Hosny v General Medical Council

This is the judgment in the appeal of Dr Mona Rafaat Hosny against the General Medical Council. This is an appeal pursuant to section 40 of the Medical Act 1983 by Dr Mona Hosny against the findings of a Fitness to Practise Panel of the General Medical Council sitting in Manchester between 11 and 13 April 2012 (“the 2012 FTPP”). The 2012 FTTP: (i) reviewed the sanction of 12 months’ suspension which was imposed by a Fitness to Practise Panel on 16 December 2010 (“the 2010 FTPP”); and (ii) made determinations of fact, impairment and sanction in respect of new allegations of misconduct. The appeal is against the decisions relating to the new allegations, and not the review of the sanction of 12 months’ suspension imposed by the 2010 FTPP. The appeal to the decision resulted in the erasure of Dr Hosny from the medical Register. Before turning to the matters the subject of the appeal I will set out the matters relating to the 2010 FTPP decision by way of background. That I will do in a moment.

The case of Meadow v GMC [2006] EWCA Civ 1390 deals with the approach the High Court should take; this is at paragraphs 117 to 118, and 125 to 128. These were synthesised by McCombe J, as he then was, in the case of Azzam v GMC [2008] EWHC 2711 (Admin) in this way in paragraphs 25 and 26:

“25.

In broad terms I accept the submissions of Miss Callaghan for the GMC, as to the proper approach for the court on an appeal under Section 40 of the Act, which were not disputed by Mr. Forde QC (with whom Mr De Bono appeared) for Dr Azzam. These principles are well established and appear most recently from GMC v Meadow [2007] QB 462, Raschid & anor v GMC [2007] 1 WLR 1460 and Gupta v GMC [2007] EWHC 2918 (Admin). The principles are:

(1)

The panel is concerned with the reputation and standing of the medical profession, rather than with the punishment of doctors;

(2)

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;

(3)

The panel's judgment should be afforded particular respect concerning standards of professional practice and treatment;

(4)

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.

26.

To this list one can also add that the Panel is entitled and bound to consider aspects of the public interest that arise in any case: see e.g. R (Harry) v GMC [2006] EWHC 2050 (Admin).”

I should add that paragraph 118 of Meadow makes it clear that CPR 52.11(2) applies, namely that unless it orders otherwise the Appeal Court will not receive evidence which was not before the lower court. I refused permission to Dr Hosny to do this for reasons I gave earlier in the hearing.

Another useful exposition of the court’s approach is to be found in the case of Zygmunt v GMC [2008] EWHC 2643 (Admin), where Mitting J said at paragraph 2:

“2.

This appeal is by way of rehearing: see 52PD 116(2). I must allow the appeal if persuaded that the decision of the panel was wrong: CPR 52.22(3)(a) and GMC v Meadow [2006] EWCA Civ 1390 paragraphs 125. Because its findings involve judgments about the reliability and truthfulness of witnesses who gave oral evidence in front of it, I must accept its findings of fact unless material errors are clearly demonstrated; and because in determining sanctions, once misconduct and impairment of fitness to practise were found, the Panel is exercising a discretion entrusted to an experienced specialist body, albeit chaired by a lay member and containing an equal number of lay and professional members, I must give special place to its judgment: Fatani and Rashid v GMC [2007] EWCA Civ 46, paragraphs 20 and 26.”

Dr Hosny is an anaesthetist whose career pattern has been to work for one to two-month periods as a locum in a number of hospitals.

Paragraphs 1-3 of the charges that were determined by the 2010 FTPP alleged that Dr Hosny had submitted as genuine a false professional reference to various medical agencies. Paragraphs 8, 9 and 12 of the charges related to the allegation that she dishonestly failed to disclose the fact that her registration was currently the subject of GMC Fitness to Practice proceedings and was subject to conditions imposed by the Interim Orders Panel (“IOP”) when applying for two posts. The remaining charges related to criticisms of the appellant’s clinical performance. Although the 2010 panel found that some of the allegations were proved, they did not base any finding of impairment upon these allegations of clinical performance, and these are not relevant to the present appeal. The December 2010 hearing took 23 days. Dr Hosny was present, but unrepresented.

As to the first disputed allegation contained in paragraphs 1-3 of the charges before the 2010 FTPP, Dr Hosny admitted that she had sent a document to the various medical agencies. She admitted that it purported to be a genuine reference from Dr Andy Webb, the clinical lead in anaesthetics at Lincolnshire United NHS Trust (paragraphs 1 and 2 of the charges). Dr Hosny said in evidence that she did not know where the reference came from; she had saved it to a USB drive, but she had not opened the file before sending it out. She only realised that it was a false reference when the GMC drew it to her attention. Because agencies are very competitive, they create references to expedite obtaining references. Alternatively somebody, she said, might be out to harm her. She said she thought it was a genuine reference, and she had not made it up herself. She agreed that the author of the reference knew a lot about her. Accordingly, the issue for the 2010 FTPP was whether the appellant, Dr Hosny, had acted dishonestly (paragraph 3 of the charges).

As to the second disputed allegation contained in paragraphs 8, 9 and 12 of the charges, Dr Hosny admitted that she was subject to the order of the IOP. She admitted that she had not disclosed that she was subject to the GMC’s Fitness to Practise procedures or that her registration was subject to conditions. The FTPP in 2010 therefore had to consider whether her conduct was dishonest, and whether it constituted a breach of the conditions imposed by the IOP. Dr Hosny said in evidence that her personal information came from information that had previously been stored by her on a website. When she had originally completed the relevant answers, she had not understood what they meant, but she did not mean to mislead anybody. In the course of a telephone interview with Bart’s Trust she was not asked, she said, about whether she was subject to fitness to practise procedures. She said she was not dishonest; she did not mention her conditions during a subsequent telephone call because she was ashamed.

