The Court House
Oxford Row
Leeds LS1 3BG
Before :
His Honour Judge Behrens
sitting as a Judge of the High Court in Leeds
Between :
DR MONA HOSNY | Appellant |
- and - | |
THE GENERAL MEDICAL COUNCIL | Respondent |
Penny Maudsley (instructed by Davies Gore Lomax LLP) for the Appellant
Craig Sephton QC (instructed by GMC) for the GMC
Hearing dates: 17th May 2011
Judgment
Judge Behrens :
Introduction
This is an appeal by Dr Hosny against the decision of a Fitness to Practise Panel of the GMC (“the Panel”) which imposed a 12 month suspension on Dr Hosny’s right to practise.
Dr Hosny is an Anaesthetist. She is an Egyptian. She appeared before the Panel for 23 days between 15th November 2010 and 16th December 2010. She was not legally represented. She faced a number of allegations including clinical matters and two allegations of dishonesty. The allegations in relation to the clinical matters were either found not proved or did not result in a finding of “impairment”. The two allegations of dishonesty were found proved and resulted in a finding that her fitness to practise was impaired. As noted above she was suspended from practise for a period of 12 months.
As will appear in more detail there are 5 grounds of appeal. The first two relate to the findings of dishonesty made by the Panel, the third relates to the finding of impairment and the fourth relates to the sanction. The fifth ground was not argued before the Panel. It is, however, submitted that that the sanction infringes Dr Hosny’s right to family or private life under Article 8(1) of the ECHR.
Ground 1 - The false reference
The first of the allegations of dishonesty related to the sending of a false reference to 5 locum agencies. The false reference is dated 28th March 2008 and purported to be from Dr Andy Webb, the Lead Clinician in Anaesthetics at Lincoln County Hospital where Dr Hosny had worked as a locum during March 2008.
Dr Hosny’s appointment as a locum with Lincoln County Hospital terminated on 28th March 2008. On that day she sent an e-mail to Barbara Cessay (one of the secretary’s in the department) which she included a request for a reference from Dr Webb and Dr Phillips.
In fact Dr Webb prepared a genuine reference for Dr Hosny at or around the end of March 2008. The genuine reference is favourable to Dr Hosny. It refers to her settling down well, that there were no significant concerns about her ability although there were minor concerns about her language and communication skills. These minor concerns were not of such significance as to prevent Lincoln from employing her again in the future.
There was some doubt as to what happened to the genuine reference. Dr Webb, who gave evidence before the Panel said that he wrote the reference shortly after Dr Hosny left. There is no evidence that it was sent to anyone before 19th January 2009. In evidence Dr Webb said that he suspects that the original reference was re-dated and sent to agencies on or around that date.
The false reference is written on United Lincolnshire Hospitals writing paper. It purports to be dated 28th March 2008 and to be signed by Dr Web (misspelt). The grammar and punctuation are poor and the content is unusual. It refers to Dr Hosny working at the “our hospital”, to being clinically efficient, independently working, asking help when appropriate. It refers to her being well-loved from her senior and junior colleagues.
Dr Hosny admitted that she had forwarded the false references to the five agencies referred to in the charges – that is to say NHS Professionals, Thames Medics, Orion Locums Ltd, Medacs Healthcare and Medteam Healthcare. The precise dates when the reference was sent are not wholly clear. It would appear that the first occasion it was sent was in July 2008 when it was sent to Medteam Healthcare. The last occasion was in July 2009 when it was sent to Orion Locums Limited. Sometime in the summer of 2009 Dr Webb received a phone call from a Dr Fox from Howlands Hospital Hertfordshire who wished to check that the reference was valid. After viewing the false reference Dr Webb immediately confirmed it was not valid. Dr Fox indicated that he was going to take the matter further and it came to the attention of the GMC.
Dr Hosny also admitted that by forwarding the false reference she was representing it as a genuine reference. She provided a number of possible explanations for these events:
She said that the reference was sent to her as an attachment to an e-mail. She had kept the attachment (downloaded to a USB stick) but that she had not kept the e-mail. Thus she could not say when she received the reference or who sent it.
