General Medical Council v Lamming

This is an appeal brought by the Appellant, the General Medical Council (‘the GMC’), against the decision of the Medical Practitioners Tribunal (‘the MPT’ or ‘the Tribunal’) dated 10 February 2017 to restore the Respondent, Dr Christopher Lamming (‘Dr Lamming’) to the register of medical practitioners maintained by the registrar of the GMC pursuant to s 2 of the Medical Act 1983 (‘the register’).

At the outset of the hearing I made a reporting restriction under CPR 39.2 in relation to the doctor's health condition. This has meant that two versions of this judgment have been prepared: a full version for the parties and their legal advisors, and a redacted version to be placed in the public domain. This is the redacted version.

At the hearing before me the GMC was represented by Ms Grey QC and Dr Lamming was represented by Mr Cooper QC. I am grateful to both of them for their written and oral submissions.

The short background is as follows. In September 2008 Dr Lamming’s name was erased from the register pursuant to disciplinary proceedings in December 2007. Earlier, in 2004 he had been suspended for three months following disciplinary proceedings for separate misconduct. The 2004 proceedings arose out of a false claim by Dr Lamming on his curriculum vitae (cv) that he had a PhD from an American University which he did not, in fact, possess, and because of other false or misleading claims he made about his qualifications and experience. For that misconduct he was suspended from the register for three months. The 2007 proceedings related to the dishonest retention by him of his NHS salary that he was erroneously paid during 2000 when he was on study leave in the United States and was not entitled to be paid. For that misconduct his name was struck from the register.

By an application made by Dr Lamming under s 41 of the Medical Act 1983 (‘the 1983 Act’) and heard by the MPT on 6 - 10 February 2017, he sought to be restored to the register. Following a hearing, on 10 February 2017 the MPT decided to grant his application. The Tribunal directed that his name be restored to the register pursuant to s 41(1) of the 1983 Act.

The GMC appeals against this decision. The central ground of appeal argued by Ms Grey QC on behalf of the GMC is that the MPT’s reasons for restoring Dr Lamming to the register were flawed in that it failed properly to address or reach proper conclusions upon the central basis on which the GMC resisted Dr Lamming’s application. The GMC’s case was, as I shall have to explain in more detail below, that the earlier findings of dishonesty in 2004 and 2007 showed that Dr Lamming had a propensity to be dishonest; that his account to the MPT at the 2017 hearing about how it was he had come to retain his salary in 2000 differed from his earlier explanations, and evidenced a refusal by him to accept the earlier Tribunal’s conclusion that he had been dishonest; that his evidence about his false cv also demonstrated a refusal to accept that what he had done was wrong; and that taken overall, the evidence showed that he had a lack of insight into his dishonest behaviour and continued to have a propensity to be dishonest such that he was still impaired and thus it was not appropriate for him to be restored to the register. Ms Grey QC submits that the Tribunal did not address many of the important aspects of the GMC’s case.

Dr Lamming qualified as a doctor at the University of Nottingham in 1991 and, following training in pediatrics at various teaching hospitals in England, he started to practice as a locum registrar at Leeds General infirmary. He worked there for around six months and then moved to St James University Hospital working in the pediatric haematology and oncology unit for a further six-month period. He then went to work at Huddersfield Royal infirmary.

In or about 1998 Dr Lamming decided to pursue a course of study in the United States in order to further his career. He lived and studied in the United States from late 1999 onwards. Between January 2000 and November 2000 he continued to be paid his net salary of £31 275.80 from Leeds Teaching Hospitals NHS Trust. These overpayments occurred because he did not fill out the requisite paperwork before leaving for the United States or notify the relevant payroll or personnel departments at the Trust of his upcoming absence. He was not entitled to this money during the period of study leave but he took no steps to notify the Trust of its error. In December 2000 the Trust realised there had been the overpayments and contacted Dr Lamming to require their repayment. There was discussion between Dr Lamming and the Trust about what the payments were for. It was the circumstances in which Dr Lamming kept this money to which he was not entitled, and the untrue explanations he gave to the Trust about why he thought he had been entitled to it, which led ultimately to the disciplinary proceedings in 2007 which resulted in his name being erased from the register.

Before coming to the 2007 proceedings in further detail, however, I need to deal with the events concerning Dr Lamming’s cv which led to his suspension in 2004. Although they gave rise to the first set of disciplinary proceedings, the events in question post-dated 2000 when he wrongly retained his salary. I need to deal with them because they involved allegations of dishonesty and the GMC argued below they evidenced in part Dr Lamming’s propensity to be dishonest such that he ought not to have been restored to the register.

In 2002 and 2003 Dr Lamming wrote various letters and emails to doctors responsible for medical training in which he either claimed to be working on a thesis for a PhD at the University of Minnesota, or which he signed ‘Chris Lamming MD PhD’, thereby representing that he had already been awarded a PhD. In January 2003 he submitted a cv to the Chair of the Pediatric Oncology Specialty Advisory Committee in the UK in which he claimed to have a PhD from the University of Minnesota and to have successfully submitted and defended his thesis in 2002, and in which he listed his experience and his publications.

In due course concerns came to light and the matter eventually came before a Professional Conduct Committee of the GMC in August 2004. Among other things, the Committee found proved that Dr Lamming had not been enrolled on a PhD program at the University of Minnesota; that he had misrepresented or not disclosed the real level of his patient contact whilst there; that he had not been awarded a PhD from the University of Minnesota; and that he had not defended his thesis in November 2002. A number of other misstatements by Dr Lamming about his career and/or experience were also found proved. The Committee rejected Dr Lamming’s evidence that he thought a certificate that he had gained from the University of Rochville amounted to a PhD.

