MR JUSTICE FOSKETT:
Introduction
- Until a Fitness to Practise Panel of the General Medical Council determined on 14 August 2007 to direct that his name be erased from the Medical Register the Appellant had been a general practitioner for about 23 years. Prior to the issues giving rise to these proceedings he had no disciplinary matters recorded against him.
- He was the Medical Director of four private clinics, two of which were based in Tunbridge Wells (one of which was called The Wells Clinic) and the other two were based in Ashford (Kent) and Crawley respectively. The clinic in Ashford was also known as The Wells Clinic and that in Crawley as The Crawley Clinic. The clinics were owned by a family company (or companies) in which the Appellant had an interest.
- He described himself as a general practitioner with special interests in occupational health and in cosmetic dermatology. In that latter capacity, which he described as "the most substantial part of [his] business", his stock-in-trade included the administration of Botox, dermal fillers and other cosmetic treatments. However, he and other doctors engaged in the clinics provided treatment other than cosmetic treatment, including the supply of drugs designed to induce weight loss.
- Following the intervention of the Healthcare Commission (as to which see paragraphs 16-20 below) the Appellant was reported to the General Medical Council ('the GMC'). Certain interim hearings took place (to which I will make reference later), but in due course proceedings took place before the Fitness to Practise Panel (Misconduct) of the GMC ('the Panel'). After a hearing lasting a total of 16 days, the Panel determined that his "fitness to practise was impaired by [his] misconduct" and made an order the effect of which was to suspend his registration with immediate effect.
- He appeals to this court, pursuant to section 40(7) of the Medical Act 1983, against certain specific features of the findings made by the Panel. He does not contend that the Panel was wrong to find that his fitness to practise was impaired by his misconduct, but submits that he should not have been made the subject of an order for erasure, the appropriate disposal, it is argued, being suspension from practice for one year.
- I will deal with these matters more fully below, but it would be helpful to set out at the outset the statutory and procedural parameters within which the Panel operated and the parameters within which I must operate in the appellate role that falls to me to fulfil.
The Fitness to Practise Panel (Misconduct) of the GMC
- The statute that governs the powers of the Panel is the Medical Act 1983, as amended. Section 35D(2) provides that –
"Where the Panel find that the person's fitness to practise is impaired they may, if they think fit-
(a) … direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended … during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as the Panel think fit to impose for the protection of members of the public or in his interests."
- Section 35C(2) sets out the circumstances in which a practitioner's fitness to practise may be regarded as "impaired". The reasons may include misconduct, deficient professional performance, a conviction or caution for a criminal offence and adverse physical or mental health. This case concerned misconduct.
- The rules that govern the proceedings before the Panel are the General Medical Council (Fitness to Practise) Rules Order of Council 2004. These provide for a three-stage process: the fact-finding stage (Rule 17(2)(c)-(i)), the impairment stage (Rule 17(2)(j)-(k)) and the sanction stage (Rule 17(2)(l)-(n)).
- Miss Catherine Callaghan's Skeleton Argument helpfully summarised the approach to be adopted based upon Cohen v General Medical Council [2008] EWHC 581 (Admin). The stages are separate and distinct: at the fact-finding stage, the task of the Panel is to consider the factual allegations set out in the heads of charge and decide on the evidence whether they are proved. The task of the Panel at the impairment stage is to consider whether, in the light of any facts found proved and any other relevant factors, the practitioner's fitness to practise is impaired. The task at the sanctions stage is to determine what, if any, sanction to impose on the practitioner if the Panel has found that the practitioner's fitness to practise is impaired.
- In relation to the factual allegations, proof to the criminal standard was at that time required in relation to any disputed matter.
The appellate jurisdiction of this court
- There is agreement as to the approach to be adopted in this appeal. If I may be permitted to repeat the analysis I recorded in Chyc v General Medical Council [2008] EWHC 1025 (Admin) earlier this year, the position (perhaps with the addition of paragraph 13 below) is accepted by Mr John Macdonald QC and Miss Callaghan, to be as follows:
"4. An appeal under these rules does not require permission to appeal. The appeal is technically by way of rehearing, but in reality involves a review of the evidence and material before the Panel in accordance with the parameters set out in Gupta v GMC [2002] 1 WLR 1691 and Ghosh v GMC [2001] 1 WLR 1915, conveniently summarised by Stanley Burnton J, as he then was, in Threlfall v General Optical Council [2004] EWHC 2683 (Admin) at paragraph 21 where said this:
"Because it does not itself hear the witnesses give evidence, the court must take into account that the Disciplinary Committee was in a far better position to assess the reliability of the evidence of live witnesses where it was in issue. In that respect, this court is in a similar position to the Court of Appeal hearing an appeal from a decision made by a High Court Judge following a trial. There is, however, an important difference between an appeal from a High Court Judge and an appeal from a Disciplinary Committee. The Disciplinary Committee possesses professional expertise that a High Court judge lacks …. This court appreciates that such a Disciplinary Committee is better qualified to assess evidence relating to professional practice, and the gravity of any shortcomings, and it therefore accords the decision of the Committee an appropriate measure of respect, but no more: see Ghosh v General Medical Council [2001] UKPC 29, [2001] 1 WLR 1915, at [33] and [34] and Preiss v General Dental Council [2001] UKPC 36, [2001] 1 WLR 1926 at [26] and [29]. These decisions make it clear that the court should be more ready to overrule a disciplinary tribunal than previously appeared to be the case. It however remains the position that an appellant must establish an error, of law or fact or of judgment, on the part of the tribunal."
