Nduka v General Medical Council

The Appellant appeals pursuant to section 40 of the Medical Act 1983 against the determination of the Medical Practitioners Tribunal (“the Tribunal”), on 15 December 2016, that his fitness to practise was impaired by reason of misconduct and directing that he should be suspended from the register for 4 months.

The Appellant is a doctor who obtained his MBBS degree from the University of Ibadan, Nigeria in 1992. He came to the UK in 1998, passed the Professional and Linguistic Assessments Board test and registered with the General Medical Council (“the GMC”). He began working as a doctor in the UK in 1999, and he has worked as a specialist registrar in obstetrics and gynaecology in a number of hospitals.

The Tribunal found that he had been guilty of misleading and dishonest conduct by making three separate job applications in which he failed to declare that he was the subject of an ongoing fitness to practise investigation, when asked this question on the online application forms. The Tribunal concluded that his fitness to practise was impaired by reason of this misconduct. His attitude, lack of insight, denial of any wrongdoing meant that the possibility of similar conduct could not be excluded. The Tribunal imposed a sanction of suspension for a period of 4 months, to signal the seriousness of this misconduct to the Appellant, the profession and the public.

The Tribunal determined the following charges against Dr Nduka:

“Conviction

1.

You failed to notify the General Medical Council (‘GMC’) of the convictions you received on 15 January 2008 at Horseferry Road Magistrates’ Court as described at Schedule 1. Found Not Proved

Salisbury NHS Trust

2.

On or before 3 October 2012 you submitted an online application via ‘NHS jobs’ for a vacancy for a Locum Specialist Registrar in Obstetrics and Gynaecology at Salisbury NHS Trust (‘the Salisbury application’) and in doing so you:

a.

failed to declare in the Salisbury application that you had convictions as set out in Schedule 1; Found Not Proved

b.

answered ‘no’ on the Salisbury application in response to the question ‘are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue. Found Not Proved

3.

On 5 October 2012 during an interview at Salisbury District Hospital for the position described at paragraph 2, you failed to declare that you had convictions as set out in Schedule 1. Found Not Proved

East and North Hertfordshire NHS Trust-2013 recruitment

4.

On or around 26 August 2013 you applied for a Clinical Fellow (Registrar Level) post in Obstetrics and Gynaecology via ‘NHS jobs’ to East and North Hertfordshire NHS Trust (‘the first ENHT application’) and in doing so you:

a.

failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved

b.

answered ‘no’ on the ENHT application in response to the question ‘are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue. Found Not Proved

c.

failed to declare that you were the subject of an ongoing fitness to practise investigation by the GMC which you became aware of on or around 30 July 2013; Found Proved

d.

answered ‘no’ on the ENHT application in response to the question ‘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?’ which:

i.

was untrue; Found Proved

ii.

you knew to be untrue. Found Proved

e.

failed to declare that you had been suspended from the register by an Interim Orders Tribunal (IOT) on 13 August 2013. Found Not Proved

5.

On 6 September 2013 during an interview at East and North Hertfordshire NHS Trust for the position described at paragraph 4, you failed to declare that you were convicted of the offences as set out in Schedule 1. Found Not Proved

Kings College Hospital NHS Trust

6.

On or around 21 November 2014 you applied for a vacancy as a Locum Speciality Registrar in Obstetrics and Gynaecology via ‘NHS jobs’ to Princess Royal University Hospital (part of King’s College Hospital NHS Foundation Trust) (‘the Kings College application’) and in doing so you:

a.

failed to declare that you were convicted of the offences set out in Schedule 1; Found Not Proved

b.

answered ‘no’ on the Kings College application in response to the question ‘are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue Found Not Proved

c.

failed to declare that you were the subject of an ongoing fitness to practise investigation by the GMC which you became aware of on or around 30 July 2013; Found Proved

d.

answered ‘no’ on the Kings College application in response to the question ‘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?’ which:

i.

was untrue; Found Proved

ii.

you knew to be untrue Found Proved

e.

failed to declare that you were ‘currently’ the subject of an interim order of conditions reviewed and maintained by an IOT on 24 October 2014; Found Proved

f.

stated that the interim order of conditions had ‘now expired’ which:

i.

was untrue; Found Proved

ii.

you knew to be untrue. Found Proved

East and North Herts-2015 Recruitment

7.

On 15 April 2015 you applied for a vacancy as a Senior Clinical Fellow (Registrar Level) in Obstetrics and Gynaecology via ‘NHS jobs’ to East and North Hertfordshire NHS Trust (‘the second ENHT application’) and in doing so you:

a.

failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved

b.

answered ‘no’ on the second ENHT application in response to the question ‘are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue. Found Not Proved

c.

failed to declare that you were the subject of an ongoing fitness to practise investigation which you became aware of on or around 30 July 2013; Found Proved

d.

answered ‘no’ on the second ENHT application in response to the question ‘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?’ which:

i.

was untrue; Found Proved

ii.

you knew to be untrue. Found Proved

8.

On 21 May 2015 during an interview at East and North Hertfordshire NHS Trust for the position described in paragraph 7, you failed to declare that you:

a.

were convicted of the offences as set out in Schedule 1; Found Not Proved

b.

were the subject of an ongoing fitness to practise investigation by the GMC. Found Not Proved

9.

