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MR JUSTICE JAY:
Introduction
- There are two appeals brought by the General Medical Council (the "GMC") pursuant to s.40A of the Medical Act 1983 against decisions of a Medical Practitioners' Tribunal (" the MPT" ) announced respectively on 29 July 2016 and 14 August 2017. The second appeal is entirely parasitic on the outcome of the first and I shall touch on the necessity for having brought it in due course.
- The hearing before the MPT was evidentially complex and occupied 15 days of tribunal time. In the event the hearing overran and there had to be an adjournment for three months between the end of the first stage determination (fact-finding), which took fully ten days, and the beginning of stage two (misconduct and fitness to practise). I note the number of witnesses who were called and the intricate nature of the charge, but I am surprised that the hearing took quite so long. However, it is clear that the MPT took care in reaching and then formulating its determinations at the three stages.
- Dr Muhammed Moazzam Chaudhary ("the respondent") is a General Practitioner with experience and expertise in urology including, on my understanding, paediatric urology. Some years ago until he ceased the practice he performed ritual circumcisions within the Muslim community. These are not generally available on the NHS. No issue arose before the MPT as to his competence in this regard. No doubt the respondent's work within his community reduced the risk of untrained and non-expert individuals inappropriately performing these procedures.
- On 22 November 2008 the respondent performed a ritual circumcision on Patient A, an infant, who had been born two months previously. Unfortunately, a fistula developed (or, maybe, had already developed), not the consequence of any substandard practice by the respondent in relation to his carrying out the procedure. However, one of the heads of charge alleged an inadequate examination of the penis, and this was found proved. The respondent made several unsuccessful attempts at repair. There is some confusion as to this within the determinations, but on my reckoning there were three such attempts.
- On 19 January 2009 the respondent referred Patient A to a consultant paediatric urologist at the Royal Victoria Infirmary ("the RVI"), Newcastle upon Tyne. On 5 October 2009 the respondent wrote to Patient A's GP in Sunderland. Issues arose as to the accuracy and honesty of both these letters. I note at this stage that Patient A and his family lived in Sunderland but that paediatric urology is not readily available in that area; indeed, on my understanding the nearest hospital is the RVI.
- The charge which the respondent faced at the MPT hearing was detailed, complex and wide-ranging. The respondent admitted certain matters. In relation to the non-admitted matters, some were found proved and others were not. Given the well-directed focus of the GMC's appeal before me as presented by Ms Eleanor Grey QC it is unnecessary to travel over the entirety of the evidential ground.
The proceedings before the MPT
- At stage one (fact-finding) the MPT heard evidence from a number of witnesses including Patient A's father and grandfather, a consultant urological surgeon as an expert and the respondent himself. There were other witnesses too. There were difficulties with some of the GMC's evidence which it is unnecessary to explore. The MPT did not consider the respondent to be a wholly credible and reliable witness. It found that his oral evidence was evasive at times and that he did not always provide a full and frank account. On an appeal to this court findings of this sort, being entirely within the fact-finding domain of the expert tribunal and therefore unimpeachable, inevitably cut both ways.
- As Mr Martin Forde QC for the respondent rightly emphasises, the MPT did not find that the complications which followed the circumcision procedure were due to any failure by the respondent in performing it. The decision of the respondent to continue treating Patient A even after the first repair procedure had not proved successful was an error of judgment which had been influenced by his misplaced personal commitment to put matters right. On the same theme, the MPT did not consider that the respondent's continued contact with, and his wish to provide further care for, Patient A was due to a desire to cover up culpable mistakes during the circumcision or the subsequent attempts at repair.
- Let me focus now on what is essential to this appeal. I have mentioned the respondent's letter to the RVI dated 19 January 2009. This was written on the headed notepaper of the Broadway Medical Centre. The respondent described himself as Dr Moazzam Chaudhary; this is his second given name and nothing turns on that. The letter stated:
"Dear Mr [L],
Further to our Telephone discussion this afternoon, I would be grateful for reviewing this baby in your clinic at your earliest convenience.
He underwent religious circumcision under local anaesthesia by myself using PLASTIBELL on 22nd November 2008. Post-operatively, everything went smooth till after 2 weeks when parents noticed a hole on the ventral side of penis about 1cm proximal to the external urethral meatus.
I did catheterise the patient and tried to appose the defect. Unfortunately, it is now nearly 8 weeks down the line, the defect is still persistent. I have suspicion that, it was a concealed hypospadiasis [a fistula or abscess] but sadly cannot confirm as I did not look for it while performing circumcision. Child is my relative (My nephew's son).
I would appreciate an appointment at your earliest convenience. Please contact me on my mobile ..."
- The MPT concluded that the letter failed to advise the RVI of Patient A's registered GP contact details and instead gave the impression that the respondent was Patient A's GP. The information relating to the Broadway Medical Centre was untrue and the respondent knew it to be untrue.
- There were two consultations at the RVI. The evidence shows that the respondent attended both consultations, as did Patient A's parents. It may be too that the grandfather was in attendance on one if not both of those consultations. The respondent had received the sum of £150 for the circumcision procedure but did not thereafter require any money, so his attendances were, as it were, free of charge. The evidence was that Mr L was told of the three failed repair procedures.
- Following the first consultation on 10 February 2009 Mr L wrote a letter to the respondent at the Broadway Medical Group explaining what had happened and that he was intending to carry out a repair about one year thereafter. The letter was copied to the parent or guardian of Patient A at the address that the respondent had given, namely his own home address. There was another consultation on 24 August 2009 and Mr L's specialist registrar saw the patient. There had been little change in the outward presentation of the fistula and Patient A was on the waiting list for the repair. The letter was provided to the respondent in the same way as the previous letter. It was not sent to Patient A's parents.