The Committee said (Appellant’s Bundle, pp317-319):

“The Committee are satisfied that you have not gained a PhD and furthermore that you are aware or should have been aware of that fact. They are deeply concerned, therefore, at your inclusion in the cv which you submitted to Dr Williams which states ‘November 2002 - PhD University of Minnesota’ and your statement that you had ‘successfully submitted and defended thesis in November 2002’. Dr Williams stated in evidence that your entries with regard to a PhD on your cv had led her to believe that you had been granted a PhD from the University of Minnesota. They were also concerned at your use of the post-nominals PhD in your emails to Dr William sent in January 2003. They consider this not only to be inaccurate, but a deliberate and calculated attempt to mislead and inflate your achievements. They have found that, in relation to the matter of the PhD, your actions have been dishonest.”

In relation to other cv entries the Committee concluded, ‘… that your inclusion of those entries on the said CV was deliberate, that their impact was misleading and that your actions in this respect were dishonest.’ The Committee went on:

“The Committee has found, applying a high standard of proof required to each individual factual allegation, facts which show that your conduct was deliberately calculated to mislead, deliberately intended to inflate your clinical experience and was dishonest. Furthermore, the Committee consider that your demeanour as a witness showed little insight into the seriousness of your repeated dishonest actions.

The GMC’s publication ‘Good Medical Practice’ (May 2001 edition, applicable at the time) states the doctor should be honest and trustworthy. The Committee are gravely concerned at the extent and impact of your dishonest behaviour. Such dishonesty fundamentally undermines the trust which the public places in the medical profession and cannot be tolerated. Honesty and trustworthiness are two of the most important characteristics which doctors are expected to demonstrate. The protection of patients, the confidence of the public and the reputation of the medical profession and depend upon them.”

Accordingly, the Committee suspended Dr Lamming for a period of three months. Thereafter he returned to work as a doctor.

Turning to the matter concerning overpayment of salary, Dr Lamming came before what was then the Fitness to Practise Panel in late 2007, when the events in 2000 were considered. The proceedings concluded on 13 December 2007, when the Panel directed his erasure from the register and made an immediate order for his suspension. The order for erasure took effect on 17 September 2008 after Dr Lamming’s appeal to the High Court against the determination had been unsuccessful (see Lamming v. General Medical Council [2008] All ER (D) 92 (Sep)).

The sequence of events which led to the wrongful payment of salary to, and wrongful retention of salary by, Dr Lamming were summarised by the Fitness to Practice Panel in its written notification to him of 14 December 2007, as follows (Appellant’s Bundle, p293).

In or around December 1999 Dr Lamming commenced an Out Of Programme Experience (OOPE) in Minneapolis in the United States. Although he obtained the permission of his Postgraduate Dean, the Panel found that he did not complete the necessary documentation or communicate his intention to the Medical Personnel Department and/or the payroll manager and/or the Trust. Consequently, he continued to be paid his net salary by the Trust after he left for the United States. In fairness to Dr Lamming, it is right to point out the Panel did not find that his failure properly to notify the Trust was deliberately intended to ensure that his salary would be paid despite his absence.

The Panel found that from January 2000 to November 2000 Dr Lamming received monthly payments of net salary in the total sum of £31 275.80. The Panel found both that he was not entitled to receive the money, and that he knew he was not entitled to receive it. Between December 1999 and December 2000, Dr Lamming did not disclose to the relevant departments that he was receiving this money despite realising early on that he was still receiving it.

The transcript of the 2007 proceedings is in the Appellant’s Bundle, at p641 et seq. Dr Lamming was not represented. In summary, the following points appear from the evidence as to what Dr Lamming’s case was (references are to the Bundle page numbers):

Overall, Dr Lamming’s case was to the effect that from an early stage in 2000 he knew about the overpayments as they were being made but he had not been dishonest in accepting them, and had offered to pay them back (p845).

The Panel’s decision in 2007 is in the Appellant’s Bundle at pp293 – 303. The Panel rejected Dr Lamming’s explanations. It found “that [his] conduct in this regard was dishonest, unprofessional and likely to bring the medical profession into disrepute.” Later, the Panel pithily said: “In your case you defrauded your employer”.

The Panel also found that Dr Lamming’s conduct once the overpayment had been discovered had been dishonest. By a letter dated 18 December 2000 the Trust’s payroll manager requested repayment of the money. In a letter dated 12 March 2001 to Mr Tugwell, Revenue Manager of the Trust, Dr Lamming stated words to the effect that he believed that the money had represented funding for his first-year study leave that had been granted by the Postgraduate Dean. The Panel found that his conduct in claiming to the Trust that he had been entitled to the money was also “dishonest, unprofessional and likely to bring the medical profession into disrepute”.

The Panel noted that Dr Lamming had told them that he “initially believed these payments to be in the form of a ‘loan’ from the Yorkshire Deanery [the regional NHS organisation responsible for post-graduate medical training] to fund [his] research” and that he had been told by a Dr Harran that such funding was available. Dr Harran denied saying any such thing, and said “I cannot imagine how such a thing could be either contemplated or actually put into practice”.

At the time of the hearing in December 2007 some of the money had been repaid, but a significant amount of it had not. In fairness to Dr Lamming it is right to make clear that in due course all of the money was repaid.

In conclusion the Panel said:

“The Panel found that your dishonesty took place over a period of several months and was compounded by the dishonest statement to Mr Tugwell in the letter you wrote of 12 March 2001. The Panel considers that your dishonest conduct in these two instances is extremely serious and furthermore, found that your conduct was both unprofessional and likely to bring the medical profession into dispute.”