She did not open the attachment. She knew it was a reference and she assumed it would be a good reference. No-one would send her a false or a fake reference
In answer to questions from the Chairman she suggested that agencies could get letterheads from hospitals and could get information about her. She suggested that there was competition between agencies who were very keen to place locums. Accordingly she suggested that one of the agencies might have created the reference.
She also suggested that the reference might have been created by someone who was out to harm her but whom she could not identify. She specifically denied that she was the author of the false reference.
In cross – examination by Counsel for the GMC Dr Hosny agreed that that the person who created the document must have had access to the Lincoln Hospital paper, did not know how to spell Dr Webb’s name properly, would have known Dr Hosny’s e-mail address, would have known enough about Dr Hosny to know she was a Consultant, to be able to say she was clinically efficient, and had chosen to write in poor grammatical English.
At the hearing before the Panel Dr Hosny denied an allegation of dishonesty. The allegation of dishonesty was found proved; the Panel rejected Dr Hosny’s explanations as “not credible”. It held, on balance of probabilities that Dr Hosny was the author of the false reference. After directing itself in accordance with the Ghosh test it concluded that Dr Hosny acted dishonestly in creating and sending the false reference.
Ground 1 seeks to challenge the finding of dishonesty. Ms Maudsley points out that the burden of proof is on the GMC to establish dishonesty on the balance of probabilities. As Dr Hosny was unrepresented it behoved the Panel to give most anxious scrutiny to the evidence. She submitted that insufficient weight was given to a number of features of the evidence and that, accordingly the Panel were wrong to conclude that Dr Hosny wrote the reference herself. In particular she referred to the fact that Dr Webb had been asked for a reference and that accordingly Dr Hosny had no reason to believe that the reference she received was other than genuine. It may be that she was careless in not looking at the reference but carelessness is not to be equated with dishonesty.
Ms Maudsley submitted that the Panel failed to give sufficient consideration to the need for the evidence to be “especially convincing” given the serious nature of the allegation faced by Dr Hosny.
In answer to Ground 1 Mr Sephton QC submitted that the Panel was correctly directed to the relevant law and reached a conclusion that was open to it on the facts. He pointed out that the admitted facts gave rise to a strong inference that Dr Hosny had created the false reference herself and that in the absence of a credible explanation by Dr Hosny the Panel were entitled to act on that inference. He submitted that the Panel were entitled to reject the explanations given by Dr Hosny. He submitted that the Panel reached the overwhelmingly correct decision.
Ground 2 – The Job Applications
On 19th April 2010 the Interim Orders Panel considered Dr Hosny’s case and determined that for the protection of the public Dr Hosny’s registration would be suspended for a period of 18 months. That order was reviewed on 21st May 2010. It considered that it was necessary that for the remainder of the order Dr Hosny’s registration should be subject to 10 conditions. It is not necessary to set out the first 9 conditions in detail. They provide for notification to the GMC of various matters relating to future employment. They restrict Dr Hosny’s employment to NHS posts at Registrar grade or equivalent so that her work would be supervised and require her work to be closely supervised by a registered medical practitioner of consultant grade or equivalent. Condition 10 required Dr Hosny to inform various parties that her registration was subject to the 9 conditions. These included “any prospective employer or contracting body (at the time of application)”.
In July 2010 and August 2010 Dr Hosny submitted via the internet applications for employment to two separate bodies - Barts & London Hospital NHS Trust and North Devon Healthcare Trust.
In order to apply Dr Hosny had to fill in (on line) a relatively lengthy form. Each of the Forms required Dr Hosny to tick a form of Declaration to the effect that the information supplied was “true and complete”
The Barts Form (on page 6 of 20) required Dr Hosny to give details of any restrictions or conditions she might have, to state whether she was the subject of a fitness to practise investigation or whether any conditions had been made on her registration by a fitness to practise committee. Dr Hosny left blank the first 2 questions (thus suggesting that there were no conditions or restrictions) and answered “No” to the third question. Thus she expressly (and wrongly) stated that she was not subject to conditions.
The North Devon Form (on page 14 of 19) asked Dr Hosny to state her GMC registration status. If she had limited registration she was asked to explain the limitations in the Supporting Information. Dr Hosny replied that she had full registration. That reply was, of course untrue as her registration was subject to conditions.