5. Although I have referred to that convenient summary, I should, I think, quote what was said in Gupta v General Medical Council [2002] 1 WLR 1691, where the following appears:
"[T]he obvious fact [is] that the appeals are conducted on the basis of the transcript of the hearing and that, unless exceptionally, witnesses are not recalled. In this respect, these appeals are similar to many other appeals in both civil and criminal cases from a judge, jury or other body who has seen and heard the witnesses. In all such cases the appeal court readily acknowledges that the first instance body enjoys an advantage which the appeal court does not have, precisely because that body is in a better position to judge the credibility and reliability or the evidence given by the witnesses. In some appeals that advantage may not be significant since the witnesses' credibility and reliability are not in issue. But in many cases the advantage is very significant and the appeal court recognises that it should accordingly be slow to interfere with the decisions on matters of fact taken by the first instance body. This reluctance to interfere is not due to any lack of jurisdiction to do so. Rather, in exercising its full jurisdiction, the appeal court acknowledges that, if the first instance body has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of a court which cannot deploy those factors when assessing the position. In considering appeals on matters of fact from the various professional conduct committees, the Board must inevitably follow the same general approach. Which means that, where acute issues arise as to the credibility or reliability of the evidence given before such a committee, the Board, duly exercising its appellate function, will tend to be unable properly to differ from the decisions as to fact reached by the committee except in the kinds of situation described by Lord Thankerton in the well known passage in Watt or Thomas v Thomas [1947] A.C. 484, 484-488."
The passage from Lord Thankerton's opinion is as follows:
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question."
6. In relation to the sanction imposed, and the approach to reviewing it in this court, my attention has been drawn to the case of Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46 where Laws LJ (with whom Chadwick LJ and Sir Peter Gibson agreed) said this:
"As it seems to me the fact that a principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the Panel.""
- I would merely add to that review the conclusion reached by Laws LJ, after reviewing a number of authorities including Gupta and Ghosh, when he said this at paragraph 20:
"These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
- In Cohen v General Medical Council (see paragraph 9 above), Silber J, having had his attention drawn to what Laws LJ said in Raschid and to the decision of a differently constituted court in General Medical Council v Meadow [2007] QB 462, concluded that, if there was a difference between the tests enunciated in each, the result in Cohen would have been the same whichever formulation was applied.
- In my view, the same conclusion would arise in the present case.
The Healthcare Commission
- Before turning to the case against the Appellant and the grounds of appeal, I should record the role of the Healthcare Commission in this matter.
- The clinics with which the Appellant was associated were "independent clinics" within the meaning of the Care Standards Act 2000 and the Private and Voluntary Health Care (England) Regulations 2001 (which came into force on 1 April 2002). Regulation 4(1)(b) of the Regulations defines an independent clinic as:
"A surgery or consulting room in which a medical practitioner who provides no services in pursuance of the NHS Act provides medical services of any kind…otherwise than under arrangements made on behalf of the patients by their employer or another person."
- In accordance with the 2000 Act and those Regulations the Appellant, as the Medical Director of the clinics, was responsible for the registration of the clinics with the National Care Standards Commission which was replaced in 2004 by the Healthcare Commission. That authority is responsible for the registration and regulation of independent clinics and has wide powers to enter and inspect premises reasonably believed to require registration and to make appropriate investigations.
- It is, and was at the hearing before the Panel, common ground that treatment by way of cosmetic procedures does not necessitate registration. However, treatment for weight reduction does unless provided "under arrangements made on behalf of the patients by their employer or another person." That exception relates to what are known as "third party referrals".
- As will become apparent, the Healthcare Commission became concerned that "registrable activities" were being carried on within the clinics, yet the clinics had not been registered. Over the course of about three years inspectors carried out a number of inspections of the clinics. These inspections gave rise to various allegations concerning the Appellant's clinical management, alleged obstructive attitude towards the Commission, failure to comply with its directions, the continuation in the clinics of "registrable activities" (such as weight loss treatment) despite warnings by the Commission and his alleged failure to comply with orders of the Interim Orders Panel of the GMC.
The case against the Appellant
- The charges the Appellant faced fell into two distinct categories: (i) those arising from his dealings with the Commission in the broad manner I have indicated in paragraph 20 (these were Heads 3-21); (ii) those arising from the complaints of four patients (referred to in the proceedings as Miss KL, Mrs AP, Miss SS and Mrs ES) about the treatment provided and the way in which he dealt with the issues they sought to raise with him.
- The appeal against certain findings of fact made by the Panel is confined to two aspects of the allegations arising from the cases of Miss KL and Mrs ES. However, in order to put the case against and for the order for erasure in proper perspective it will be necessary to set out the overall case against him.
- The Healthcare Commission's first visit to one of the clinics was in September 2002 when Jane Barrow, the locality manager, visited The Wells Clinic in Ashford and advised the Appellant of the registration requirements and left a registration pack with him. Registration was at that time a fairly new requirement in consequence of which a comparatively relaxed approach was adopted by the Commission and no time limit for registration was imposed on the Appellant. He was sent a follow up letter in November 2002, but nothing further happened until a team of inspectors from the Healthcare Commission comprising Christine Martin, David Munns and Timothy Billings carried out an unannounced inspection of the clinic at Clanricarde Gardens, Tunbridge Wells on 3 November 2003.
- This inspection gave rise to various concerns about the Appellant's management of the practice, including the handling and storage of medicines and record keeping. On 7 November the Commission required him to cease treating patients with immediate effect at each of his clinics (save for those treatments falling outside the remit of the Commission, such as cosmetic treatments and third party referrals). He was told that a report was being sent to the GMC and advised to seek legal advice.
