General Medical Council v Nwachuku

In this matter the General Medical Council (“GMC”) appeals under section 40A of the Medical Act 1983 against the determination by the Medical Practitioners Tribunal (“the MPT”) on 19 January 2017: (i) not to find Dr Nwachuku’s fitness to practise impaired by reason of his misconduct; and (ii) to issue a warning rather than impose a more serious sanction, on the ground that the MPT’s decisions are not sufficient to protect the public.

Dr Nwachuku opposes the appeal and seeks judicial review of the MPT’s decisions: (i) that his conduct was dishonest; and (ii) that a warning should be imposed in respect of dishonesty.

On 25 May 2017 permission to apply for judicial review was refused by the single judge on paper. The oral renewal hearing has been treated as a rolled-up hearing of the application for permission and the merits of the judicial review claim.

Dr Nwachuku is a registered doctor and in October 2015 he was in the final year of specialist training as a GP trainee at Woolston Lodge Surgery, Southampton (ST3 level).

His contract of employment dated 5 August 2015 provided for a fixed period of employment of 12 months as a GP Trainee.

Clause 8 and Appendix 1 of the contract provided that Dr Nwachuku’s normal working week (excluding out-of-hours training) comprised ten sessions each of four hours. Of those ten sessions, seven were at the surgery premises at 66 Portsmouth Road, Woolston, Southampton. The agreed arrangement included two sessions every Monday, each of four hours, one in the morning and one in the afternoon/evening.

Clause 14 permitted Dr Nwachuku to undertake additional work outside the surgery with the agreement of his supervisor:

“With the agreement of your trainer/educational supervisor, you may arrange to undertake any duties or professional activities outside those of the practice whether remunerated or not. Agreement will not be unreasonably withheld. Any medical duties or appointments outside the practice area must not compete with the trainer/educational supervisor’s practice or impinge on your contracted duties with the practice, or upon your GP speciality training. This applies equally whether such duties are remunerated or not. Such duties should not lead to a breach in UK Working Time Regulations…”

From about 2011, Dr Nwachuku was registered for locum work with Athona Recruitment Limited, a medical recruitment agency. He did not seek permission to carry out such work from Dr Moe Moe Kyaw-Lwin, his supervisor at the surgery.

On 9 October 2015, the agency booked Dr Nwachuku to provide Senior House Officer (“SHO”) locum cover at the Royal National Orthopaedic Hospital in Stanmore for three nights from 8pm to 8am on each of Friday 9 October 2015, Saturday 10 October 2015 and Sunday 11 October 2015.

The email from the agency dated 9 October 2015, confirming the booking, stated that Dr Nwachuku was required to submit authorised time sheets for his locum work to the agency. Any breaks were to be clearly marked on the time sheet so that they could be deducted from the remunerated hours.

Dr Nwachuku’s time sheet for the weekend of 9^th to 11^th October 2015 stated that he had worked from 8pm to 8.30am on each of Friday, Saturday and Sunday nights, a total of 37.5 hours. Dr Nwachuku signed the declaration on the form stating that the information on the form was correct and complete.

On the evening of Sunday 11 October 2015, during handover, Dr Nwachuku presented his time sheet for weekend working to Karan Malhotra, at that time an orthopaedic registrar (ST6) on call at the hospital, for approval. He asked Dr Malhotra to sign it that evening because Dr Malhotra had a theatre list on Monday and might be unable to attend the handover meeting the following morning. Dr Malhotra signed the time sheet.

At 5am on Monday 12 October 2017 Dr Nwachuku attempted to leave the hospital before the end of his shift, so that he could return to Southampton in time for his Monday morning shift which started at 8.30am. He failed to arrange alternative cover and failed to notify anyone that he was leaving. An anaesthetist registrar, who was called to site a cannula in a patient when Dr Nwachuku indicated that he had to leave, alerted others, he was stopped at the main gate and required to contact Dr Malhotra. He explained to Dr Malhotra that he needed to leave so that he could get to Southampton to start his GP shift. Dr Malhotra protested that this was dangerous and unprofessional conduct but Dr Nwachuku left the hospital at about 6am.