The 2010 FTPP found that between March 2008 and July 2009 Dr Hosny sent the false reference to five health care agencies, representing the reference as genuine. The FTPP found that her representation was false and dishonest in that she had written the reference for herself in the name of another. The FTPP also found that in July 2010 and August 2010 Dr Hosny submitted via the Internet applications for employment to two separate bodies: Bart’s in London Hospital NHS Trust and North Devon Healthcare Trust. The Bart’s application form required Dr Hosny to give details of any restrictions or conditions she might have, and 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 two questions, thereby suggesting there were not conditions or restrictions, and answered “No” to the third question. So she expressly and wrongly stated she was not subject to conditions. The North Devon form 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 said that she had full registration; that reply was incorrect, as her registration was subject to conditions. The 2010 FTPP found that her conduct in relation to the application forms was dishonest and she had breached one of the conditions imposed by the IOP. It found that her fitness to practise was impaired, and imposed a sanction that her registration be suspended for a period of 12 months. The suspension was to take effect 28 days after the deemed date of service of the notice of suspension, or at the conclusion of any appeal. It was also directed that the order of suspension be reviewed shortly before the end of the 12-month period. Because of the allegations against Dr Hosny before the 2012 FTPP, and in particular paragraphs 2 and 4 (see below), I shall read two extracts from the findings of the 2010 FTPP at page 15:

“The Panel is of the opinion that the onus was clearly on you to disclose the IOP conditions which were in place at the time you submitted your written applications for employment with the respective Trusts. It does not accept your argument that you did not read the ‘Declaration’ section of the application forms which require you to tick a box stating that the content of the application form is ‘true and complete’.

[...]

The Panel applied the Ghosh test and concluded firstly that what you did was dishonest by the ordinary standards of reasonable and honest people. By categorically stating on the application form that you did not have conditions on your registration was clearly incorrect and this would be viewed as being dishonest by the ordinary standards of reasonable and honest people. Secondly, the Panel concluded that you must have realised that what you were doing would be regarded as dishonest by those standards. The Panel does not accept your explanation that you submitted an archived application form without checking it, as a reasonable excuse. The responsibility was clearly yours to ensure that the content of the applications was accurate before submitting it. You have told the Panel that you were embarrassed by the fact that your registration was restricted by the imposition of conditions and felt ashamed of it. You have also said that you were humiliated by this fact. The Panel is of the view that because of the effect which the conditions had on you, you knew what you were doing would be dishonest when you submitted the application forms.”

Then later at page 23:

“Furthermore, you have told the Panel that, as a result of these proceedings, you have learnt to be vigilant in reading documents that you receive and send out. You have also explained that you now understand the role and purpose of the GMC and that you will be personally accountable should problems arise.”

In January 2011, Dr Hosny filed a Notice of Appeal. Therefore, the commencement of the suspension was postponed until the appeal had been concluded. The appeal was dismissed by HHJ Behrens, sitting as a judge of the High Court, in Leeds on 17 May 2011. The period of suspension therefore commenced on 17 May 2011, and the review was listed for hearing with the new allegations on 11 April 2012.

Whilst Dr Hosny’s appeal against the decision of the 2010 FTPP was pending, in February 2011 the GMC received information from Addenbrooke’s Hospital and Mid-Yorkshire NHS Trust about online job applications made by Dr Hosny in February 2011 in which she did not disclose previous GMC proceedings. On 24 March 2011 the IOP considered the new allegations and suspended Dr Hosny’s registration in her absence. On 27 April 2011 at the IOP early review, Dr Hosny being present, the IOP imposed suspension for six months. When the appeal was dismissed on 17 May 2011 the FTPP suspension of 12 months took effect and remained in place until the hearing in April 2012.

Dr Hosny was represented by counsel and solicitors at the 2012 hearing. By a decision letter dated 16 April 2012 the 2012 FTPP notified Dr Hosny of its findings and its sanction of erasure. On 11 May 2012 Dr Hosny filed her Notice of Appeal.

On 12 February 2011 Dr Hosny submitted an application by the NHS jobs system for employment as a clinical fellow or advanced clinical fellow in anaesthetics to Addenbrooke’s Hospital, Cambridge University Hospitals NHS Foundation Trust (“Addenbrooke’s”). The application stated in the section dealing with her membership of professional bodies and GMC registration:

“If applicable, please provide details of any conditions/restrictions you may have.”

Dr Hosny left this blank.

“Are you currently the subject of a fitness to practise investigation or proceedings by a licensing or regulatory body in the UK or in any other country?”

Dr Hosny stated “No”.

“Have you been removed from the register or have conditions been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?”

There was a dropdown menu indicated, but no entry was made by Dr Hosny in the box.

“If you have any gaps within your employment history, please state below.”

Dr Hosny’s answer to this question made no reference to the periods when her employment was interrupted by the suspension of her registration by the IOP, i.e. 19 April to 21 May 2010, and 6 September 2010 to 16 September 2010.

“The information in this section is true and complete. I agree that any deliberate omission, falsification or misrepresentation in the application form will be grounds for rejecting this application or subsequent dismissal if employed by the organisation. Where applicable, I consent that the organisation can seek clarification regarding the professional registration details.”

Dr Hosny indicated by a tick that she agreed to that declaration.

On 18 February 2011 Dr Hosny submitted an application by the NHS job system for employment as a consultant anaesthetist to Mid-Yorkshire Hospitals NHS Trust, and on the same date submitted a second application for employment as a clinical fellow in anaesthetics to Addenbrooke’s. Her entries on these application forms were identical to those set out in paragraph 11.1 above.

Further, on three occasions in March 2011 the GMC asked Dr Hosny to complete and return an employer’s disclosure form, which she failed to do.

The facts set out in paragraphs 11.1 to 11.3 above were not in dispute before the 2012 FTPP. This resulted in the following finding:

“In February 2011, you submitted applications for employment (“the applications”) to

a.

Addenbrooke’s Hospital, Cambridge University Hospitals NHS Foundation Trust,

- has been admitted and found proved.

b.

Mid Yorkshire Hospitals NHS Trust.

- has been admitted and found proved.”

The findings in respect of paragraph 2, in conjunction with the findings in paragraph 4, are the first areas subject to the appeal. These findings were:

“Paragraph 2 –

In the applications, you failed to disclose that

a.

you were currently the subject of General Medical Council (“GMC”) fitness to practise proceedings,

- has been found proved.

The GMC’s Good Medical Practice (November 2006) sets out the requirement for doctors to be honest and open and act with integrity.