On 23 November 2015, as part of the pre-employment checks for the position described at paragraph 7, you completed and signed a form entitled ‘confidential declaration form’ (‘the form’) and in doing so you;

a.

failed to declare that you were convicted of the offences as set out in Schedule 1; Found Not Proved

b.

answered ‘no’ on the form in response to the question ‘are you currently bound over or have you ever been convicted of any offence by a Court or Court Martial in the United Kingdom or in any other country?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue. Found Not Proved

c.

answered ‘no’ on the form in response to the question ‘have you been investigated by the Police, NHS CFSMS or any other Investigatory Body resulting in a current or past conviction or dismissal from your employment or volunteering position?’ which:

i.

was untrue; Found Not Proved

ii.

you knew to be untrue. Found Not Proved

10.

Your actions as described in paragraphs 1-9 were:

a.

misleading;

Paragraph 10(a) in relation to 4(c), 4(d)(i)&(ii), 6(c), 6(d)(i)&(ii), 7(c) and 7(d)(i)&(ii); Found Proved in its entirety

Paragraph 10(a) in relation to 6(e) & (f)(i)&(ii); Found Proved in its entirety

b.

dishonest.

Paragraph 10(b) in relation to 4(c), 4(d)(i)&(ii), 6(c), 6(d)(i)&(ii), 6(e)&6(f)(i)&)(ii) 7(c) and 7(d)(i)&(ii); Found Proved in its entirety

And that by reason of the matters set out above your fitness to practise is impaired because of your misconduct.”

None of the charges in relation to the Appellant’s convictions were upheld by the Tribunal. The convictions in Schedule 1 were for driving with excess alcohol and, without a licence and insurance, on one occasion on 31 August 2007. He was convicted on 15 January 2008. In the light of the Appellant’s evidence that he had attended the GMC’s offices in October 2008 and orally informed an employee of the convictions, the Tribunal was not satisfied that the GMC had made out its case that he failed to notify the GMC, as alleged in paragraph 1 of the charges. The Tribunal also concluded that the Appellant was not under a legal obligation to disclose the convictions when he made his job applications, because they were spent convictions, and the information was not required in order to assess his suitability for the employment.

The Appellant has a right of appeal, pursuant to section 40 of the Medical Act 1983, because the Tribunal directed suspension from the register. Subsection (7) sets out the powers of the High Court on appeal. The appeal is governed by CPR Part 52, as amended. Rule 52.21(3) provides:

“The appeal court will allow an appeal where the decision of the lower court was –

(a)

wrong; or

(b)

unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”

Practice Direction 52D, paragraph 19.1(2), provides that the appeal will be by way of re-hearing. However, “it is a re-hearing without hearing again the evidence”, as Foskett J. explained in Fish v General Medical Council [2012] EWHC 1269 (Admin), at [28].

The approach to be taken by an appellate court to professional regulatory appeals has been comprehensively considered by the Court of Appeal and Privy Council.

In Meadow v General Medical Council [2007] QB 462, Auld LJ said at [197]:

“On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors. (i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect. (ii) The tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides. (iii) The questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.”

In Raschid v General Medical Council [2007] 1 WLR 1460, which was an appeal against sanction, Laws LJ reviewed the authorities and gave the following guidance:

“17.

The first of these strands may be gleaned from the Privy Council decision in Gupta v the GMC [2002] 1 WLR 169, 1702 at paragraph 21 in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:

“It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517–519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.”

18.

The Panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This as it seems to me engages the second strand to which I have referred. In Marinovitch v GMC, 24 June 2002, Lord Hope giving the judgment of the board said this (paragraph 28, second sentence):

“28.

In the appellant’s case the effect of the committee's order is that his erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.

“29.

That is not to say that their lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This is a case of such a grave nature that the finding that the appellant was unfit to practice was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case while undoubtedly severe was wrong or unjustified.”

19.

There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffman giving the judgment of the board in Bijl [2002] UKPC 42 para 2 to 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett's observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:

“the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances.”

20.

These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.”

Laws LJ concluded that the court should not carry out “an exercise in re-sentencing” (at [21]), nor substitute “one view of the merits for another” (at [22]).

In Ghosh v General Medical Council [2001] 1 WLR 1915, the Privy Council confirmed that this approach gave effect to an appellant’s rights under Article 6 of the European Convention on Human Rights.

The Appellant’s submissions were, in part, based on a misunderstanding of the GMC’s disciplinary procedures and so it is necessary to summarise them here.

By section 35C(2) Medical Act 1983, a registered person’s fitness to practise shall only be regarded as impaired by reason of a finding of one of the following: misconduct; deficient professional performance; a conviction or caution for a criminal offence; adverse physical or mental health; not having the necessary knowledge of English; and a determination of impairment by another body.

Under the Medical Act 1983, supplemented by the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (“the 2004 Rules”), the investigation and determination of an allegation against a registered practitioner is conducted in stages.

The Registrar conducts an initial consideration under rule 4, and if it is decided that the allegation should proceed further, the Registrar refers the allegation to the Case Examiners. The practitioner is notified and given the opportunity to respond (rule 7). A referral to the Interim Orders Tribunal may also be made at that stage if the Registrar is of the opinion that an interim order imposing restrictions on practice should be considered (rule 6).

Following a referral to the Case Examiners, the Registrar carries out such further investigations as may be necessary, including performance or health assessments if appropriate. Under rule 8, the Case Examiners may decide that the allegation should not proceed further, or to issue a warning, or to refer the allegation to the Investigation Committee, or to refer the allegation to a Medical Practitioners Tribunal. Alternatively, the Case Examiners may invite the practitioner to give undertakings in accordance with rule 10. By rule 8(6), any one of the Case Examiners may direct the Registrar to make a referral to the Interim Orders Tribunal.