- On 19 December 2003 the Appellant appeared before the Interim Orders Committee of the GMC which found that the concerns raised in the Healthcare Commission's report were serious and that there was cogent and credible prima facie evidence of poor practice management in relation to the storage of medicines and vaccines. However, given the steps taken by the Appellant to remedy these deficiencies it was not necessary for the protection of members of the public, in the public interest or in his own interests that an interim order should be made in relation to his registration as a doctor.
- At a meeting with Healthcare Commission officers on 23 January 2004, the Appellant was again advised of the need for registration and was told that treatment of patients must cease. He had not obtained legal advice but had concluded from his own researches that the law lacked clarity. His understanding was that registration was not necessary for cosmetic procedures, for cases that were referred to him by others and that the clinics did not need to be registered if they were used by National Health practitioners. Since several of the doctors whom he employed at the clinics also worked for the NHS that, he considered, afforded a further basis for the lack of need for registration. While he pursued registration, he believed at the time that it was strongly arguable that he did not need to register.
- On 11 June 2004 inspectors carried out an inspection of the clinic in Crawley. The inspection established that weight loss treatments and other treatments for which registration was required were being carried on. The Appellant was told to cease treating patients for weight loss. On 25 June 2004 an inspection of the clinic in Tunbridge Wells was carried out. The Appellant refused to allow the inspectors unfettered access to the medical records. It was found that weight loss treatments were continuing to take place, that weight loss medication was being supplied to patients without appropriate assessments, that patient records were unclear and inadequate. Again, the Appellant was told to cease treating patients.
- On 8 July 2004 the Appellant signed a written undertaking to cease with immediate effect from providing services requiring registration under the 2000 Act at any of his clinics. The undertaking was breached since it became clear from subsequent visits that weight loss treatment in various forms continued.
- The next visit to one of clinics took place on 20 August 2004 and the Commission took the view that matters appeared to be progressing somewhat better. Most policies and protocols were in place and were reviewed; medicines that were found were in date; the refrigerator, for example, was at the correct temperature and records indicated that it had been kept at the correct temperature. The Appellant confirmed to Timothy Billings that he was no longer providing a slimming service and that he would no longer stock certain drugs.
- In early December 2004 the Appellant, as part of the application process for registration, undertook what is known as a 'fit person' interview. In that interview he came across well and passed that interview.
- However, subsequently the Commission received information that the Appellant was continuing to prescribe Temazepam and medication for slimming patients. When the inspectors attended the Crawley clinic for a pre-arranged visit on 19 January 2005, they were unable to gain access.
- On 11 February 2005 there was a further inspection at the Crawley clinic. Records produced were found to be of poor quality and although they did not appear to relate to registrable activity, without complete records or patient registers it was difficult for the inspectors to assess compliance with the undertaking signed. Weight-reducing medication was found in a safe.
- The Commission had sent reports on a regular basis to the GMC and on 17 June 2005 the case was re-referred to the Interim Orders Panel which concluded it was necessary to impose interim conditions on the Appellant's registration as a medical practitioner. The conditions included a requirement that he "comply and cooperate fully with the requirements of the Healthcare Commission" and that he keep a record in the form of a book of all patients seen in relation to work carried out as a medical practitioner. The book had to contain the name of the patient and the name and contact of the referrer or third party who arranged the consultation. It had to be provided to the Panel prior to any subsequent review of the order.
- The Appellant subsequently breached both conditions. He did not keep a patient record in book form, but in electronic form. He continued to fail to cooperate with the Commission. One example was a telephone conversation between him and Nicola Keene in which he made intimidatory comments and during which, while Ms Keene was speaking, he handed the telephone to someone else while he went to the lavatory, without informing Ms Keene that he was doing so. He himself described the conversation in cross-examination as a "very frank and forceful discussion".
- A subsequent visit to the clinic in Ashford took place on 27 July 2005. The visit was carried out because information had been received that drugs, including Diazepam, Temazepam and antibiotics had been prescribed in 2004 and 2005. The Appellant refused to allow the inspectors to see his appointments book and to photocopy notes. He shredded or attempted to shred documentation, attempted to remove items from the surgery and, it was alleged, conducted himself in a rude, abusive and unprofessional manner. Inspectors found weight-reducing drugs on the premises. The Appellant suggested in cross-examination that he was merely defending his patients who had been asked, not in private, by two members of the Commission about their personal medical details. The visit was so difficult that police were called by the inspectors to allow them to complete their inspection, although there is evidence that the Appellant himself, or someone acting on his behalf, also contacted the police. At all events, during the meeting a police officer threatened to arrest the Appellant for a breach of the peace.
- On 5 September 2005 the matter was put back before the Interim Orders Panel. By that date the Appellant's application for registration with the Commission had been rejected. The case was adjourned on that day but came back before the Interim Orders Panel on 14 October 2005 when an order for interim suspension for 18 months was made. That interim suspension was due to expire on 16 December 2006. Two applications were heard by this court in November 2006, the GMC applying for an extension of the order for suspension, pursuant to section 41A(6), the Appellant applying for the termination of the suspension under section 41A(10)(a). Crane J extended the suspension until 30 September 2007 pending the hearing of the substantive case against the Appellant: see [2006] EWHC 3025 (Admin).
- I will indicate the findings of the Panel (ie. the Fitness to Practise Panel) in relation to these matters below. I should now turn to the nature of the case he faced concerning the four individual patients.