- The respondent's letter to Patient A's GP dated 5 October 2009, again written on the same headed notepaper, said this:
"I would like to explain that [Patient A] had circumcision ... in November 2008. Unfortunately, he developed 'Iatrogenic distal urethral fistula'. Following further discussions with family, we opted to refer him to paediatric urology at RVI. As family is having a home in Newcastle as well. They opted to move [Patient A] to Newcastle residence and register at Broadway Medical Centre. All further correspondence from RVI continued at new address and to Broadway Medical Centre.
Patient A has undergone urethral fistula repair at RVI on 29/9/09 under care of Mr [L]. It became evident only now that [Patient A] is still on your list. I have looked into our records and found that in fact the transfer process did not complete.
Following further discussion with family, they have now opted to stay with your surgery. Therefore, I am not processing any further about [Patient A]'s records transfer.
I hereby enclose all the correspondence between Broadway Medical Centre and RVI. Many thanks for accepting these records and continuing [Patient A]'s ongoing care."
- The respondent admitted that the letter was saying that Patient A's family had opted to register with the Broadway Medical Centre. This was untrue and the respondent knew it to be untrue because there was no evidence that the respondent had discussed this matter with Patient A's mother or father, although I note there was some evidence in relation to the grandfather, described in the transcript as "Mr F". Further, the MPT concluded that the respondent had written this letter because he had become aware that Patient A was not registered at the Broadway Medical Centre and was also aware that they had never chosen to register there.
- The MPT proceeded to consider whether these two letters were misleading and concluded that they were. The January 2009 letter was misleading because it gave the impression that the respondent was Patient A's GP and the recipient of the letter would thereby believe this to be so. As for the October 2009 letter, the MPT considered that the sentence, "[t]hey have now opted to stay with your surgery", was misleading because the respondent was implying thereby that the family had changed their minds about transferring. The MPT then proceeded to consider the issue of dishonesty and applied the familiar two-stage test enunciated by Lord Lane, Lord Chief Justice in R v Ghosh [1982] QB 1053. Paragraph 76 of the determination on the facts is particularly relevant. Having set out that test, the following sentence appears:
"The tribunal also considered that it could find that you had been dishonest, even if you had asserted or genuinely believed that you were morally justified in acting as you did."
- In relation to the referral letter to the RVI, the MPT considered the number of untruths in the letter and concluded that taken cumulatively these demonstrated an intention to mislead. More particularly, the letter described Patient A as his nephew's son. The MPT rejected the respondent's evidence that there was "a close relationship" between him and Patient A's family. He concluded that an ordinary person would regard this as dishonest because the recipient of the letter would reasonably assume that the author was referring to a blood relative.
- The MPT also found that the respondent was dishonest in giving the RVI false information as to Patient A's GP details and contact details. In relation to this latter point, the respondent gave his own address to the RVI as the address of Patient A's carer and next of kin. Unsurprisingly, the MPT was particularly concerned about that. As for the October 2009 letter, the MPT also concluded that the untruths contained in the letter were dishonest. It noted the respondent's assertion that his overall intention when writing the letter was to "explain away" his previous actions. It is clear that the MPT rejected that explanation. The respondent admitted that he failed to communicate with Patient A's GP at any stage during his treatment of him, at least until the letter of 5 October 2009 was written.
- The MPT then had to adjourn for a period of three months, as I have said, and it reconvened in July 2016 to begin stage two. It received various testimonial evidence including oral evidence from Dr Ken Megson, a witness statement from the respondent, his appraisals, CPD activities and reflective log, and a 360-degree review carried out in 2016.
- In relation to the matters on which I have been focusing, the MPT had little difficulty in concluding that they constituted misconduct. In this context, I set out para.27 of the MPT's determination on impairment:
"27. The tribunal noted that both of these letters were written in a clinical context, from the doctor who had been treating Patient A to another doctor. The tribunal considered that providing false information in a letter to another doctor is very serious, unprofessional and has the potential for serious consequences. In relation to the fact that you provided the RVI with Broadway Medical Centre's address as Patient A's GP (Dr C) and your home address instead of Patient A's home address and next of kin deprived Patient A (or his next of kin) and his GP of receiving information relevant to his treatment and care. These untruths also meant that if the RVI had needed further information from his general practice records they would have contacted you instead of Dr C and you would not have been able to provide all of the required information in a timely fashion. The tribunal concluded that providing untrue and misleading information in a letter to another doctor was inappropriate and a serious breach of GMP. The tribunal therefore concluded that writing untruths in two letters to the RVI and Dr C was seriously below the standard expected and constituted misconduct."
- As for the failure to communicate with Patient A's GP, the MPT concluded that there was misconduct and said this about it:
"24. The tribunal placed considerable weight on paragraph 52 of GMP and concluded that it was clear that you should have communicated with Dr C about your treatment of Patient A, about your four surgical interventions. The tribunal noted that when you were performing the circumcision and subsequent repairs on Patient A you were treating him in parallel with Dr C, as Patient A was taken to see Dr C for check-ups and to receive medication for a fever. The tribunal considered that you had a clear duty to inform Dr C of what you were doing to ensure that you knew all the relevant information about Patient A before continuing your treatment, and that Dr C knew what was happening with their patient. The tribunal considered your conduct in failing to communicate your treatment of Patient A to his treating GP fell seriously below the standard expected and constituted misconduct."
