Hussain v General Medical Council

This is an appeal brought by Dr Fazal Hussain against a decision of His Honour Judge Bird sitting as a deputy judge of the Administrative Court at Manchester, dismissing his appeal against a decision of the Fitness to Practise Panel of the Medical Practitioners' Tribunal Service ("the Panel"). The Panel determined on 26^th June 2013 that Dr Hussain's fitness to practise was impaired as a result of certain findings that were made against him and that his name should be erased from the Medical Register.

The Panel heard evidence over eleven days. With one day of submissions on the Appellant's submission of no case to answer, three days of final submissions on the facts and on impairment and a final day on which it gave its decision on sanction, the Panel spent some 16 days in total dealing with the hearing.

The allegations made against Dr Hussain which proceeded to a final determination were:

Each of these allegations was found proved by the Panel.

Dr Hussain was born in 1954 and came to the United Kingdom at the age of 9. In 1978 he was awarded a Bachelor of Science degree in applied chemistry from Leicester Polytechnic, as it was then known: it became De Montfort University in 1992. In 1981 he was awarded a Master of Science degree in medicinal chemistry and drug metabolism by Loughborough University of Technology. In 1985 he received a Ph.D from the University of Bath in pharmacy and pharmacology.

Between 1987 and 1990 he was involved in post doctoral research and was a tutor in pharmacology at Liverpool University. From 1991 to 1992 he held a similar post at Manchester University. In 1999 he graduated from the University of Warsaw with a degree in medicine. Between 2001 and 2002 he passed the GMC's Professional and Linguistic Assessment Board, and between 2003 and 2007 he worked in hospitals as a House Officer and Senior House Officer. From 2008 to 2009 he worked as a clinical fellow at the Manchester Royal Infirmary and at Tameside General Hospital.

In August 2009 he started to train as a general practitioner. On 3rd February 2010 he took up an ST1 (specialty training year 1) placement for 6 months at the Townhead Surgery in Settle. This was his first placement with a surgery. The organisation at the time responsible for postgraduate training in medicine in the region was the Yorkshire and Humberside Postgraduate Deanery. Dr Hussain had an educational supervisor, Dr Elizabeth Sides, a GP in Haworth, and a clinical supervisor, Dr William Hall, who was a partner in the Settle practise. Shortly after Dr Hussain started this placement his father died.

As part of his training as a GP Dr Hussain was required to:

By 24th March 2010 (about 7 weeks from his start at the Settle surgery) Dr Hall and Dr Davies, two of the three GP trainers at the Settle practice, had very real concerns about Dr Hussain's abilities, performance and probity. On 26th March 2010 following a meeting, Dr Hussain's independent appointments with patients were suspended while investigations into his CV were carried out. Dr Hussain freely agreed to co-operate with the investigation. When cross examined before the Fitness to Practise Panel, Dr Hall accepted that when the discrepancies were raised with Dr Hussain, the Appellant "made no attempt at all to conceal the truth".

On 29th March 2010 Dr Hall, Dr Davies and Dr Hussain met at the surgery. Dr Hussain was upset because he had been suspended. He accepted that there were errors in his CV but maintained that these were honest mistakes brought about because he and his wife had prepared the CV "in a rush" and that he had not intentionally misled the surgery. A note of the meeting records that Dr Hall "accepted that Dr Hussain had done this mistakenly" but went on to explain that it was "an issue of probity". The note records also Dr Hall's concern that Dr Hussain "didn't seem to understand why his CV was a probity issue and that perhaps another learning point was to look at the GMC documents on probity".

On 21 September 2010 a Code of Conduct Panel was convened by the Deanery to investigate various matters arising out of Dr Hussain’s use of the e-portfolio. It had some of the charges before it which later came before the Fitness to Practise Panel, but not all. It issued Dr Hussain with a warning.

On 1 February 2011 an ARCP panel recommended that Dr Hussain be “released” from GP training, a decision which was confirmed on appeal. In May 2011 Dr Hussain was referred to the GMC.

The CV presented to the practice had included the following:

The Panel's final determination of allegation 2 may be summarised as follows:

The MSF (multi-source feedback) online forms are in two parts. Part 2 states that it is to be completed “by clinical staff only”. There is one question: "please provide your assessment of this doctor's overall clinical performance". The giver of feedback is invited to leave comments and to express "highlights in performance (areas to be commended)". There is then an opportunity to suggest "possible areas for development in performance".

On 2nd June 2010 Dr Hussain asked Lesley Wilson, a health care assistant at the practice, to provide some MSF feedback for him. The circumstances in which the form, in particular Part 2, came to be completed were fiercely disputed at the hearing before the Panel.

