Acting to stop harm: the FCA and Appointed Representatives
This was an appeal to the High Court against the decision of a Fitness to Practice Panel (the Panel) of the General Medical Council in respect of a number of factual findings, including a finding of dishonesty, which had resulted in a direction for the appellant to be erased from the medical register.
Dr Qureshi worked as a general practitioner at the Somerset Medical Practice in Ealing. Concerns had been raised about his health, namely his cognitive impairment. Various health professionals had advised him to inform the GMC and the DVLA of these health issues, cease working as a general practitioner and avoid driving.
It was alleged that the aforementioned advice had not been followed. It was further alleged that Dr Qureshi had been verbally abusive and physically aggressive to patients during the course of consultations.
The charges were made up of eleven paragraphs. There were some factual admissions and the Panel found the majority of the matters proved.
In particular, paragraph 4 alleged that:
On 22 June 2011 in a consultation with Dr C (Dr Perry) about the appellant's health, the appellant told the doctor that he was retired from work when he was still working as a GP at the Somerset Medical Practice.
Paragraph 5 alleged that:
The appellant's statement at paragraph 4 above was misleading; and
The appellant's statement at paragraph 4 was dishonest.
Paragraphs 4 and 5 were not admitted by Dr Qureshi, it was his case that he had informed Dr Perry that he had taken ‘24 hour retirement’ (in order to claim his NHS pension) and returned to work.
In finding these allegations proved the Panel reasoned that in a witness statement dated 18 September 2013 and in the course of his live evidence in December 2014 Dr Perry stated that it was his understanding that Dr Qureshi had retired from work entirely. He relied particularly on a letter he had sent, dated 14 July 2011, in which he stated “thank you for asking me to see Dr Qureshi who is a retired GP”.
The Panel found Dr Perry to be a credible witness who was fair and consistent, in contrast with Dr Qureshi noting his evidence was confused, inconsistent and sometimes evasive. The Panel concluded that Dr Qureshi held himself in high esteem and placed his own opinion over and above those of others.
The Panel concluded that Dr Qureshi had deliberately suppressed information because he had previously rejected the advice of several professionals to give up work and to inform the DVLA and GMC of his cognitive difficulties. They went on to determine that, knowing the potential consequences, Dr Qureshi had deliberately chosen not to be frank about his ‘retirement’ being only a technical retirement and were satisfied that such a course of action was dishonest.
The Panel found that the facts proved amounted to misconduct, that Dr Qureshi’s fitness to practise was impaired and directed his erasure from the medical register.
Dr Qureshi appealed to the High Court pursuant to Section 40 of the Medical Act 1983, against the Panel’s findings on paragraphs 4, 5 and 8. Paragraph 8 alleged that, during a patient consultation, Dr Qureshi had shouted, swung a roll of tissue in the air and punched a patient.
Mr Justice King set out the relevant test, namely whether the decision under challenge was wrong or unjust because of serious procedural or other irregularities in the proceedings. He went on to say:
It is well established that findings of fact, especially if they are founded upon an assessment by the tribunal of the credibility of witnesses, are difficult to assail. It has to be shown that the findings were sufficiently out of tune with the evidence to indicate with reasonable certainty the evidence has been misread. See the judgment of Leveson LJ in Southall v General Medical Council  EWCA Civ 407. The appellant has to persuade me that the findings of fact under challenge were in effect perverse findings, perverse as not supported by the evidence, or alternatively perverse because the tribunal in their reasoning did not demonstrate a coherent set of reasoning which took into account all material evidence and which did not ignore that which was pertinent or take into account the irrelevant.
The Judge allowed the appeal in respect of paragraphs 4 and 5 but dismissed the appeal in respect of paragraph 8. He stated that it was clear from looking at the passages of evidence which he had been taken to that Dr Perry had no recollection of what was said or not said back in 2011. He held:
What the Panel in my judgment fail completely to address in assessing the reliability of Dr Perry's evidence, given his evidence that he really had no recollection of what had happened previously save what he had recorded, is the history whereby Dr Perry was seeing Dr Qureshi at that consultation.
He went on to describe how Dr Perry had been sent a letter of referral by a Dr Rakowicz on 21 February 2011 in which it stated as a matter of history that Dr Qureshi continued to work and that this letter was also sent to Dr Qureshi. He went on to say:
The Panel had to remember where the burden of proof lay. It was not upon the appellant to prove that he had said the words he said he had said. The burden was on the GMC to establish on the balance of probabilities that he had only said that which is recorded in the letter of Dr Perry of 14 July 2011.
In very simple terms, in my judgment, the Panel just do not explain how they could be satisfied on the balance of probabilities that that was all that was said, and that Dr Perry so many years on was a reliable witness for this purpose, when Dr Perry was wholly unable because of the passage of time, to explain the role played at the consultation and his thought processes in that regard, by that letter of 21 February 2011.
The Panel also do not, even at this stage, in my judgment, explain why they had come to the conclusion that Dr Qureshi, who had a copy of the letter from Dr Rakowicz to Dr Perry would chose to suppress the fact that he was still working.
The Judge further criticised the Panel for failing to take account of a history of Dr Qureshi disclosing that he continued to work to various other medical professionals both before and after his consultation with Dr Perry.He summarised his decision by saying:
On the evidence before the tribunal, including the matters not referred to by them which I have emphasized, I find it perverse of the Panel to be able to say that on the balance of probabilities the allegation under paragraph 4 was made out. It must follow that their findings under paragraph 5(a) and (b) must fall.
He recognised that it was a bold step to overturn a Panel’s finding of dishonesty, but found their reasoning to be wholly deficient. He described the Panel’s reasoning on dishonesty as flawed:
Not because on the face of it it does not read well, but because it fails to take into account that dishonesty is a finding against a professional which is probably the most serious finding which a Panel can make, and requires very careful consideration of all factors before it is reached. Of course on my finding under paragraph 4, means that the Panel should not have reached the issue of dishonesty at all.
The Judge therefore remitted the matter back to the Panel to reconsider the issue of sanction afresh in light of his judgment.
This case highlights the importance of a Panel giving careful consideration to all factors going to a matter in issue and providing full and cogent reasons for their findings. This is not the first High Court case to emphasise the significance of a finding of dishonesty against a professional. This decision goes to show that the courts will interfere with a Panel’s decision where their reasoning does not take into account the gravity of a finding of dishonesty and accordingly explore the allegation in sufficient detail.
Written by Jean-Jack Chalmers, Barrister, Regulatory and Professional Discipline.
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