The Professional Standards Authority v The Health and Care Professions Council and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 02 July 2014 |
| Neutral Citation | [2014] EWHC 2723 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/707/2014 |
| Date | 02 July 2014 |
[2014] EWHC 2723 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
The Honourable Mrs Justice Carr DBE
CO/707/2014
Mr P Mant (instructed by Field Fisher Waterhouse) appeared on behalf of the Appellant
Ms V Butler-Cole (instructed by Bircham Dyson Bell) appeared on behalf of the First Respondent
Ms E Power (instructed by Russell Wise) appeared on behalf of the Second Respondent
Introduction
This is an appeal by the Professional Standards Authority ("the Authority") against the decision of the Panel of the Health and Care Professions Council ("the Panel") of 9 January 1214 ("the decision"). The appeal is brought pursuant to section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the 2002 Act").
The decision arose in disciplinary proceedings brought against Mohammed Ghaffar, a biomedical scientist ("the registrant").
On 11 October 2012, the registrant had been convicted on a guilty plea at Leeds Crown Court of dishonestly making false representations for personal gain, contrary to section 2 of the Fraud Act 2006 ("the conviction"). He was sentenced to 6 months' imprisonment suspended for 12 months and ordered to fulfil 200 hours of unpaid work.
The conviction arose out of the production by the registrant of a forged Master of Science certificate which he used for the purpose of applying for a job for which, as he well knew at the time, he was not qualified. The circumstances surrounding the offence included repeated acts of dishonesty and a subsequent attempt to conceal, as set out in more detail below.
On 9 January 2014 the Panel found that the registrant's fitness to practise was not impaired by reason of the conviction.
The Authority brings the appeal on the basis that the decision was unduly lenient. No reasonable panel, having due regard to the public interest, including to declare and uphold standards and maintain public confidence in the profession, could have found that the registrant's fitness to practise was not impaired.
The facts
In 2004, the registrant who registered as a biomedical scientist in 2002 and now aged about 33 years old, took up employment as a band 6 biomedical scientist at Mid Yorkshire National Health Service Trust ("the Trust"). Biomedical scientists play a vital role in the provision of health care services. Amongst other things, the accuracy and reliability of the tests that they carry out are of fundamental importance to the safe treatment of patients.
On 12 April 2011, along with others, he received a general email about an opportunity to "act up" as a band 7 biomedical scientist. The email stated in terms that the successful candidate would need to hold an IBMS accredited MSc degree. The registrant did not hold such a degree. Nevertheless, he applied for the position. He was invited for interview. He was informed in advance of interview that the interview panel would need to see his degree certificate.
At his interview on 21 April 2011, he was duly asked for his certificate. He indicated that he had not brought it with him. He chose to give a (dishonest) account to the interview panel of how he had completed his Masters degree at Lancaster University ("the University"). The next day, on 22 April 2011, the registrant was told that he had been successful, subject to the production of the necessary degree certificate. He was asked to bring in his certificate. On 2 May 2011, the registrant sent an email to a Mr Ian Legg, the Blood Services Laboratory Manager at the Trust, stating that he had left a copy of his certificate on Mr Legg's keyboard. He said (dishonestly) in the email that he had his course leader's mobile telephone number to provide, if necessary, the course leader having telephoned but missed the relevant Trust personnel.
Mr Legg noticed that the copy certificate looked smaller than normal. In response to this query, the registrant (dishonestly) claimed to have been sent the certificate by email from a "Dr Khan". In fact, the registrant had submitted a copy of a degree belonging to a junior colleague, Mr Anyway Masara. He had used that certificate as a template for his forgery. Moreover, he had obtained the certificate from Mr Masara by deception. He had stated to Mr Masara that he needed to see the original certificate in order to sign off a training log. In response to this direction from his superior, Mr Masara had put a copy of his certificate in the registrant's pigeon hole. The registrant then sent a text message to Mr Masara, again asking for his certificate. Mr Masara gave him another copy in person.