The Panel heard evidence from Lesley Wilson. The thrust of her evidence was described by the judge as follows: Dr Hussain asked Lesley Wilson to come to his room. She was busy but went. He asked her to fill out a form. She said she did not have the time. Dr Hussain then asked "do you mind if I fill it out myself?" She agreed. He asked if she thought he was a nice person and good with patients. She agreed he was and left. It was put to Mrs Wilson in cross examination that she later returned to the room, checked what Dr Hussain had written and transmitted the form. Her response was "absolutely not".

The Panel's determination of allegation 4 may be summarised as follows:

The plagiarism allegations deal with three specific entries onto Dr Hussain's e-portfolio. Two of them were uncovered by Dr Rose, GP Principal and Deputy Director at the Yorkshire and Humberside Postgraduate Deanery:

Before the Panel, in cross examination, the following exchanges appear:

On these allegations the Panel found that:

The Panel's finding was that Dr Hussain's conduct as found in relation to allegations 2, 4, 5, 6 and 7 was dishonest. The Panel was "of the firm view that any of the instances of dishonesty, when taken individually or collectively, is serious. It regards such conduct as disgraceful and it is in no doubt that your dishonest conduct amounts to serious misconduct".

Allegations 2(a), 2(b) and 4(c) include the adjective "false". In the case of allegation 4(c) this had no potential for ambiguity, since the main issue was whether the comments on Part 2 of the form represented the views of Ms Wilson or were made up by Dr Hussain. But in the case of the CV allegations “false” could mean either deliberately or inadvertently inaccurate. If it was the former – and it seems to me that outside the context of quiz games “false” usually has overtones of dishonesty - then in most cases the “sweeping up” allegation of dishonesty at the end of the list (number 9) adds nothing, and it is undesirable to have duplication of charges. (It may add something if there is a second limb Ghosh issue, which should only arise if there is an evidential issue which warrants its consideration.) If “false” is used simply to mean “inaccurate”, then I venture to suggest that use of the latter word might avoid confusion.

Judge Bird observed that the addition of allegation 9 to allegations 2(a), 2(b) and 4(c) could “give rise to difficulties”, adding: “It is difficult to see how, in the context of the present allegations, making an untrue statement intending that it should be relied upon could be anything other than dishonest.” But the judge’s formulation is itself defective. A person who makes a statement which he knows to be untrue, intending that it should be relied upon, is clearly dishonest, but without the extra words the ambiguity is simply reproduced.

No point on the wording of the allegations was taken before the Panel by counsel then appearing for Dr Hussain. In advising the Panel on the law, the Legal Assessor, Mr Jonathan Whitfield Q.C., told them that in the context of the allegations the word "false" denotes:

"the deliberate and intentional making of a statement which was known to be incorrect knowing that it would, and intending that it should, be relied upon by others. It is not sufficient that a statement is an untoward error or a sloppy mistake, however foolish or discreditable such conduct may be".

He continued:

"If you are satisfied the disputed act or omission occurred…..you should then go on to consider whether the GMC have proved that the error was false, ie intentionally wrong and not just a misunderstanding, a mishearing or a silly mistake borne from sloppiness. Both of these two latter matters fall under the main heading of dishonesty in count 9".

The Legal Assessor also advised the Panel on the meaning of dishonesty. He said this, applying the decision in R v Ghosh [1982] QB 1053:

"The Panel must first of all decide whether according to the standard of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards that is the end of the matter and the case fails. If the GMC have not satisfied you on the balance of probabilities that reasonable and honest people would consider an act to be dishonest then that is the end of the matter. If you are so satisfied then you move to the second question: if it was dishonest by those standards then the Panel must consider whether Dr Hussain must himself have realised that what he was doing was by those standards dishonest".

Before us Mr Berkley QC for the Appellant takes no issue with the Legal Assessor's advice in respect of dishonesty, but relies on a criticism made by the judge of what he said was a confusion by the Panel between falsity and dishonesty in respect of the CV allegations, to which I shall return shortly.

The judge concluded that the findings of fact made by the Panel should not be disturbed. The Panel had the benefit of hearing the evidence at first hand and were in the best position to judge which version of events in respect of each allegation they preferred. While a different Panel might have come to a different conclusion, he was unable to conclude that the findings made in respect of allegations 2, 4, 5, 6 and 7 were wrong or should be upset for some other reason. He said that the real thrust of the appeal before him was against the finding that Dr Hussain was dishonest.