Miss KL
- Between October 2003 and February 2004 Miss KL was treated by the Appellant and one his colleagues at The Wells Clinic in Ashford for weight loss although at all material times she was of normal body weight. The Appellant supplied her with medication which was inappropriate following an inadequate assessment of her clinical needs and with no information being provided to her about the medication or its side effects. He did not notify her GP of this treatment and wrote on her medical notes that "No GP letter to be sent". Miss KL's evidence before the Panel was that this was not at her request. His case was that it was her request. I will say more about this below, but this formed the basis of the dishonesty allegation against him and is the allegation that formed the basis for one of the findings he seeks to challenge in this appeal.
- Miss KL subsequently experienced chest pains and consulted an out-of-hours doctor, Dr Moffat, on 3 February 2004. He was concerned that Phentermine (phenyl-tertiary-butylamine, a well-known appetite suppressant used to help reduce weight) had been prescribed for her and wrote to the Appellant on several occasions asking for an explanation for his actions. He did not respond to Dr Moffat until 3 March 2004.
- Miss KL also complained to the Appellant about his treatment of her. He offered her a choice of further tablets free of charge or a refund and stated that he hoped they could "still be friends". He subsequently telephoned her at home (a call which lasted two hours), told her he had done nothing wrong, that the drugs prescribed were not illegal (as she had been led to believe) and that he would lose his practice if she persisted in complaining about him.
Mrs ES
- On 21 October 2005 Mrs ES consulted the Appellant at The Wells Clinic in Ashford about cosmetic treatment to reduce the appearance of lines around her mouth. Her evidence was that during the course of the consultation she specifically asked him to confirm that he was a qualified doctor. He assured her he was. As noted in paragraph 36 above, the previous week the Interim Orders Panel of the GMC had suspended his registration. He did not inform Mrs ES of this fact. This formed the basis of an allegation of misleading a patient. I will return to this below because it formed the basis of the other finding of fact he seeks to challenge in this appeal.
- The Appellant injected Mrs ES with Sculptra (poly-L-lactic acid which is a dermal filler injected into the skin in areas where fat has been lost). She subsequently developed lumps under the skin where she had been injected. When she attended his clinic with concerns about this, the Appellant failed to give her any explanation or advice. He subsequently injected her with a substance to remove the lumps which he did not identify. When Mrs ES suffered an adverse reaction and asked for her medical notes and information about the treatment provided, he refused to provide her with her medical notes, give her any information about the nature of the injections and acted in an aggressive and intimidating manner.
Mrs AP and Miss SS
- In relation to Mrs AP, who had been prescribed with Phentermine for weight loss and about which her GP subsequently raised concerns, the Appellant made an inappropriate telephone call to her at work seeking to justify his treatment of her and telling her he could be "struck off". In relation to Miss SS, the Appellant treated her skin lesions with cryosurgery, but failed to provide her with any sufficient information about the procedure, its side effects or after-care. When she subsequently attended his clinic to raise concerns about his treatment, he conducted himself inappropriately, taking a lengthy personal telephone call in her presence while lying on a sofa and failing to respond to her concerns in a constructive or open way. (It should, perhaps, be noted that the telephone call was about the death of his father.)
The formulation of the charges the subject of this appeal
- I have summarised the nature of the GMC's case against the Appellant in respect of Miss KL and Mrs ES in paragraphs 38 and 41 respectively. I should record how the charges were formulated.
- In relation to Miss KL, the relevant part of the charge was as follows:
26. (a) You failed to notify KL's GP of your treatment of her,
(b) You have falsely claimed that your failure to notify her GP was at KL's request …
27. (a) Your inaction as set out at 26.a. above was,
(i) irresponsible,
(ii) not in the best interests of your patient,
(b) Your conduct as set out at 26.b. above was dishonest ….
- In relation to Mrs ES, the relevant part of the charge (No. 39) was as follows:
(a) On 21 October 2005, ES consulted you at your clinic at The Wells Clinic, 9 New Street, Ashford about cosmetic treatment to reduce the appearance of lines around her mouth,
(b) In the course of that consultation, ES specifically asked you to confirm that you were a qualified doctor. You assured her that you were,
(c) ES acted in reliance upon your confirmation that you were a registered doctor when agreeing to treatment by you,
(d) On 14 October 2005 the IOP had ordered that your registration be suspended,
(e) At no time did you inform ES that you were suspended from medical practice,
(f) By failing to inform ES of your suspension in the circumstances as set out at 39.b. – e. above, you misled ES about your status ….
- With the exception of charge 39(c), which was found not proved, each of these allegations was founded proved by the Panel.
The challenge to these findings
- Mr Macdonald QC seeks to challenge those findings on behalf of the Appellant. He says that each played a material part in the Panel's finding that his "fitness to practise was impaired by [his] misconduct" and in the choice of sanction. That contention is challenged by Miss Callaghan and I will have to return to it if I hold that either or both of the findings should be set aside. Irrespective of whether the contention has validity, the Appellant is entitled to have adverse findings made against him set aside if they should not have been made.
Miss KL
- In relation to Miss KL, there was no issue that the Appellant had not informed her GP of the treatment. As indicated above, the Appellant's case was that this was at her request. Miss KL's witness statement, which she adopted in her evidence, contained the assertion that she did not tell the Appellant that she did not want her GP to be contacted and went on to assert that she had provided him with her GP details. In her evidence-in-chief and in cross-examination she asserted that she was shocked when she saw for the first time the medical record containing the words "No GP letter to be sent" and repeated that she had never requested the Appellant not to contact her GP. She said that she did not write the statement on her medical record concerning contact with her GP and did not know when it had been added.