Despite leaving early, he submitted his signed time sheet to the agency claiming that he had worked until 8.30am on Monday 12 October 2015. The time sheet was amended following a complaint from the hospital and Dr Nwachuku was not paid for the hours he did not work.

The following allegations against Dr Nwachuku were referred to the MPT:

On 16 – 19 January 2017 the MPT held a disciplinary hearing under the GMC Fitness to Practise Rules 2004 to determine the above allegations. Dr Nwachuku was represented by counsel, Mr Foster, who also represents him in these proceedings.

Dr Nwachuku admitted the allegations at paragraphs i)a) - c) and e). He also admitted that the submission of the false time sheet was misleading but denied that it was dishonest.

The MPT found that the allegation at paragraph i)d) was not proved. An email from the agency showed that, at the time of the booking, it had been aware that Dr Nwachuku would leave before the end of his shift on Monday 12 October 2015 but failed to give such information to the hospital. Based on that evidence, the MPT was satisfied that it was more likely than not that Dr Nwachuku had informed the agency of the need to leave early on Monday morning prior to commencing his post at the hospital. Therefore, he was neither misleading nor dishonest when he told the Deanery that he had informed the agency in advance of his early departure.

The MPT found that Dr Nwachuku’s conduct in submitting the false time sheet was dishonest as set out in paragraphs 35 to 38 of the decision:

“The tribunal noted that you submitted this form ahead of completing the last shift out of the three for which you had been contracted. However, you knew that you were unable to stay beyond 06:00 on 12 October 2015 due to other employment commitments. On 11 October 2015 you submitted a timesheet which was clearly inaccurate because it claimed you had worked hours that you knew you had not been working, and had no intention of working. The tribunal concluded that a reasonable and honest person would consider submitting a timesheet stating that you had worked until 08:30 when you had not done so to be dishonest, because it gave information that plainly overstated the number of hours you were intending to work.

The tribunal went on to consider whether you knew that your conduct was dishonest when you submitted your timesheet.

The tribunal noted that you were provided with several opportunities to ensure that Dr Malhotra knew you had to leave by 06:00 on 12 October 2015. In his evidence to the tribunal Dr Malhotra stated that he had asked you, albeit in a joking manner, whether you were planning on staying until the end of the shift, as he had signed the timesheet in advance. The tribunal considered that this was an opportunity for you to have acknowledged your intended early finish or to have corrected your timesheet to accurately reflect your intention. The tribunal also heard from you that his was a quiet and uneventful night at the Hospital. You sent the timesheet through to Athona Recruitment in your rest period, without making any amendment to it. You knew you would not be working until 08:30 on the Monday morning. Even after you had sent the timesheet to Athona Recruitment, you still did not take the opportunity to advise them that the hours claimed for the nights of 11/12 October 2015 needed to be corrected. Your evidence about assuming the information on the timesheet would be corrected pointed to an abdication of responsibility on your part of the need to ensure that the information you provided was, as stated in the declaration on the timesheet, correct.

In all the circumstances, the tribunal was therefore satisfied that you must have realised that your conduct in submitting a timesheet, which you had signed to confirm as being “correct and complete” was dishonest at the time you submitted the timesheet to Athona Recruitment. It there found paragraph 2(b) of the allegation provided in relation to paragraph 1(c).”

The tribunal found that the following facts admitted and/or proved amounted to serious misconduct:

The tribunal also determined that the finding of dishonesty concerning the submission of the false timesheet to the agency amounted to misconduct:

“In relation to the finding of dishonesty concerning the submission of the timesheet to Athona Recruitment, the tribunal bore in mind the requirement for honesty, both as a fundamental tenet of medical practice and as set out in paragraph 71 of Good Medical Practice (2013). Submitting a timesheet which, on the face of it, makes a claim for payment for work you have not actually done and were not intending to do is conduct that has the potential to bring the medical profession into disrepute. That is because it can undermine the trust that the public and patients place in their doctors. For those reasons, the tribunal is also satisfied that the dishonest submission to Athona Recruitment of the timesheet containing false information was, in itself, misconduct.”