Accordingly, the Panel found that, in accordance with s 35C(2)(a) of the 1983 Act, Dr Lamming’s fitness to practice as a doctor was impaired by reason of his dishonesty.

The Panel then went on to consider sanction. In doing so, it set out some of Dr Lamming’s evidence in relation to the overpayments:

“During the course of these proceedings you have referred to personal difficulties you were experiencing at the time at which the salary payments were being erroneously being made to you. These difficulties included the breakdown of your marriage and a road traffic accident which led you to undergoing emergency spinal surgery.

You told the Panel that your personal difficulties contributed to your inability to seek appropriate advice at the material time and your lack of communication with the relevant departments at the Trust and Yorkshire Deanery with regard to the overpayments of salary.”

In determining that erasure from the register was the appropriate sanction, the Panel said:

“Dishonesty runs to the very heart of this case. The Panel notes that whilst you accept that you have made serious mistakes, and have shown some insight into the serious nature of your actions and their consequences, your level of insight is not sufficient. Furthermore, the Panel considers that appropriate conditions could not be formulated which would address the core expectation the doctors will be honest and trustworthy. Additionally, the Panel is satisfied that a period of conditional registration would not reflect the serious nature of this case nor would conditions be sufficient to protect members of the public would not be in the public interest.

,,,

The Panel considers that you have demonstrated a propensity for dishonesty. You have previously been found guilty of dishonest and misleading actions by your regulatory authority. During the course of these proceedings, the panel has found that on 11 separate occasions you retained salary payments, amounting to a significant sum public money, to which you knew you are not entitled. This was compounded by your dishonest statement in your letter to Mr Tugwell of 12 March 2001 (referred to above). The panel did not accept much of your own evidence during the course of these proceedings and noted that you changed your evidence on more than one occasion. The Panel has grave concerns that your dishonest actions amount to a serious and deep-seated behavioural problem, leading to a significant risk that this behaviour may be repeated.

The Panel views repeated and persistent dishonest behaviour in the most serious light. It considers that honesty is crucial in any clinical situation, in particular as any clinical mistakes or adverse events must be dealt with by way of the utmost honesty. Therefore, a propensity for dishonesty, such as demonstrated by your actions, can harm all aspects of the public interest.

The Panel has concluded that your misconduct is fundamentally incompatible with your continuing to be a registered medical practitioner. For the reasons set out, suspension is insufficient.

Accordingly, the panel has determined to erase your name from the Medical Register.”

In 2017 Dr Lamming applied for restoration to the Register. It is common ground that the onus of satisfying the Tribunal that his application should be allowed rested upon him. A hearing took place over a number of days, during which evidence was heard both in public and in private.

Dr Lamming provided two witness statements in support of his application (Appellant’s Bundle, p277 and p960). The following parts are relevant to the issues on this appeal.

In the first witness statement at para 2.4 Dr Lamming said that “it is my view-looking back on it now-that the issue with the GMC in 2007 and 2008 ultimately arose because I had not filled out the appropriate documentation at this stage.”

At paras 2.5 – 2.8 Dr Lamming said:

“2.5

Between January 2000 and November 2000, I continued to receive my net salary of £31,275.80 whilst abroad. The manner of employment and remuneration in the NHS can, at times, seem a somewhat overly-complex and convoluted method of paying someone, as I was actually employed by the Deanery, who then, in turn, nominated Leeds Teaching Hospitals NHS Trust to pay my salary. I inadvertently failed to disclose my continued pay-which I now realise was paid in error-to the relevant departments of the Trust.

2.6

I did not discuss matters with my former colleagues and peers in the UK nor did I wilfully receive my salary and conceal the true facts. I actually had no contact with the Deanery at all at that time. Such is my lack of contact with anyone in the UK, I gave my father a lasting power of attorney over my property and financial affairs while I was abroad. I was not dealing with my own accounts at the critical time. Some people may find it surprising that I deferred to my father in such a way, however, he was an important influence in my life. A copy of his obituary, which was published in The Independent, is at enclosure three and demonstrates just how influential he was [Professor Eric Lamming was a distinguished and well-known animal physiologist].

2.7

It is presumed that my father simply thought the payment in my account related to my work in the US. I did not really have any contact with him while I was abroad as he travelled a great deal and still ran two Agriculture and Food Research Council (AFRC) research groups as an emeritus professor and, in fact, I only contacted my father to ask for money to be transferred to me in the US on two occasions. The first was to buy a car and the second was for a deposit payment towards a rental home.”

Then, having referred to the fact that [REDACTED] and that his wife had returned to the UK and then broken off their marriage, Dr Lamming said at para 2.13:

“2.13

In or around November 2000, my estranged wife – who was by then in the UK while I remained in the US – wanted a home to live in and I was asked to pay for it. It was only at this stage that I turned my attention back to my finances in the UK and noticed that unusually large sums of money had passed through my account. However, by that stage my wife had withdrawn the majority of it and spent it. It was not the case that I was living a lavish lifestyle using the money received. My lifestyle was relatively frugal at the time and continued to be throughout the time I spent in America …”

Then, having described an unfortunate accident in which he was seriously injured, [REDACTED], he said at para 2.15:

“… I now appreciate that ... [REDACTED] in my lack of self-organisation, preventing me from dealing with my own bank accounts, from making sure that I knew where money was coming from and from taking an active role in managing my financial affairs.”

At paras 11.2 and 11.4 Dr Lamming said:

“11.2

… the issue which led to the erasure was never one of intentional dishonesty but of simply acquiescing to funds being placed in my account, [REDACTED]. I was unable to pay back the funds because, unbeknownst to me, my ex-wife had spent it. I was then unable to work because I was involved in an accident. Whilst I accept that I was at fault I also believe that I have been repeatedly unlucky, due to issues that were largely entirely out of my control.