- The positive case advanced on the Appellant's behalf at the hearing was that Miss KL had requested him not to contact her GP because she had previously taken medication (tenuate dospan) prescribed for someone else and did not want her GP to know. The Appellant's notes indicated that Miss KL had told him that she had "previously tried a course of tenuate dospan".
- Part of the cross-examination by Leading Counsel then acting for the Appellant was as follows:
Q …. Had you taken a course of tenuate dospan?
A No.
Q Not from your GP.
A No. The tablets I had from my GP – would you like me to elaborate on that?
Q Of course.
A The tablets I had from my GP – just after I had my second child I was extremely overweight, I was probably in a size 18 clothing and finding it very hard to lose the weight. I went to my GP at the time and he prescribed me something that was new on the market and what it did was took the fat out of the food and made it like an oily substance basically. That was it. He prescribed me a month's course of that and said to me that if I had not lost weight after that month, even a pound or so, it obviously was not going to work for me, and it did not, I did not lose anything on that, and then therefore I stopped after that and never had any other slimming tablets apart from like your Slim Fast and things like that until I went to Dr Sheill.
Q So his putting down here that you had previously tried a course of that with no side effects, that is wrong as well according to you.
A Yes, I took two tablets. I had two tablets from a friend and had not had a full two weeks course, I had two tablets.
Q I suggest that you have said you had taken a course of tenuate dospan, that you had no side effects, that you said that this is a good course, that these are good tablets for you and that cannot be based on taking two tablets.
A I can assure you I only took two tablets.
Q The reason I suggest that to you is because we are going to examine, you see, some of the things that you have said later. What made you take somebody else's medication?
A Because they suggested to me that these tablets were good for them, I took two tablets, saw how I got on with them, thought this is something I would like to pursue, went to see Dr Sheill to obtain some of these tablets.
Q If you had taken somebody else's tablets you knew, did you not, that that would not reflect very well on you, you know that that is a reckless, inappropriate thing to do, do you not?
A Depending on what type of tablets they were, yes.
Q That is why I suggest, you see, that you did tell him that you did not want the GP to know.
A I have nothing to hide from my own GP.
- This theme was returned to subsequently in cross-examination. The Appellant's evidence, both in chief and in cross-examination, was to the effect that the relevant part of the medical notes was in his handwriting, that he wrote the notes at the time of his consultation with Miss KL, that the information in the notes came from her and that he could not recollect anything beyond what was written in the notes. The suggestion of the reason for her giving the instruction not to inform her GP came not from a direct recollection of the Appellant, but from an inference to be deduced from the notes he made.
- Miss KL was cross-examined about other aspects of her general account which were suggested by Counsel to be "palpable nonsense" such as to render her general status as a witness to be unreliable, certainly bearing in mind the criminal standard of proof to be applied to her account.
- A review of the transcript of her evidence, including the occasion when she was recalled by telephone-link, does indicate a number of features of her account that invited forensic comment such as might have led a tribunal of fact, approaching the evidence from the standpoint of the criminal burden of proof, to approach it with some degree of caution. Indeed it may well be that the Panel did have reason to consider her evidence with care. However, as the approach to this Court's task reflected in paragraphs 12 and 13 above shows, the Panel had the advantage of seeing and hearing Miss KL (and, of course, of seeing and hearing the Appellant also) and it would be quite impossible for me to say that a decision to prefer her evidence to that of the Appellant was wrong or perverse. It is plainly the function of the tribunal of fact to assess the credibility and reliability of witnesses and I can see no basis upon which, even allowing for observations that might be made about what is revealed on the transcript, it would be open to this court to intervene. Indeed Mr Macdonald disavowed any such approach. His essential argument is that, in the circumstances to which I will refer below, the serious allegation of dishonesty was not properly articulated and particularised, not fairly put to the Appellant and not made out by the evidence even allowing for the eventual apparent preference of the Panel for Miss KL's evidence.
- It is this aspect of the case against the Appellant that has caused me the most difficulty.
- The phraseology of this head of charge (see paragraph 45 above) is unspecific about the circumstances in which it was alleged that the Appellant had "falsely claimed" that Miss KL requested that he did not inform her GP. When a "false claim" is made, for example, in a document it would be usual for the document to be identified in the charge, perhaps by date, but certainly by a description that shows clearly the source of the allegation. That was not done and no request for particulars of the charge appears to have been made, either in writing before the hearing or in some application to the Panel at the outset of the hearing. Miss Callaghan (who did not represent the GMC at the hearing) would, I apprehend, say that this is evidence of the fact, as she suggested was the case, that "it was taken for granted" in the proceedings before the Panel that the claim had been made and the only issue was whether it was false and dishonest.
- For reasons which will emerge, I think that there is some force in what she says, though whether it is a satisfactory way for a matter of this nature to be dealt with is something to which I will have to return. At all events, on enquiry Miss Callaghan was able to point me to two documents in which, prior to the hearing before the Panel, the Appellant had "claimed" that Miss KL had asked him not to inform her GP. Both appear to have been created in or about October or November 2005 in the context of the consideration then being given by the GMC to the charges that the Appellant may face. In a Response Document sent with a letter from his solicitors to the GMC dated 17 October 2005, the letter being a response to a letter from the GMC (known as a "Rule 7 letter") inviting his comments on certain allegations, he asserted that Miss KL had "requested that she did not want to have her GP contacted". That was in response to the allegation that he had not informed her GP of the treatment he had provided. The second such assertion came shortly after this when the Appellant e-mailed some documents to the case examiners who were considering what should happen to the case. On 9 November 2005 he e-mailed some notes about Miss KL's case and drew attention to the fact, as he alleged it to be, that she had "signed to say that she did not want her GP contacted". It follows, therefore, that on each of these occasions he claimed to the GMC that Miss KL had made the request to which I have referred.