The tribunal decided that Dr Nwachuku’s fitness to practise was not impaired by reason of that misconduct, based on the following factors:

The tribunal determined that a warning was appropriate and imposed the following warning on Dr Nwachuku’s registration:

“An MPTS tribunal sitting in January 2017 found that, in October 2015, you undertook three locum night shifts without obtaining the consent of your GP trainer. It also found that on the final night shift you left the Hospital two hours early despite your contracted hours. It found that in doing so you failed to conduct an adequate handover and left the hospital without a Senior House Officer despite a request for you to stay from the Registrar on shift. The tribunal found that you did not allow a sufficient rest break between the end of your locum post and the commencement of your full-time post. The MPTS tribunal also found that you dishonestly submitted a claim form stating that you had worked for 2.5 hours longer than you intended working.

This conduct does not meet with the standards required of a doctor. It risks bringing the profession into disrepute and it must not be repeated. The required standards are set out in Good Medical Practice and associated guidance.

In this case, a number of paragraphs of Good Medical Practice (2013) are particularly relevant:

1.

Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law.

44.

You must contribute to the safe transfer of patients between healthcare providers and between health and social care providers. This means you must

a.

share all relevant information with colleagues involved in your patients’ care within and outside the team, including when you hand over care as you go off duty, and when you delegate care or refer patients to other health or social care providers,

b.

check, where practical, that a named clinician or team has taken over responsibility when your role in providing a patient’s care has ended. This may be particularly important for patients with impaired capacity or who are vulnerable for other reasons.

65.

You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.

71.

You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading.

a.

You must take reasonable steps to check the information is correct.

b.

You must not deliberately leave out relevant information.

Whilst this failing in itself is not so serious as to require any restriction on your registration, it is necessary in response to issue this formal warning.

This warning will be published on the List of Registered Medical Practitioners (LRMP) for a period of five years and will be disclosed to any person enquiring about your fitness to practise history. After five years, the warning will cease to be published on the LRMP. However, it will be kept on record and disclosed to employers on request.”

Dr Nwachuku’s application for permission and judicial review is made on the following grounds:

It is common ground that the applicable test for dishonesty is that set out in R v Ghosh [1982] QB 1053 per Lord Lane CJ:

“… whether according to the ordinary standards of reasonable and honest people what was done was dishonest …

If it was dishonest by those standards … whether the defendant himself must have realised that what he was doing was by those standards dishonest …”

Dr Nwachuku relies on the tribunal’s finding at paragraph 37 of its determination:

“Your evidence about assuming the information on the timesheet would be corrected pointed to an abdication of responsibility on your part of the need to ensure that the information you provided was, as stated in the declaration on the timesheet, correct.”

Mr Foster submits that the tribunal was correct to characterise Dr Nwachuku’s state of mind at the material time as an abdication of responsibility i.e. as negligent but this finding was incorrectly identified as dishonest.

In my judgment, it is not reasonably arguable that the tribunal made an error of law in making the finding of dishonesty against Dr Nwachuku.

The tribunal correctly identified and set out the two limbs of the Ghosh dishonesty test in paragraphs 34 and 36 of the determination.

In respect of limb 1, the tribunal expressly considered whether a reasonable and honest person would consider the submission of a timesheet which was clearly inaccurate, because it claimed that Dr Nwachuku had worked hours that he knew he had not worked, and had not intended to work, dishonest. The tribunal’s finding that submission of such a timesheet was dishonest because it plainly overstated the number of hours Dr Nwachuku intended to work is an obvious and rational conclusion on the facts and a finding that it was entitled to reach.

