When is the right time to question a medical decision?
Professional Standards Authority for Health and Social Care v General Medical Council
 EWHC 524 (Admin)
Judgment date: 15 March 2016
The Professional Standards Authority for Health and Social Care (the PSA) appealed to the High Court, in respect of decisions of the Fitness to Practise Panel (‘the Panel’) relating to Dr Igwilo. Firstly, a finding that Dr Igwilo's fitness to practise was not impaired by reason of his misconduct, and secondly, that it was not appropriate to issue him with a warning.
In July 2010 Dr Igwilo unsuccessfully applied to the GMC for a Certificate of Eligibility for Specialist Registration (CESR) for entry in the Specialist Register of Forensic Psychiatrists, which would qualify him for appointment as a consultant. In support of the application, he was required to submit a portfolio of work demonstrating that he had the requisite knowledge, skill and experience.
He was sent a detailed decision in April 2011 which made seven recommendations. Dr Igwilo exercised his right to apply for a review of the decision in June 2011, but this was also unsuccessful and he was provided with four recommendations.
Dr Igwilo reapplied in November 2012, submitting further evidence to address the four recommendations. The GMC noticed that one of the reports submitted as part of Dr Igwilo’s evidence, which was signed by him, had also been submitted by another applicant. Upon investigation, it transpired that Dr Igwilo had falsely altered the author's name of this report to his own and had claimed numerous other reports he had submitted in evidence were his own work when they were not. In the course of the investigation, Dr Igwilo misled the GMC about the provenance of the report. Following further investigation by the GMC, falsification of a large number of other documents was alleged against Dr Igwilo.
The aforementioned concerns were referred for a hearing before the Panel.
Findings by the Panel
Dr Igwilo admitted the majority of the charges, including that of dishonesty.
The Panel concluded that, despite the findings of misconduct, Dr Igwilo's fitness to practise was not currently impaired. The Panel held that this was an isolated period of dishonesty that had occurred against a background of severe personal stress. Dr Igwilo had since undergone extensive reflection and remediation and therefore there was no risk of repetition. The Panel also found that public confidence in the profession would not be undermined by a finding of no impairment. The Panel held that it would be disproportionate to issue a warning in the circumstances of Dr Igwilo’s case.
Grounds of Appeal
The Appellant's first ground of appeal was that the Panel failed to have sufficient regard to the serious nature and extent of Dr Igwilo's dishonesty and the public interest in the standards of the Specialist Medical Lists being regulated effectively by the GMC.
The second ground of appeal was that the Panel was wrong to find that Dr Igwilo's fitness to practise was not impaired. The Panel failed to have sufficient regard to the factors identified in the first ground of appeal, and gave undue weight to the mitigating factors. The Panel also failed to give adequate regard to the public interest in maintaining public confidence in the profession.
The third ground of appeal (put forward in the alternative) was that the Panel was wrong not to issue a warning to Dr Igwilo.
Mrs Justice Lang dismissed the first ground of appeal stating that, although the Panel's findings on misconduct were “sparse”, the decision was “adequate” because she was satisfied the Panel were aware of all the points that the Appellant submitted were omitted.
Regarding the second ground of appeal, Mrs Justice Lang agreed that the Panel was entitled to place weight on Dr Igwilo’s mitigation and his extensive period of remediation, and in so doing, find that there was no risk of repetition by Dr Igwilo.
However, she found that the Panel were unduly lenient in concluding that Dr Igwilo's fitness to practise was not currently impaired. The Panel had accepted Dr Igwilo’s admittance of guilt and apology when his deception came to light as immediate. However, Mrs Justice Lang found that for Dr Igwilo to admit his guilt at this point was to only show remorse once he realised that his actions were going to be exposed.
In addition, Mrs Justice Lang highlighted that Dr Igwilo responded to the GMC’s guidance of improvements to obtain inclusion onto the Specialist Register of Forensic Psychiatrists by using deceit when he was unable to do so by legitimate means. Mrs Justice Lang found that this conduct jeopardised the integrity of the Specialist Medical List system, and the GMC's ability to regulate it. However, the Panel had made no mention of these factors, and indeed, the seriousness of them. Mrs Justice Lang noted that Dr Igwilo’s dishonesty affected his professional colleagues, as he represented their work as his own, or claimed that they had approved of his work when they had not done so.
Mrs Justice Lang concluded that the Panel made an error of judgment in concluding that the need to maintain public confidence in the profession and the regulator, and to uphold proper standards of conduct and behaviour was met by the fact that Dr Igwilo had been subject to fitness to practise proceedings.
Due to her conclusions on the second ground of appeal, Mrs Justice Lang did not consider the third ground and remitted the question of sanction to be determined by a freshly constituted Panel.
This case demonstrates that fitness to practise panels must critically look at the facts of a case and the conduct alleged against the Registrant. In so doing, panels must conduct a detailed and holistic analysis to ensure that they have considered and applied appropriate weight to all of the relevant aggravating and mitigating factors.
Mrs Justice Lang found Dr Igwilo's deception to his regulator to have been very serious, sustained and purely to advance his career. For his own gain Dr Igwilo had falsified a large number of documents which indicated it was an elaborate deception which took some considerable time to plan and implement.
Whilst Dr Igwilo subsequently admitted his wrongdoing, this was only at the stage that it was evident to him that the deception had been noted by the GMC. Whilst the panel was entitled to bear this acceptance in mind, alongside other mitigating factors, the seriousness of Dr Igwilo’s actions undermined fundamental tenets of the profession, and therefore should be appropriately marked with a finding of impairment and a proportionate sanction.
This blog was written by Hannah Williams, Legal Assistant at Kingsley Napley.
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