GMC exercises its appeal power for the second time

7 August 2017

General Medical Council v Theodoropoulos

[2017] EWHC 1984 (Admin)

On 31 July 2017, the High Court handed down its judgment in an appeal by the General Medical Council (the GMC) against a decision made by a Panel of the Medical Practitioners Tribunal Service (MPTS) to suspend Dr Theodoropoulos’ registration for a period of 12 months.

Background

Dr Theodoropoulos had practised in the UK as a consultant ophthalmologist for a period of time up until his registration lapsed in 2005, when he returned to his private practice in Greece. In March 2015, Dr Theodoropoulos’ name was restored to the medical register.

To clarify, a medical practitioner can access the registration database, but cannot amend the contents of it, the responsibility for which falls to the GMC. The entry for Dr Theodoropoulos in March 2015 showed him being registered “without a licence to practise”. Under Section 49A of the Medical Act 1983, it is a criminal offence for any person who does not have a licence to practise to hold themself out as having such a licence.

In this case, it was alleged that Dr Theodoropoulos had used computer software to amend the registration entry relating to him on his computer screen. The material issue was that he amended the entry to read that he was registered “with a licence to practise”, after which, he printed out that version of the registration database. It should be noted that the electronic record stored by the GMC was not altered as a result of this action.  Dr Theodoropoulos then sent a copy of the altered print out to a locum agency with a view to seeking employment.

Hearing

When the above matters came to light, the GMC embarked upon an investigation and ultimately the matter was taken to an MPTS hearing in January 2017.  Dr Theodoropoulos did not attend the hearing but had sent a detailed email to the GMC in August 2015 denying the allegations. His position was that he had printed the certificate as it appeared on the GMC website and that the error must have been made by an employee of the GMC.

At the hearing, the MPTS found the factual allegations proved and that Dr Theodoropoulos’ conduct was misleading and dishonest in respect of amending the certificate and submitting it to the locum agency.

The MPTS then determined that the facts found proved amounted to misconduct and that Dr Theodoropoulos’ fitness to practise was impaired.  At the sanction stage the MPTS determined that it was not appropriate to take no action or impose a regime of conditions. They then went on to consider suspension and determined that this would be an “appropriate and proportionate sanction that would maintain public confidence in the profession and declare and uphold proper standards of conduct and behaviour”.

In their determination, the MPTS recorded that they had considered erasure, but noted that Dr Theodoropoulos’ actions amounted to “an isolated incident and did not take place in a clinical setting”. Despite the former, the MPTS acknowledged that they had no evidence of insight of remediation from Dr Theodoropoulos but that they also did not have “any evidence that he is incapable of developing insight and remediating his behaviour”.

A 12 month order of suspension was imposed on Dr Theodoropoulos’ registration.

The Appeal

The GMC appealed the determination on sanction. The grounds of appeal contended that the MPTS erred in:

  1. Failing to recognise the seriousness of the evasion of the licensing regime and the dishonest job application;
  2. Failing to have regard to the doctor’s denial of dishonesty;
  3. Failing to recognise the gravity of the misconduct and impairment; and
  4. In so far as the MPTS departed from the approach in the Sanctions Guidance approved by the GMC, failing to give adequate reasons to do so.

Dr Theodoropoulos did not attend the appeal hearing before Mr Justice Lewis. Mr Justice Lewis determined that it was appropriate to proceed with the appeal.

Counsel for the GMC submitted that the MPTS had failed to recognise the seriousness of the misconduct and particularly the attempts by Dr Theodoropoulos to evade a regime that is put in place by a regulator to protect the public. The GMC also contended that an employer ought to be able to rely upon statements made by medical practitioners about their qualifications and ability to practice. It was also submitted that the MPTS erred in considering that suspension was appropriate because the conduct did not occur in a clinical setting.

Mr Justice Lewis agreed with the MPTS that the dishonesty was serious, but it was his view that the MPTS was wrong to conclude that suspension was appropriate and proportionate. He took the view that given the denial of the allegations by Dr Theodoropoulos, together with the absence of any evidence of insight and/or remediation, it was difficult to regard the possibility of him developing insight or remediating as a basis upon which suspension could be said to be appropriate.

Mr Justice Lewis also had regard to the MPTS’ comment that the conduct did not take place in a clinical setting. He noted that whilst this was correct, the conduct did involve dishonesty in relation to employment as a doctor and he concluded that “misconduct does not have to occur in a clinical setting before it renders erasure, rather than suspension, the appropriate sanction”.

A further point noted by Mr Justice Lewis was the MPTS’ reference to the incident being isolated. He did not agree and commented that the particular dishonesty in this case required forethought and planning and was a “calculated and deliberate attempt to circumvent the regulatory system”.

In all the circumstances, specifically in a case of serious, deliberate dishonesty, Mr Justice Lewis concluded that the MPTS was wrong to determine that suspension was an appropriate and proportionate sanction. He therefore allowed the GMC’s appeal.

Comment

The GMC gained the right to appeal MPTS decisions in December 2015. However, it is only recently that we have seen the provision being utilised, with the first High Court Judgment being handed down in a case in May 2017.  A link to our blog on this case can be accessed here

The GMC regard the power to appeal decisions as part of their role in protecting the public and it is likely we will see more appeals in the immediate future whilst this area of jurisdiction develops. However, it remains to be seen whether any such cases will lead to any significant changes to hearings going forward.  Of particular interest will be whether any amendments are made to guidance documents provided to Tribunals as to the factors that ought to be considered when determining the appropriate and proportionate sanction in the most serious cases that fall into suspension and erasure territory.

This case also serves as a valuable reminder to clinicians as to the issues which regulators consider to be serious, outside of issues related directly to their clinical practice.

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