- The next step, albeit still within stage two, was impairment of fitness to practise. It is clear that the MPT was following the guidance laid down by Cranston J in Cheatle v GMC [2009] EWHC 645 (Admin) in dividing stage two in effect into two sub-stages. At para. 8 of its determination on impairment the MPT had set out the following, giving an indication as to its approach:
"8. Throughout its deliberations, the tribunal has been mindful of the over-arching objective of the GMC as set out in the Medical Act 1983 (as amended). That over-arching objective involves acting:
a. to protect, promote and maintain the health, safety and wellbeing of the public
b. to maintain public confidence in the profession
c. to promote and maintain proper professional standards and conduct for members of that profession."
- The MPT noted that the respondent had completed a number of learning and development modules, had taken the opportunity to reflect on the findings of the MPT given in April 2016 and had discussed those findings with a number of colleagues to develop understanding and insight into his failings.
- When Dr Megson saw the respondent in March 2016 before the first hearing he was unaware that the respondent had not admitted dishonesty. This was said by Dr Megson to reflect "disjointed thinking", with the respondent being "at a half-way stage". Dr Megson's evidence was that the respondent now fully understood his failings and there was evidence from the respondent himself to that effect.
- At para.36 of its determination at stage two, the MPT said this:
"36. In considering whether your fitness to practise is impaired, the tribunal addressed each of the areas in which it found misconduct and firstly asked itself the following questions:
1. Is the misconduct remediable?
2. What has been done to remediate?
3. Has the misconduct been remediated?"
- The MPT dealt first of all with the respondent's failure to communicate with colleagues. It held that the respondent's misconduct could be remediated, but having analysed the position with some care concluded that he had not achieved adequate insight into his failings, in particular this was because the MPT had not seen any evidence that the respondent had understood the nature of his duties to Patient A when he performed the circumcision, including his duties as set out in Good Medical Practice. It therefore followed that the respondent's fitness to practise was impaired in that regard. In my view, it is plain from this that the first question posed at para.36 had to be answered in the affirmative because remediation had not been established.
- As for the January and October 2009 letters, the MPT concluded that the respondent's fitness to practise was not impaired. Its reasons were as follows, at least in the context of "accuracy of documents":
"45. The tribunal considered your misconduct in writing letters containing misleading information. There is no evidence to suggest you had done this before, or since, Patient A's case.
46. The tribunal noted the learning development modules you have completed relating to recording keeping and communication with colleagues and your reflection contained in your personal statement, as already considered above.
47. The tribunal considered that there is sufficient evidence to show that you have made efforts to remedy your behaviour in this area, and you have understood the significance of writing letters containing false or deficient information. The tribunal acknowledged that there is no evidence that you have misled colleagues in other areas of your practice and that this was something you did in the specific circumstances of this case. The tribunal concluded that you are highly unlikely to repeat this behaviour again and therefore your fitness to practise is not impaired in relation to accuracy of documents."
- Then, as a separate matter, the MPT proceeded to address the issue of dishonesty under the rubric "Probity, honesty and trustworthiness". This was in the context of the self-same documents. Its reasoning process was as follows. First, it stated that whilst dishonesty may be difficult to remediate because it may represent a propensity, it does not necessarily indicate "an immutable trait". Matters of context and of degree are relevant. Secondly, the MPT stated as follows:
"49. The tribunal considered that it was important to look at your dishonesty in the context of the particular circumstances of your case. Your evidence, supported by the information leaflet that you produced, was that you believed you had a duty to follow up and put right any problems that arose from you circumcision practice. In that context you felt a need to retain control of patient A's case. You ill-advisedly chose to do this by falsely representing yourself as Patient A's relative and GP and by giving your home address purporting to be that of Patient A and his next of kin. The tribunal could not discern any malign motive in this misconduct. Nor did it consider that you sought to cover up any clinical malpractice. There is no criticism in the tribunal's previous findings of your technical clinical performance in performing the circumcision or the subsequent repairs. Rather it previously found that this dishonest behaviour was intended to enable you to pursue your misplaced eagerness to maintain control of Patient A's case. You did, however, subsequently seek to explain away the lack of communication with Patient A's actual GP by falsely stating that the family had intended to move to Newcastle and to join your GP list but had later changed their minds."
- Thirdly, the MPT took into account the respondent's recent personal testimony, the quality of his testimonial evidence and what it considered to be his frank engagement with Dr Megson. In short, there was evidence of "considerable development of insight and genuine reflection". Thus, "[a]s a result the tribunal concluded that you have demonstrated remediation in relation to your dishonesty and that consequently your fitness to practice is not currently impaired by reason of your previous dishonest conduct" (last sentence of para.53).
- Fourthly, and finally:
"54. The tribunal is fully aware of the need to protect the public, maintain public confidence in the profession and promote and maintain proper professional standards and conduct. It is cognisant of the seriousness of a finding of dishonesty against a registered medical practitioner. However, in the particular circumstances of this case it has concluded that your dishonesty was remediable for reasons already given and that you have taken appropriate steps to sufficiently demonstrate such remediation and that your misconduct in this regard is highly unlikely to be repeated. It therefore considers that the public interest in respect of public confidence in the profession and the promotion and maintenance of standards is not undermined by its finding.