On the issue of dishonesty in relation to the CV, the judge said:

“For my part and considering the totality of the evidence before the Panel on this issue, I doubt that reasonable and honest people would regard what Dr Hussain did as dishonest. It was certainly wrong, careless and regrettably misleading, but in my judgment not dishonest. The Panel rejected Dr Hussain's assertion that the CV was put together in a "rush". It therefore took away the factual basis on which the Settle practice had been willing to conclude that Dr Hussain had made a simple mistake. However, the fact that the qualifications were awarded many years ago and that Dr Hussain had a Ph.D in the relevant subject are in my judgment strong indicators of a lack of dishonesty and simple carelessness. The rejection of Dr Hussain's version of events and the finding that he was not generally a credible witness, as Miss Hewson submitted, is not sufficient on its own to warrant a finding of dishonesty……….

It is regrettable that the Panel may have dealt with "dishonesty" in respect of the CV under the rubric of "falsity", as it may have considered was legitimate following the advice [of the Legal Assessor] set out at paragraph 48 above. This possible confusion between falsity and dishonesty alone in my judgment would justify the conclusion that the Panel's attribution of dishonesty was unsustainable. The second stage of the Ghosh dishonesty test does not therefore fall to be applied.”

This section of the judgment is, with respect, not easy to follow. The Panel found that Dr Hussain was aware that the CV contained false information and that it would be relied on, and also rejected his evidence that it had been put together in a rush. Once the judge had accepted the Panel’s findings of fact, it is hard to see how he could conclude that the attribution of dishonesty was “unsustainable”. However, the GMC has not sought to cross-appeal or to serve a Respondent’s Notice, and Simon Phillips QC on their behalf has not sought to overturn the judge’s conclusion on allegation 2. We must therefore consider Dr Hussain’s appeal on the basis that it was correct.

Turning to allegation 4, relating to the MSF form, the judge agreed with the submission of Mr Phillips that this allegation was the most serious. (Dr Hall had described the entry as an "illegal and immoral falsification".) In the judge’s view the Panel was entitled to conclude on the evidence it heard that according to the standard of reasonable and honest people, Dr Hussain's conduct in respect of the MSF form was dishonest. The fact that Dr Hussain may have been to some extent ignorant about the procedure for collecting MSF was irrelevant.

Judge Bird also found that the Panel was entitled to conclude that Dr Hussain must himself have realised that what he was doing was dishonest. The nature of the conduct was so serious, said the judge, that the finding of the Panel was inevitable.

On the plagiarism counts, the judge held that the Panel was entitled to conclude that Dr Hussain knew he would be assessed on his e-portfolio. The onward transmission of the e-portfolio entries by a trainee GP can only be seen as a representation that what they contain is the work of the trainee. In the case of allegation 7 there was the added feature of the admission by Dr Hussain during the hearing before the panel that he had simply not read The Citadel.

Judge Bird was satisfied that the Panel was entitled to conclude on the evidence they heard that according to the standard of reasonable and honest people, Dr Hussain's conduct in respect of plagiarism was dishonest. The judge also found that the Panel was also entitled to conclude Dr Hussain must himself have realised that what he was doing was by those standards dishonest.

Professional misconduct comes in many forms but in this case, as Mr Berkley rightly said, the GMC nailed their colours firmly to the mast of dishonesty. His first ground of appeal was that since the Panel had, according to the judge, conflated falsity with dishonesty in dealing with the CV allegation, it was “inconceivable” that they did not make the same error in respect of the other charges which they found proved. The reversal of the Panel’s finding on Allegation 2 had, he said, a “domino effect” on the rest of their conclusions.

I do not accept this submission. As already discussed, the word “false” was ambiguous when used as a description of the inaccurate entries on Dr Hussain’s CV. But the Panel were not faced with any such ambiguity in considering the facts of the other allegations. On the MSF charge, they had to decide which of two witnesses was telling the truth. Mrs Wilson told them that Dr Hussain had made the entries on the form himself, and that Part 2, at least, did not represent anything she had said to him. Dr Hussain’s evidence, by contrast, was that she had typed part of the entries herself, and that this was corroborated by the presence of a spelling error (“non” instead of “none”) which he would never have made. Once the Panel accepted Mrs Wilson’s evidence, as they did, the finding of dishonesty was inevitable, and does not turn on any ambiguity in the word “false”.

The same applies to Allegation 7. Opinions might differ about whether a student or trainee who reads a book and enters or hands in (without attribution) a review of it which is partly someone else’s work is dishonest: it may be a matter of degree. But where the review is wholly someone else’s work and the student or trainee has not even read the book, as was the case with Dr Hussain’s entry about The Citadel, again a finding of dishonesty was inevitable. (The conclusion of the Code of Conduct Panel of the Yorkshire and Humberside Deanery that the Citadel plagiarism warranted only a warning does nothing to detract from that conclusion, not least because the Code of Conduct Panel accepted Dr Hussain's evidence that he had read the book, whereas the FTP Panel reached the contrary conclusion on Dr Hussain's own admission.)

