R Fernando v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] EWHC 1204 (Admin) |
| Docket Number | CO/4268/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 March 2018 |
[2018] EWHC 1204 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Choudhury
CO/4268/2017
Mr S Gurney (instructed directly) appeared on behalf of the Appellant.
Mr R Kitching (instructed by Legal Department, General Medical Council) appeared on behalf of the Respondent.
This is an appeal against the direction of the Medical Practitioners Tribunal (“the Tribunal”) dated 22nd August 2017 that the appellant's name be erased from the Register pursuant to s. 35D(2)(a) of the Medical Act 1983.
Background
The appellant is a medical practitioner. He specialises in urology and is currently employed at the James Paget Hospital in Great Yarmouth. Between 14th and 22nd August 2017, the appellant appeared before the Tribunal at a hearing to consider an allegation that his fitness to practise was impaired by virtue of his misconduct. The misconduct alleged against the appellant comprised 13 charges. Charge 1 was that on 19th September 2016 the New Zealand Health Practitioners Disciplinary Tribunal (“NZHPDT”) determined that he was guilty of professional misconduct and had imposed an order against him cancelling his registration in New Zealand.
The background to that charge is that the appellant had previously been registered as a practitioner in New Zealand. He was in litigation against family members. He made an allegation in the course of those proceedings as to the health of his wife. The judge in those proceedings indicated that he would require evidence of such allegations in order to consider them. The appellant apparently took that as justification for seeking to obtain the medical records of his wife by surreptitious means. The position is perhaps best summarised by the finding of the NZHPDT to which the tribunal had access where it said at paragraph 45 as follows:
“45 In the Tribunal's judgment, in the end, this case is straightforward enough. A New Zealand-registered doctor took advantage of his position as such to gain access to confidential medical records which he had no legitimate reason for accessing belonging to members of his family in order to give himself an advantage in litigation in which he was involved, and, in the course of doing so, lied to and deceived District Health Board officials.
46 In our view, this was the most blatant breach by the Practitioner of his professional responsibilities to act with honesty and integrity in his dealings with others and fell well short of the standards which the public and profession are entitled to expect.”
The appellant admitted this charge and the Tribunal found it proved in its entirety. Charges 2 to 8 related to a number of abusive and threatening telephone calls made by the appellant to a family member and her friend. In some of those calls the appellant spoke directly to the persons involved and on other occasions he left voice messages. It is fair to describe the language used in the course of those calls as vile and threatening. Two of the voice messages were transcribed and are set out in schedules 2 and 3 of the Tribunal's determination. These were as follows:
“Schedule 2
You fucking whore. Listen to me, you fucking bitch. I'm coming to New Zealand. I am going to fucking slaughter you. You watch. You'd better believe this word I'm telling you or I will swear on my life I will fucking slaughter you, you smelly, fucking, ugly cunt. You're a fucking whore. You lesbian bitch.
Schedule 3
[Miss A], you didn't have any money to give us. You haven't paid for your wedding dress but you have money to send to [Miss C] now. Interesting, isn't it, [Miss A]? You are one fucking (inaudible) bitch. I hope you will die and you will go to fucking hell, you (inaudible).”
The appellant admitted that he had made these calls but denied the words were threatening behaviour. The appellant told the Tribunal that he had meant to say “slander” instead of “slaughter” and “hold you accountable” instead of “hold you down”. The Tribunal, perhaps unsurprisingly, rejected that evidence and concluded as follows:
“29 Having considered all of the evidence, the tribunal determined that the nature and language of both statements was threatening. Whilst it had regard to evidence of your alcohol consumption and subsequent apology, this does not mitigate what was said at the material time. It accepted the evidence of Miss A, who said that she felt threatened and ‘terrified’ by your words.
30 The tribunal was satisfied that, on the balance of probabilities, you intended to use the words ‘slaughter’ and ‘hold you down’. It noted that ‘slaughter’ is recorded twice in the transcript, it therefore rejected your evidence that this was an unintended term. Further, in the context of the statements, the tribunal determined that ‘slander’ and ‘hold you accountable’ do not syntactically make sense. In any event, regardless of intent, it has been admitted and found proved that these were the words used.”
The Tribunal found all these charges proved.
Charges 9 and 10 were that the appellant had been charged with criminal offences, namely a breach of a non-molestation order and harassment.
Charge 11 was that on 23rd February 2015 the appellant had been convicted of common assault at the Laganside Magistrates' Court in Belfast. The conduct leading to that conviction was that the claimant had assaulted his wife by pushing her on to the bed, chasing her downstairs, and hitting her repeatedly with a slipper. The appellant admitted that he had been convicted and the charge was found proved.
Charge 12 was that he had failed to report to the defendant the matters described in charges to 11. Paragraph 75 of the Good Medical Practice Guide provides:
“75 You must tell us without delay if, anywhere in the world:
a. you have accepted a caution from the police or been criticised by an official inquiry,
b. you have been charged with or found guilty of a criminal offence,
…..”
Finally, charge 13 was that during the course of a police investigation in relation to the charge of harassment described above he had failed to co-operate with a formal inquiry in that, during a telephone conversation with the Police Service in Northern Ireland, he had wished the courts “good luck” in finding him or words to that effect. Paragraph 73 of the Good Medical Practice Guide provides:
“You must co-operate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance …”
That charge was also found proved.
The appellant does not challenge any of those findings by the Tribunal. The Tribunal had made the findings at stage 1 of the proceedings and moved on to consider the issue of impairment of the appellant's fitness to practise under stage 2.
The Tribunal dealt with this as follows:
“Impairment
48 The tribunal is of the view that you are yet to develop an appropriate level of insight into any of the matters which have brought you before this tribunal. Whilst you have stated that you accept your role in the events which have led to this hearing, you have also stated that your conviction was a miscarriage of justice, and that the determination of the NZHPDT was unfair and non-jurisdictional. In addition you stated that the actions which have led to you facing this tribunal relate to personal dealings with family members, rather than your professional conduct as a doctor. The tribunal was concerned by this distinction, in that it indicated that you do not recognise that your behaviour, whether in or out of a professional setting reflects on the overall perception and reputation of the medical profession.
49 The tribunal has taken account of the evidence adduced by you to show that you have taken steps to remediate your behaviour. You have told the tribunal that by attending ethics courses, you have learned how to communicate better with others. Specifically, you stated that you have learned to reflect on an issue before communicating and to not respond in anger. You have produced evidence to show that you are keeping your clinical skills and knowledge up to date, as well as patient testimonials and a colleague's testimonial. However, the tribunal reminded itself that no concerns have been raised regarding your clinical competence. It noted that the one professional testimonial does not address the issues relating to the allegations. The tribunal therefore concluded that, while you have taken some steps, these are at this juncture, insufficient.
50 Given these findings, the tribunal determined that a finding of current impaired fitness to practise should be made. Moreover, given the serious shortfalls in your behaviour, the tribunal determined that the need to uphold standards and public confidence in the profession would be undermined if a finding of impairment were not made in this case. It therefore determined that your fitness to practise is impaired by reason of the determination by...
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