application to postpone. It has been obviously refused for the reasons given, so I do not maintain that. I am sorry to say that I will not be calling him to give evidence for...
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