Mohannad Barakat v General Medical Council
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Davies |
| Judgment Date | 18 September 2013 |
| Neutral Citation | [2013] EWHC 3427 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 September 2013 |
| Docket Number | CO/9411/2012 |
[2013] EWHC 3427 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Stephen Davies
(Sitting as a Judge of the High Court)
CO/9411/2012
Miss Penny Mawdsley (instructed by Davies Gore Lomax) appeared on behalf of the Claimant
Miss Gemma White (instructed by the GMC) appeared on behalf of the Defendant
This is an appeal brought by the appellant, Dr Mohannad Barakat, under section 40 of the Medical Act 1983 against a decision of a Fitness to Practise Panel of the General Medical Council on 10th August 2012 that his name be erased from the Medical Register.
The Panel had determined that Dr Barakat had been committed misconduct such as impaired his fitness to practise, in that he had been complicit in the production of a forged medical report and the submission of that report in the course of divorce proceedings being undertaken in the Fourth Sharia Court in Damascus in Syria. The forged reports in summary purported to show that his then wife, who I shall refer to as "the complainant", had a pre-marriage history of sexual intercourse and had had vaginal reconstructive surgery.
In short, and I adopt with gratitude the helpful summary of events contained within Miss Mawdley's and Miss White's skeleton arguments, the background is as follows. The appellant and the complainant met in Syria in July 2008 and were married a month later. On 6th December 2008 the complainant joined the appellant in Bristol in this country where he worked, as he had for many years, as a doctor there. I should say that the appellant is by birth Syrian but had grown up in the United Arab Emirates and subsequently worked in England as a doctor for many years.
On 17th December 2008 the complainant underwent a routine smear test at her GP's surgery in Bristol. The results were received on 18th February 2009 and the report, which it is accepted on all sides was the genuine report, revealed nothing untoward. However even by that time the marriage was already in difficulties, so much so that on or around 15th February 2009 the complainant had already left the appellant and also left this country, returning to Syria. Thus she had not received the results of the smear test before she returned to Syria where, as I have said, she duly instigated divorce proceedings in the Sharia Court in Damascus.
It is the complainant's position that later that year, some time around October 2009, in the course of those divorce proceedings, a fraudulently altered version of that report was submitted either by the appellant or at his direction to the divorce court. There is no dispute but that there was a fraudulently altered version of the report produced by someone. It purports to bear the signature of a Mr Fraser McLeod, who is a consultant gynaecologist practising in the Bristol area, but he gave a statement to the Panel, which was not disputed, to the effect that he had never seen the complainant as his patient nor had he ever signed the report. Additionally, it contained the references to the complainant's past sexual history and vaginal surgery which, as again is common ground, were not present in the original and were, quite simply, false and untrue.
Before the Panel it was the appellant's case that the first he knew about any of this was around October 2009, when he was shown the fraudulent report by his mother, who at the time was sharing his flat in Bristol. He said that he was told, and believed, that it was a genuine report and that he was obliged to return it to the complainant, as he had the rest of the complainant's possessions, but that in order for that to be done in proper form, and to protect him against subsequent complaint, it was necessary for it to be done in an official way, involving a process known as an apostille process. What this means is that the report is presented to the Foreign and Commonwealth Office in London for it to be authenticated by them, whereupon it is then submitted to the Syrian Embassy in London for the apostille process to be completed and returned to the person requesting the apostille. The appellant said that having done this in this case he then gave the authenticated document back to his mother for her to take back to Syria with her and to hand to the complainant, and that so far as he was concerned that is what was done. He said that he had no knowledge or involvement in any process of it being submitted to the court in the divorce proceedings. Indeed before the Panel he put forward a case that the forged report had not been submitted to the court and, seemingly, that this allegation was all a fabrication by the complainant in order to get him into trouble with the authorities, including the General Medical Council. His case before the Panel was that in fact, as he subsequently became aware, the forged reports had been produced at the instigation of his mother but that the actual process of forging them had been undertaken by his then girlfriend, Louise Clark, all entirely without his knowledge or consent. Indeed Ms Clark gave evidence before the Panel in support of that account.
The Panel was convened in January 2012. It took place over a total of 17 days, punctuated by adjournments. Thus there was an initial hearing from 4th January to 11th January, which was then adjourned to allow the appellant's legal representatives to make further enquiries into documents produced by the complainant in the course of her evidence. It was adjourned to the 30th April 2012, when it proceeded until 9th May, but when it was further adjourned, again at the request of the appellant's legal representatives, to allow them to call evidence on his behalf from a further witness who they had identified, namely the Syrian lawyer who had been instructed by him in the course of the divorce proceedings in Syria, a Mr Wasim Alrafi. The hearing duly recommenced on 6th August and continued until 10th August 2012. At that resumed hearing the appellant's representatives in fact decided not to call Mr Alrafi as a witness, so that the evidence was concluded, followed by the submissions, with the determination on the facts being promulgated on 7th August 2012.
The key questions which the Panel had to determine were identified by them in the course of their determination as being as follows:
(i) whether during the course of matrimonial proceedings the forged medical report was submitted;
(ii) whether the appellant allowed that report to be submitted on his behalf; and
(iii) whether he had altered or in the alternative was aware that reports had been altered on his behalf.
They answered all three questions against the appellant.
The determination under paragraph 2 runs to just under three pages, and I must read it out in full:
" Paragraph 2 in its entirety:
'2. During the course of matrimonial proceedings in which you and Ms A were opposing parties (Sharia lawsuit/origin No 5248 of 2009, in the 4th Sharia Court in Damascus, Syria) you allowed a cytology report on Ms A ('the report') to be submitted on your behalf, which
a. you had altered; or, in the alternative,
b. you were aware had been altered on your behalf,'
has been found proved.
For the avoidance of doubt, the Panel does not accept Mr Leonard's submission that this paragraph alleges that the report was submitted to the 4th Sharia Court in Damascus. The charge alleges that you allowed the report to be submitted on your behalf 'during the course of matrimonial proceedings'. The Panel understood and took the term 'matrimonial proceedings' to include any, or all, of the various stages, processes and bodies involved in such proceedings.
A large amount of evidence and documentation have been placed before the Panel during the course of the proceedings with a significant amount relating to the background of the case. The Panel does not consider it necessary to comment or make findings in relation to every aspect of the evidence and documentation. The Panel has focussed solely on the allegation and the heads of charge before it, and has only considered at this stage, the evidence and documentation relevant to the matters which enable the Panel to make its findings on the facts.
In reaching its decision in respect of this paragraph, the Panel asked itself three key questions. There were as follows:
Whether during the course of matrimonial proceedings the forged medical report was submitted; 2. Whether you allowed that report to be submitted on your behalf; and.
Whether you had altered, or, in the alternative, were aware that the report had been altered on your behalf.
In relation to the first question, the direct evidence presented to the Panel came from Ms A. The Panel found her evidence in this regard to be credible, reliable and consistent throughout. She told the Panel that she was herself present in Court on several occasions and received the report from the Court on at least two occasions, once unauthenticated and then subsequently authenticated. she was emphatic in this regard. She stated that she had been shocked and it had caused her embarrassment with other people.
The Panel has noted that Ms A's account is, in part, supported by a written memo from your Syrian lawyer which noted that in the course of the proceedings you had provided a written memo detailing various matters and attaching the forged medical report. It is further supported by a statement, dated 9 December 2009, from the Ministry of Justice, 4th Sharia? court in Damascus, confirming that the...
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