In each of the applications Dr Hosny failed to disclose that she was the subject of GMC fitness to practise proceedings or that the registration was subject to the conditions in the interim order.
Dr Hosny was interviewed by Barts on the telephone on 24th August 2010. In that interview she failed to disclose the conditions and as a result was offered the job. On 25th August 2010 she sent an e-mail to the Staff Administrator at Barts in which she disclosed that she was subject to “very strict conditions imposed by the GMC. As a result the job offer was withdrawn.
Dr Hosny was offered an interview by North Devon Hospital. However on carrying out checks with the GMC they discovered about the conditions and withdrew the offer.
It was alleged that the failure was dishonest, misleading and in breach of the Interim Order. Dr Hosny admitted the failure but claimed that she was not acting dishonestly.
In evidence Dr Hosny gave a number of explanations:
She said that she had no recollection of writing “No” in the answer in the Barts Form as she did not understand what was being referred to.
She said she accessed the forms on a number of occasions and saved an archived form. The word “No” was stored on the archived form.
She never meant deliberately to deceive anyone. She was not dishonest.
She was not asked about conditions or fitness to practise at the telephone interview. She was asked about her registration, She did not volunteer information about her conditions because she was ashamed of herself and very much down. It was a low grade job (SHO rather than Consultant) and she was psychologically distracted.
The Panel found the allegation of dishonesty proved. By categorically stating on the application form that she did not have conditions on her registration this would be viewed objectively as dishonest. Furthermore it rejected Dr Hosny’s explanation and held that she knew what she was doing would be dishonest when she submitted the application forms.
Ms Maudsley seeks to challenge this finding. She points out that Dr Hosny is an Egyptian National and has some language difficulties. She was unrepresented. In those circumstances the Panel ought not to have rejected Dr Hosny’s explanation. Ms Maudsley accepted that she was careless in not filling in the form correctly but the Panel ought not to have found that she was dishonest and that the replies were misleading.
Mr Sephton QC submitted that there was ample evidence that entitled the Panel to conclude that what Dr Hosny did was dishonest and in breach of the relevant condition. There can be no doubt that Dr Hosny knew that she was required to notify potential employers of the conditions. In evidence she said that she had informed the locum agencies and this had, in effect meant that she could not gain employment through the agencies. It was in those circumstances that she made her applications on line via the NHS website. He relied on the evidence that Dr Hosny was ashamed during the telephone interview. He submitted that this showed that she knew that she ought to have disclosed the conditions.
Ground 3 - Impairment
The Panel approached the question of impairment in 2 stages. First it was in no doubt that the conduct was so serious as to amount to misconduct either collectively or individually.
The Panel then considered whether as a result of the misconduct Dr Hosny’s fitness to practise was “currently impaired”. It directed itself in accordance with an number of authorities including paragraph 29 of the judgment of Sir Anthony Clarke MR (as he then was) in Meadow [2006] EWCA Civ 1390, paragraph 65 of the judgment of Silber J in Cohen [2008] EWHC 581 (Admin), and the decision in Yeong [2009] EWHC 1923 (Admin). It referred to paragraphs 56 and 65 of the November 2006 edition of “Good Medical Practice”.
The Panel was of the view that Dr Hosny’s misconduct had brought the profession into disrepute and that in doing so Dr Hosny had breached one of the fundamental tenets of the profession. Her integrity could not be relied on.
The Panel went on to consider whether the misconduct was remediable and whether it had been remedied. It made the point that it is difficult to show remediation for dishonest conduct. It made the point that Dr Hosny had demonstrated no appreciation of the consequences of her actions and there was no remediation so far in these proceedings. The Panel was not convinced that Dr Hosny demonstrated an understanding of the gravity of her misconduct.
It accordingly concluded that Dr Hosny’s fitness to practise was impaired by her misconduct.
