Acting to stop harm: the FCA and Appointed Representatives
Alam v GMC  EWHC 854 (QB)
Before Mr Justice Morgan
Dr A lodged an appeal against a decision of the Fitness to Practise Panel (the Panel) of the Medical Practitioners’ Tribunal Service of the GMC pursuant to section 40 of the Medical Act 1983 that her name be erased from the medical register. Dr A’s ground for appeal was that the Panel’s determination was wrong (CPR 52.11 (3)(a)).
The Panel sat for 31 days, at the culmination of which they determined that Dr A’s fitness to practise was impaired by reason of misconduct.
There were a number of issues. The GMC’s case centred on the allegation that Dr A had knowingly provided false information in documents which included application forms and CV’s, and in doing so her actions were misleading and dishonest.
In assessing Dr A’s evidence to them, the Panel found that she was not a credible witness because:
Having found Dr A to be dishonest, in that she knowingly provided false information, the Panel indicated that it could not immediately deal with any finding on impairment. The Panel gave thought to and ultimately imposed an interim suspension order until the case reconvened.
In dealing with the matter of impairment, the Panel first considered whether Dr A’s fitness to practise was impaired by reason of misconduct. The Panel was concerned that Dr A had been given advice by the GMC in 2009 to avoid false and misleading information after it decided to take no further action against her in relation to the registration matter in Australia.
The Panel found that Dr A’s actions amounted to serious misconduct.
In relation to impairment, the Panel noted that Dr A had denied the allegations and had not initially proffered an apology for her actions. The Panel concluded that there was a risk that Dr A would repeat the misconduct in the future, and given that dishonesty goes to the heart of the profession, her fitness to practise was currently impaired. The Panel was clear that it had a duty to uphold the wider public interest, which could be undermined by dishonesty.
In dealing with sanction, the Panel reviewed the evidence which included a number of testimonials submitted by Dr A. It also summarised the submissions made by both parties. Dr A submitted that suspension for 6 months was appropriate in the circumstances.
The Panel recognised that Dr A was an excellent doctor and was also well regarded by her colleagues as mitigating factors. The Panel considered the aggravating factors to be:
The Panel found that Dr A’s misconduct was unacceptable, and when coupled with her apparent lack of insight, the appropriate sanction was erasure.
Dr A accepted the Panel’s findings on misconduct and impairment. She therefore also accepted the finding of dishonesty. Her contention was with the sanction imposed. She submitted that in the circumstances of her case erasure was disproportionate and wrong as it would end her career. Further, that the Panel had failed to pay any, or any sufficient regard to a number of factors, including:
It was stressed on Dr A’s behalf that her misconduct did not lead to any gain for her, and as such, the dishonesty was less serious than that in other cases. In short, the absence of a ‘fraudulent motive was said to be a significant mitigating factor’ (para 14).
Counsel on behalf of Dr A submitted that the Panel did not hear expert evidence in relation to Dr A’s attitude/personality and therefore did not have sufficient expertise to conclude that she had “personality or attitudinal problems. As such, the Panel was wrong to be influenced by the view it had inappropriately formed. Counsel also criticised the Panel’s determination that the protection of the public and wider public interest could only be served by the sanction of erasure, given that there had been no issue as to the protection of the public from a patient safety perspective.
Amongst other matters, relying on the decision in Nicholas-Pillai v General Medical Council  EWHC 1048 (Admin) Counsel for the GMC submitted that the Panel was entitled to take into account matters which had come to light as a result of a doctor’s conduct at a hearing when considering the question of sanction.
Mr Justice Morgan commenced by stating that he would ‘proceed on the basis of the findings of the panel as to the nature of, and degree of, the impairment’ (paragraph 23).
In commenting on the Panel’s comments as to motive, Mr Justice Morgan stated that they needed to be read carefully, and also considered within the context of the decision as a whole. Mr Justice Morgan concluded that the Panel’s comments about motive appeared to have been influenced by two factors. Firstly, the legal advice it received based on Webb v Solicitors Regulation Authority  EWHC 2078 (Admin), which states that the absence of a motive for acting in a particular fashion does not preclude a finding of dishonesty. Secondly, the legal assessor warned the Panel that it could not speculate on matters for which there was no evidence. Mr Justice Morgan stated that the Panel had therefore been somewhat cautious in declining to make a finding in relation to motive. Instead it stated that in the absence of the GMC identifying a motive or any gain from Dr A’s actions; it was not prepared to speculate on why she had acted as she did.
Mr Justice Morgan considered the reasons for Dr A’s actions to be clear, but decided to proceed on the basis that her motive had not been established, because that was as far as the Panel went in their decision making. Despite this, the Panel made clear that it considered Dr A’s actions to be dishonest, and that it regarded her dishonesty to be serious. On this point Mr Justice Morgan stated as follows:
“It would not be right for the court to hold that the dishonesty was not serious just because the panel, for the reasons which I have explained, was somewhat cautious about attributing a motive to Dr A” (paragraph 28)
Further, Mr Justice Morgan placed no sufficient weight on the Panel’s finding that Dr A did not gain from her actions, because the Panel found the dishonesty to be serious in any event.
Mr Justice Morgan rejected the criticism that the Panel had no expertise in the area of personality issues, and further did not hear expert evidence on this point. He stated that it was clear that the Panel should when dealing with the matter of sanction consider Dr A’s insight. Specifically, paragraph 34 of the Indicative Sanctions Guidance touches on the relevance of a doctor having, or not having, insight into the matters alleged against them, and further accepting, or not accepting their wrongdoing. Mr Justice Morgan concluded that the Panel did not require expert evidence to make an assessment of Dr A’s personality/attitude, as it was well able to do so having assessed her presentation at the hearing.
As to the Panel’s reference to the protection of the public, Mr Justice Morgan dealt with the point swiftly, citing the Panel’s decision that there was no doubt as to Dr A’s clinical abilities. Mr Justice Morgan attributed the Panel’s reference to its earlier statement that it had “grave concerns about a doctor who is capable of persistently lying to the extent and over the period” that Dr A had.
Lastly, Mr Justice Morgan was not persuaded that the Panel had given no, or insufficient weight to the matters listed above, amongst others. In any event, it was for the court to assess the weight to be given to any relevant matters.
Turning to the key issue, Mr Justice Morgan reinforced the premise that the assessment he had to perform related to the level of response required to the proven impairment, thereby exercising proportionality. In doing so, he referred to the Indicative Sanctions Guidance at paragraph 82, which states that erasure may be appropriate in cases involving serious departures from the principles in Good Medical Practice, dishonesty which is persistent, and persistent lack of insight.
Mr Justice Morgan concluded that the Panel’s decision was within the margins of that which it could have made, and was not wrong.
The appeal was dismissed.
This case demonstrates that the absence of a motive and/or apparent gain from dishonesty is not in itself sufficient to preclude a finding that the person’s actions are dishonest and/or serious. Further, a Panel is entitled to come to conclusions on the practitioner’s attitude/personality based on their submissions and presentation at the hearing. This is not a matter on which expert evidence must be heard. Lastly, this case once again demonstrates that the courts are not willing to interfere with the decisions of Fitness to Practise Panels unless it is persuaded that it was wrong or there was procedural irregularity.
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