- Miss Callaghan told me, on instructions, that when this claim was drawn to Miss KL's attention she denied the truth of what the Appellant was saying, gave a witness statement to that effect and in the light of that the charges were re-framed to allege that the Appellant had "falsely claimed" that Miss KL had made this request. At first blush, it seems a little unusual to use a response to a letter from the GMC referring to possible charges as a ground for alleging dishonesty: the natural assumption is that the GMC in its disciplinary role considers a doctor's conduct in his practice, rather than in the way he responds to possible criticisms of his practice. However, as I have not had full argument on the matter and do not have a full appreciation of the issues I will say no more about it. However, if the course in fact adopted in this case is acceptable, then where it is adopted I am of the view that good and fair practice does involve spelling out clearly in the relevant head of charge the fact that it is such a response (or such responses) upon which the allegation of dishonesty is founded.
- The fact that it was not done in this case would not necessarily render the charge a nullity, nor would it necessarily mean that proceedings based upon the head of charge would be unfair: the deficiency might be remedied by the way the proceedings are conducted. However, it does mean that the focus of the allegation can be lost if care is not taken, particularly in a case, such as this one, where a very large number of individual allegations arose for consideration. Miss Callaghan has confirmed that the Rule 7 letter and its response were not before the Panel. It follows that no-one had that document specifically in mind when considering this allegation. Equally, whilst the other document to which I have referred was within the documentation provided to the Panel, it was not referred to by counsel for the GMC either in opening, cross-examination of the Appellant or in her closing submissions. The only reference to it was in a different context with one of the witnesses called for the GMC who would have had no knowledge of the material issue. When the Appellant was cross-examined about this issue, the matter was put to him on behalf of the GMC in this way:
Q It is suggested in this case by KL that at no stage did she ask you not to notify her GP and that you are being dishonest in maintaining that she did.
A I can only refer you to the notes on her notes of the 27/10, and I have no further recollection, other than when I went to look at those notes when the charges from the GMC --- These were archived, they had been put away two years ago, we had stopped treating these patients and my only recollection was, looking at this, "No GP letter to be sent", therefore I assumed that is what she requested. I cannot remember anything else.
When Counsel made her closing submissions to the Panel she said this:
"Of course, the patient can decline to allow her GP to be contacted. KL's evidence was that that never arose in this case. She did not ask that her GP should not be contacted. We would refer you to Good Medical Practice in respect of shared treatment and we refer you also to Professor Wilding's evidence that he gave to you.
It is alleged in this instance that by claiming that he did not notify KL's GP at her request that is a false claim, and if it is a false claim then, of course, it is also a dishonest claim. You will have to decide whether or not you are satisfied so that you are sure that KL is telling you the truth when she says that she did not ask Dr Sheill not to contact her GP, and she points out, as do we, the fact that she gave her GPs' details, that they are included on the form, that she goes to her GP, albeit it an out-of-hours doctor, when she has problems and that she is quite open about the tablets that she is taking. Why, she says, would she in those circumstances say that she does not want her GP to be contacted when everything that she has done indicates that she would have been happy for that to take place?"
- Counsel for the Appellant, in his closing submissions, argued along the lines indicated in paragraph 53 above. He made no reference to any documents where the claim about Miss KL's attitude had been made. He did say this:
"Under head of charge 27(b) … only if KL's evidence is reliable beyond reasonable doubt, particularly when dishonesty is alleged, could this be found."
- That is the way matters were left. However, an issue relating to this head of charge was apparently raised by a Panel member during their deliberations. It was brought into relief by the Legal Assessor in this way:
"During its deliberations, one of the Panel members has raised the question whether I should give a Ghosh direction[1] on the allegation of "falsely" in head of allegation 26(b), and "dishonesty" alleged in head of allegation 27(b)."
- There was debate about the need for such a direction. In due course, one was given in the manner I will record below. Before doing so, the interchanges need to be recorded briefly. The Legal Assessor expressed himself in this way:
"It seems to me that one should approach this as follows. In relation to head of charge 26(b), my advice to the Panel is this - that they must first be satisfied so that they are sure that Dr Sheill has falsely claimed that the failure referred to in 26(a) to notify KL's GP was at KL's request. Then secondly, go on and consider whether, in fact, that claim was falsely made or dishonestly made. The word "falsely" appears in 26(b) and is replicated in 27(b) as "falsely", and, as Ms Norton says, there is no difference between "falsely" and "dishonest". It seems to me that there are really two stages to 26(b): firstly, the factual matter about the claim; then, secondly, whether it was false or dishonest. It seems to me that would be a more helpful, structured way for the Panel to proceed."
There was no disagreement between Counsel as to what he said. However, Counsel for the Appellant suggested this approach:
"The question on 26(b) is: are you sure that KL's allegation is correct that she did not tell Dr Sheill not to notify her GP?"
He then said:
"If they are sure that her allegation is correct, does such an allegation amount to dishonesty?"
That approach was agreed and the Legal Assessor then gave his final advice in these terms:
"In this case you must decide two questions. One, was what the doctor was doing, if you find the first question which [the Appellant's Counsel] has phrased for us to be established, dishonest by the ordinary standards of reasonable and honest people? In this regard, you must form your own judgment of what those standards are.
Secondly, must Dr Sheill himself have realised that what he was doing would be regarded as dishonest by those standards? In deciding this, you must consider Dr Sheill's own state of mind at the time. If, after taking into account all of the evidence, you are sure that the answers to both of these questions – I stress that – is yes, the element of dishonesty is proved. If you are not sure of that, the element of dishonesty is not proved in relation to head of charge 26(b) and head of charge 27(b)."