In respect of limb 2, the facts relied on by the tribunal in reaching its finding of dishonest intent or knowledge included, but were not limited to, the reference to Dr Nwachuku’s abdication of responsibility. The tribunal also referred to the fact that Dr Nwachuku had several opportunities to notify Dr Malhotra and the agency that the hours on his timesheet were wrong:

The tribunal expressly considered Dr Nwachuku’s state of mind in applying the second limb of the Ghosh test at paragraph 38 of the determination:

“In all the circumstances, the tribunal was therefore satisfied that you must have realised that your conduct in submitting a timesheet, which you had signed to confirm as being “correct and complete” was dishonest at the time you submitted the timesheet to Athona Recruitment.”

The assumption that the timesheet would be corrected, which in itself was an abdication of responsibility, did not detract from the dishonest intent in submitting the timesheet and failing to notify Dr Malhotra or the agency that it was inaccurate.

Following the tribunal’s finding, when questioned directly by the tribunal, Dr Nwachuku stated that he accepted that he was in fact dishonest.

In summary, the tribunal asked itself the correct questions and there was ample evidence on which it could reach a finding of dishonesty.

There is no merit in the challenge on the first ground. The second ground falls with the first. Therefore, permission to seek judicial review is refused and the claim for judicial review is dismissed.

I set out the position of the parties on jurisdiction in relation to the appeal to record Dr Nwachuku’s formal reservation on this matter.

The following provisions of Medical Act 1983 are material:

Section 35D empowers the tribunal to give directions as to erasure or suspension and impose requirements on compliance only where there is a finding of impairment. In the absence of a finding of impairment, the tribunal may issue a warning but not impose the other sanctions.

A medical practitioner does not have a right of appeal against a decision to impose a warning but may seek to challenge any such decision in proceedings for judicial review, as in this case.

Mr Ivan Hare QC, on behalf of the GMC, submits that the tribunal made a decision not to give a direction under section 35D and therefore section 40A(1)(d) of the 1983 Act provides jurisdiction for his appeal. Ms Fenella Morris QC, on behalf of the PSA, supports the GMC’s submission. Mr Foster, on behalf of Dr Nwachuku, submits that on its proper construction, section 40A(1)(d) does not provide jurisdiction to appeal because the tribunal did not make a finding that fitness to practise had been impaired and therefore did not have power to give a direction under section 35D.

In the light of the recent decision in GMC v Dr Nilesh Pravin Jagjivan & PSA [2017] EWHC 1247, it is accepted for the purpose of this hearing that there is jurisdiction to entertain the appeal, but Mr Foster has reserved Dr Nwachuku’s right to challenge jurisdiction in the event of any appeal.

Dr Nwachuku further contends that, if the GMC has a right of appeal under section 40A, that provision is incompatible with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms because he does not have an equivalent right to appeal against the issue of a warning. A declaration of incompatibility has been sought pursuant to section 4 of the Human Rights Act 1998. However, section 5 of the Human Rights Act provides that where a court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice in accordance with rules of court, so that a Minister may be joined to the proceedings and afforded an opportunity to make submissions. Notice of Dr Nwachuku’s application has not been given to the Secretary of State as required by CPR 19.4A. Therefore, this court is not entitled to determine that issue.

In Jagjivan the Divisional Court issued the following guidance as to the correct approach to appeals under section 40A at paragraphs [39] and [40]:

“… the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

i)

Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.

ii)

It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

iii)

The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642 at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, at paragraph 46, and Southall at paragraph 47).

iv)

When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

v)

In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64 at paragraph 36.

vi)

However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29 the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".

vii)

Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

viii)

A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal’s decision unjust (see Southall at paragraphs 55 to 56).”

Dishonesty encompasses a very wide range of different facts and circumstances. Any instance of it is likely to impair a professional person’s fitness to practise: R (Hassan) v General Optical Council [2013] EWHC 1887 per Leggatt J at paragraph [39].