Paragraph 65 states that ‘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.’

The Panel is satisfied that you had an obligation to disclose the GMC proceedings on the applications. Furthermore, such obligation had been recently highlighted to you by the GMC.

The Panel rejects your explanation that you thought you were not subject to proceedings at the time because you had appealed the decision of a Fitness to Practise Panel (FtP) to suspend your registration. You were aware that the appeal had not yet been heard and it must have been obvious to you, therefore, that the proceedings were ongoing.

b.

your registration was subject to an order of suspension imposed on 16 December 2010, not yet in force due to an ongoing appeal,

- has been found proved.

This follows from the Panel’s finding at paragraph 2(a).

c.

your registration had been subject to interim orders of suspension (“the IOP suspension orders”) between

i.

19 April 2010 and 21 May 2010,

- has been found proved.

ii.

6 September 2010 and16 December 2010,

- has been found proved.

The relevant question on the applications was ‘Have you been removed from the register or have conditions been made on your registration by a fitness to practise committee or the licensing or regulatory body in the UK or in any other country?’.

The question clearly covered any removal or conditions imposed by the GMC, which would include IOP orders. You have stated in evidence that, in hindsight, you concede this.

The Panel is satisfied that the question refers to past as well as present restrictions, as indicated in the wording itself and also implied by the fact that a doctor would not be applying for medical employment if they were currently removed from the register.

d.

gaps in your employment history were, at least in part, a result of the IOP suspension order.

- has been found proved.

You have stated that you thought the question only referred to gaps such as maternity leave, sickness or sabbaticals, since the question did not mention GMC proceedings, and that this issue was not raised at your last FtP hearing. You have also stated that your work as a locum implied gaps in your employment.

The relevant question on the applications asked you to state any gaps within your employment history. This was unqualified and there was therefore no basis to justify your limited interpretation of it. Accordingly, the Panel rejects your explanations.

[...]

Paragraph 4 -

Your conduct at paragraph 2 was

a.

dishonest

- has been found proved.

The Panel considers that your conduct was dishonest according to the ordinary standards of reasonable and honest people. It is also satisfied that you realised that your conduct was dishonest by ordinary standards.

You have given evidence to this Panel that, at the time of completing the applications in question, you thought you were able to apply for jobs. This was the case. At the Interim Orders Panel on 27 April 2011, the transcript of which was introduced into evidence at your request, you referenced the view that ‘Nobody would recruit anybody who has any problems with the General Medical Council’. In your oral evidence to this Panel you indicated that, not having declared your GMC history on the application form, you would have raised it at interview if asked. The Panel has found that you had an obligation to disclose previous and ongoing GMC proceedings and that you failed to do so was deliberately dishonest.

b.

misleading

- has been found proved.

The applications which you completed would have given the reader an inaccurate, and therefore misleading, portrayal of your circumstances.”

It had been agreed at the outset that the FTPP would make findings of fact in respect of the new allegations and then proceed to hear evidence and submissions as to impairment and sanctions. Counsel for Dr Hosny also made it clear at the hearing that Dr Hosny admitted (paragraphs 2(a)-2(d)) insofar as the governing words “failed to disclose” meant “did not disclose”, though Dr Hosny denied the allegations if “failed” was thought to have any connotation of blame.

In the decision letter the FTPP said this on matters of law:

“The Panel has considered each of the outstanding paragraphs of the allegation separately. In doing so it has considered all of the evidence adduced, and has taken of Mr Atherton’s submissions on behalf of the GMC and Mr Wells’ submissions on your behalf. It has borne in mind that the burden of proof rests on the GMC throughout and that the standard is the civil standard of proof, namely the balance of probabilities.

The Panel has accepted the advice of the Legal Assessor. In particular, she has advised the Panel should give the word ‘fail’ its common usage, which implies not complying with an obligation to have done something. She advised that, when considering whether your conduct was misleading, the Panel should consider whether it was objectively misleading; it does not have to have been deliberately misleading.

With regard to dishonesty, Counsel and the Legal Assessor have referred to the two stage test set out in the decision in the Court of Appeal in the case of R v Ghosh [1982] QB 1053. In determining whether your actions were dishonest, the Panel must first of all decide whether, according to the ordinary standards 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. If it was dishonest by those standards, then the Panel must consider whether you must have realised that what you were doing was dishonest by those standards.”

In fact, as is apparent from the findings under paragraph 2, certain matters are found there which go to the issues also of whether under paragraph 4, Dr Hosny’s conduct was dishonest and misleading. It is these issues which are at the heart of the appeal. In short, Dr Hosny maintains her case that her non-disclosure was not dishonest and not misleading. As her counsel stated:

The determination of the 2010 FTPP was as follows:

“... the Panel has determined to suspend your registration for a period of 12 months ... The effect of this direction is that, unless you exercise your right of appeal, the period of suspension will take effect 28 days from when written notice of this determination has been served upon you. A note explaining your right of appeal will be sent to you.”

Then the decision letter of the 2010 FTPP considered whether to impose an order for immediate suspension, and said:

“...it is not necessary to make an order suspending your registration immediately.

The substantive direction for suspension will take effect 28 days from when written notification is deemed to have been served upon you, unless an appeal is lodged in the interim.

This means that the substantive direction for suspension, as already announced, will take effect 28 days from when notice is deemed to have been served upon you.

Your interim order of suspension is hereby revoked.”

As already mentioned, Dr Hosny filed a Notice of Appeal in January 2011. Therefore, at the time of her three applications, the suspension had not taken effect pending the determination of the appeal.

Under the subparagraphs of this heading, the 2012 FTPP found proved that Dr Hosny acted dishonestly and was misleading by failing to disclose that at the time of her applications:

In so finding, the FTPP rejected Dr Hosny’s explanation that she thought she was not subject to proceedings at the time of her applications because of her pending appeal, on the basis that she was aware that the appeal had not been heard, and it must have been obvious to her, therefore, that proceedings were ongoing.

Evidence from Dr Hosny on these points was put in detail before the FTPP. Some material extracts, which I shall not read, are in the transcript:

Apart from relying on the above evidence, and similar points which were before the FTPP, Dr Hosny makes these points in grounds 1 and 2 of her appeal, and her skeleton argument.