Ms Maudsley did not challenge the finding that the two acts of dishonesty (if proved) amounted to misconduct but she challenged the finding that Dr Hosny’s fitness to practise was impaired as a result of the dishonesty. She made the point that Dr Hosny was at something of a disadvantage in not being represented. She referred me to passages in the transcript where Dr Hosny was stopped in the course of her submissions. She also made the point that there is in the transcript evidence of remediation. She referred me to a passage on Day 21 (pp 30 – 31) where Dr Hosny in answer to questions from the Chairman said that her understanding of GMC rules and regulations had improved and that she was more familiar with “Good Medical Practice”. She accordingly submitted that the Panel were wrong in finding that there was no remediation.
Mr Sephton QC submitted that the Panel were entitled to reach the conclusion they did. He pointed out that Dr Hosny’s attitude in these proceedings in challenging the allegations of dishonesty showed that she did not appreciate the seriousness of what she had done. The GMC place a high premium on honesty. Dr Hosny had impaired the trust that should lie between the public and the medical profession. The Panel had considered the question of remediation both in the general context of dishonest misconduct and in the particular case of Dr Hosny. Their judgment cannot be criticised.
Ground 4 – Sanction
It was submitted on behalf of the GMC that the appropriate sanction was erasure. Dr Hosny submitted that the appropriate sanction was to require Dr Hosny to give undertakings to the GMC. Dr Hosny would undertake to obtain reports from each hospital at which she worked and provide them to the GMC.
As already noted the Panel rejected both of these submissions. It referred to the Indicative Sanctions Guidance and referred to its duty to act in the public interest; this includes the protection of patients, the maintenance of public confidence in the profession and the upholding of proper standards of conduct and behaviour. It referred to the principle of proportionality and recognised that the purpose of sanctions is not to be punitive although they may have a punitive effect.
It rejected as inappropriate taking no action, the acceptance of undertakings or the imposition of conditions. There is no challenge to this finding and thus it is not necessary to set out the Panel’s reasoning.
The Panel then considered the question of suspension. It referred to paragraphs 69 and 75 of the Indicative Sanctions Guide and then sought to identify mitigating factors which included the following:
there was no evidence of harmful deep-seated personality problems which might pose a risk to patients
there has been no repetition of the dishonesty; the Panel took into account that Dr Webb was in fact willing to provide a reference for Dr Hosny and that the false references were created for the purpose of expediency and there was no personl gain.
it was always Dr Hosny’s intention to disclose the conditions and she did so on 25th August 2011 the day after the job offer.
Dr Hosny did notify locum agencies of the restrictions
in the light of the answers given to the Panel the Panel concluded that Dr Hosny had begun to show insight into her misconduct.
the Panel appreciated that there were language difficulties and that Dr Hosny is not always capable of comprehending complex documents
In balancing Dr Hosny’s interests against that of the public the Panel was satisfied “in the exceptional and particular circumstances of your case, a suspension would send out a strong message to the profession that such misconduct is serious. It would also be sufficient to declare and uphold proper standards of conduct and behaviour”
It went on to consider whether erasure would be disproportionate and considered that suspension was the most proportionate response. It fixed the length of the suspension at 12 months. It considered that this “would mark the seriousness of your misconduct, whilst being proportionate to your individual circumstances”
The letter went on to point out that there would be a review of the case before the end of the period of suspension.
Ms Maudsley submitted that the period of suspension was disproportionate. It was the maximum permitted and it was disproportionate to the gravity of the misconduct.
Mr Sephton QC pointed out that 12 months was not the maximum period for which a suspension could take effect. He drew my attention to section 35D(2) and (5) of the Medical Act 1983. Whilst it is true that under section 35D(2) the maximum period of suspension is 12 months, there is power under subsection (5) to extend that period for further periods of up to 12 months at a time. Thus, it by no means follows that 12 months is the maximum period of suspension.
Mr Sephton QC submitted that the decision of the Panel not to erase Dr Hosny was merciful. The normal sanction for acts of dishonesty is erasure. He acknowledged that Dr Hosny’s dishonesty was not as bad as some other cases of dishonesty and thus accepted that a decision not to erase could be justified.
He submitted that the Panel gave careful consideration to the case. Their decision on sanction requires respect. The Court should only interfere if it can be shown to be clearly wrong. He submitted that it was not clearly wrong and should be upheld.
