R Nankhonya v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 15 December 2016 |
| Neutral Citation | [2016] EWHC 3671 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/693/2016 |
| Date | 15 December 2016 |
[2016] EWHC 3671 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Mr Justice Wilkie
CO/693/2016
The Claimant appeared in Person
Ms K Beattie (instructed by GMC) appeared on behalf of the Defendant
The appellant, Dr Nankhonya, appeals, pursuant to section 40 of the Medical Act 1983, against the determination on 6th January 2016 by the respondent, the Tribunal, that his Fitness to Practise was impaired and that his medical registration should be the subject of an order of conditions for a period of 18 months with immediate effect.
The Fitness to Practise hearing, the subject of this appeal, commenced on 1st September 2015 and lasted 14 days in all. The Panel sat on dates between the 1st and 14th September, 12th October and 4th to 6th January 2016. It heard from three witnesses, Dr Ian Starke, an expert called by the GMC, who is the respondent to this application, Dr Karim Mehwish, a witness to fact, also called by the respondent, and the appellant, who gave evidence on his own behalf.
The Fitness to Practise proceedings focused on the appellant's clinical care of two patients, A and B. The heads of charge drawn up by the GMC comprised some 30 counts and at the end of the hearing the respondent found proved 17 of those heads of charge, the remainder either being dismissed at close of the GMC's case or found by the Panel not to have been proved.
Today the GMC were presented by Ms Beattie of counsel. Mr Nankhonya has represented himself eloquently and with courtesy and succinctly.
I first consider the applicable law and the approach of an Appeal Court to a decision of the Panel. The correct approach is as described by Sir Stephen Silber in Gosalakkal v GMC [2015] EWHC 2455 (Admin). Civil Procedure Rules provide by Practice Direction 52 DPD, at paragraph 19, for appeals against decisions effecting the registration of health care professionals under, amongst others, section 40 of the Medical Act 1983 that "(2) every appeal to which this paragraph applies will be by way of rehearing."
CPR 52.11 provides at sub-rule 3 that:
"(3) The appeal court will allow an appeal where the decision of the lower court was—
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."
The rule also provides at (4):
"The appeal court may draw any inference of fact which it considers justified on the evidence."
And (5):
"At the hearing of the appeal, a party may not rely on a matter not contained in that party's appeal notice unless the court gives permission."
I am indebted to Ms Beattie for identifying a series of principles which I accept are established in the authorities on the proper approach for an appellate court in considering whether the decision of the Panel was wrong where the Panel is a fact-finding body. They are as follows. First, the court must have in mind, and must give such weight as appropriate in the circumstances, to the following factors:
"i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.
Those three principles enunciated in Meadow v GMC [2007] QB 462, at paragraph 197, in the judgment of Auld LJ.
Second:
"the Appeal Court conducting a review of the trial judge's decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established … I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible."
That is in the case of Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 in the judgment of Ward LJ:
Third,
"The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow."
That is a citation from the same judgment.
Fourth:
"… as a matter of general law, it is very well established that findings of primary fact, particularly if founded upon an assessment of the credibility of witnesses, are virtually unassailable."
Southall v GMC [2010] EWCA Civ 407 , paragraph 47 in the judgment of Leveson LJ, with whom Waller LJ and Dyson LJ agreed.
Fifth:
"… the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel… the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
Fatani and Raschid v General Medical Council [2007] EWCA Civ 46 , at paragraph 19 in the judgment Laws LJ.
There were certain procedural issues which arose at the hearing. One of them concerned whether the hearing should proceed on 1st September 2015, when the appellant was not present but was represented by counsel. An application for an adjournment was made on a number of grounds which the Panel refused. In fact from Day 3 the appellant did attend the hearing and he was represented throughout at the hearing by Mr Wilson, a solicitor. No ground of appeal is raised in respect of that decision.
The second procedural issue does give rise to a ground of appeal. In respect of Patient B the Panel refused a request by Mr Wilson on behalf of the appellant and decided to receive evidence from Dr Mehwish via the telephone. Dr Mehwish was resident in New Zealand having relocated there shortly before the hearing.
There had been correspondence from the GMC asking for confirmation on the need for or method of Dr Mehwish's attendance but no response was received. The request by the GMC for Dr Mehwish to give evidence by video link was made on Day 2 of the hearing. The GMC indicated it would attempt to secure a video link but it was late to try to organise it. Dr Mehwish confirmed that he did not have access to video link but that he would speak to the Panel from his home on the telephone.
On Day 4 of the hearing counsel for the GMC indicated it was impossible to arrange a video link given the time difference but the witness could be available by telephone. Mr Wilson, for the appellant, indicated that he would prefer a Skype link but because Skype was not a secure link it could not be used. No further representations were made by Mr Wilson on behalf of the appellant.
Dr Mehwish gave evidence by telephone on Day 5 of the hearing and I will return to his evidence in due course. The evidence before the Tribunal was in a number of forms in both written and oral. The GMC provided an expert report of Dr Starke, which was included in the rule 7 bundle served on 30th July 2014. There was a supplemental report of Dr Starke which was disclosed on 8th May 2015. There was an unsigned witness statement of Dr Mehwish, dated 8th May 2015, which was signed on 19th June 2015. As I have indicated Dr Mehwish gave evidence orally by telephone and Dr Starke also gave evidence orally. The appellant also provided a written witness statement and gave evidence orally.
The grounds of appeal were settled by Mr Wilson on the part of the appellant. They are six in number. Ground 1 concerned the evidence in relation to Patient A. It was said that the expert, Dr Starke, failed to use the guidelines provided by the Warrington Healthcare Trust Local Pathway or National Guidelines. It was said that Dr Starke accepted in cross-examination that he had not all the documentation and yet despite these shortcomings the Tribunal relied on his evidence and gave considerable weight to it, thereby erring in law or, as I think more appropriately put in that respect, contributing to a wrong decision.
It was also complained that Dr Starke did not have a copy of the external report carried out for the hospital with the time line and therefore failed to consider the time line making his expert's report. Again, the Panel gave too much weight to his report.
As far as Patient B was concerned, the second ground concerns that patient. It is said the Tribunal failed to take all the available evidence into account. The patient had been discharged without the appellant's knowledge from the clinic into the care of another practitioner, a Mr Teal, a vascular surgeon. The Tribunal had failed to call for the relevant documentation relating to that. It gave too much weight to the expert...
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