The FTPP did not give any weight to evidence which showed that Mr Miller, a panel member of the IOP hearing in April 2011 and a registered GMC doctor, and Ms Ledward, the GMC representative on the IOP, were themselves confused when discussing Dr Hosny’s registration status in the period when her appeal was pending.

This matter arose when the FTPP asked Dr Hosny (Day 1/36) about who she thought the licensing body was in the question (paragraph 2(c) on registration conditions). She answered “The GMC”, and said that the April 2011 IOP hearing had said she could have properly answered “No” to this question; instead she had left it blank. There was then an application by Dr Hosny, opposed by Mr Atherton, to adduce evidence of what was said at the IOP hearing. Part of the opposition was based on the relevance of what was said. Nevertheless, the FTPP admitted the evidence. I shall read the relevant section. This is Dr Hosny giving evidence:

“There was a conversation started when Dr Miller, in number F, said:

‘Thank you. Just to carry on from my colleague, is it correct to say for clarification purposes that this doctor was not subject to any sort of order or restriction on her practice between 16 December and 24 March?’

Miss Ledward, as the GMC representative, said:

‘That is right. The way it was worded on the GMC website is that she was subject to suspension but it was not yet in force and because the interim order had been revoked there was no restriction on her practice at that stage.’

Dr Miller further added:

‘Going on from that, is it correct that she was not, therefore, subject to any fitness to practice procedures?

Miss Ledward answered:

‘The submission on behalf of the GMC is that is a different question. As you will appreciate, if one takes out the complicated factor of being after a fitness to practise determination, a doctor, as this doctor was, may’ -- she said ‘may’ -- ‘be subject to a fitness to practise investigation or proceedings, which is the question that the application form asks, without there being any restrictions on their practice at the time’. They are two different questions as to whether there is an investigation or proceedings underway and also whether the doctor’s practice is restricted in any way. The question that is asked on the application form, if I may just take one example, for example, page 30 of the bundle’ -- which your Honour has asked me about – ‘is that there are two separate questions. One is about conditions or restrictions, which it might be argued this doctor at this time was entitled to say, ‘No, there are none’ because the suspension was not in force.’”

Dr Hosny’s assertion was that this passage evidences some confusion. However, the FTPP Chairman carefully questioned Dr Hosny afresh on the question at Day 1/52C to Day 1/53. I shall read the relevant passage:

“Q First of all, do you accept my premise that this, because of the way it is written, has to apply to the past and not necessarily to the present?

A Yes.

Q Right. I understood you to agree with me that the licensing and regulatory body in the United Kingdom is the General Medical Council?

A Yes, so I felt that ‘no’ would not be the correct answer. That is why I left it blank. I was not sure whether to say yes or not.

Q Why would you not say ‘yes’?

A Because I have not been removed from the register and I did not have any conditions by fitness to practise.

Q Excuse me, you did have conditions placed on you by the IOP, which is a body of the General Medical Council.

A Yes, but it said ‘fitness to practise’, so half of the question ‘no’ and half of the question ‘yes’. That is why I felt -- maybe if I was asked and ---

Q Doctor, I think you need to listen to the question and not rush into the same answer that you have just given.

A Yes?

Q Do you not understand the Interim Orders Panel to be operating on behalf of the General Medical Council?

A I know the Interim Orders Panel and the Fitness to Practise Panels are panels and the General Medical Council is the executive body.

Q Who keeps the register?

A The General Medical Council.

Q Right. Therefore, when you look at page 32, which we have looked at, and the register of your entry says -- this is the General Medical Council, it is not the Interim Orders Panel, the General Medical Council: ‘21 May to 20 August, this doctor had conditions’.

A Yeah, but these conditions is being proposed by Interim Orders Panel.

Q I am sorry, this is the register. This is your registration ...

A Yes.

Q ... by the General Medical Council and it says you had conditions. It does not say it is conditions that only apply to the Interim Orders Panel, does it?

A Yeah, my understanding is that the General Medical Council do the end result of the Fitness to Practise Order/Interim Order Panel on my registration status.

Q Right, but this is the licensing body and they have made a note that you had conditions on your registration.

A Yeah, based upon the Interim Orders Panel decision. That is why -- I am very sorry if I am not able to send my message across. Like, for instance, if I was suspended by a Fitness to Practise Panel, it will appear on the General Medical Council web site as ‘suspended’.”

In my judgment, there is no merit in this ground of complaint. In respect to paragraph 2(c), the FTPP were not wrong in concluding that the question covered IOP orders and past restrictions. Insofar as there was any discussion in the IOP hearing in April 2011, this was fully and carefully considered by the FTPP. They were entitled not to regard this as something which in any way exculpated Dr Hosny.

Next, Dr Hosny complains about this passage in the FTPP determination as delivered orally in relation to paragraph 4, the finding of dishonesty. Day 2/19F:

“You have given evidence to this Panel that, at the time of completing the applications in question, you thought you were able to apply for jobs. This was the case. However, in your evidence you stated that you did not think you would get a job if you declared everything. The Panel has found that you had an obligation to disclose previous and ongoing GMC proceedings and that you failed to do so was deliberately dishonest.”

It is the third sentence about which complaint is made.

This was the subject of submissions on Day 3 of the hearing (reference Day 3/1-3). Notes were checked, and the passage was amended so that it read as I have already cited in paragraph 12 above in the finding under paragraph 4(a) (dishonesty) (reference Day 3/4 and Day 3/7).

Dr Hosny accepts that the FTPP corrected the matter, but complains that they still persisted in finding dishonesty, regardless of the fact that they had changed the evidence they initially relied on for basing their finding of dishonesty.

The fact of an error such as this may potentially undermine a finding. However, it is clear from the correction and determinations then made that the FTPP found it did not do so. They were not wrong in so finding. This complaint falls well short of any valid challenge to the decision of the FTPP.