55. The tribunal has identified a range of failings in your professional conduct in relation to this case and has identified several areas in which this amounted to misconduct. However, it has concluded that in every area but one you have demonstrated remediation. The tribunal is satisfied that, given the significant and extensive steps taken by you to remediate your misconduct as evidenced by 17 courses completed on topic particularly pertinent to the allegations, 4 appraisals, 15 statements from a wide cross section of your professional colleagues and 47 testimonials from patients and relatives of patients, the proper standard of conduct and behaviour is upheld and that public confidence in the profession will be maintained.
56. Nevertheless, the tribunal has concluded that your misconduct in relation to your communication with colleagues has not been fully remediated and therefore concludes that your fitness to practise is impaired by reason of that misconduct."
- Given the limited nature of the MPT's findings on the issue of fitness to practise, it was not particularly surprising that it felt able to address the issue of sanction by imposing conditions on the respondent's registration. No separate issue arises as to these conditions per se, or as to the review hearing that was ordered to take place within 12 months. At the review hearing held on 14 August 2017 the MPT revoked the conditions and the respondent was free to practise without limitation or restraint.
The Governing Law
- Section 40A of the Medical Act 1983 provides, so far as is material:
"(1) This section applies to any of the following decisions by a Medical Practitioners' Tribunal --
(a) a decision under section 35D giving --
[...]
(ii) a direction for conditional registration ...
[...]
(2) A decision to which this section applies is referred to below as a 'relevant decision'.
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient --
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
[...]
(6) On an appeal under this section, the court may --
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal; or
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court ..."
- In GMC v Jagjivan and another [2017] EWHC 1247 (Admin) the Divisional Court (Sharp LJ and Dingemans J) held that the familiar jurisprudence relevant to s.40 or registrant appeals applies equally to GMC appeals under the new s.40A. Paragraph 40 of the Divisional Court's judgment is particularly relevant:
"40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali Spa v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court 'is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal ...": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court 'will afford an appropriate measure of respect of the judgment in the committee ... but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances'.
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
viii) a failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56)."
- The issue of impairment of fitness to practise has been considered by the courts on a number of occasions. The role of the MPT is to determine, in the event that misconduct has been found proved, that the practitioner's fitness to practise "is impaired"---- note the present tense. However, it is well established that regard must be had to the way in which the registrant has acted or failed to act in the past (see Sir Anthony Clarke MR in Meadow v GMC [2006] EWCA Civ 1390). At para.22 of his judgment in Cheatle v GMC (loc. cit.) Cranston J held:
"22. In my judgment this means that the context of the doctor's behaviour must be examined. In circumstances where there is misconduct at a particular time, the issue becomes whether that misconduct, in the context of the doctor's behaviour both before the misconduct and to the present time, is such as to mean that his or her fitness to practise is impaired. The doctor's misconduct at a particular time may be so egregious that, looking forward, a [tribunal] is persuaded that the doctor is simply not fit to practise medicine without restrictions, or maybe at all. On the other hand, the doctor's misconduct may be such that, seen within the context of an otherwise unblemished record, a [tribunal] could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct."
- At para.65 of his judgment in Cohen v GMC [2008] EWHC 581 (Admin), Silber J said this:
"65. Indeed I am in respectful disagreement with the decision of the Panel which apparently concluded that it was not relevant at stage 2 to take into account the fact that the errors of the appellant were 'easily remediable'. I concluded that they did not consider it relevant at stage [word missing] because they did not mention it in their findings at stage 2 but they did mention it at stage 3. That fact was only considered as significant by the Panel at a later stage when it was dealing with sanctions. It must be highly relevant in determining if a doctor's fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated. These are matters which the Panel should have considered at stage 2 but it apparently did not do so."
- Ms Grey placed reliance on the decision of Cox J in CHRE v NMC and Grant [2011] EWHC 927 (Admin), paras.69 to 74 and 91 to 92. I do not propose to set all of these out because I am familiar with the principles. The essential point is that the issue of fitness to practise does not just depend on that of remediation and continuing risk to the public. To my mind, paras.73, 74 and 91 of Cox J's judgment are particularly relevant:
"73. Sales J also referred to the importance of the wider public interest in assessing fitness to practise in Yeong v GMC [2009] EWHC 1923 (Admin), a case involving a doctor's sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:
'... Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such a case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in a case where the misconduct consists of clinical errors of incompetence.'.
74. I agree with that analysis and would add this. In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.
[...]
91. There is therefore considerable force in the submissions of Mr Jay and Ms McDonald that, when considering fitness to practise, the Committee appear to have concentrated exclusively on the three questions posed by Silber J at paragraph 65 of his judgment, which they apparently regard as the '3-fold test' to be applied, and as being determinative of that issue."
- Mr Forde reminded me that I should be very slow in this jurisdiction to impugn any finding of primary fact made by the MPT, particularly one made after seeing and hearing the witnesses. When it comes to drawing inferences from the primary facts I would add that the court must approach this statutory review exercise with caution, according appropriate deference to the expert assessments of the specialised tribunal. In relation to a conclusion of dishonesty which is in part inferential, the degree of deference to be shown is diminished (see para.40(vi) of the Divisional Court in Jagjivan).
- Finally, this court has stated often enough that any finding of dishonesty in a professional person is extremely serious and will often lead to the sanction of erasure. On the other hand there is authority for the proposition (see Carr J in PSA and GMC v Uppal [2015] EWHC 1304 (Admin)) that a finding of dishonesty will not necessarily lead to a finding of impairment.