Under rule 9, the Investigation Committee may decide that the allegation should not proceed further; or to issue a warning, or to refer the allegation to a Medical Practitioners Tribunal. Alternatively, the Committee may invite the practitioner to give undertakings in accordance with rule 10.

Under rule 26, where a case has been referred to the Interim Orders Tribunal, the practitioner is notified of the reasons why the Registrar considers an interim order is necessary, together with the evidence relied upon, and given an opportunity to respond in writing. After initial consideration on the papers (rule 26A), the Interim Orders Tribunal may conduct an oral hearing, at which the practitioner may make oral and written representations. By section 41A(1) Medical Act 1983, where an Interim Orders Tribunal “are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions”, it may make an interim suspension order or an order for interim conditional registration for a period of up to 18 months. Six-monthly reviews are required. The High Court has power to grant an extension of the order for a period of up to 12 months.

The procedure at a hearing before a Medical Practitioners Tribunal is set out in rule 17 of the 2004 Rules. There are three separate stages. First, under paragraph (j) of rule 17(2), the Tribunal must consider and announce its findings of facts, after hearing evidence and submissions. Second, under paragraph (l) of rule 17(2), the Tribunal must consider and announce its finding on the question of whether the fitness to practise of the practitioner is impaired, after hearing any further evidence and submissions. Third, under paragraph (n) of rule 17(2), the Tribunal must consider and determine its decision on sanction, after hearing any evidence and submissions.

The Appellant submitted that he had been subjected to malicious harassment and victimisation by the GMC, whose officers had repeatedly made false allegations of dishonesty against him, and these were upheld by the Tribunal, despite the fact that two hospitals (Kings College and the Lister Hospital) and the Interim Orders Tribunal had stated that he had not been dishonest. Once the Interim Orders Tribunal had found he was not dishonest, he ought not to have been referred to the Tribunal in respect of the same matters, as this was unfair. He was being tried twice for the same offence.

The Appellant made submissions under the following headings:

In response, the GMC submitted that the Appellant’s grounds of appeal lacked any merit. The Tribunal found that the Appellant had been repeatedly dishonest and told knowing untruths to prospective employers about the GMC’s investigation into him. Those findings were made after hearing live evidence from the Appellant. There was, therefore, no proper basis upon which an appeal court could interfere. Given these finding of repeated dishonesty, the sanction of 4 months suspension was not ‘wrong’ – i.e. outside the Tribunal’s broad ambit of discretion. Moreover, there was no unfairness in the procedure. The Appellant attended the hearings in relation to live evidence and the Tribunal adjourned to accommodate him when his health deteriorated. The Appellant chose to walk out of the hearing at the final stage (i.e. the sanctions stage), having said he wanted nothing to do with the Tribunal. In such circumstances, the MPT acted reasonably, fairly and lawfully in making their decision on sanction in the Applicant’s absence.

I propose to consider the Appellant’s grounds under the following headings: (1) the Appellant’s absences from the hearing and the change of legal assessor at the resumed hearing in December 2016; (2) the admission of further evidence; (3) the Tribunal’s findings of fact; (4) the Tribunal’s findings of misconduct and impairment; and (5) the sanction imposed by the Tribunal. For the avoidance of doubt, I have taken into account all the evidence and written and oral submissions made by the Appellant in reaching my conclusions. Absence of reference to any particular point relied upon by the Appellant does not mean that it has been overlooked or ignored.

The hearing before the Tribunal commenced on Monday 25 July 2016 in Manchester (Day One). The Tribunal members were Ms Chita Karve (Chair), Dr Alan Shepherd and Mrs Ronno Griffiths. The Legal Assessor was Mr Angus MacPherson. The GMC was represented by Ms C. Hudson, counsel. Dr Nduka appeared in person. In the course of the day, the Appellant informed the Tribunal that he suffered from severe gastritis and, at his request, the Tribunal Chair agreed that the Tribunal would take breaks as and when he needed them.

On the morning of Day Two, Tuesday 26 July 2017, the Appellant did not attend. The Appellant sent an email asking for an adjournment, stating that he had become ill with gastritis on the previous day, and had to travel to London to obtain his medication, but he would be able to attend on the following day. (Dr Nduka was living in Barking, Essex). Therefore the Tribunal decided to adjourn the hearing to the following day (Wednesday 27 July) at 9.30 am. The Appellant was informed of the Tribunal’s decision by email.

On the morning of Day Three, Wednesday 27 July, the Appellant did not attend. He was telephoned by the Tribunal clerk at 1039 and he informed her that he was travelling from London and would arrive at 2.00 pm. Ms Hudson asked the Tribunal to proceed in the Appellant’s absence, on the basis that he had been notified that the hearing was due to resume at 9.30 am and he had not produced any medical evidence indicating that he was not fit to attend. The process of calling witnesses, who had limited availability, was being frustrated by the delay and changes to the timetable.

Ms Hudson and the Legal Assessor referred the Tribunal to the case of Elizabeth Davies v Health Care Professions Council [2016] EWHC 1593 (Admin) in which Wyn Williams J. said, at [19]:

“… the principles which apply to proceeding in the absence of a defendant in a criminal trial are a useful starting point. However, it should be borne in mind that there are important differences between a criminal trial and fitness to practise proceedings. The decision of a panel must be guided by the main statutory objective of the regulator; the protection, promotion and maintenance of health and safety of the public. Second, fair, economical, expeditious and efficient disposal of allegations made against a registrant is of very real importance. Third, fairness includes fairness to the practitioner and also fairness to the regulator. Importantly, unlikely a criminal court, a panel does not have the power to compel the attendance of the registrant. Fourth, the regulator represents the public interest. Accordingly it would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process. Fifth, there is a burden on registrants to engage with the regulator in relation to the investigation and resolution of allegations against them.”