In ground 2 of her appeal (paragraph 22) Dr Hosny refers to further evidence that she had of communication with her solicitor, Mr Lomax, in January 2011 as to confusion regarding her correct status having lodged the appeal. She referred to this in cross-examination (Day 1/49) and said that she had the email. The email had not been disclosed, and was not the subject of any application by counsel on behalf of Dr Hosny to put it in evidence. Nevertheless, Dr Hosny’s evidence as to the relevance of this communication was before the FTPP.

There are a number of matters to which Dr Hosny says the FTPP did not give sufficient weight or consideration. These include:

As to paragraph 35, the 2010 FTPP did make these points in dealing with the issue of sanction, and there is no apparent reference to similar points by the 2012 FTPP. However, I do not adjudge that this suggests there is anything wrong with the 2012 decision, because:

The difficulty with the remainder of these submissions is that they were matters for the FTPP to take into account. They heard the evidence and submissions made. There is no suggestion that they did not listen and take note of the points made to them. Indeed, when the Chairman had difficulty following Dr Hosny because of her speed of delivery, he told her (Day 1/24D-H). They gave brief, but I find cogent, reasons. They applied the correct burden of proof and test of dishonesty.

I must bear in mind what was said by Mitting J in paragraph 2 in the case of Zygmunt (cited above). It follows from the above that the appeal against the findings in paragraphs 2A, B, C and the findings of dishonesty in paragraph 4 in relation to these paragraphs must fail. The decision of the FTPP was not wrong. There are no material errors demonstrated in the findings of fact above in relation to the truthfulness of Dr Hosny.

I should add that Dr Hosny relied on the fact that the trusts checked registration status prior to short-listing a candidate, and she was aware of this; further, that the intention was to ensure that prior to commencing employment the employer should be aware of anything adverse. The FTPP were not wrong in the finding they made, notwithstanding this point. It is the primary duty of the applicant doctor to make a proper disclosure in answer to the questions. The applicant is required to tick that they agree to this declaration in the application form:

“The information in this section is true and complete. I agree that any deliberate omission, falsification or misrepresentation in the application form will be grounds for rejecting this application or subsequent dismissal if employed by the organisation. Where applicable, I consent that the organisation can seek clarification regarding professional registration details.”

The FTPP found that Dr Hosny had dishonestly and misleadingly failed to disclose that gaps in her employment history were at least in part as a result of an IOP suspension order. They rejected her explanation that she thought the question referred only to gaps such as maternity leave, sickness or sabbaticals, since the question did not mention GMC proceedings, and the issue was not raised at the 2010 FTPP hearing. The finding was that the relevant question on the application form was unqualified, and there was no basis to justify Dr Hosny’s limited interpretation of it. Therefore they rejected her explanations.

The form requires details of previous employments, beginning with the most recent first. At the end of this section was the following question, and the answer completed by Dr Hosny:

“If you have any gaps within your employment history, please state below.

from April 2008 to present, I have been doing two months locum consultant posts in different hospitals all over the country including lincoln conty hospital, royal black burn hospital, royal cainthness hospital, bermingham city hospital, and in the british version Islands as well, in between doing some research being a member of the university for CPED. However, my love to cardiac anaesthesia outweighs my enjoyment in doing the above posts.”

In ground 3 of her appeal, paragraphs 29 to 31, Dr Hosny makes the following points:

The FTPP finding was:

“Paragraph 3 --

Since 10 March 2011, having been required to do so by the GMC, you failed to provide a completed Employer Details Form;

The basis of this allegation was contained in a statement from Claire Henesy, a GMC employee, dated 13 June 2011. This said at paragraphs 2-4:

“Part of my role is to disclose to the doctor the information that the General Medical Council has received that may raise concerns over their fitness to practice in accordance with Rule 4 of the General Medical Council (Fitness to Practise) Rules 2004. Disclosure of the application form from Cambridge University Hospital was issued on 10 March 2011 to Dr Hosny under cover of the notice of hearing from the Interim Orders Panel. Dr Hosny was asked to complete and return the Employment Disclosure Form by 17 March 2011. I attach marked as Exhibit CH/1 my letter dated 10 March 2011.

3.

On 22 March 2011 I emailed Dr Hosny as I had not received her completed Employer Disclosure Form. I attached to the email the Employer Disclosure Form and asked that it be completed and provided to me by 23 March 2011. Dr Hosny replied to my email on the 22 March 2011 stating that ‘...... this means that I will remain jobless. thats why I did not fill employers details because I am not employed’. I replied to Dr Hosny on 22 March 2011 asking that she complete the form. I attach marked as Exhibit CH/2 my email exchange with Dr Hosny dated 22 March 2011.

4.

Dr Hosny has not completed and returned the Employer Disclosure Form.”

In her letter of 10 March 2011 to Dr Hosny is the following paragraph:

“As part of our standard enquiries, I need to contact your employers to provide them with a copy of the complaint and ask them to provide any further information they have on these or any wider issues. To do this, I need you to complete and return the attached form, giving details of all your current employers. If you work within your own private clinic, we also ask that you provide details of all complaints you have received in the last 6 months.”

Dr Hosny’s email to Ms Henesy dated 22 March 2011, 12.19, says:

“... so long as the GMC issue is still going on, there will be no chances whatsoever to find any work,

this means I will remain jobless. thats why I didnt fill employers details because I am not employed.”

Ms Henesy responded on 22 March 2011, 15.12:

“Thank you for your response.

I must ask that you complete and return the employer disclosure form even it if means you stating n/a to all the sections. It is a requirement that you complete and return the form to the GMC.”

It is this last email that Dr Hosny says she did not receive.

The form headed “Employer Details Form” asks on page 1 for details of current employment in the NHS. Later, other details are requested: e.g. details of non-NHS work and “if you are self-employed or not currently employed, please provide details of the last employer or agency you were contracted to or with whom you had working arrangements if in the last five years.”

Dr Hosny’s evidence-in-chief to the FTPP is at Day 1/19. She said this:

“I was overseas at that time. I was not employed at all so I was not -- I did not know what to do. I did not want to write something which is not correct. I could not say that I am registered with this person when I am not or I am not sure of, so I could write something except I am dead sure about. As a result I told Claire Henesy I am not employed. This is called an employment form, so as a result I did not fill it.”