- It is easy to be critical at the remove of the appellate jurisdiction, with all the opportunity for hindsight that it presents, when simply examining matters on the basis of the transcript. However, I do have to be satisfied that no injustice has been done. There was, as I have indicated, substantial agreement about how the Panel was to approach its task. However, the one issue that seems to have been lost in all that took place was the question of when it was being said that the Appellant had been dishonest about Miss KL's attitude? Was it when he responded to the GMC (see paragraph 58 above), which is when he "claimed" that this was her attitude; or was it when he was giving his evidence (which was the effect of Counsel's question referred to in paragraph 60)? If it was the latter, it would be difficult to see how that could be the subject of a head of charge – and indeed I have raised, without resolving, a similar comment about relying on something said when responding to allegations being considered at a preliminary stage by the GMC. But irrespective of those questions the issue of dishonesty (and any Ghosh direction about it) would have to be directed to the time of the alleged dishonest claim. That does not seem to me to have been said sufficiently clearly to the Panel for me to be satisfied that the Panel was focusing clearly on the true issue, namely, that when the claim was made it was being made dishonestly. It might be argued that the case advanced against him was simply that he had always "claimed" that Miss KL's attitude was as described, but I am not satisfied that this is a satisfactory way of making such an allegation.
- I have considerable misgivings about interfering with the decision reached because the Panel plainly preferred Miss KL's account of events to that of the Appellant and there was, as I have indicated, substantial agreement about how the issue was to be addressed by them. However, as I have already indicated, I am left with a lurking doubt about whether there was a clear focus on the true issue. It does appear, as Miss Callaghan said, that it was "taken for granted" that a claim about Miss KL's attitude to informing her GP had been made and that explains why matters proceeded as they did. For my part, however, I can see no substitute, when it comes to a serious allegation such as dishonesty, for a properly formulated and specific allegation being made that is fully and fairly ventilated in the proceedings examining it. By misadventure that does not seem to have occurred in this case – or, at least on the material I have had available for review, it does not appear to have occurred.
- With considerable reluctance, therefore, but nonetheless satisfied that it is the right thing to do in the circumstances, I will set aside the findings made under the heads of charge 26(b) and 27(b).
Mrs ES
- So far as Mrs ES is concerned, it was not in issue, of course, that on 14 October 2005 the Interim Orders Panel had ordered the Appellant's registration to be suspended. Equally, he did not dispute that he did not inform Mrs ES of this fact. He denied that she had, as she suggested, asked him to confirm he was a qualified doctor and denied misleading her about his status.
- Mr Macdonald has said on the Appellant's behalf that his failure to reveal his status was an error of judgment, but did not warrant a finding of misconduct that was tantamount to one of dishonesty. Miss Callaghan has sought to stress that this was not a finding of dishonesty as such and, of course, that is correct. However, the allegation as framed is one involving the suggestion that Mrs ES was "misled" and, accordingly, demands consideration.
- In her witness statement Mrs ES said that she specifically asked the Appellant to confirm that he was a "qualified doctor" and that he confirmed that he was. She said that had she known he had been suspended from practice she would not have allowed herself to have been treated by him. In her oral evidence she confirmed the accuracy of her witness statement and the importance to her of being treated by a qualified doctor without, she said, restrictions on his registration. This part of her evidence-in-chief is to the point:
Q Let me just pause there and if I can ask you how important it was to you that you were going to be treated by a doctor and why?
A Very important because I had known of other treatments carried out by beauticians and have not been very successful, and if something goes wrong I did not have any comeback – which of course I did not, subsequently, because the treatment went haywire. I mean, I have all these lumps around my face and I am still very distressed by the treatment I had from him. I would only go to a qualified doctor or, as I thought at the time, somebody who was actually able to practise.
- As the following extract from the closing submissions of Counsel for the GMC demonstrates, the GMC's case was not that what he said was untrue as such, but that it was an incomplete picture and was thus misleading:
"We accept, of course, that there was no obligation under GMP [Good Medical Practice] or obligation imposed by the Interim Orders Panel formally for Dr Sheill to tell a patient about his suspension when the treatment that that patient is receiving is not treatment that he needs to be a registered medical practitioner to provide. However, we say, in the particular circumstances of this case, where a patient is clearly very anxious about the status of the person that is treating her and where that is an influential part of her decision-making process whether or not to see that doctor, and that is made clear to him, that there is an obligation, albeit not a strictly formal written down obligation but at the very least a moral obligation, on the doctor to inform her that he has been suspended, that by failing to do so she has in those circumstances effectively been misled into agreeing to have treatment from someone who is other than that which she thought he actually was."
- Miss Callaghan was, in my judgment, justified in arguing that the Panel was entitled to accept Mrs ES's evidence and, if they did, to find the charge as drafted proved. In the particular circumstances (namely, that in fact the Appellant was perfectly entitled to do the work for her that she requested and that he had not said anything to her that, even on her account of the conversation, was untrue), it is a charge that should not, in the scale of things, have necessarily warranted significant censure. It is, perhaps, an example of someone being 'economical with the actualité' (to borrow the expression used by the late Alan Clark), but not deliberately untruthful. Plainly, it is not conduct to be encouraged on the part of a medical practitioner who is properly to be expected to treat those who consult him with openness and candour, but it can, in the particular circumstances, be seen as an error of judgment and nothing significantly more. Doubtless the Appellant was under considerable personal pressure at the time, albeit most of it self-inflicted.