The Tribunal acceded to the Appellant’s request to adjourn the hearing until 2.00 pm the same day.

The Tribunal sat at 2.00 pm, but the Appellant was not present. After giving him a grace period of 15 minutes and after being informed that he had not responded to two telephone messages left on his telephone, the Tribunal decided to proceed in his absence. The Tribunal handed down determinations on preliminary applications, and then Ms Hudson opened the case. The Appellant arrived at the hearing part-way through her opening.

The Tribunal sat in camera on Day Four without the attendance of the parties. The Tribunal resumed the hearing with the parties on Day Five, Monday 29 July, and continued on Days Six and Seven. On Day Eight, Wednesday 3 August, the Appellant asked the Tribunal not to sit on the afternoon of Thursday 4 August and Friday 5 August because his poor health (gastritis and septic ulcer) was exacerbated by the pressure of the hearing and he was in pain. The application was opposed by Ms Hudson. The Tribunal decided not to sit on Friday 5 August to allow the Appellant to rest on that day.

On Day Ten, Monday 8 August, the Tribunal Chair remonstrated with the Appellant for his late arrival in the hearing room at 9.55 am, despite the fact that he had arrived in the building at 9.00 am. By the end of Day Ten, both parties had concluded their evidence and submissions on the facts.

On Days Eleven and Twelve, the Tribunal sat in camera, and the parties were not required to attend.

On Day Thirteen, Thursday 11 August, the Appellant did not attend the hearing. He sent an email to the Tribunal clerk stating:

“hereby ask you to inform the panel that I had to attend hospital last night due to ill health caused by this unlawful, false and illegal allegations. Hereby attach documents showing severe pain and vomiting blood due to the situation that should have ended long ago, this should be shown to the panel. Due to this am not able to attend today, do send me the panel decision on the matter which should be the same as the iop [Interim Orders Panel] on 25 november 2015.”

Attached to the email was a prescription form dated 11 August 2016 and a medical report, which stated “known Gastritis. Vomiting blood”, and the results of blood tests.

The Tribunal, the Legal Assessor and Ms Hudson understood the Appellant’s email to mean that, although he was unable to attend the hearing due to ill health, he was content that the Tribunal should hand down its determination on the facts. The Tribunal proceeded to hand down its determination, and it then adjourned because of the Appellant’s ill health. The determination was emailed to the Appellant.

In my view, the Tribunal’s understanding of the Appellant’s email was entirely reasonable. In any event even if the Appellant had not suggested that the Tribunal could hand down its determination in his absence, this would not have been unfair, since the submissions had concluded, and it was desirable that the Tribunal should notify the parties of their decision as soon as possible, particularly since they were reaching the end of the days allotted for the hearing.

On Day Fourteen, Friday 12 August, the Appellant did not attend the hearing. The GMC solicitor telephoned the Appellant who said he was unwell, and viewed the telephone call as harassment. The Tribunal decided to adjourn the hearing because of the Appellant’s ill health.

In my judgment, throughout the hearing in July and August 2016 the Tribunal acted fairly towards the Appellant in granting him adjournments when required. He was given a fair opportunity to advance his case and the transcript does not disclose any sign of bias or derogatory treatment towards him. I have considered whether there was evidence of actual or apparent bias. The test for apparent bias is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (per Lord Hope in Porter v Magill [2002] 2 AC 357, at [103]).

By 12 August, the hearing days allotted to this case had expired and fresh dates had to be obtained. The earliest dates on which all three members of the Tribunal were available were in the week commencing 12 December 2016. The Tribunal were aware that the Legal Assessor was not available that week, but decided that they should not delay the hearing any further for that reason. The Tribunal Chair said:

“Regrettably, that is the first date. Regrettably, our Legal Assessor is not able to make that week, I think. However, in the interests of justice, we have to proceed as expeditiously as possible….”

In my view, the Tribunal exercised her discretion reasonably. There was nothing to support the Appellant’s suggestion that a more compliant Legal Assessor was substituted for Mr MacPherson.

As the Legal Assessor was not a member of the Tribunal panel and was not a decision-maker, it was not procedurally unfair to proceed with a different Legal Assessor at the resumed hearing (Mr Jeffrey Widdup). The 2004 Rules and the General Medical Council (Legal Assessors and Legal Qualified Persons) Rules Order of Council 2015 (2015 No. 1958) do not contain any restriction on changes in the appointment of the Legal Assessor.

The hearing resumed on 12 December 2016 (Day Fourteen). I deal below with the issues which arose in respect of the Appellant’s application to admit of further evidence in the section headed “The admission of further evidence”.

The Tribunal heard evidence and submissions on whether the Appellant’s fitness to practise was impaired on Day Sixteen, and gave its determination on Day Seventeen (Wednesday 14 December 2016). The Tribunal gave the parties some time to consider its determination before moving on to the next stage of considering sanctions. The Appellant then applied for an adjournment of one or two weeks so that he could seek advice from a solicitor on a potential challenge to the decision on impairment, on the grounds that the Tribunal was biased and had reached unreasonable conclusions on the evidence before it. The Appellant walked out of the hearing without waiting to hear the Tribunal’s ruling on his application for an adjournment. During the lunch adjournment, the Appellant sent written submissions to the Tribunal reiterating his complaints, and asking for an adjournment of at least one month and for the panel to recuse itself.