The Grounds of Appeal
- Ms Grey advanced three grounds of appeal in relation to her first appeal, being against the MPT's determination announced on 19 July 2016. The first ground is that when looking at the issue of impairment, the MPT gave undue weight and priority to the issue of remediation and risk of repetition, and no or no sufficient weight to the other elements of the wider tripartite public interest, namely in maintaining public confidence in the medical profession and maintaining proper professional standards and conduct for members of that profession (see s.40A(4)(b) and (c) of the 1983 Act).
- Paragraph 36 of the determination on impairment shows that the first questions that the MPT asked itself were relevant solely to remediation. The reason why the MPT concluded that the respondent's fitness to practise was impaired in relation to his communication with his colleagues was that he had not demonstrated sufficient insight, and "[t]herefore the tribunal considered that your fitness to practise is currently impaired". At paras.45 to 47 of its determination, the MPT's conclusion that the respondent's fitness to practise was not impaired as regards the letters of January and October 2009 was based on its assessment that these were one-off occurrences tethered to the specific circumstances of this case. In short:
"The tribunal concluded that you are highly unlikely to repeat this behaviour again and therefore your fitness to practise is not impaired in relation to accuracy of documents." [Emphasis supplied]
Ms Grey placed particular emphasis on the use and location of the conjunction "therefore".
- The MPT gave what appears to be separate consideration to the issue of dishonesty in the context of these letters. As I have already observed, it concluded that the respondent's recent evidence and his degree of insight was critical. Ms Grey criticised the final sentence of para.53 of the determination as betraying the same error of approach as had been shown in relation to accuracy of documents. We can see this through the MPT's use of the adverbial phrase "as a result" and the conjunction "consequently".
- Ms Grey accepted that the MPT did refer to the other limbs of the tripartite public interest in the first sentence of para.54 of its determination on impairment. The MPT were also "cognisant", as it put it, of the seriousness of a finding of dishonesty in a medical practitioner. Even so, Ms Grey submitted, this factor was given little or no weight because the MPT had already effectively found that the respondent's fitness to practise was not impaired, and in any event the MPT used the verbal formulation "not undermined" rather than "outweighed".
- Ms Grey's second ground is that the MPT erred in its assessment of the motivation for the respondent's conduct and/or gave inadequate reasons for its finding that the motive for his actions was "not malign". That, it is said, is a perverse conclusion. It is obvious, submitted Ms Grey, that the whole point of the respondent substituting his own details for those of Patient A's GP and giving his home address as that of Patient A and his family was to ensure that all relevant information came to him and not to Patient A's family. In this way the respondent was placing his own interests above those of his patient and his motives could scarcely be characterised as "not malign" or benign.
- In oral argument, Ms Grey made clear that the inferences being drawn by the MPT at para.49 of its determination on impairment were illogical. The designation "not malign" was inapposite because on any view the respondent's motives were not a neutral factor. He was acting in his own interests rather than placing the patient at the centre of his decision-making process.
- Ms Grey's third ground is that the MPT's overall assessment of the gravity of this case was wrong. The respondent had contested the issue of dishonesty and his remediation had come far too late in the day to carry the weight it did. Further, the MPT had itself questioned the respondent's credibility and reliability as a witness in a number of respects. The finding of impairment usually flows from a finding of dishonesty, and there was and is nothing to make this case exceptional.
The Respondent's Case
- The MPT's decision was stoutly and robustly defended by Mr Forde. He was entitled to submit that the MPT gave detailed and anxious consideration to this case over very many days. As for the first ground, Mr Forde submitted that it was inevitable in this case that the "central focus" should be on the issue of remediation and the linked issue of current risk and/or risk of repetition. The MPT's findings in this regard are unimpeachable and there was ample evidence to support them. Mr Forde further submitted that it is clear that the MPT had regard to other aspects of the overarching objective (what I have called the tripartite public interest). He made reference to paras.8, 48 and 54 of the determination, particularly to the first and last of these. It is clear, argued Mr Forde, that the MPT did weigh the issue of remediation against the remaining elements of the overarching objective.
- Mr Forde submitted that para.54 of the determination should not be subjected to the degree of forensic or jurisprudential analysis which came from Ms Grey. A more benevolent, less juridical approach is appropriate.
- As for the second ground, Mr Forde submitted that the GMC is seeking impermissibly to overturn a finding of primary fact. The MPT had the benefit of seeing and hearing the respondent, and in assessing the engine of his motivation. This court should not second-guess that. The MPT's conclusion that the respondent's wish to remain in contact with Patient A, albeit "ill-judged" and "misplaced", meant that his motives were not "malign" and was well within the sovereign fact-finding function of the tribunal.
- As for the third ground, Mr Forde submitted that it only sensibly arises if the GMC is wrong on its first two grounds. On that premise, the basis of this ground is simply that the MPT's exercise of discretion could have been exercised differently. It has not been demonstrated that the MPT's decision fell outside the "range of reasonableness": see for example the decision of Sales J in Yeong v GMC [2009] EWHC 1923 (Admin), para.58. Here, the court should accord appropriate deference to the expert tribunal. In my judgment, there is force in that last submission.
Discussion and Conclusions
- In my judgment, Ms Grey's first ground - but only her first ground - is well-founded. It is quite true that in para.8 of its determination on impairment the MPT said that "throughout its deliberations" it had regard to the overarching objective. It is also true, as Mr Forde has demonstrated with reference to the transcript of the legal assessor's advice to the tribunal at the impairment stage, that an accurate summary of the law in this domain was provided. However, in my judgment the only fair, reasonable and sensible reading of the relevant paragraphs of the determination on impairment taken as a whole is that because the respondent's misconduct was remediable and had been remediated, he was not impaired at the material time.