…

11.4

… I am a passionate medic and the only reason that I am not still practicing relates to extraordinary issues that arose while I was in the US …”

It was the GMC’s case before the Tribunal that this account of events differed markedly from the account which Dr Lamming had given to the Fitness to Practice Panel in 2007, such that it both demonstrated both a continuing propensity for dishonesty and a lack of insight into his proven dishonest conduct. For example, as I have set out, in 2007 Dr Lamming’s evidence was that he had ‘probably’ learnt of the monthly salary payments into his UK bank account in January/February 2000. Consistently with this, in 2007 the Panel found that he had known that he was not entitled to receive the monies, for a substantial period of time, from about January – November 2000. But in 2017 in his statement his evidence was that he had not really paid any attention to his UK bank account, which was under his father’s control, and only really noticed the payment of his salary in November 2000 when he was told a large sum of money had gone from his bank account. Thus, cross-examination on behalf of the GMC focused principally upon these seemingly different versions of events.

The relevant parts of the hearing transcript are as follows.

At Appellant’s Bundle, pp88-89, Dr Lamming said that it was at the end of 2000 that his father drew his attention to his bank account and it was at that point that he had realized that a large sum of money (£31 000) had been withdrawn from his account by his wife (who was in the process of divorcing him). He said his father had been looking after his bank account whilst he was in the United States.

At p92 he said in answer to a question in his evidence - in - chief about whether he accepted that he was wrong in how he had behaved about the salary overpayment:

“Yes. I mean, I look back at it, as I do virtually every day of my life, and think how could I have done that. Whatever I did, it was wrong and, you know, I regret it and, you know, I regret the difficulty it caused, the trouble it caused everybody. I keep going back and saying I should have said I am leaving and for God’s sake do not pay me, go away, and at the time, you know, if I could back and change it, I would, every day, every second, but I cannot and I just … as I say now I have had a long, long time to reflect it. It was wrong. It was very wrong. I cannot say anything else other than that, other than that, you know, would I have the same opportunity again I would not do it. It hurts, it hurts inside, it is embarrassing and humiliating really that the situation got that severity that I could not – that I could not do anything about it and it got to the stage at which the Deanery rightly referred me to the GMC.

…

...we undertook to appeal not on the findings, which we accepted, I mean, everything was admitted or everything that was found proved was found proved and that I, you know, accepted and never wanted to change that …”

At p93 he said in answer to the question “When did you first realise that that money was being paid to you that you should not have ?”:

“It was not really until my father looked at the bank account then, which would have been about maybe a month or two months before the letter that the Deanery wrote to me was forwarded to me by him. Before that time, I just – I really did not take any notice of my affairs and I should have done.”

The initial contact from the Deanery was on 18^th December 2000 (Appellant’s Bundle, p650), so in this answer Dr Lamming was asserting that it was late 2000 and not early 2000 that he had realized that he had being receiving his salary whilst he was away.

Later, he said at p94:

“Q. This was not a matter, on your evidence, of you seeing the payment come through every month or so and say, ‘Oh, here is another payment and I will pocket that as well’? That is not what was happened ?

A.

No, I simply did not – I did not know it was happening until I –"

At p95 there was this exchange during evidence – in - chief:

“Q. When was the first time then that you were aware that – I will put it as neutrally as I can – a block of money had been paid into your account ?

A.

Around the end of 2000 when my wife sought to divorce me.

Q. How much was it by then, £31 000 ?

A. It was £31 000.

Q. So that is when you first realized ?

A. Yes.”

Cross-examination by counsel on behalf of the GMC began at p108 of the Appellant’s Bundle. He again confirmed in answer to a question that it was the end of 2000 that he had become aware of the erroneous payments. He then said the 2007 Panel “… found that I should have - I should have realized, I should have filled out the appropriate documentation and that brought the profession into disrepute because I …”. (pp110 - 111).

At p111 there was the following exchange:

“Q. Really, at this stage, at the end of 2000, other than failing to fill in a form as you point out, you had not actually done anything wrong, had you ?

A.

Well, yes, I had because I had not noticed that this money was being paid to me.”

At p111 he re-iterated the date of late 2000 as the date of his first knowledge of the overpayment, a point he made again at p113.

At p119 there was this exchange:

“Q. What you say today is you did not know about it until the end of 2000 ?

A.

But that was wrong. That was what I believed when I went to the hearing. I did not have any access to the information that the Regional Advisers did, which was actually transcripts of the conversations we had during the meeting. I misremembered it.

Q.

You knew about this money going into your joint bank account from January onwards, did you not ?

A.

From January ?

Q.

2000 onwards, did you not ?

A.

Yes, yes – not from January 2000 onwards. I knew in January 2001 when the –

Q. January 2000 you knew that this money was going into your account, did you not ?

A. Not in January because I had only just arrived.

Q. So you are going to maintain that it was until the end of 2000 ? (sic)

A. It was not until – I did not know it was going in until the –

Q. Until it had all gone out ?

A. – until my father told me.

Q. Yes, and said it had all gone?

A. Yes.”

At p126 Dr Lamming was asked about what the GMC said was the discrepancy in his accounts as to the date when he knew he was still being paid his salary in the United States. The transcript from 2007 was put to him:

At p131 he was again asked to account for the two different dates:

“Q. You cannot help us then with why you were telling the Tribunal in 2007 that you knew that you were receiving the monthly salary from January or February onwards ?

A.