After hearing submissions from the GMC and advice from the Legal Assessor, the Tribunal refused the application to recuse itself, concluding that there were no grounds upon which it could be fairly said that there was any actual or apparent bias on the part of the members of the panel, applying the test in Porter v Magill set out at paragraph 39 above. Having reviewed the evidence, I consider that the Tribunal’s conclusion was correct. There was no evidence of bias or unfair treatment, and there were no legitimate grounds for recusal, particularly part-way through the hearing.

The Tribunal decided to proceed with the hearing in the Appellant’s absence. It considered that the Appellant had made it clear that he was not going to attend a hearing with this Tribunal again, and that he wished to disengage from the process. In all the circumstances, the Tribunal considered that the Appellant had voluntarily waived his right to be present or represented at the hearing. The Appellant had had more than sufficient time to organise legal representation for the hearing. An adjournment now could lead to a delay of many months and it was in the public interest for the hearing to be concluded expeditiously.

I consider that the Tribunal acted properly and lawfully in deciding to proceed with the hearing in the Appellant’s absence, for the reasons it gave. Applying the principles in Elizabeth Davies v Health Care Professions Council [2016] EWHC 1593 (Admin), which I have set out at paragraph 28 above, I consider that the Appellant was seeking to frustrate and delay the regulatory process because he disagreed with the adverse determinations made against him.

When the Tribunal resumed on 12 December 2016 (Day Fourteen), the Appellant made an application that the Tribunal should re-open the fact finding stage of the proceedings, so that he could adduce further evidence, to persuade them to reverse their findings against him.

The Tribunal accepted the advice of the Legal Assessor and ruled that it had no power under the 2004 Rules to re-open the fact-finding stage after handing its decision, referring to TZ v General Medical Council [2015] EWHC 1001 (Admin), per Gilbart J at [82]). The Tribunal had announced its findings of fact, the first stage under rule 17(2)(j), and now had to move on to hear evidence and submissions on impairment of fitness to practise under rule 17(2)(k). The Tribunal advised the Appellant that he could apply to adduce this further evidence at the impairment stage. In my judgment, the Tribunal correctly applied the 2004 Rules. The general power to admit evidence under rule 34 could not be invoked by a party at any stage of the proceedings; that would be unworkable.

Immediately after the Tribunal gave its decision, the Appellant asked the Tribunal members to recuse themselves on the grounds that they were biased against him and they were acting unfairly. The Legal Assessor advised the Tribunal that there was no justification for recusal and the Tribunal continued with the hearing. In my judgment, the Legal Assessor was correct. The Tribunal had not acted in an unfair or biased manner in refusing the Appellant’s application to adduce further evidence and re-open the fact-finding stage.

The material which the Appellant sought to adduce in evidence in December 2016 was available to him prior to the commencement of the hearing in July 2016, and should have been adduced by him at that stage. It was not credible that he was prevented from applying to adduce this evidence during the fact-finding hearing, particularly since his illness had not prevented him from adducing other items of evidence during the fact-finding stage.

The evidence comprised email exchanges in June 2014 between the Appellant and a person from the NHS Jobs Website support team who was assisting the Appellant in re-setting his security settings on the website. The Appellant also applied to adduce in evidence the NHS Jobs website ‘Terms and Conditions’ which stated, inter alia, that NHS Jobs did not accept any liability if users experienced difficulties accessing the site because of any events outside its control, such as internet service failure, and that whilst the website was monitored and bugs fixed promptly, it could not guarantee that NHS Jobs would be “error free, available all the time and/or free from viruses”. The Appellant referred to this material during the impairment stage of the hearing.

In the course of the appeal, the Appellant adduced a standard form email letter, dated 17 December 2016, from his internet service provider Yahoo!, notifying customers of data security breaches in which an unauthorised third party stole data (such as names, dates of birth, passwords etc.) from user accounts. The Appellant referred this email to the NHS Jobs website support team, together with a page from one of his applications showing misprints and missing data, as evidence that his online job applications had been tampered with. On 4 January 2017, an adviser in NHS Jobs Support replied stating:

“I can see from the photograph you have attached that there are misprinted characters throughout the page …..Whilst, in theory, a malicious third-party may have accessed your account if they had been able to obtain your credentials from Yahoo – this would not have given them the ability to change the actual NHS Jobs code and produce the results you are observing. I would suggest that this is indicative of a PDF/printer issue rather than evidence of hacking.”

I gave careful consideration to all the Appellant’s evidence and submissions on this issue. I concluded that none of this evidence was capable of proving that the false entries in his online job applications were a result of hacking, viruses, or software malfunctions on the NHS Jobs Website.

The Tribunal found that in his online job applications the Appellant had failed to disclose that he was subject to an ongoing fitness to practise investigation and that interim orders had been imposed upon him.

On or around 26 August 2013 the Appellant applied for a Clinical Fellow (Registrar Level) post in Obstetrics and Gynaecology via ‘NHS jobs’ to East and North Hertfordshire NHS Trust. He failed to declare that he was the subject of an ongoing fitness to practise investigation by the GMC. On 30 July 2013 the GMC sent a letter to the Appellant’s registered address informing him that it had received information from Dr Blanshard, the Medical Director of Salisbury NHS Foundation Trust, suggesting that his fitness to practise may be impaired. A Case Examiner had decided that the information about his performance made it necessary to refer him to the Interim Orders Tribunal in order to protect patient safety. A hearing was scheduled for 13 August 2013. The case documents were enclosed, and he was invited to make written observations upon them and to attend the hearing.