In cross-examination she was asked about this. The reference is Day 1/33 to Day 1/35. I shall read only the evidence on the email from Miss Henesy on 22 March 2011 at 15.12:

“Q: What is there not to understand about that?

A: This email from Claire, I have just seen it when it was submitted by the bundle to the GMC. At that time I did not read this email. I wish I read it, I would have written ‘not available’, but it was only -- I only seen this e-mail when it was sent to me in this bundle, so I have not seen it at the time when the communication between me and Claire at that time.

Q: It was sent to you on the same day?

A: Yeah.

Q: You have seen the other one sent earlier that day?

A: Yeah, because she sent it and I responded, but I have not seen -- have I to say I have not seen this email. Had I seen it there was no problem writing “not available” at all -- she would have made my job very easy -- but I was not sure what to write. Had I read this email, it would have been very easy to write “not available” and resubmit it.

Q: You are lying, are you not?

A: Lying?

Q: You are lying. You saw this email?

A: I have not seen this email except when I saw the bundle.

Q: You are, as demonstrated on many occasions, thoroughly dishonest, and you are being dishonest now.

A: No, I am not dishonest. I have not seen this email except when it was sent in the bundle -- at all.

In paragraphs 34 to 37 of ground 3 of her appeal (there is a numbering error, there being two paragraphs 37 and 38), Dr Hosny says:

“34.

The Panel didn’t accept Dr Hosny’s explanation and even repeated their false determination that Dr Hosny was working in Egypt, however they were later corrected with regards their mistake that Dr Hosny was not working at all, they accepted that they were wrong and corrected it, still their determination did not change as a result.

35.

In fact it was clear throughout the proceedings that the Panel were mistaken on various occasions, and in spite of admitting that they were wrong in their interpretation to which they based the decision of dishonesty, still persisted nevertheless that Dr Hosny was dishonest and misleading.

36.

The Panel did not put any weight to the fact that Dr Hosny was submitting her evidence whilst in the Witness box.

37.

The Panel looked at every evidence Dr Hosny had submitted as limited and reflected any interpretation as poor.”

The point about not working arose from cross-examination (reference D1/33), where Dr Hosny said she was doing charity work in Egypt from June 2011 to date, but added that she was getting no money and it was just for charity rather than proper working. The FTPP, Day 2/19, said:

“You have admitted that you did not provide a completed Employer Details Form. You have stated that you did not look past page one of the form because you did not think that you needed to complete since you were not working in the UK. The Panel notes from your evidence that you were working in Egypt at the time. The form included a section for any non-NHS work and a section to be completed if self-employed or not currently employed.

The Panel is satisfied that you had an obligation to provide a completed Employer Details Form whether or not you were in paid employment, and that you would have been aware of this obligation, as drawn to your attention repeatedly, if you had read the form properly and read your emails.”

After hearing representations from Dr Hosny’s counsel that Dr Hosny had said that as at the relevant time (March 2011) Dr Hosny had said that she was not working in the UK or any other country and had reminded the Panel that her charity work in Egypt did not start until some months after the date by which the form was requested to be filled in (reference Day 3/1), this was corrected by the FTPP (Day 3/3) and the finding and reasons were those I have set out above.

Dr Hosny’s complaints in her grounds of appeal, amplified in her submissions, are not sustainable as valid bases for finding that the FTPP’s determination on this point was wrong. They considered her evidence. They clearly did not accept her explanation (which they were entitled to do), and as regards the factual error: (a) they corrected it; and (b) the basis of their reasoning was unchanged throughout, namely that she had an obligation to provide a completed employer details form “whether or not you were in paid employment”. The FTPP’s decision not being wrong, the appeal on this point is dismissed.

I should add that the findings on paragraph 3 were not relied on for findings of impairment and sanction of erasure, to which I now turn.

The FTPP made this finding, which I shall read in full:

“The Panel has considered the question of impaired Fitness to Practise in relation to both the new and review elements of your case.

In doing so, it has considered the evidence adduced, Mr Atherton’s submissions on behalf of the General Medical Council (GMC) and Mr Wells’s submissions on your behalf. Mr Atherton submitted that, in the light of your lack of insight and repetition of dishonesty, your fitness to practise remains impaired by your previous misconduct and is impaired by the new findings of misconduct. Mr Wells submitted that you have complied with the requests of the previous Panel and have demonstrated some insight.

The Legal Assessor referred to relevant case law, including the cases of Zygmunt v GMC [2008] EWHC 2643 (Admin) and Cohen v GMC [2008] EWHC 581 (Admin).

In December 2010, a Fitness to Practise [FTP] Panel found that, between March 2008 and July 2009, you sent a reference to five healthcare agencies and that you represented to those agencies a reference which was dishonest. The Panel found that your representations were false and dishonest, in that you had written the reference yourself.

The December 2010 Panel also found that, in respect of written applications for employment to the Bart’s and London Hospitals NHS Trust and the North Devon Healthcare Trust, you failed to disclose that you are currently the subject of General Medical Council Fitness to Practise proceedings and that your registration was subject to conditions imposed by a GMC Interim Orders Panel (IOP). It found that your conduct was dishonest and that you had breached a condition imposed on your registration by the IOP.

In relation to your dishonest conduct, the December 2010 Panel concluded that your fitness to practise was impaired by reason of your misconduct and determined to suspend your registration for a period of twelve months. You lodged an appeal against the decision, which was dismissed, and the period of suspension took effect on 17 May 2011.

The December 2010 Panel stated that the panel reviewing your case would be assisted by

Evidence of the steps that you have taken to keep your professional knowledge current and to keep your professional skills up to date.

Any current testimonials from people of standing and potential employers.

Evidence of relevant courses attended. This Panel recommends that you undertake a course in medical ethics.

The Panel has noted your evidence and the documentation submitted on your behalf. In particular, on 23 May 2011, you completed an online ‘Fundamentals of Medical Ethics’ course and, from 30 July to 1 August 2011, you attended a ‘Medical Ethics Course’. You also submitted testimonials and drew to the Panel’s attention that, on 30 March 2012, you were promoted to an Assistant Professor in Anaesthesia Faculty of Medicine, Ain Shams University, and that since July 2011 you have been involved in clinical practice in Egypt.