Mr Berkley relies on the fact that Judge Pelling QC, in the course of a hearing in which he allowed an appeal from a decision of the Interim Orders Panel suspending Dr Hussain from practice pending the FTP panel hearing, appears to have adopted the phrase “quite low level probity complaints” used by Dr Rose as a description of the allegations against Dr Hussain. But Dr Rose was using this phrase to describe Allegations 5 and 6 (and some other matters not the subject of the FTP hearing), not the MSF form or the Citadel allegations; moreover, Judge Pelling was not hearing oral evidence; and the test for making an interim order for suspension is in any event different from that applied by a FTP Panel.

The next ground of appeal is that the Panel, when assessing whether Dr Hussain had been subjectively dishonest when doing the acts complained of, failed to give proper weight to his troubled state of mind arising from the death of his father very shortly after Dr Hussain’s arrival at the Settle practice. The simple answer is that this case is not about (for example) an allegation of failing to concentrate properly because the doctor’s mind was elsewhere. Grief caused by bereavement is not a defence to a charge of dishonesty. It may be mitigation, but that is a different point.

In short, I conclude that given the Panel’s findings of fact on allegations 4 and 7, which they were entitled to reach, their finding of dishonesty in respect of those charges was inevitable. On this basis it is unnecessary to recite the well-known authorities about the degree of deference due to the opinion of a professional disciplinary body as to what conduct is to be considered dishonest by the standards of the profession.

Mr Berkley submitted, both in respect of impairment and of sanction, that the Panel gave inadequate weight to the fact that all the allegations related to a short, aberrant period in Dr Hussain’s life in 2010 (three years before the case reached the Panel) during which he had been under great strain; and also to Dr Hussain’s good character, evidenced not only by the absence of previous findings against him but by a number of testimonials.

The question which a Fitness to Practise Panel has to answer, in a case in which they have found misconduct to have occurred, is whether (at the time of the hearing) the doctor’s fitness to practise is impaired by reason of the misconduct. An aggressively run defence is not “misconduct”. But the presence or absence of insight into one’s failings is often relevant to whether a doctor’s fitness to practise remains impaired. If Dr Hussain had immediately admitted his wrongdoing in 2010 his case might have been presented on the basis that it was a long time ago, that he had learned the error of his ways and that his fitness to practise was therefore no longer impaired. But that was not what happened. On the contrary: his case to the Panel was that he had done no wrong, that Dr Hall and his colleagues were racists and that Mrs Wilson was lying as part of a “joint venture” with Dr Hall which had brought about his removal from the practice. This showed, in the words of Judge Bird, a “complete and total lack of insight” into his conduct. In those circumstances, like the judge, I consider that the Panel were entitled to find that the Appellant’s fitness to practise remained impaired by reason of the misconduct which they had found proved against him.

In a very well known passage in the decision of the Judicial Committee of the Privy Council in Gupta v GMC [2002] 1 WLR 1699 at 1702 Lord Rodger of Earlsferry said:

“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: “The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.” Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case. On that footing, and without deferring to the judgment of the committee on the matter to a greater extent than is warranted in the circumstances, their Lordships are satisfied that, for the reasons which it gave, the sanction of erasure was wholly appropriate for the protection of the public and of the standing of the profession.”

In view of the findings of dishonesty in respect of the MSF form and The Citadel, coupled with the Appellant’s evident lack of insight, the Panel's conclusion that erasure was the proportionate response cannot be criticised.

For these reasons I would dismiss the appeal.

I agree. I add two comments. First, on sanctions. Sanction is not a punishment. It deals with the identified problem of impaired fitness to practise by reason of misconduct. This is not a case of impairment for want of professional competence, or improper conduct towards a patient or dishonesty in relation to practice or public money. But the misconduct was founded on dishonesty towards trainers, in order to persuade them that he was making progress in his attempt to qualify as a GP, which he was not making. This demonstrated untrustworthiness was then persisted in through the Code of Conduct Panel and FTP hearings. It was compounded by serious but false allegations about doctors and staff where he has worked. This showed a total lack of insight into his earlier misconduct.

These are circumstances which call for a difficult judgment as to sanction, where the professional judgment of the FTP has to be upheld unless clearly wrong. It is certainly a judgment to which the FTP was entitled to come, after giving it careful consideration.

Second, the Legal Adviser’s advice, see paragraphs 25 and 26 above, could create uncertainty over the stage at which the intention behind an inaccurate statement had to be considered, and if at the stage of the specific charge, what then was for consideration at the stage where dishonesty was considered, though it may not be much of a problem in practice as Mr Phillips suggested.

I also agree.

I would only add that I am a little troubled about the Ghosh direction given by the legal assessor in this case. It would have been standard in a criminal case. But this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide “whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest”. There may be a not unimportant difference between the two as shown by the decision of the judge in this very case.