- In particular, I have regard to the first question, or series of questions, posed by the MPT at para.36, the use of the conjunctions "therefore" and "consequently" in more than one place and a fair and proper reading of para.54 of the determination. This paragraph was subjected to careful and close analysis by both counsel. It is right to say that the MPT said in terms that it was cognisant of the seriousness of a finding of dishonesty. Even so, I do not read para.54 as properly balancing the second and third elements of the tripartite public interest (as I have described it) against the first. Rather, the MPT had already clearly made its decision on impairment in the final sentence of para.53, and was saying in terms that its conclusion on remediation was not undermined by other aspects of the public interest.
- There are occasions when reading and parsing determinations of these tribunals that a fair degree of latitude should be given, and I accept Mr Forde's submission that para.54 does not fall to be scrutinised with quite the punctilious care than would a judgment of this court. On the other hand, giving para.54 and the rest of the determination on impairment whatever latitude may properly be given, I cannot read the determination, viewed as a whole, as a proper exercise in balancing all the relevant factors. It is clear to me that one factor prioritised all the others.
- It follows in my judgment, notwithstanding Mr Forde's persistent and valiant attempt to uphold what in many ways is an exemplary series of determinations by this MPT, I am driven to accept the force and correctness of Ms Grey's first ground. The point is not entirely technical, nor is it linguistic. Cox J has made it clear in the case of Grant that a proper balance of all three elements of the tripartite public interest must be undertaken in these cases. If it is clear to this court that all relevant matters have been weighed then it would be only in very rare circumstances that intervention would be appropriate, either on an appeal under s.40 or in the current context of an appeal under s.40A.
- The whole of the public interest in this regulatory context is vital. I am not to be understood as saying that elements two and three are more important than the first element (which is public safety) and the position of the doctor, but everything must properly be placed in the balance. It is this failure to place everything in the balance which ultimately persuades me that ground 1 is correct, and that I should publicly say so.
- Ground 2 is more complex. I confess that on this ground the eloquence and force of Mr Forde's submissions has caused me to change my mind. My initial view was that there was an inconsistency between on the one hand the MPT's finding on the issue of dishonesty and then the analysis in particular at para.49 of the determination on impairment. I was also concerned by the use of the language "malign motive" and possibly the failure properly to appreciate that what the respondent did was to elevate his own interests above that of the patient.
- Mr Forde took me in detail to some of the evidence in this case, but in my judgment I need really go no further than the determinations themselves. I have mentioned the final sentence of para.76 of the determination on the facts. Here, the tribunal, without pre-judging the matter, was laying down a marker. There is a distinction between a finding of dishonesty on the one hand, applying the Ghosh principles, and underlying deeper questions of motive. An individual may be dishonest even if he genuinely believes that he was morally justified in acting as he did. As I have said, that lays down an important marker.
- At para.27 of its determination on impairment, where the MPT was dealing specifically with the question of misconduct, it cannot be doubted that the MPT misunderstood the seriousness of the respondent's misconduct in the context of the Ghosh test and the possible consequences. However, when it came to the issue of probity, honesty and trustworthiness in the context of impairment I consider that the MPT was entitled to approach the issue in the way in which it did.
- First of all, I respectfully agree with the MPT that dishonesty is not necessarily a monolithic concept. That has two consequences. First of all, questions of degree obviously arise - that much must be self-evident - but secondly, that dishonesty in an individual does not have to be an all-pervading or immutable trait. A person can be dishonest just on one occasion. Secondly, I agree with the MPT that at least it was open for the MPT to consider the context of the respondent's dishonesty. If one examines para.49 carefully it seems clear to me with Mr Forde's help that what the MPT was saying was that in terms of the respondent's motivation he "felt a need to retain control of patient A's case." This was later described in para.49 as a "misplaced eagerness to maintain control of Patient A's case", but in my view the MPT was making the same point twice albeit in a slightly different way. Thus when one turns to consider what the MPT might have meant by the designation "malign motive", or its absence, I agree with Mr Forde that this must be a reference to the respondent's need - misplaced or otherwise - to retain control of Patient A's case. Indeed, when one considers and returns to para.27 of the determination on impairment (and here we are back to the issue of misconduct) it is quite plain that the MPT felt (in my judgment entirely correctly) that the respondent's reasons were entirely misplaced because the effect of doing what he did might have been to deny relevant people information to which they were entitled.
- Returning to para.49, the meaning of "malign motive" therefore being placed in context, I do not see any conflict between that and the earlier findings as to dishonesty. The MPT went on to find that it did not consider that the respondent had sought to cover up any clinical malpractice. That is an additional finding and is not necessarily the antithesis of an absence of malign motive. However, I do not think that it is a non sequitur. What is a non sequitur is the following sentence: "[t]here is no criticism in the tribunal's previous findings of your technical clinical performance in performing the circumcision or the subsequent repairs." Whatever the position might have been in terms of the findings of fact and expert judgment made after the event, none of that was necessarily relevant; indeed it was irrelevant to the respondent's state of mind at the material time. However, Ms Grey did not seek to impugn the correctness of the judgment that there was no intention to cover up here, and in my view she was right not to do so. The finding is generous to the respondent, but it was open to the MPT to arrive at such a finding on the evidence which it heard.
