"Was it something I said?” Whistleblowing during the pandemic
Natasha Forman (née Koshnitsky)
Lawrance v GMC  EWHC 586 (Admin)
Dr L, a General Practitioner (GP) lodged an appeal pursuant to section 40 of the Medical Act 1983 (the Act) in relation to a finding by a Fitness to Practise Panel of the Medical Practitioners Tribunal Service (MPTS) that her fitness to practise was impaired by reason of misconduct. The panel struck Dr L from the medical register.
Dr L appeared before the MPTS on the first day of the hearing, without representation, having been previously represented by solicitors instructed on her behalf by the Medical Protection Society (MPS).
Whilst Dr L did not accept the evidence of the GMC’s witnesses; she had thought that she would be able to demonstrate this through her own evidence rather than through cross examination. Dr L advised the Panel that she would be unable to cross examine the GMC’s witnesses, and was given overnight to find representation. Dr L returned the following day without representation. She advised the Panel that she considered it unjust and unfair for the hearing to continue, without any further reasons and thereafter absented herself from the proceedings. The Panel decided to proceed in Dr L’s absence.
The basis for Dr L’s appeal was twofold:
Dr L also contended that even if the findings of the Panel stood, the sanction of erasure was disproportionate.
The dishonesty allegation stemmed from statements made and evidence given by Dr L in relation to a claim made against her by the partners of the practice in which her husband, also a GP, Dr M, worked. From January 2002, Dr L was a partner in a different practice. Between 2003 and 2004 she assisted her husband’s practice. She also assisted on two occasions in March 2005. The contention by the partners of her husband’s practice, was that Dr L had not worked there after the two occasions in March 2005.
Various complaints were made by all parties against each other, which led to bitter dispute between Dr L, Dr M and his former partners. Dr L was drawn into the dispute, and made a complaint to the GMC about a Dr U, which led to a finding in relation to is internet prescribing. Dr L also raised concerns about Dr U’s professional performance, which were not well founded, save that he accepted a period of monitoring in relation to his record keeping.
The PCT sought access to the visit and message books for two surgeries operated by Dr M between 2003 and 2006. The books were given to Dr L by the PCT on 14 March 2007 to be returned to the practice. Dr L contended that she received them to enable Dr M to prepare his response to the allegations levelled against him. Some eight weeks after receiving the books, Dr L made her complaint about Dr U to the GMC.
Despite requests, the books were not returned. This led to a claim in the County Court. The allegation Dr L faced was that she used the books to try and support her complaint against Dr U. Dr L denied this, and stated that she continued to do locum sessions, act as a second on call doctor and do administrative work for the practice. The contention that she had done any work, other than on the two occasions in March 2005, was denied by the partners and the practice manager, Ms C.
The circuit judge found Ms C’s evidence to be supported by the practice records. Dr U was found to be a poor witness. Nonetheless, on the key issue, as to whether any work was done by Dr L, other than on the two occasions in March 2005, was not established. The evidence provided by Dr L to the Court about the work she did for Dr M’s practice formed the basis of the case considered by the panel. In short, Dr L faced an allegation of dishonesty on the basis that she had provided a witness statement and oral evidence to the Court that she had worked for Dr M’s practice, when she had in fact not done so.
Fitness to Practise hearing
After Dr L left the hearing at the commencement of the second day, the Panel was directed to Rule 31 of the FTP Rules and the cases of Tait v RCVS  UKPC 34 and R v Jones  B 862 and  2 WLR 524, as to whether they should proceed in Dr L’s absence.
In delivering its reasons the Panel stated that Dr L was clearly aware of the proceedings having attended then left, she did not provide them with any reasons as to whether she had made an attempt to obtain representation and the allegations were serious and historical.
In addition the Panel received into evidence a witness statement of Ms C, though she was not in attendance at the hearing due to jury service. It must be said that Rule 34(11) of the FTP Rules require a panel to receive a signed witness statement as evidence in chief, unless the parties have agreed, a case manager had directed or the panel decides that the witness concerned should give oral evidence in chief.
On the admission of Ms C’s witness statement, Mr Justice Collins expressed concern given that it was clear that it was not accepted by Dr L, and therefore it needed to be tested.
Regarding the witness statements for the County Court proceedings which were not before the panel, Mr Justice Collins considered that they should have been, so as to allow the panel to pursue any issues.
On the allegation of dishonesty faced by Dr L, Mr Justice Collins stated as follows at paragraph 33:
‘I am bound to say that I have some concern about the nature of the complaints before the panel…Statements made for legal proceedings, particularly where they have arisen from a bitter dispute, are frequently shown to be inaccurate in cross examination but that does not necessarily show dishonesty. If it did, Dr U would be in some difficulty…..If in a civil case a judge had made it clear that he had been lied to by a doctor, proceedings before the FTP can be justified. But where, as here, the court proceedings did not involve any suggestion of medical malpractice, to take a case before the panel based on perjury requires very strong evidence’.
Mr Justice Collins went onto state that the legal assessor should have directed the panel that they should only find dishonesty if they were satisfied on the civil standard that there was cogent evidence of it. Further, as had occurred in Tait, the panel could have considered the facts of the case barring dishonesty, and notified Dr L with her view to her attending to deal with this issue.
Commenting on the panel’s findings that perjury is a serious matter, Mr Justice Collins opined that whilst it can be considered an exacerbating factor given the context of the dishonesty, the panel should have also borne in mind, but did not, ‘the descent into irrational and untypical behaviour because of the unpleasantness of the dispute’ (para 38).
As part of the panel’s findings, they stated that they could not be satisfied that Dr L would not repeat her misconduct in future. On this point, Mr Justice Collins considered that in the absence of the opportunity to hear from Dr L, it was difficult to see how the panel could have made such a finding. In the circumstances, the panel should have adjourned to give Dr L the opportunity to attend and make representations before the sanction was imposed.
Given all the above, Mr Justice Collins found that the panel erred in its approach to the finding of dishonest and also failed to contact Dr L to invite her to attend to make representations. He allowed the appeal, and remitted the case back to the panel.
This case demonstrates that a panel must critically look at any evidence advanced in support of a finding of dishonesty. Any such evidence must be cogent. The panel in this case made findings of dishonesty on the basis that Dr L’s evidence was not accepted in a civil claim, and therefore was dishonest. Mr Justice Collins found that this evidence was not sufficient proof of dishonesty.
Further, whilst the circumstances of this case were somewhat unusual in that Dr L absented herself without providing reasons, given the seriousness of a dishonesty allegation, it was neither appropriate nor sufficient for the panel to simply conclude that she had voluntarily absented herself, and proceed with the entirety of the hearing in her absence.
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