Yes, because I had the facts then. The facts as stated to me is you were paid your monthly salary from X to Y and trying to explain why, in my own words, that occurred. I mean, the fact is occurred is a fact, I was paid every month. I did not find out about it until the end of the year. I did not know what to do with it when I found out about it. I should have known. I should have known beforehand. Even if I knew in January and had done something about it, I still – you know, it still would have been wrong, so it is …

Q.

The account that you have put forward today and in this witness statement of not knowing about this overpayment until November is not an account that you gave to the Tribunal in ’07 is it ?

A.

It is not exactly, but then I did not have …

Q.

It is not at all, is it ?

A.

I was doing my own representation there.

Q.

But you do not need representation or a law degree to know how to tell the truth ?

A.

No, no, but it is listening to the question put and answering it in an appropriate way, rather than what you think they are asking. I mean I tried to be – when I came up for the Tribunal in 2007, I was probably more combative than I should have been.”

The Tribunal’s written determination in in the Appellant’s Bundle at p243 et seq. Paragraphs 7 – 11 set out the background. Paragraph 13 set out the GMC’s case (which I deal with below in more detail). Paragraph 14 set out the submissions made on behalf of Dr Lamming. Paragraphs 18 – 23 set out the Tribunal’s approach, and that it was for Dr Lamming to satisfy the Tribunal that he was no longer impaired, fit to practice and be restored to the register. At para 23 the Tribunal directed itself that, contrary to the submission made on behalf of Dr Lamming, it was bound by the findings of fact made by the 2007 Panel. It said:

“The Tribunal therefore took the view that much of the evidence it had heard over the course of the second day of the hearing, and which contained inconsistencies between your current account and your account in the previous hearing, should be regarded as relevant to your insight and not as being determinative of matters of fact.”

The Tribunal went on at paras 30 – 34 (Appellant’s Bundle, p250):

“30.

The tribunal gave serious consideration to the reasons why your name was erased from the Register, and noted the determination of the 2007 Panel which stated ‘dishonesty runs to the very heart of the case’. The essential issues in this hearing were whether or not that dishonesty had been remediated, and whether or not you had insight.

31.

The tribunal gave very careful consideration to your evidence that you had not, until late in 2000, been aware of the payments you received from the Trust. This account was inconsistent with some of the evidence you gave to the 2007 Panel. Mr Wyn-Jones [for the GMC] invited the tribunal to conclude that your current evidence was untruthful and that this demonstrated that you still had a propensity to be dishonest. However, in accordance with its earlier decision not to re-litigate the facts found proved by the 2007 Panel, the tribunal gave far more weight to your responses to the questions put to you by the tribunal itself, which went to the issue of insight.

32.

You demonstrated a clear understanding of the nature of dishonesty, and whilst maintaining that you had never set out to defraud the Trust (a point which was accepted by the 2007 Panel), you recognised fully that your subsequent behaviour was dishonest. You also appreciated entirely that you were solely to blame, which had not been the case at an earlier stage of your life. You were ‘mortified’, humiliated, and deeply regretful for your behaviour at the relevant time. The tribunal felt that your evidence at that stage of the hearing was sincere and truthful.

33.

You have reflected and learned since your name was erased from the Medical Register, and you have recently completed a course entitled ‘Ethical Leadership: Character, Civility, and Community’, which the tribunal found to be of relevance. It was also reassured by the information you provided about the changes in your personal life, and the support networks you now have in place.

34.

Whilst the tribunal recognised that dishonesty is difficult to remediate, it has nonetheless concluded that the dishonesty found by both the 2004 Committee and the 2007 Panel had been remediated, and is highly unlikely to be repeated. In reaching that conclusion the tribunal was mindful of the finding of the 2007 Panel, that at the time of your dishonest behaviour, ‘you were in a very poor state of mind’. The tribunal is satisfied that this is no longer the case.” (p250).

Accordingly, the Tribunal directed that Dr Lamming’s name be restored to the register.

The applicable statutory and legal framework is as follows.

Restoration to the register is governed by s 41 of the 1983 Act. Where a doctor’s name has been erased from the Register then, once a period of five years has elapsed, the doctor can apply to the MPT for his or her name to be restored (s 41(1) and s 41(2)). When such an application is made, a Tribunal must be convened to determine it (s 41(3)).

Section 41(6) provides:

“Before determining whether to give a direction under subsection (1) above, a Medical Practitioners Tribunal shall require an applicant for restoration to provide such evidence as they direct as to his fitness to practise; and they shall not give such a direction if that evidence does not satisfy them.”

The procedure for the hearing before the MPT is contained in Rule 24 of the General Medical Council’s Fitness to Practise Rules 2004 (SI 2004/2608) (‘Fitness to Practice Rules’), as amended. Rule 24 provides, inter alia, that the applicant for restoration may address the MPT and adduce evidence and call witnesses in relation to any relevant matter, including his suitability for restoration to the Register.

Rule 24(2)(f) provides that after hearing all the evidence:

“… the [Medical Practitioners Tribunal] shall then consider and announce whether to grant or refuse the application, and shall give its reasons for that decision;”

The GMC’s right of appeal to this Court arises under s 40A of 1983 Act. Section 40A(3) and (4) provide:

“(3)

The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

(4)

Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a)

to protect the health, safety and well-being of the public;

(b)

to maintain public confidence in the medical profession; and

(c)

to maintain proper professional standards and conduct for members of that profession.”

By virtue of s 40A(1)(e) and 40A(2) a decision on an application for restoration to the Register is a ‘relevant decision’. The ‘relevant court’ for doctors whose registration address is in England and Wales is the High Court (s 40(5)).