The registrant was informed that he had until 16 May 2011 to produce an original certificate. At this point, the registrant expanded his deception yet further. He told Mr Masara that he knew of a job suitable for Mr Masara. If Mr Masara was interested, Mr Masara should give the registrant proof of his address, a copy of his passport, and a copy of his birth certificate. On 24 May 2011, the registrant submitted an online application to the University, asking for a copy of Mr Masara's degree certificate. He used an email address of "ion_investors@yahoo.co.uk" in the name of "Mohammed Sajeed".
On 25 May 2011, the University replied asking for confirmation of Mr Masara's date of birth. Later that day, the registrant wrote to the payroll clerk at the Trust, requesting Mr Masara's date of birth. He (dishonestly) stated that he needed it for a reference that he was writing for Mr Masara. Later on 25 May 2011, the registrant responded to the University in the name of Mr Sajeed, providing a date of birth and asking for the name on Mr Masara's certificate to be altered. He stated:
"I told your colleague, due to my religious conversion, I would like to ask if my name can be changed to MS Ghaffar please on certificate. It helps for my job application so kept Masara but adopted rest."
These were, of course, yet more lies.
On 26 May 2011, the registrant sent a further email to the University, this time in the name of "Omar Ali Waheed". All this led the University to contact Mr Masara directly. Mr Masara confirmed that he had not asked for a copy of his certificate or asked to change his name. On 27 May 2011, the Trust wrote to the registrant notifying him of an investigation into an allegation that he had falsified the submitted certificate, and inviting him to attend an investigatory interview.
A first investigatory interview took place on 9 June 2011. On that occasion, the registrant gave a wholly fictitious explanation of events: (a) he stated that he had paid some £4,000 to a Dr Khan, a tutor at the University, for a distance learning course; (b) he had carried out coursework submitted to Dr Khan and sat exams in Nottingham; (c) he had finished the distance learning course but Dr Khan did not give him a certificate; (d) after the interview on 21 April 2011, he had contacted Dr Khan who had then sent him the certificate by post, which he then submitted to Mr Legg; (e) he was unable to explain the presence of Mr Masara's registration number on the certificate. He had not amended the certificate; (f) he did have some suspicions and (as was in fact true) had contacted the police.
The police confirmed on 12 June 2011 that the registrant had contacted them with a similar account to that provided to the Trust on 9 June 2011. This was, of course, as the registrant knew, a dishonest attempt on his part to provide support through the police for a dishonest version of events.
A second investigatory interview took place on 22 July 2011. At this interview, the registrant stated that he knew that the certificate submitted to Mr Legg was "wrong" but maintained that it had been sent to him by Dr Khan. The Trust agreed to allow the registrant time to submit bank records and to pursue the allegations against Dr Khan. The registrant in due course submitted accounts showing the withdrawal of a sum of £4,000 which he claimed was to pay Dr Khan.
On 30 September 2011, the Trust was informed that the registrant had been detained for question on suspicion of fraud. The registrant was suspended on the same day. He resigned from the Trust on 17 November 2011. The registrant pleaded guilty at his first court appearance on 11 October 2012 and was sentenced on the same date. It does not appear that the sentencing judge was fully aware of all the background circumstances leading to the submission of the forged certificate as set out above.
After his conviction and sentence on 11 October 2012, the registrant made a self referral to the Health and Care Professions Council ("the HCPC"). In his letter, he stated that he had pleaded guilty to fraud by false representation, such charges relating to "a MSc certificate he passed on". He stated incorrectly that the judge had simply passed a community sentence. He described his actions as "foolhardy".
In March 2012, the registrant obtained employment as a locum biomedical scientist with another Trust.
The disciplinary proceedings and the decision
The case to answer was framed as follows:
"(1) On 11 October 2012, you were convicted of dishonestly making false representation to gain for self/another or cause loss to other/expose other to risk.
(2) By reason of this conviction, your fitness to practise is impaired."
The conviction and essential surrounding facts were not in dispute. The Panel heard...
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