- At all events, despite those observations I reject the challenge to the actual finding made against the Appellant in this regard.
Sanction
- For the reasons given above, I have, with some misgivings, set aside the findings under charges 26(b) and 27(b). Accordingly, the question of sanction has to be assessed by reference to all the other findings of the Panel excluding the finding of dishonesty that underlay those two charges and bearing in mind the way in which the allegation of "misleading" Mrs ES should fairly be judged. As I have indicated, Miss Callaghan submits that this should make no difference. Mr Macdonald submits that erasure was a disproportionate sanction even including the finding of dishonesty, but that his argument is so much stronger if that finding is taken out of the picture.
- I am bound to say that I am quite unable to accept Mr Macdonald's argument, attractively and persuasively though it was put. I do not consider that the absence of this finding would, or indeed should, have made any difference. It is necessary to see how the Panel expressed itself.
"The Panel has considered what action, if any, to take in relation to your registration. In doing so it has taken into account all the evidence adduced throughout this hearing and has borne in mind the submissions made by both counsel. Ms Norton, on behalf of the General Medical Council (GMC) has submitted that the appropriate sanction in this case should be that of erasure. [Counsel] on your behalf has submitted that the imposition of conditions would be the appropriate sanction.
The Panel has accepted the advice of the Legal Assessor on the approach to sanction and has noted the case of Giele v the GMC [2006] 1WLR 942. It has borne in mind that any sanction imposed must be proportionate and appropriate, and that its purpose is not to be punitive, but to protect members of the public and the public interest. The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.
The Panel has balanced the public interest against your own interest. It has taken account of the GMC's Indicative Sanctions Guidance. It has noted the testimonials submitted on your behalf.
In considering whether it is necessary to take any action against your registration, the Panel has had in mind the salient features of your case, as set out in its determination on your fitness to practise. Your conduct fell seriously short of that expected of a registered medical practitioner in numerous areas including:
- Blatant disregard for the instructions and requirements of regulatory bodies, namely the Healthcare Commission and the Interim Orders Panel of the GMC;
- Disregard for the information within the British National Formulary, relevant guidelines on the use of medication and concerns expressed by professionals
- Inappropriate prescribing and storage of medicines;
- Failure to provide necessary information to patients about their treatment, properly examine and assess their condition and obtain informed consent;
- Rude, abusive and unprofessional behaviour in relation to patients who complained about or wished to discuss your treatment of them and towards representatives of the Healthcare Commission;
The Panel first considered whether it would be sufficient to conclude this case without taking any action in respect of your registration. It has determined that in the light of the serious and wide-ranging nature of your misconduct it would be manifestly insufficient, wholly inappropriate and not in the public interest to do so.
The Panel then considered whether it would be sufficient to impose conditions on your registration. It noted the proposals submitted to the Panel by your counsel as a framework for conditions.
The Panel has concluded that the matters found proved are so serious that a direction imposing conditions on your registration would be insufficient. Even if this were not the case, in the light of these multiple failings, particularly in relation to your dishonesty, your lack of insight and your disregard for the requirements of your regulatory body, it does not consider that it would be possible to formulate conditions which were appropriate, proportionate, workable and measurable. Furthermore, in view of your previous failure to comply with the requirements of regulatory bodies, the Panel has grave misgivings that you would not respond positively to conditions.
Therefore the Panel considers that the imposition of conditions would not be sufficient to protect the public and the public interest and would not uphold proper standards of conduct and behaviour.
The Panel next considered whether it would be sufficient to suspend your registration for a period of up to 12 months. The Panel took account of the guidance on page S1-14 of the Indicative Sanctions Guidance as to when suspension might be appropriate. The Panel considers that you have clearly demonstrated a persistent lack of insight into the seriousness of your actions and that you have harmful and deep-seated attitudinal problems. The Panel considers that many of the allegations found proved demonstrate a lack of integrity in your dealings with others.
The Panel has therefore determined that the imposition of a period of suspension would be insufficient to address the concerns identified
The Panel regards your misconduct as fundamentally incompatible with continuing to be a registered medical practitioner. The Panel finds that the criteria in relation to erasure (at page S1-15) are applicable, namely a serious departure from relevant professional standards as set in Good Medical Practice (2001), dishonesty and a persistent lack of insight into the seriousness of your actions and their consequences.
The Panel considers that your behaviour is likely to undermine public confidence in the profession and bring the standing of the profession into disrepute. Therefore the Panel has determined to direct that your name be erased from the Medical Register.
In coming to this decision the Panel also had regard to paragraphs 33- 35 of the Indicative Sanctions Guidance and the cases cited therein."
- Whilst it is clear that the Panel referred to "dishonesty" on two occasions in these remarks, it cannot sensibly be argued that those references added much, if anything, to the Panel's overall appraisal of the Appellant's conduct. Simply deleting those references from those remarks would leave a carefully structured and compelling case for erasure without any recourse to the finding as to dishonesty.
- Miss Callaghan was, in my view, correct to contend that the Panel was exercised by the Appellant's persistent disregard for the requirements of the Healthcare Commission and the Interim Orders Panel of the GMC, his rude, abusive and unprofessional behaviour towards patients and representatives of the Healthcare Commission and his lack of insight into the seriousness of his actions and their consequences.
- Those are matters which are pre-eminently within the province of the professional decision-making body constituted by the Panel and which, in accordance with the approach referred to in paragraph 12 above, must be accorded respect by this court.
- I can see no grounds for interfering with the decision on sanction.
- Accordingly, save that I allow the appeal in respect of findings 26(b) and 27(b), the appeal is otherwise dismissed.