On such an appeal, the Court may (s 40A(6)):

“(a)

dismiss the appeal;

(b)

allow the appeal and quash the relevant decision;

(c)

substitute for the relevant decision any other decision which could have been made by the Tribunal; or

(d)

remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,

and may make such order as to costs (or, in Scotland, expenses) as it thinks fit.”

The approach that I am required to take to the appeal is set out in CPR 52.21(3):

“(3)

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.”

In Yassin v General Medical Council [2015] EWHC 2955 (Admin), at para 32, Cranston J set out the relevant principles:

“(i)

The Panel's decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];

(ii)

The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin);

(iii)

The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;

(iv)

The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers: General Medical Council v. Meadow [2006] EWCA Civ 1390 [197], per Auld LJ;

(v)

The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, para 197, per Ward LJ;

(vi)

Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, para 47 per Leveson LJ with whom Waller and Dyson LJJ agreed;

(vii)

If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, supra, para [30](iii).

(viii)

Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall, supra, paras 55 – 56;

(ix)

A principal purpose of the Panel's jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46, para 19, per Laws LJ.”

It is not necessary for the purposes of this judgment to trace the development of the law relating to the duty to give reasons, interesting though that history is. The general common law position is that there is no duty imposed on all decision-makers to give reasons: Stefan v. General Medical Council [1999] 1 WLR 1293, 1300; de Smith, Judicial Review (7^th Edn), para 7 – 086. However, statutory provisions may require reasons to be given, and that is the position in relation to applications for restoration to the register: Rule 24(2)(f) of the Fitness to Practice Rules expressly requires reasons to be given, reversing the position at common law, see eg Dad v. General Medical Council [2000] 1 WLR 1538; R v. General Medical Council ex parte Salvi (1999) BMLR 167.

Where there is a duty to give reasons, the reasons must be adequate. As noted in de Smith, supra, at para 7-102, it is difficult to state precisely the standard of reasoning the court will demand when asked to scrutinize the adequacy of reasons given. The reasons must be intelligible and must meet the substance of the arguments advanced. In a passage which is often cited (see eg Ogango v. Nursing and Midwifery Council [2008] EWHC 3115 (Admin), para 23), the editors of de Smith say at para 7 – 102:

“In short, the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties, and must tell the parties in broad terms why they have lost or, as the case may be, won.”

Furthermore, reasons must not disclose errors of reasoning. As de Smith says at para 7-107 (citations omitted):

“Where reasons are required … They must therefore both rationally relate to the evidence in the case, and be comprehensible in themselves … a decision may be struck down where an applicant can show substantial prejudice resulting from a failure on the part of the decision - maker to demonstrate how an issue of law had been resolved or a disputed issue of fact decided, or by ‘demonstrating some other lack of reasoning which raised substantial doubts over the decision-making process’ or by indicating ‘the tribunal had never properly considered the matter … and that the proper thought processes have not been gone through.’”

A failure to give adequate reasons (or any reasons) may found a basis for an appellate court interfering: Flannery v. Halifax Estate Agencies Ltd [2000]1 WLR 377; English v. Emery Reimbold & Strick [2002] 1 WLR 2409. Decisions of GMC disciplinary tribunals have been quashed for inadequacy of reasons: see eg Cheatle v. General Medical Council [2009] EWHC 645 (Admin); Southall v. General Medical Council [2010] Civ 407.

When it is considering an appeal on the ground of what are said to be inadequate reasons, it is important to note that the appellate court can have regard to material outside the formal record of the reasons. For example, regard may be had to transcripts of evidence and the like, in order to deduce the meaning of a set of reasons and to determine their adequacy. In English, supra, at para 26 the Court said:

“26 Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this court, in the light of Flannery's case in Ludlow v National Power plc (unreported) 17 November 2000; Court of Appeal (Civil Division) Transcript No 1945 of 2000. If despite this exercise the reason for the decision is not apparent, then the appeal court will have to decide whether itself to proceed to a rehearing or to direct a new trial.

…

57 The judge could have explained the issue and his reasoning process in comparatively few words. It is regrettable that he did not do so and that it has taken the appellate process and the assistance of counsel who appeared at the trial to enable [2002] 1 WLR 2409 at 2424us to follow the judge's reasoning. Having done so we conclude that this appeal must be dismissed.”

In Phipps v. General Medical Council [2006] EWCA Civ 397, para 104, Arden LJ said:

“Secondly, the decision in  English v Emery Reimbold  does not encourage appeals on the grounds of adequacy of reasons: see for example paras. 30 and 53 to 57 of the judgment of the court. In my judgment the  English  case establishes that a decision of a court does not infringe article 6 or the common law on the grounds that the reasons are not spelt out if the reasons can be deduced from other sources to which reference may properly be made: see the judgment in the  English  case at the paras already cited and para. 26. Applying that to this case, to the extent that the issue was for example whether Mr Phipps' explanations for his misstatements were accepted, it seems to me that Mr Phipps can have little doubt that the reason why he lost is that the GMC found his explanations incredible in the light of the evidence and general matters of practice of which both would be aware.”

Ms Grey QC’s Skeleton Argument on behalf of the GMC contains a number of separate grounds of appeal, but to a large degree they are all variations on a theme. She argued that the Tribunal’s determination was inadequate and its approach was flawed, in that it did not address or reach proper conclusions on the central basis of the GMC’s case against Dr Lamming, namely that he still, in 2017, had a propensity to be dishonest, and that he lacked insight into his dishonesty such that his name ought not to be restored to the register.

