Yogendra Dutt Sharma v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Hh Judge Pelling QC |
| Judgment Date | 22 May 2014 |
| Neutral Citation | [2014] EWHC 1471 (Admin) |
| Docket Number | Case No: CO/567/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 May 2014 |
[2014] EWHC 1471 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (Manchester CJC)
Civil Justice Centre
Manchester
M60 9DJ
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/567/2014
Mr Martin Forde QC (instructed by Freeman Fisher LLP) for the Appellant
Mr Hugh Davies (instructed by GMC) for the Respondents
Hearing dates: 2 May 2014
Introduction
This is the hearing of an appeal by the Appellant by which he appeals under s.40 of the Medical Act 1983 ("MA") against a decision of a Fitness to Practise Panel ("FTPP") taken on 10 January 2014 to find him guilty of misconduct, that his fitness to practise was impaired and to suspend him from practise with immediate effect for a period of 12 months. The FTPP found proved allegations that the Appellant had dishonestly failed to inform his hospital employers of a Warning given to him by the GMC in 2007, failed to provide good clinical care to a patient (referred to in the FTPP Determinations and hereafter as "Patient A"), failed to cooperate with a PCT audit, dishonestly failed in 2010 to complete accurately an Employer Details Form ("EDF") by omitting therefrom details of his hospital employers, dishonestly failed to inform his hospital employers that he had been the subject of a Conditions Order imposed by an Interim Orders Panel ("IOP"), and breached the conditions imposed by the IOP which required him to be employed only as a GP and to cooperate with audits and investigations.
At the start of the hearing before me there was an application by the Appellant for an extension of time in which to file Grounds and for permission to reply on the Grounds served even though they had not been served with the Appeal Notice. I granted those applications for reasons that I gave orally and which I need not take up time describing in this judgment. I should make clear that Mr Forde QC did not appear for the Appellant at any stage before the FTPP and was not instructed in relation to this appeal until shortly before this hearing. He was not responsible for and did not draft the combined Grounds and skeleton served on behalf of the Appellant after the Appellant's Notice had been issued.
Background
The Appellant qualified in 1972. At all material times the Appellant was a GP practising from a surgery in Stockport mainly as a sole practitioner but for a period with a partner. He was also employed as a clinical assistant in Dermatology by the Stockport NHS Foundation Trust ("SNHSFT") at Stepping Hill Hospital and by East Cheshire NHS Trust ("ECNHST") at Macclesfield Hospital. Although technically employed by ECNHST, in fact he did not carry out and had not for some years carried out any work for that organisation because there were no consultant dermatologists at Macclesfield Hospital who could supervise him there. At all material times therefore his work in hospitals was confined to one session a week at Stepping Hill Hospital. He had carried out such a weekly session at that hospital for about 30 years. Aside from the warning which had been issued to him in May 2007, to which I return further below, the Appellant had practised throughout his career without being found guilty of any professional or regulatory misdemeanour.
As I have said already, the Appellant practised principally as a sole practitioner GP in Stockport and had done so since 1982. He practised in partnership with a Dr Bani between January 2008 and November 2009. That relationship became hostile and the Appellant terminated the partnership by a Notice of Expulsion served on 16 November 2009. Prior to this, Dr Bani had met with the PCT responsible for the practise and made various complaints against the Appellant. In December 2009, Dr Bani made a complaint to the GMC concerning a total of 19 patients. It is principally what happened thereafter that led to the Appellant's appearance before the GMC. It is an unfortunate feature of this case that the regulatory issues that arose as between the Appellant and the PCT and GMC became entwined, at least as the Appellant perceived it, with a hostile and rancorous partnership dispute between the Appellant and Dr Bani. It was the failure of the Appellant to keep the regulatory issues that arose separate from his dispute with Dr Bani that led to most of the subsequent difficulties.