The Appellant’s evidence was that he was overseas at the time, he had recently had a child, and he did not receive the letter until about 16 August 2013. He sent a letter to the GMC, date stamped on 19 August 2013, explaining why he had not attended the hearing. On 17 and 24 August 2013, he emailed the GMC sending a statement and the employers’ details form. The Tribunal was therefore entitled to find that on 23 August 2013, when he completed the application form, he was well aware that there was an ongoing fitness to practise investigation against him. The Tribunal was also entitled to reject his assertion that he believed that the Salisbury NHS Foundation Trust had withdrawn its complaint against him. There was no evidence that the complaint had been withdrawn, and the Tribunal referred to a letter from Dr Blanshard dated 24 February 2014 confirming that the GMC investigation was still live.

The Tribunal accepted the Appellant’s evidence that he did not receive the letter notifying him of the suspension order made by the Interim Orders Tribunal at the hearing on 13 August 2013, which appeared to be confirmed by the track and trace documentation provided by the GMC. The Tribunal therefore dismissed the charge at paragraph 4(e) that he had failed to declare that he was subject to a suspension order. In my view, this demonstrated that the Tribunal was assessing the evidence carefully in respect of each individual charge.

On 21 November 2014 the Appellant applied online for a position as a Locum Speciality Registrar in Obstetrics and Gynaecology to Princess Royal University Hospital, part of Kings College Hospital NHS Foundation Trust. The Tribunal found that on the application form he failed to declare that he was the subject of an ongoing fitness to practise investigation by the GMC, although he had been notified of this in the GMC letter of 30 July 2013, and he was well aware from his communications with the GMC and the Interim Orders Tribunal that the investigation was continuing. In answer to a question whether he had ever been removed from the register or had conditions placed on his registration, he stated that “unlawful conditions were [imposed] …. due to false allegations made ….The conditions were in breach of department of health and nhs rules. Conditions now expired”. Thus he failed to declare that he remained subject to an interim conditions order, which had first been imposed by the Interim Orders Tribunal on 21 October 2013; reviewed and continued by the Interim Orders Panel on 3 January 2014, 12 May 2014 and 24 October 2014; and then extended for six months by the High Court at a hearing on 10 November 2014. The Appellant attended the hearing at the High Court only eleven days before he completed the application form stating that his conditions had expired. The Tribunal rejected his oral evidence that this was a typing error and he intended to write “not expired”. In my view, the Tribunal was entitled to reach these findings on the evidence before it.

On 15 April 2015 the Appellant applied online for the position of Senior Clinical Fellow (Registrar Level) in Obstetrics and Gynaecology East and North Hertfordshire NHS Trust (this was his second application to the Trust). The Tribunal found that he failed to declare that he was the subject of an ongoing fitness to practise investigation, notified to the Appellant by the GMC in the letter dated 30 July 2013. The interim conditions order had been revoked by the Interim Orders Tribunal on 26 January 2015 but the GMC made it clear to the Appellant that the investigation was still ongoing and he had not been “cleared” of the allegations, in an email dated 13 March 2015. There had been no change in position between the date of this email and the application made a month later on 15 April 2015. In my view, the Tribunal was entitled to reach these findings on the evidence.

The Tribunal found the charge in paragraph 8 not proved, as it was not satisfied that the Appellant had failed to declare the ongoing fitness to practise investigation at his interview for the position referred in paragraph 7 of the Charges.

The Tribunal found that the Appellant’s failure to disclose actions (as set out in paragraph 4, sub-paragraph 10 above) were misleading and dishonest,

In my judgment, the Tribunal was entitled to find that the Appellant’s entries in the application forms were misleading to anyone reading the form. The Appellant argued on appeal that anyone could have checked the true position by checking his GMC registration status, using his GMC number. However, he was under an obligation to make an honest declaration of any ongoing fitness to practise investigation or interim order (‘Good Medical Practice’: Duties of a Doctor and at paragraph 71) and it was reasonable for employers to rely upon doctors to disclose such matters.

On the issue of dishonesty, the test established in the criminal case of R v Ghosh [1982] QB 1053 was the appropriate test to apply, modified to reflect the different context of professional disciplinary proceedings, in which the civil standard of proof applies. Thus, the Tribunal had to determine:

In a careful analysis of the evidence, the Tribunal found that the Appellant knew that the answers he gave in the job applications were untrue, and rejected his oral evidence to the contrary which was inconsistent with the written evidence.

The Tribunal held at paragraphs 90 to 92:

“90.

In reaching the above findings on dishonesty the Tribunal took into account your general observations that persons completing application forms may make typographical and other genuine errors, but it has specifically rejected your defences in those regards. It acknowledges that you did disclose something of your ongoing fitness to practice investigations in interviews and/or declarations subsequent to the submission of the application forms. It did not however consider that those subsequent disclosures of your ongoing fitness to practice investigations warranted a reconsideration of its findings of dishonesty. Dishonest answers to specific questions on the application forms could result in your securing interviews and possible offers of employment. The Tribunal also had regard to the testimonial evidence which spoke of your conscientiousness as a doctor and to the fact that you have never been found to have behaved dishonestly. These matters did not persuade the Tribunal that it should regard your actions in a different light and did not serve to cause the Tribunal to make findings other than that you behaved dishonestly as set out above.

91.