The GMC’s case was that it had serious concerns that Dr Lamming’s account in 2017 of the events in 2000 that had led to his erasure differed materially from that which he had given to the Panel in 2007. That, said the GMC had relevance to both the question of his propensity to be dishonest and also to his insight. The GMC’s case was that he did not recognize or acknowledge the scope or gravity of the findings of dishonesty made, in respect of the events both in 2000, and also to the misstatement of his qualifications in his cv.

What the GMC said were major discrepancies in Dr Lamming’s account led the GMC to submit to the Tribunal that there had been a “sea change in this doctor’s account of what happened in the year 2000 with regards to these overpayments” (Appellant’s Bundle, Bundle pp204 - 205). In its Closing Submissions, it highlighted what it said was the doctor’s propensity to act dishonestly, based on the past events:

“Propensity to act dishonestly based upon the receipt of that salary, the March 2001 letter that you know about, the 2003 CV and emails that you know about, and, as the panel noted, a capacity to change his own account during evidence;’

And, its counsel asked rhetorically, (Appellant’s Bundle, p206):

“… the question, therefore, today is has that propensity to act dishonestly changed ? Has that been remediated in any way? Sadly, it is quite evident that it has not because his account he has put forward, to explain what happened in 2000, has changed dramatically from what he was saying on oath on the last occasion in 2007.”

The GMC submitted that, in essence, Dr Lamming had given an account to the Tribunal in 2017 which suggested that there was little or nothing dishonest in his past conduct, and argued that this raised two issues. Firstly, it demonstrated a ‘capacity to change his account when it suits him from what he was to say in 2005 and 2007 to this week, which must be of grave concern.’ Second, it implied ‘a complete lack of insight in him into his original offending, his original behaviour.’ (Appellant’ Bundle, p207).

Ms Grey QC criticized the Tribunal’s approach and reasoning in relation to the GMC’s case in paras 30 – 34 of its determination. She pointed out firstly, that in its determination the Tribunal accepted the advice of the Legal Assessor that the Tribunal had recognised at para 23 that there were, indeed, inconsistencies between Dr Lamming’s 2007 and 2017 accounts. However, said Ms Grey QC, despite those acceptances, in the core part of its reasoning at paras 31 to 34, the Tribunal nowhere addressed those inconsistencies. It did not identify them or evaluate them, to assess their extent and gravity. It did not address the Dr Lamming’s state of mind when giving evidence, and, specifically, the GMC’s submission that the inconsistencies in his account showed that he had a propensity to be dishonest. She said that it did not address the question of whether, if Dr Lamming was being dishonest with the Tribunal in 2017 about the nature and extent of his misconduct in 2000, this affected the Tribunal’s assessment of both (a) his trustworthiness, both in general and with regards to the weight that could be given to his evidence in other particulars; (b) his insight into the nature and gravity of the misconduct that had led to his erasure.

Thus, she submitted that the Tribunal’s decision is flawed and should be quashed and the matter remitted for a re-hearing.

On behalf of Dr Lamming, Mr Cooper QC began by pointing out some of the background, including that the matter was not referred to the GMC by the Trust for some considerable time, when Dr Lamming was making repayments but then stopped. He also submitted – and I accept – that Dr Lamming is a talented doctor whose clinical skills are not in doubt.

On the substance of the appeal he submitted that the assessment of the evidence was a matter for the Tribunal’s experience and expertise and that it was both entitled to reach the conclusions which it reached and, indeed, that it had been correct to do so.

He submitted that the Tribunal was best placed to evaluate the alleged inconsistencies in Dr Lamming’s evidence and to apply what weight they considered appropriate. He said that the inconsistencies were probed by counsel for the GMC and the Tribunal Chair in depth. He said the Tribunal was “eminently equipped” (Skeleton Argument, para 17) to undertake the task of considering whether Dr Lamming showed insight.

Mr Cooper QC submitted that the Tribunal had said enough; they identified the issues; they accepted the discrepancies; but said they were outweighed by the positive evidence it had heard

Mr Cooper QC submitted that the Tribunal rightly found that Dr Lamming’s conduct which had led to the findings of impairment were remediable; that it had been remediated; and it was highly unlikely to be repeated.

‘Remediation’ in this context means the addressing of concerns about a doctor’s conduct or behaviour through coaching, training, mentoring and rehabilitation (see the GMC’s Sanctions Guidance at para 31).

The starting point is to consider the reasons why Dr Lamming was found to be impaired in 2007 so that erasure from the register was found to be the appropriate sanction. I have set out they key parts of the 2007 Panel’s reasoning earlier in this judgment. Essentially, the Panel found: (a) that he had some insight into his actions and their consequences, but that the level of insight was insufficient; (b) that he had a propensity to be dishonest; (c) that it had rejected much of his evidence, which had changed on more than one occasion; (d) and that it was concerned that his dishonest actions amounted to a serious and deep-seated behavioural problem, leading to a risk of recurrence.

It seems to me, therefore, that the principal question which the 2017 Tribunal should have had at the forefront of its mind when considering whether Dr Lamming had satisfied the Tribunal that he ought to be restored to the register was whether the evidence which it had heard was sufficient to resolve each of these four issues in Dr Lamming’s favour.

As I hope that I have made clear, the GMC’s case against Dr Lamming in 2017 did not just concern events in 2000 relating to his salary and events in 2003 in relation to his cv, and whether they still justified a finding of impairment. Its case was based on what it said was his continuing behaviour in 2017 and his changed account of when he knew about the money into his account and his minimisation in his evidence of the seriousness of what he had done. In relation to date of knowledge, for example, although not precisely articulated in this way, the GMC’s case by implication was that Dr Lamming was seeking to minimise or lessen his dishonest conduct by claiming he only gained knowledge about his continuing salary in late 2000, shortly before the Trust contacted him, rather than knowing about it from early on in 2000 and then failing to do anything about it for nearly a year.