Ground 5 – Article 8
Very little time was spent on this aspect of the appeal. Ms Maudsley submitted that the suspension interfered with Dr Hosny’s private life and that Article 8 was accordingly engaged. She, however, readily accepted the rights under Article 8 were not absolute and that under Article 8(2) an issue of proportionality arose. She accepted that the issue of proportionality under Article 8 added nothing to her submissions under ground 4. In those circumstances she accepted that ground 5 added nothing to ground 4.
Mr Sephton QC did not accept that Article 8 was engaged at all. If it was he submitted that the sanction was lawfully made by a public authority pursuant to powers conferred by the Medical Act 1983. The sanction pursued a legitimate aim namely the protection of health for the rights and freedom of others. It was necessary and proportionate (Footnote: 1). He acknowledged that that the question of proportionality arose and relied on his submissions in relation to sanction referred to above.
The Law
Before considering the submissions on the five grounds of appeal there are a number of matters of law which it is convenient to set out. There was, in fact, little, if any, dispute as to the law between Counsel.
The Medical Act 1983
In the course of his submissions Mr Sephton QC took me through the relevant provisions of the Act. He referred me to the main objective of the GMC as set out in section 1(1A) “to protect, promote and maintain the health and safety of the public”. He referred me to sections 35C and 35D which deal with the functions and powers of the Panel. As there is no challenge to the procedure adopted in this case it is not necessary to set them out in detail. He referred me to section 40 which gives a right of Appeal to the High Court and the powers of the Court in such an appeal.
Standard of Proof
It is common ground between the parties that the burden of proving misconduct rests with the GMC and that the standard of proof is the balance of probabilities. In paragraph 21 of Ms Maudsley’s skeleton she refers to the need for the most anxious scrutiny of the evidence where a person is unrepresented and in paragraph 22 to the need for a heightened consideration of the in matters where dishonesty is alleged. The more serious the allegation the more convincing the evidence needs to be.
The leading authority on this area of the law is now In Re B [2009] AC 11. In his speech Lord Hoffmann expressly approves the following passage from the speech of Lord Nicolls In re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
The purpose of Fitness to Practise Proceedings
In paragraph 32 of his judgment in Meadow [2006] EWCA 1390 Sir Anthony Clarke MR said:
In short, the purpose of FTP proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.
The role of the Court in an appeal
I was referred to a number of authorities on the role of the Court in an appeal under section 40 of the Act. For present purposes it is sufficient to refer only to two. In paragraph 25 of his judgment in Azzam v GMC [2008] EWHC 2711 McCombe J summarised the relevant principles as follows:
The principles are:
The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;
The judgment of the panel deserves respect as the body best qualified to judge what the profession expects of its members in matters of practice and the measures necessary to maintain the standards and reputation of the profession;
The panel’s judgment should be afforded particular respect concerning standards of professional practice and treatment;
The court’s function is not limited to review of the panel decision but it will not interfere with a decision unless persuaded that it was wrong. The court will, therefore, exercise a secondary judgment as to the application of the principles to the facts of the case before it.
In Salsbury v Law Society [2008] EWCA Civ 1285 there is a full review of the authorities dealing cases of dishonesty by solicitors and the role of the Court in appeals from the Solicitors Disciplinary Tribunal. After referring extensively to the decision in Bolton v Law Society and other authorities Jackson LJ at paragraph 30 summarised the law::
From this review of authority I conclude that the statements of principle set out by the Master of the Rolls in Bolton remain good law, subject to this qualification. In applying the Bolton principles the Solicitors Disciplinary Tribunal must also take into account the rights of the solicitor under articles 6 and 8 of the Convention. It is now an overstatement to say that “a very strong case” is required before the court will interfere with the sentence imposed by the Solicitors Disciplinary Tribunal. The correct analysis is that the Solicitors Disciplinary Tribunal comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal. Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere. It should also be noted that an appeal from the Solicitors Disciplinary Tribunal to the High Court normally proceeds by way of review; see CPR rule 52.11(1)
Impairment
In paragraphs 18 and 19 of his judgment in Yeong v GMC Sales J explained how the current regime changed in 2004 and that it is now necessary to concentrate on the current and future fitness to practise:
The regime based on impairment of fitness to practise is based on amendments to the Act which came into effect in 2004. Before that, the relevant concept under the statutory regime for matters relating to a medical practitioner’s conduct was that of serious professional misconduct rather than impairment of fitness to practise.