The Tribunal also considered that statements that you made throughout your evidence and in submissions that you consider that you have been treated unfairly by the GMC and persecuted over the years with a number of allegations and interim order hearings resulting in conditions/suspension. In your view this amounted to victimisation, harassment, bullying and discrimination. You told the Tribunal that all these proceedings have been and continue to be ‘unlawful’. The Tribunal noted that there have been a number of proceedings over a number of years that have no doubt been challenging for you.

92.

The Tribunal noted that you attach considerable importance to the language used by the IOP in its determination on 25 November 2015 as follows:

‘In relation to the concerns about your probity, the panel does not consider that there appears to be any deliberate attempt to be dishonest with potential employers or the GMC, and that perhaps the issue is one of miscommunication.’

It is regrettable that the IOP expresses itself in terms akin to a determination of a fitness to practice Tribunal. It understands why you feel aggrieved that your case continued thereafter. However, findings of fact are outside the jurisdiction of an IOP. Moreover this is not something which would have influenced your behaviour in relation to any of the matters that this Tribunal has found proved in this determination.”

In my judgment, the Tribunal’s conclusions, set out above, provided a complete answer to the points raised by the Appellant, both at the hearing before the Tribunal and on appeal in the High Court. In particular, the Tribunal was not bound by the different view as to dishonesty expressed by the Interim Orders Tribunal on 25 November 2015, as the Interim Order Tribunal’s jurisdiction was limited to interim orders, and did not extend to fitness to practise proceedings. Moreover, the Appellant was not present at the hearing of the Interim Orders Tribunal and so that body reached its decision on a perusal of the papers, whereas the Tribunal had the benefit of hearing oral evidence from the Appellant, including cross-examination, which meant the Tribunal was better placed to form a view as to his state of mind at the relevant times.

Finally, I did not discern any evidence of bias or derogatory treatment of the Appellant by the Tribunal when finding the facts. The Appellant alleged that the GMC’s allegations against him were malicious and unfounded. I am satisfied that the Tribunal, which is separate from and independent of the GMC’s Fitness to Practice Directorate, exercised its judgment fairly and independently, evidenced by the care it took to evaluate the evidence in relation to each charge separately, requiring the GMC to prove its case on the balance of probabilities.

The Tribunal found that the Appellant’s misleading and dishonest entries in his job applications constituted misconduct, as they were a serious departure from expected standards of conduct and behaviour, as set out in ‘Good Medical Practice’. This was not a single isolated incident but a series of incidents over a prolonged period of time, associated with his professional practice. It undermined fair recruitment procedures, and disadvantaged both the prospective employer and competing candidates who had made honest disclosure. The Tribunal considered that the Appellant demonstrated a level of disregard for the regulator. Even if he did not agree with the interim sanction imposed upon him, he was bound to declare it. In my view, the Tribunal’s judgment was sound, and I agree with its conclusions.

In its decision on impairment, the Tribunal held:

“26.

The Tribunal then went on to consider whether your fitness to practise currently impaired as result of your misconduct. In making its decision, the Tribunal took into account the public interest and bore in mind that the purpose of fitness to practise proceedings is not to punish a doctor for past wrongdoing but to maintain proper standards in the profession and to protect the public. The Tribunal must look forward, not back, but in order to determine whether a doctor is fit to practise without restriction today it must take into account the way in which a doctor has acted, or failed to act, in the past.

27.

The Tribunal took into account the issues of insight, remediation, your attitude during this hearing and the risk of repetition together with the overarching objective and all other relevant considerations, in determining whether a finding of current impairment of fitness to practise is necessary.

28.

The Tribunal has received no evidence that you have accepted its findings at the facts state or that you have acknowledged that your actions were dishonest. You have become further entrenched in your view that the GMC is targeting you unfairly.

29.

The Tribunal was of the view that you do seem to have reflected on your experiences. However, your reflections seem to validate your contention that others are to blame for your dishonest actions and you have been victimised and harassed by the GMC. The Tribunal acknowledges that you appear to have a history of actions treated by the GMC in relation to you. You feel aggrieved about how you have been treated by the GMC, and consequently, your trust in, and relationship with, your regulator has deteriorated and is now poor. The tribunal has no doubt that your feelings of grievance are genuine.

30.

The Tribunal can find no evidence that you have developed insight into your wrongdoing. You have sought further justification for your behaviour and now seek to blame the NHS computer system for your dishonest conduct when you had previously stated that you had made typographical errors in the application forms. You continue to place blame on others for your actions and to minimise your role in the events. You acknowledged when providing your evidence to the Tribunal that you would act in the same manner again and the only thing that you would change is that you would contact the NHS to check that they are investigating if there are bugs or viruses in its computer systems. You have shown no remorse for your actions or the impact that they could have had on others and on the profession. Your lack of demonstration of insight means that the Tribunal cannot exclude the possibility of repetition of similar conduct.

31.

In relation to your attitude during these proceedings the Tribunal noted that you have engaged with this hearing. You have presented your case without legal representation and sought to vigorously defend your position. However, it is clear that your trust in the GMC has been adversely affected by your experiences of the last three years. The Tribunal has found your attitude to the GMC and to the MPTS to be at times challenging and of concern.

32.

In relation to remediation the Tribunal considers that dishonesty, by its very nature, is difficult to remediate. However, it noted that, on at least two occasions after you had provided dishonest information in application forms, you had later admitted, during the interview or in the disclosure documents, at least some further information regarding your GMC registration. The Tribunal was of the view that this demonstrated some level of remediation.

33.