The GMC embarked upon an investigation. The GMC provided a copy of the complaint to the PCT. The PCT offered to carry out an audit of 25 patients at the practise. This suggestion was agreed to by the GMC. There then followed what can only be described as long drawn out and hostile correspondence between the GMC and PCT on the one hand and solicitors then acting for the Appellant in relation to both his dispute with Dr Bani and in relation to his regulatory issues on the other. Various attempts were made to set up the audit but they came to nothing essentially because of objections and resistance on the part of the Appellant.
The Grounds and Skeleton relied on by the Appellant refer to three issues that it is maintained " … continue to bedevil the matter …". The first was whether the concerns that the PCT had were the result of complaints by Dr Bani. The second was the view of the Appellant and his solicitors that any complaints made by Dr Bani should have been disclosed. In my judgment, however relevant these points might have been either in relation to the dispute between the Appellant and Dr Bani or in relation to any complaint that might have been in contemplation by the Appellant against Dr Bani, they were not relevant to the request of the PCT to carry out an audit of the Appellant's practise. Either the PCT's " concerns" had merit or they did not. If they did then that would have become apparent from the audit and the source of the originating complaint would be immaterial. If they did not, then that too would become apparent from the audit and the Appellant would be vindicated. The third issue concerned a patient confidentiality point. The main assertion seemed to be that Dr Bani had breached confidentiality by removing patient records from the practise. As to that, if Dr Bani had acted unlawfully or had misconducted himself in the manner alleged that was an issue that was entirely separate from the question of whether patients had not been provided with the appropriate quality of care by the Appellant and thus did not merit delaying the audit that the PCT wished to carry out. Although it was suggested on behalf of the Appellant that the Appellant's then solicitors were driving these issues, I consider that submission to be without merit. No solicitor would advance submissions of the sort I am now considering without instructions. As a regulated practitioner, it was for the Appellant to make a judgment as to whether the position being adopted could be justified professionally not his solicitor.
The FTPP's Findings and Conclusions
It was alleged by the GMC and admitted by the Claimant that he practised as a:
7.1. GP at his Stockport practise where he provided medical services on behalf of the PCT; and
7.2. Clinical Assistant in Dermatology at SNHSFT and as a clinical assistant/Hospital practitioner at ECNHST.
The admission relating to ECNHST might more accurately have been to the effect that he was employed to provide such services but did not in fact provide them and had not done so for some years for the reasons that I have set out above. However nothing turns on the scope of this admission.
In relation to Patient A, it was alleged by the GMC and ultimately found proved that the Appellant had failed to provide good clinical care to that patient on occasions between October 2006 and December 2008 in a number of identified respects. Although Mr Forde conceded that these findings were not capable of challenge, and thus were accepted for the purposes of the appeal, that had not been the position of the Appellant before the FTPP. Mr Davies relied on this point as undermining the credibility of the Appellant in the sense that the FTPP had rejected evidence given on this issue by the Appellant. It is also material to the conclusion reached by the FTPP, which considered that the Appellant's response to these allegations (rather than the failure to provide good clinical care) suggested that his fitness to practise was currently impaired and that this factor, together with others, justified the decision to suspend the Appellant and to do so for a period of 12 months.
I now turn to the non-medical findings made by the FTPP. It would have been more helpful both to the Panel and the Court if the allegations made by the GMC had been set out in strictly chronological order. This would have enabled a more structured analysis of the allegations to have been made by the Panel and would have made a consideration of the appeal more straight forward.
The GMC alleged and the Appellant admitted that he had provided employer details to the GMC on 15 February 2006 in a Employers Details Form ("EDF") that failed to disclose his employment by SNHSFT. An allegation that that this omission was made intentionally and dishonestly was rejected by the Panel.
The GMC alleged and it was admitted by the Appellant that he had failed to inform SNHSFT in a timely manner that he had been issued with a GMC warning on 14 February 2007. The GMC alleged and the FTPP concluded that this failure was dishonest. The reasons given by the FTPP for concluding that this omission was dishonest were that:
"… you stated in your evidence that you thought "everyone knew" that you had a warning. The Panel has considered the context of the warning. You are a doctor of some experience, and you received this warning in writing. It states very clearly what your...
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