It appears that a reason for the change in concept may have been to emphasise that the regime under the Act is concerned with a medical practitioner’s current and future fitness to practise rather than with imposing penal sanctions for things done in the past, although that was also the case under the previous version of the regime (in common with the position in relation to a range of bodies which regulate professionals): General Medical Council v Meadow [2006] EWCA Civ 1390, [28]-[32]. The statute requires the FTPP to consider whether the fitness of a medical practitioner to practise “is” impaired: see s. 35D(2). Accordingly, the FTPP has to assess the current position looking forward not back: see also Meadow at [32] per Sir Anthony Clarke MR; Zygmunt v General Medical Council [2008] EWHC 2643 (Admin) at [31] (Mitting J). However, as Sir Anthony Clarke MR also observed in Meadow at [32]: “… in order to form a view of the fitness of a person to practise today, it is evident that [the FTPP] will have to take account of the way in which the person concerned has acted or failed to act in the past.”
The need to consider the present and future impairment may make it relevant to consider the question of remedial action. However, as Sales J pointed out in paragraphs 48 – 51 of his judgment in cases not involving clinical errors or incompetence the efforts made by the medical practitioner to address his behaviour may carry very much less weight:
Against this, Miss Grey submitted that each of Cohen, Meadow and Azzam was concerned with misconduct by a doctor in the form of clinical errors and incompetence. In relation to such types of misconduct, 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 (i.e. at the time of consideration by a FTPP) impaired; but Miss Grey submitted that the position in relation to the principal misconduct by Dr Yeong in the present case (i.e. improperly crossing the patient/doctor boundary by entering into a sexual relationship with a patient) is very different. 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 or incompetence.
I accept Miss Grey’s submission that the types of cases which were considered in Cohen, Meadow and Azzam fall to be distinguished from the present case on the basis she puts forward. Two points should then be made.
First, in my judgment, the overarching function of the GMC as set out in s. 1(1A) of the Act informs the meaning of impairment of fitness to practise by reason of misconduct in s. 35C(2), so that under s. 35C(2) and s. 35D the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public’s confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at [51] (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving “a rape or misconduct of that kind”, in relation to which – by implication – such evidence might be less significant).
Good Medical Practice
Good Medical Practice published by the GMC contains a section on Probity which includes the following:
Probity means being honest and trustworthy and acting with integrity: this is at the heart of medical professionalism
You must make sure that your conduct at all times justifies your patients’ trust in you and the public’s trust in the profession
If you …have restrictions placed on your practice you must, without delay, inform any other organisations for which you undertake medical work
You must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents and that you must not deliberately leave out relevant information.
Discussion and Conclusion
Ground 1
I have summarised the submissions on ground 1 and shall not repeat them. The issue is whether the Panel were entitled to find, on balance of probabilities that Dr Hosny wrote the false reference. As Mr Sephton QC pointed out there was strong circumstantial evidence that she did. It was a reference concerning Dr Hosny; the author of the reference must have known a lot about Dr Hosny. It was written on Lincoln Hospital writing paper. The author must have had access to that paper. The grammar and punctuation were poor. Dr Hosny, an Egyptian, does have some language difficulties. The false reference was sent by Dr Hosny to 5 agencies and was thus in Dr Hosny’s possession. No one else really had a motive to create such a reference. If, as Dr Hosny suggested an agency created the false reference it is difficult to see why it sent it to Dr Hosny. If it was created by someone who wanted to harm Dr Hosny it is difficult to see why it was in positive terms.
I accept, of course, that it is inherently improbable that a Consultant Anaesthetist would concoct a false reference and that is a factor to be taken into account in determining whether Dr Hosny did write the evidence. However I agree with Mr Sephton QC that the strong circumstantial evidence was more than sufficient to entitle the Panel to conclude that in the absence of a credible explanation Dr Hosny wrote the reference. In my view the Panel was entitled to reject the evidence of Dr Hosny and to hold that Dr Hosny wrote the false reference.