Dishonesty constitutes a breach of a fundamental tenet of the profession of medicine: PSA v GMC & Igwilo [2016] EWHC 524. A finding of dishonesty lies at the top end in the spectrum of gravity of misconduct: Patel v GMC Privy Council Appeal No.48 of 2002.

A finding of impairment does not necessarily follow upon a finding of dishonesty. If misconduct is established, the tribunal must consider as a separate and discrete exercise whether the practitioner’s fitness to practise has been impaired: PSA v GMC and Uppal [2015] EWHC 1304 at paragraph [27].

However, it will be an unusual case where dishonesty is not found to impair fitness to practise: PSA v Health and Care Professions Council & Ghaffar [2014] EWHC 2723 per Carr J at paragraphs [45] and [46].

The attitude of a practitioner to the allegations made and any admissions of responsibility for the misconduct will be taken into account as relevant factors in determining whether or not fitness to practise has been impaired: Nicholas-Pillai v GMC [2009] EWHC 1048 per Mitting J at paragraph [18].

The overarching concern is the public interest in protecting the public and maintaining confidence in the practitioner and medical profession when considering whether the misconduct in question impairs fitness to practise: Yeong v GMC [2009] EWHC 1923 per Sales J at paragraphs [50] and [51]; Nicholas-Pillai (above) at paragraph [27]:

“In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty.”

The GMC’s case (supported by the PSA) is that the MPT erred in finding that Dr Nwachuku’s fitness to practise was not impaired:

Dr Nwachuku’s response is that the tribunal, having heard all the evidence, was in a better position than an appellate court to assess his state of mind and to assess the adequacy of his remediation:

In my judgment, the MPT was wrong to find that Dr Nwachuku’s fitness to practise was not impaired by his misconduct for the following reasons.

Firstly, the dishonesty in question was serious. He knowingly submitted a false timesheet for personal gain. He persuaded Dr Malhotra to verify the hours on his timesheet, despite his intention not to work the final shift in full and despite Dr Malhotra’s request for confirmation that he would remain at the hospital for that shift. He failed to notify the agency that the hours on his timesheet were wrong despite promising Dr Malhotra when leaving the hospital that he would correct it. It is of note that when the agency informed him that he had wrongly included breaks on his timesheet, he responded that the breaks should be deducted but did not refer to the need to deduct the other hours not worked.

Secondly, although the tribunal was entitled to have regard to the testimonials produced in support of Dr Nwachuku, they did not address the question of his honesty and therefore were of limited relevance when considering the issue of impairment.

Thirdly, the tribunal placed undue weight on Dr Nwachuku’s admission of dishonesty. That admission was not made in his witness statement or in cross-examination during the misconduct hearing; it was only made following the finding of dishonesty by the tribunal. The position taken in the disciplinary proceedings was that he was guilty only of disorganisation or negligence, rather than dishonesty. The attempt to avoid responsibility for his dishonest conduct should have been an aggravating factor, rather than one of mitigation.

Fourthly, the tribunal rightly took into account the fact that there had been no misconduct prior to, or after, the incident in question but placed too much weight on Dr Nwachuku’s reflective statement in concluding that the misconduct was remediable. Although he stopped agency locum work, he continued to carry out GP locum work, including night shifts. There was no evidence that demonstrated that he accepted responsibility for his conduct and had taken steps to ensure there was no risk of repetition.

Fifthly, the dishonesty, together with the other serious misconduct, amounted to serious breaches of Good Medical Practice and warranted a finding of impairment to protect the public and maintain confidence in, and the reputation of, the profession.

For the reasons set out above, the tribunal's finding that the misconduct on the part of Dr Nwachuku did not constitute an impairment of his fitness to practise was wrong. The MPT’s determination on impairment is quashed and paragraphs 11 to 21 of the determination should be amended accordingly.

I remit to the tribunal the issue of sanction, following the court’s finding of impairment, and whether a direction should be made under section 35D of the 1983 Act.