- I do not overlook the final sentence of para.49, which arguably elevates the seriousness of this in terms of the respondent's motives, but overall I am compelled to reject Ms Grey's submission that this paragraph is illogical and sits ill with the earlier finding as to dishonesty. There is internal coherence both in terms of para.49 itself and its location within the entirety of these determinations, including the earlier determination on fact-finding. I should make clear that the error I have identified in para.49 - the sentence, "[t]here is no criticism in the tribunal's previous findings of your technical clinical performance ..." etc. - can as it were be blue-pencilled out of the paragraph. It is not critical to the MPT's reasoning. Overall, in my judgment, ground 2 must fail.
- I cannot accept that ground 3 can survive as a free-standing ground. Of course, I have found for Ms Grey on ground 1 but the consequence of that falls to be considered in the context of s.40A(6) of the 1983 Act. By ground 3 Ms Grey is effectively inviting me to conclude, exercising my own judgment, that the facts of this case really cried out for a finding of impairment regardless of the correctness of her submission on ground 1. In my view that is a step too far. This tribunal was well placed to assess issues of dishonesty and motive and was entitled to reach the conclusion it did, the contextual conclusion being what we see in paras.48 and 49. It follows that ground 3 cannot survive as a free-standing ground.
- Ms Grey invited me to offer assistance as to whether it is necessary for the GMC in these cases to issue a separate appeal against the review determination in circumstances where, if the main appeal is successful, there is considerable if not overwhelming force in the contention that the subsequent determination of the MPT must be void. In my judgment the analysis is straightforward. If the first appeal - the substantive appeal, as it were - succeeds then the whole premise of the review determination has been removed. This is because it would not necessarily automatically follow that the imposition of conditions with a review was the appropriate sanction. The predicate of the determination on sanction is the precise finding made by the MPT in the context of impairment. If that finding is no longer valid, or must fall to be reconsidered if that is my order, then the review determination, as it were, disappears and can be treated as a nullity. In my judgment there was no need for the GMC to issue a second appeal in this case.
- What are the consequences of my upholding of Ms Grey's submission just on ground 1? Mr Forde submitted that the errors which I have (or will have) upheld in the context of ground 1 could make no material difference to the outcome. In other words, had the balancing exercise been undertaken in a case such as this the upshot would have been the same: no finding as to impairment on the critical issue of probity, honesty and trustworthiness. He relied on the fact that this occurred many years ago and that the respondent has been in unrestricted practice since 2009, that he has ceased performing these circumcision procedures, and that there has been no complaint about his practice in the interim period.
- Ms Grey, on the other hand, submitted that it was inevitable that a finding of impairment be reached once ground 1 is upheld and after the balancing exercise has properly been undertaken. Indeed, on my understanding she submitted that this court could undertake that exercise and properly conclude that the respondent's fitness to practise is impaired.
- Dealing first with Mr Forde's submission, in my judgment I cannot conclude that a proper performance of the balancing exercise would inevitably lead to the conclusion that his client's fitness to practise was not impaired. There is room here for more than one judgment. It is, of course, the case that a finding of dishonesty does not always lead to impairment and it is also the position that the respondent has the benefit of paras.48 and 49 of the determination on impairment. But how exactly those relevant matters would be weighed in the balance - those favourable to the respondent and those possibly against him, the other elements of the public interest - that, in my judgment, must be for another MPT to consider in due course.
- Ms Grey's submission is slightly more problematic. There is authority for the proposition that if the court identifies an error in the approach of the lower tribunal in medical cases then it may simply proceed to determine the outcome for itself. This is what happened in Giele v GMC [2015] EWHC 2143 (Admin), decision of Collins J. However, there are difficulties with that approach since it has the tendency to ignore or place insufficient weight on ordinary public law or Part 52 principles pertinent to this jurisdiction. Of course, this court has power to substitute its own decision for one that the MPT could have made, but in my judgment it should only exercise that power if confident that that is the correct outcome. If there is room for differences of opinion, particularly in the face of further submissions and, if necessary, additional evidence then the right course is to remit.
- I would have been inclined to adopt that course in the present case in the exercise of my power under s.40A(6)(d) of the Medical Act 1983. However, there is one factor here which causes me not to do so. I am entitled to have regard to the wider picture. Mr Forde submitted that he would not oppose the substitution by me of a finding of impairment under s.40A(6)(c) of the 1983 Act, provided that I also directed that no further action should be taken. It is true that Ms Grey did not accede to that course, although she did not strongly submit that I should not pursue it. Her preferred course was that if I were unclear as to what the right outcome should be I should pursue the subparagraph (d) route.
- However, in the somewhat unusual circumstances of this case I propose to accept Mr Forde's invitation to invoke subparagraph (c) and to order that no further action be taken. I do this because this is a somewhat unusual case on a number of levels. The material events took place eight or nine years ago; the respondent has been in unrestricted practice since; he has abided by the conditions which were imposed (admittedly on a narrower basis than should have been); and he no longer undertakes these procedures. This was a one-off event and dishonesty perpetrated within a specific context. I consider that the public interest is served by my acceding to Mr Forde's submission. That having been said, looking at a different aspect of the bigger picture, it is important for this court to have restated the importance of the overarching objective, the tripartite public interest and the essential need for MPTs to conduct a balancing exercise rather than focus on just one aspect of the test.
- It follows therefore that this appeal is allowed under s.40A(6)(b) of the Medical Act 1983. The relevant decision is quashed but only in part, that is to say the determination on impairment in relation to the issue of probity, honesty and trustworthiness. Pursuant to subparagraph (c) I find that the respondent's fitness to practise is impaired, but I direct that no further action be taken by the GMC or by any of its Medical Practitioners' Tribunals.