The Tribunal had regard to your submission that you did not accept the job at Kings College and that demonstrates remediation. You said that you did not wish to pursue this post until you had sorted out your registration issues. However, this submission is directly challenged in the witness statement of Gibson Akpobome. He stated that after he learned that you were the subject of GMC restriction he had to suspend the interview pending further information, you left and despite efforts to contact you he never heard from you and the provisional offer of work was withdrawn. The Tribunal has not accepted your submission in relation to this as an example of remediate on your behalf.

34.

The Tribunal was not assisted by your production of the IELTS certificate. The concerns in this case relate to your honesty. You language skills are not in question.

35.

The Tribunal has noted that there is no evidence before it that there are any clinical concerns with your practice. However, the Tribunal has a duty to maintain the reputation of the profession and to declare and uphold proper standards of conduct and behaviour. It is of the view that doctors occupy a position of privilege and trust in society, and members of the public are entitled to place complete reliance upon doctors to be honest and to act at all times with absolute integrity. Members of the public rightly expect that any doctor filling in forms would do so honestly. In light of your lack or insight and continued denial of your misleading and dishonesty actions the Tribunal is in no doubt that public confidence in the medical profession would be undermined if it were not to make a finding of impairment. Accordingly, the Tribunal has determined that your fitness to practise is impaired by reason of misconduct.”

In my view, the Tribunal correctly applied the relevant principles to the facts as found. It had the benefit of hearing the Appellant give evidence and make submissions, which informed its assessment of him. I consider that the Tribunal exercised its judgment with care and insight. I have had the benefit of hearing the Appellant’s oral submissions, and considering his written evidence, and I agree with the Tribunal’s conclusions.

On reviewing the evidence, I found no evidence of bias on the part of the Tribunal or derogatory treatment of the Appellant.

At the stage of determining sanction, the Tribunal heard submissions from the GMC and received advice from the Legal Assessor. The Tribunal correctly directed itself on the statutory objectives of sentencing, and applied the ‘Indicative Sanctions Guidance’. It applied the principle of proportionality, balancing the Appellant’s interests with the public interest. It took into account the relevant evidence, and its earlier findings. It was well aware of the interim suspension and conditions orders made by the Interim Orders Tribunal. In paragraphs 23 and 24 of its determination, the Tribunal correctly identified the mitigating and aggravating factors.

In accordance with the ‘Indicative Sanctions Guidance’, the Tribunal considered the possible sanction in turn, beginning with the least restrictive option, namely, no action. It decided that given the serious nature of the Appellant’s dishonesty and the absence of exceptional circumstances, it would not be sufficient, proportionate or in the public interest to take no action. It then considered whether to impose conditions on the Appellant’s registration, but it concluded that conditions would not be a proportionate response given the seriousness of its findings.

In reaching its conclusion that the appropriate sanction was suspension of the Appellant’s registration for a period of four months, the Tribunal said:

“27.

The Tribunal then considered whether it would be appropriate to suspend Dr Nduka’s registration and, if so, for what period. In doing so, it gave consideration to the relevant sections in the SG, in particular paragraphs 85 and 86:

‘85 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention.

86 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration…’

28.

The Tribunal has already noted in its determination on impairment that Dr Nduka’s repeated dishonest behaviour which took place over a prolonged period of time was unacceptable and constituted misconduct. His actions were a significant departure from the principles laid down in Good Medical Practice (‘GMP’). The Tribunal had regard to the aggravating and mitigating features in Dr Nduka’s case. It was particularly concerned in relation to Dr Nduka’s present lack of insight into his dishonesty.

29.

In all the circumstances of this case the Tribunal concluded that although Dr Nduka’s action constituted a serious departure from the principles set out in GMP they are not so serious as to be fundamentally incompatible with continued registration.

30.

Although the Tribunal is aware that a period of suspension will have an impact on Dr Nduka and his family, the Tribunal was satisfied that it is the appropriate and proportionate sanction in this case. The Tribunal considers that a period of suspension will provide Dr Nduka with time to reflect on his misconduct and develop an understanding of the importance of integrity at all times, whilst also sending a signal to him, the profession and the public, that his conduct was wholly unacceptable.

…

32.

The Tribunal then considered the question of the appropriate duration of the order for suspension. It has determined that, in all the circumstances, Dr Nduka’s registration should be suspended for a period of 4 months. This period is necessary to signal the seriousness with which the Tribunal views his misconduct and to maintain public confidence in the medical profession. It is of sufficient length to allow him time to reflect fully on the Tribunal’s findings and to consider how he can demonstrate to a future Tribunal his appreciation of the importance of honesty and integrity.”

In considering the Appellant’s appeal against sanction, I accord appropriate respect to the exercise of judgment by the specialist and experienced Tribunal, following a lengthy hearing. I bear in mind that an appeal is not an exercise in re-sentencing (see Raschid v GMC, cited at paragraphs 10 and 11 above).

I accept the GMC’s submission that, in the light of the nature and seriousness of this case, the sanction of four months suspension was neither excessive nor disproportionate. If anything, it was at the lenient end of the permissible range of sanctions. In Naheed v GMC [2011] EWHC 702 (Admin) at [21] Parker J. held that: “Dishonesty acts which compromise the integrity of job applications are acts which undermine something fundamental to the system of medicine”. Suspension is a “merciful” or lenient sanction for a doctor’s dishonesty (see Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin) at [27]).

On reviewing the evidence, I found no evidence of bias on the part of the Tribunal or derogatory treatment of the Appellant. The Tribunal was in a position to determine sanction, despite the Appellant’s absence, because the relevant information was available to it.

For the reasons set out above, the Appellant’s appeal is dismissed on all grounds.