The Panel is satisfied that you have taken the steps directed by the December 2010 Panel. Nonetheless, it is concerned that you have repeated the very behaviour which resulted in a finding of impaired fitness to practise within two months of the end of the previous hearing. You once again omitted relevant material from job application forms, despite telling the last Panel that you had learnt to be vigilant in reading documents that you receive and send out, that you understand the role and purpose of the GMC and that you would be personally accountable should problems arise in the future. The Panel is satisfied that this repetition of dishonest conduct does amount to misconduct.

In considering whether your misconduct amounts to impairment of your fitness to practise, the Panel has had regard to paragraph 29 of the Zygmunt judgment which refers to paragraph 25.50 of Dame Janet Smith’s fifth Shipman Report, where she identified recurrent features of cases in which impairment of Fitness to Practise had been found to exist:

‘(a) that the doctor presented a risk to patients.

(b)

that the doctor had brought the professional into disrepute.

(c)

that the doctor had breached one of the fundamental tenets of the profession.

(d)

that the doctor’s integrity could not be relied upon.’

It has also had regard to paragraph 65 of the Cohen judgment, which states that:

‘...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.’

In reviewing the findings of the previous FTP Panel, the panel has noted paragraph 116 of the GMC’s Indicative Sanctions Guidance, which states that:

‘... The Panel will also need to satisfy itself that the doctor has fully appreciated the gravity of the offence, has not re-offended, and has maintained his or her skills and knowledge ...’

The Panel considers that your dishonest conduct breached a fundamental tenet of Good Medical Practice, which states that ‘Probity means being honest and trustworthy, and acting with integrity: this is at the heart of medical professionalism’. It considers that dishonesty is not easily remediable but, in any event, your repetition of such conduct just two months after your first FTP hearing raises serious concerns.

You stated to the December 2010 Panel that you were reckless when you applied for the NHS posts and admitted that it was wrong to do so without updating your particulars. However, your evidence to this Panel was that you did not accept the findings of the December 2010 Panel, that their findings were only on the balance of probabilities and that you have evidence to disprove their finding of dishonesty even though this was not accepted by the Administrative Court. The Panel considers this to demonstrate a complete lack of insight.

The Panel is satisfied that your conduct has brought the profession into disrepute, that you have breached one of the fundamental tenets of the profession, and that your integrity cannot be relied upon. It has determined that your Fitness to Practise is impaired by reason of your misconduct.

The Panel will now invite further evidence and submissions as to the appropriate direction, if any, to be made in relation to your registration.”

Section 35C(2)(a) of the Medical Act 1983 provides:

“A person’s fitness to practise shall be regarded as ‘impaired’ for the purposes of this Act by reason only of—

(a)misconduct ...”

Impairment is not defined in the Act. As Mitting J said in Zygmunt (paragraph 6):

“On a natural reading section 35C(2) introduces a test with two elements: first, fitness to practise must be impaired; secondly, by reason of one of the five circumstances set out in subsections (a) to (e).”

The FTPP’s determination on impairment, insofar as it recited the findings by the 2010 FTPP, was accurate: see paragraphs 1-3 (pages 1 to 2), paragraphs 8, 9 and 12 (page 3) and page 24 of the 2010 determination. The FTPP also found that it was satisfied that Dr Hosny had taken the steps directed by the 2010 FTPP.

In her appeal grounds at paragraphs 37 to 45, amplified in her submissions, Dr Hosny complains:

that the 2012 FTPP were prejudiced by the 2010 FTPP’s findings, and did not look at the new allegations on their own, and that she was prejudiced because she was not able to explain the evidence before the 2010 FTPP.

that the 2012 FTPP did not acknowledge that she had demonstrated appreciation of the consequences of her actions, but while she accepts that remediation can be more difficult to show in non-clinical situations, her case was one where remediation could be demonstrated.

that the 2012 FTPP dismissed any insight, whereas she showed full insight when she addressed them at the beginning and end (reference Day 1/15 D-E, D3/13). She also relies on other statements she made to the Panel, the details of which are in paragraph 77 of her skeleton argument.

I am satisfied that the 2012 FTPP were not wrong in their determination on impairment, for the following reasons.

They were fully entitled to take into account the findings of the 2010 FTPP in the way they did. Their concern, as they stated, was that it was within two months of the 2010 hearing she had repeated the same conduct despite her stated assurances to the 2010 FTPP. This was a proper factor to take into account in assessing her present impairment, and her insight. They were entirely correct in not going behind or reopening the findings of the 2010 FTPP.

They accepted that dishonesty could be remediable, whilst stating that it was not easily remediable. They were also fully entitled to find that Dr Hosny’s case fell within paragraph 25.50(c) and (d) of Dame Janet Smith’s 5^th Shipman Report, referred to in paragraph 29 of Zygmunt, i.e. breach of a fundamental tenet of the profession and that the doctor’s integrity could not be relied on.

They were also fully entitled to regard Dr Hosny’s continuing challenge to the 2010 FTPP findings as lack of insight, for the reasons they gave. Dr Hosny has continued to try to reopen those findings before me, and I have refused to permit her to do so. This is germane to the consideration in paragraph 65 of Cohen v GMC [2008] EWHC 581 (Admin), which says that it is highly relevant to impairment that the conduct is easily remediable, has been remedied and is highly unlikely to be repeated. There is no basis also for saying that the FTPP were looking backwards, not forwards, on the issue of impairment.

There is also no basis, therefore, for finding that the determination on impairment was wrong.

Because of Dr Hosny’s challenges on this point, I am afraid it is also again probably shorter if I read most of the 2012 FTPP’s finding on erasure:

“In reaching its decision, the Panel has exercised its own professional judgment. It has taken account of the GMC’s Indicative Sanctions Guidance and has borne in mind that the purpose of a sanction is not to be punitive, though it may have a punitive effect. It has had regard to the principle of proportionality and has balanced your interests with the interests of the public. The public interest includes the protection of patients, the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour in the medical profession.