MR JUSTICE JAY: Right, so Ms Grey, are there any other applications?
MS GREY: My Lord, there is an application for costs.
MR JUSTICE JAY: Yes.
MS GREY: We have sent to you, I think, and the respondent, the costs schedule in draft. My Lord, we have received one in reply, we also received one in reply which I wonder if I could just hand up to my Lord, unless there is any point taken about the reasonable nature or otherwise of our costs (Same handed). But we do apply for the costs shown on the schedule, my Lord. It is a grand total of just under £20,000. I should make it plain that those are the costs of both appeals on the basis that, we would submit, it was reasonable to have brought the second as well as the first.
MR JUSTICE JAY: Yes.
MS GREY: My Lord, unless I can assist you any further I will wait to hear what Mr Forde has to say.
MR JUSTICE JAY: Yes.
MR FORDE: My Lord, I should make it clear that in terms of the quantum there is no suggestion that the costs are unreasonable.
MR JUSTICE JAY: No.
MR FORDE: My Lord, there is a real issue in these cases and I am not sure whether the point has been taken before, but my client had no control over the way in which the tribunal chose to express themselves. He has little or no choice but to try and maintain his position, and in our skeleton argument drafted by Ms Christina Lambert QC he did say that this outcome was something that he might invite. The primary position of Ms Grey was remission with the concomitant costs and uncertainty that would have led to, and we do wonder whether an accommodation could have been reached on that, regardless of your Lordship's final decision as to this matter not being pursued further. In the absence of that we, of course, had to oppose this field.
On one analysis, and I can't put it any higher than this, three grounds, one success. Your Lordship will know that you have the discretion to allow a proportion of costs and it may be that that submission finds a little more favour than my first (inaudible). But my Lord, there is nothing more I think I can say usefully on the question of costs other than the unfairness issue, which again is compounded when the PSA decided to bring back, as they now are, the successor to the CHRE on the GMC, which of course they are allowed to do. The doctor or medical defence organisation could find themselves facing two sets of costs based upon deficiencies identified and a determination over which they have no control.
MR JUSTICE JAY: Well, fortunately that complication does not arise in this case because they are not here. But very rarely would the court order two sets of costs in any event.
MR FORDE: Well, it happens if they both arise. I suppose they only other, insofar as it is possible to discern the costs and indeed find that the second appeal was otiose and parasitic. Some costs would have been incurred in relation to that. We now have the guidance that it won't be necessary in the future.
MR JUSTICE JAY: Yes.
MR FORDE: But my Lord, I do not think I can assist you any further.
MR JUSTICE JAY: The costs referable to the second appeal were, or are, about----
MS GREY: My Lord, I am told by my instructing solicitors that I think the figure is £1,500, one, five, four, two, and 40 pence.
MR JUSTICE JAY: Virtually all of that will be---- well, the court fee and----
MS GREY: The court fee I think was relatively modest. It was £240. So I think there was £825 for my grounds and advice, and then I think a revised skeleton that went in, which would have been necessary in fact in any event because what we were actually doing in large measure was updating on Jagjivan as well. So my Lord, in my respectful submission that really is a tiny part----
MR JUSTICE JAY: Yes.
MS GREY: -- but I am sorry, I am interrupting my learned friend.
MR JUSTICE JAY: Yes.
MR FORDE: I am sorry, I was reading, I have nothing else to say so you have not interrupted me.
MS GREY: My Lord, I don't know if I need to say anything further. We succeeded on one ground, but this is a day's case and would always have been so. I don't accept that that really makes any difference to the overall costs. The PSA, I don't think, in fact has been awarded a second set of costs, although from what I am being told by those instructing me the (inaudible) simply does not arise in this case.
With respect to my learned friend, the point about settlement of this appeal, as it were, is limited to a comment in the very end of Ms Lambert's skeleton that if the appeal is allowed the respondent will contend that the only appropriate sanction on the issue of impairment----
MR JUSTICE JAY: -- is no action?
MS GREY: -- would be one of no action.
MR JUSTICE JAY: Yes.
MS GREY: So my Lord, we are here---- these cases couldn't sensibly be conceded or settled. There has been no further overture. In my respectful submission our costs are modest and they should be allowed in full.
MR JUSTICE JAY: Yes, well. Thank you.
I think the order I am going to make will reflect the fact that the second appeal was unnecessary. I mean, I see why the GMC out of abundance of caution filed a second appeal. Indeed, they were in one sense probably right to do that, but it was unnecessary and I have so held, that you have only succeeded on one ground, that ground 2 did take quite a lot of time. Ground 3, well, that didn't make much difference. I think overall, out of what is overall a reasonable amount I am going to award you £15,000.
MS GREY: My Lord, thank you.
MR JUSTICE JAY: Thank you.
MR FORDE: Thank you, my Lord, and thank you for sitting so late.
MR JUSTICE JAY: Well, if I don't it means that my work is multiplied by a factor of about five, because all I have to do now is tidy up the transcript, which might take a couple of hours, but unfortunately I move from one case to the next. Any case which demands reserved judgment, of course I will reserve judgment. But in this case, particularly once I'd decided to do what I did do, if you can see what I mean by that----
MR FORDE: Yes, my Lord.
MR JUSTICE JAY: -- I didn't think it necessary to reserve judgment.
MR FORDE: And it is satisfactory for my client to have finality as well my Lord, for which we are very grateful.
MR JUSTICE JAY: Yes, well, he understands fully, and you will explain it, to the extent to which you need to, but that is the end of it. Thank you very much.