It is not in dispute that the Panel directed themselves correctly as to the meaning of dishonesty. In my view their finding of dishonesty is not open to challenge. It may be, as the Panel found in the decision on sanction, Dr Hosny did not write the reference for personal gain but as a matter of convenience at a time when she was out of the country. It was still both objectively and subjectively dishonest to write it. Although it is not relevant I agree with the decision.
Ground 2
I have summarised the submissions on ground 2 and shall not repeat them. The answers that were given in the two forms were plainly wrong. Furthermore Dr Hosny plainly failed to notify each of the hospitals of the restrictions imposed on 21st May 2010. In the light of her answers in relation to the agencies she knew of the restrictions and of the need to notify. It is difficult to accept Dr Hosny’s explanation in relation to the archived forms. The questions on the two forms were not identical; the answers were different. It is thus difficult to see how they could have been taken from an archived form. Whilst it was accepted that Dr Hosny had some language difficulties she was able to fill in the rest of the form. The wrong answers are not in a very complicated part of the form. The answer “No” to the question about restrictions is a straightforward answer to a straightforward question.
In my view the Panel were entitled to conclude that Dr Hosny’s conduct in relation to the submission of the inaccurate forms was dishonest. The dishonesty was no doubt mitigated by her subsequent conduct on 25th August 2010 by disclosing the restrictions by e-mail. It may also be explained by her evidence that she felt ashamed in applying for the jobs. However in agreement with Mr Sephton QC I do not think the Panel’s decision on ground 2 is open to challenge.
Ground 3
As noted above Ms Maudsley’s challenge to the decision on impairment relates to the Panel’s finding on remedial action and to the evidence of Dr Hosny that she was now more aware of the requirements of Good Medical Practice and of the GMC rules and regulations. As against that a number of points can be made:
The Panel plainly had in mind the authorities to which I have referred including the passages from Sales J’s judgment in Yeong set out above.
This was a case where the findings were of dishonesty. Thus this was one of those cases where the efforts of Dr Hosny to remedy the misconduct were likely to carry less weight than in a case where there had been clinical errors.
The Panel did consider whether Dr Hosny had remedied the misconduct. It made the point that her conduct in denying the dishonesty showed that she did not understand the gravity of the misconduct.
This was a case where the Panel felt that Dr Hosny had violated one of the fundamental tenets of the profession and that her integrity could not be relied on.
To my mind the reasoning of the Panel was fully in accordance with the authorities that I have referred to and cannot be faulted.
In my view the finding of impairment was fully justified.
Ground 4
It is plain from paragraph 82 of the Indicative Sanctions Guidance that erasure may well be the appropriate sanction when dishonesty is involved especially when persistent or covered up.
This was a case where two separate acts of dishonesty were proved. However it was also a case where there were a number of mitigating factors all of which were set out in detail in the decision. In the light of those factors the Panel felt able to describe Dr Hosny’s case as “exceptional”. The Panel wished to send out a strong message to the profession that such conduct was serious. It was on that basis that the suspension for 12 months was justified.
Ms Maudsley’s initial challenge was misconceived because, as she accepted in her Reply a suspension can last for more than 12 months. She still contended that a suspension for 12 months was disproportionate.
Mr Sephton QC reminded me of the authorities requiring me to respect the decision of the GMC on matters such as sanction and submitted that there was no basis on which I could say that their decision including the desire to send out the message to the profession was wrong. Indeed it could be regarded as merciful.
I agree with Mr Sephton QC’s submissions. In my view the sanction in this case was well within the bracket of possible sanctions open to the Panel. It is apparent from the decision that Dr Hosny’s case was considered with the utmost care by the Panel. The Panel took into account all of the mitigating factors open to Dr Hosny. In my view the decision on sanction cannot begin to be described as “wrong”.
Ground 5
It was conceded by Ms Maudsley that this ground added nothing to Ground 4. I consider that the sanction imposed in this case was proportionate. In those circumstances even if Article 8 is engaged there is no breach because of the provisions of Article 8(2).
Conclusion
The Appeal is dismissed.