In the light of your dishonest conduct, which was serious and repeated, the Panel has determined that to take no action would not be proportionate or sufficient to mark the gravity of your misconduct. It has also determined that conditions could not be formulated to effectively address your dishonesty, and, in any event, would not be sufficient to maintain confidence in the profession and its effective regulation, nor proportionate to mark the gravity of your misconduct.

The Panel has considered whether a period of suspension would be sufficient. The Indicative Sanctions Guidance states at paragraph 75 that the suspension may be appropriate when, among others, some or all of the following factors are apparent:

- A serious breach of the GMC’s ‘Good Medical Practice’ where the misconduct is not fundamentally incompatible with continued registration and where, therefore, complete removal from the Register would not be in the public interest, but which is so serious that any sanction lower than a suspension would not be sufficient to serve the need to protect the public interest.

- No evidence of harmful, deep-seated personality or attitudinal problems.

- No evidence of repetition of similar behaviour since incident.

- The Panel is satisfied the doctor has insight and does not pose a significant risk of repeating the behaviour.

The Panel has referred to the relevant paragraphs of the GMC’s Good Medical Practice in its previous determinations, and has found that your dishonest conduct breached a fundamental tenet.

A Fitness to Practise Panel in December 2010 found that you had fabricated a reference and dishonestly failed to disclose information in applications for employment. Despite the findings of that Panel, and its decision to suspend your registration for the maximum period of twelve months, and your assurances to that Panel that you had learnt from your experiences, you again dishonestly failed to disclose information in applications for employment submitted in February 2011.

As set out in its previous determinations, the Panel is not satisfied that you have demonstrated insight. You have given evidence at this stage that you are sorry, and you understand the issues. However, only two days ago, you stated you did not accept the findings of the previous Panel and did not accept that you had acted dishonestly in the matters before this Panel.

In your evidence to the Panel, you stated that your ‘passion for being a doctor outweighs anything else’.

In his letter dated 23 March 2012 Dr James Anderson, Consultant Psychiatrist, stated ‘Her self-esteem [is] determined by her professional identity as a doctor. If that role is threatened, I think she can act impetuously without careful consideration to the implications and consequences of her actions.’ The Panel considers that your repeated dishonest conduct, your lack of insight and your propensity to act recklessly, may amount to an attitudinal problem.

The Panel has weighed the gravity of your misconduct and the risk to the public interest with your own interests, and with the public interest in not depriving patients of someone who may otherwise be a valuable doctor. In this respect, it has noted the positive testimonials submitted on your behalf, your oral evidence and Mr Wells’ submissions.

In the case of Bolton v The Law Society [1993] EWCA Civ 32, the Master of the Rolls, Lord Bingham, stated:

‘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 part of the price.’

Paragraph 108 of the GMC’s Indicative Sanctions Guidance states that:

‘Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor’s clinical responsibility, e.g. providing false statements or fraudulent claims for monies, is particularly serious because it can undermine the trust the public place in the profession.

The Privy Council has emphasised that:

‘... Health Authorities must be able to place complete reliance on the integrity of practitioners; and the Committee is entitled to regard conduct which undermines that confidence as calculated to reflect on the standards and reputation of the profession as a whole.’ [Dey v General Medical Council (Privy Council Appeal No. 19 of 2001]

In light of your repetition of dishonesty and lack of insight, the Panel is not satisfied that a further period of suspension would be sufficient to maintain public confidence in the medical profession, or to declare and uphold proper standards of conduct and behaviour. Accordingly, it has determined that your name be erased from the Medical Register.”

Dr Hosny’s appeal on sanction makes a number of points:

First, she states that she did not repeat the dishonesty, making a distinction between her recklessness on the first occasion and submitting applications in 2011 based on misunderstanding. This is not only invalid, since it is the fact of dishonesty found subsequent to the 2010 hearing that is important, it also highlights the lack of insight which the 2012 FTTP referred to and which she also challenges. For reasons I have already stated, I regard the findings on lack of insight to be entirely correct.

Next, Dr Hosny relies on the case of Whitefield v GMC [2003] HRLR 243 (Privy Council), which requires the Panel to have regard to the principle of proportionality, weighing the interests of the public with those of the practitioner. This the Panel expressly did, as is clear from their reasons set out above. They took account of the positive testimonials, her oral evidence, and her counsel’s submissions, as well as Dr Anderson’s report. Dr Hosny refers to specifics in those submissions and evidence and says these were not considered. However, the Panel was not required to set every single point out in full in their determination.

Each case is fact-specific. The question I have to consider is whether, in the circumstances of this case, the 2012 FTPP was wrong. I am entirely satisfied that the answer is “No”.

Dr Hosny says that the FTPP had not given sufficient weight to mitigating personal circumstances in her case. This is not in the grounds of appeal, apart from a brief mention in paragraph 59, which is in fact factually incorrect. In any event, there is nothing that I can see which Dr Hosny’s representative put on her behalf (reference Day 3/14 – Day 3/16) which were not taken into account in the determination by the FTPP. Dr Hosny says that her counsel did not put all the points but it is, unfortunately for her, too late to raise this. The FTPP were not wrong on this point either.

This was not raised before the Panel. This is how Dr Hosny puts the point in her skeleton argument:

“The decision to erase Dr Hosny from the medical register would deprive totally Dr Hosny from working anywhere in the world who all fully respect the GMC as a regulatory body and would respect their decision, and this is applied not only in the UK but also every other country including Egypt, the fact that she was staff member of the university and Associate professor is purely academic and is a charity when coming to clinical practice, Dr Hosny doesn’t earn any money from this Job she is being prevented from earning a living in this active stage of her career was an interference with the appellant’s right under Article 8(1), a right to respect [for] family and private life. Being a single mother and carries the load of fully supporting her son any interference with Article 8 (1) must be justified as necessary pursuant to a legitimate aim and proportionate. In all the circumstances the decision was unnecessary and/or wholly disproportionate and hence unlawful.”

Article 8 provides:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The GMC is a public authority. However, I am entirely satisfied that there is no breach of Article 8, because in accordance with paragraph 2 of Article 8 any interference is in accordance with the law and is necessary in the interests of public safety. This is highlighted by section 1(1A) of the Medical Act 1983, which provides:

“The main objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.”