Given the nature of the GMC’s case, and because it involved an analysis of the very evidence which Dr Lamming gave in 2017 as compared with 2007, it seems to me that it was incumbent on the Tribunal to grapple with Dr Lamming’s various accounts and come to a conclusion about what had changed, and why it had changed. That the Tribunal understood and accepted that Dr Lamming’s account had changed is clear, because it expressly said so twice at paras 23 and 31. But it did not consider the inconsistencies in any detail – or at all - and did not reach any conclusions about the reasons for them. I have set out some of Dr Lamming’s answers in cross-examination and it is clear that he was unable to articulate a clear explanation for the differences which, in my view, were significant and substantial, responding at one stage (p127) that he could not explain the reasons for the change in his evidence. Among those changes were: the date of his first knowledge; whether or not he monitored his accounts, or simply left it for his father; what he thought the payments were for; and what his state of belief was when he gave his explanation to the Trust in March 2001.

In my judgment, before it could address the issues arising on the application (which I have set out above), the Tribunal needed to grapple with the evidence and reach findings about that aspect of Dr Lamming’s conduct which the GMC was relying upon. This is because only then could it have been able reliably to determine what impact on the question of propensity and insight that aspect of his conduct had. Having carried out that exercise, the conclusions may or may not have been adverse to Dr Lamming. But the Tribunal simply could not avoid the issue, because it went to the heart of the case and the reason why the GMC said that Dr Lamming should not be restored to the register and why his fitness to practise was still impaired.

This is all the more so because, as I have already noted, the Tribunal twice said that Dr Lamming had given inconsistent evidence as compared with his 2007 account (paras 23 and 31), and then said at para 32 in relation to his answers to the Tribunal’s questions, “The Tribunal felt that your evidence at this stage of the hearing was sincere and truthful” (emphasis added). This carries the clear implication that the Tribunal felt that Dr Lamming’s evidence at other times during the hearing had not been “sincere and truthful”. But if that were the case the Tribunal had, in my judgment, to confront that lack of truthfulness head on and consider and reach conclusions about its impact on the overall issues that it had to consider.

I also consider that the Tribunal needed to consider and address the assertions in Dr Lamming’s witness statement that “the issue which led to erasure was never one of intentional dishonesty but simply acquiescing to funds being placed in my account, while I found myself being frozen into inaction…” and that he had “inadvertently failed to disclose my continued pay ...” and the references to being the victim of events that were “largely out of my control” and of “extraordinary issues” that arose whilst he was in the USA (paras 11.2 and 11.3). These were, on their face, inconsistent with Dr Lamming’s seeming acceptance of dishonesty in his answers to the Tribunal’s question, and those inconsistencies needed to be addressed. Similarly, the terms in which he discussed the errors in his cv also minimized their seriousness and were inconsistent with a genuine acceptance of dishonesty; he spoke of a “sloppy” cv and a failure to check it, rather than of deliberate dishonesty, as the 2004 Panel had found. He also said his actions had been “inappropriate” (para 5.7). All of these could be regarded as having an important bearing on the question of his level of insight, but the Tribunal did not address them as they should have done.

In my judgment the Tribunal’s reasoning was plainly inadequate. Even when the transcript of evidence is analysed, it is impossible to determine what the Tribunal concluded in relation to the GMC’s case that there were major inconsistencies and potential continuing dishonesty in the evidence heard by it, and that Dr Lamming inappropriately minimised the gravity of his past conduct so as to demonstrate lack of remediation and lack of insight. Consistently with the legal principles I have set out, the GMC was entitled to know how the Tribunal had taken these matters into account when reaching its decision. The Tribunal’s reasons were plainly legally deficient.

I also consider that para 23 reveals a plain error which undermines the Tribunal’s conclusion. The Tribunal said:

“The Tribunal determined that it would accept the advice of the Legal Assessor, and that it would not re-litigate those matters of fact found proved by the 2007 Panel. The tribunal therefore took the view that much of the evidence that it had heard over the course of the second day of the hearing, and which contained inconsistencies between your current account and your account in the previous hearing, should be regarded as relevant to your insight and not as being determinative of matters of fact.”

It is the second sentence which I consider to be wrong. The inconsistencies were relevant to the questions of insight and of propensity and not just insight. Second, it was not being suggested by the GMC that Dr Lamming’s changed account was “determinative of matters of fact”. It was arguing that the fact of the inconsistencies was the relevant matter for the Tribunal to consider. But in any event the Tribunal did not go on to consider what impact the inconsistencies had on the question of insight.

In addition, it seems to me that the Tribunal’s reasoning in para 31 was erroneous in at least two ways. First, it was a non-sequitur for the Tribunal to say that because it had determined not to “re-litigate the facts found proved by the 2007 Panel”, it followed that it was not going to resolve one way or another the GMC’s submission that his 2017 evidence showed that he still had a propensity to be dishonest. Notwithstanding the 2007 Panel’s findings, and notwithstanding Dr Lamming’s evidence in 2007, it would still have been open to the Tribunal to consider and reach conclusions about the changes in his evidence and the reasons for them. Indeed, as I have said, it was crucial that they did so. To have done so would not have been acting inconsistently with an acceptance of the 2007 Tribunal’s findings. This, in essence, is one of the errors I have identified in para 23 of the Tribunal’s decision. Secondly, the Tribunal was wrong to say (if this is what they meant) that it was going simply to restrict its consideration to the question of insight: there were other questions too – including propensity - that they had to answer before they could determine reliably the question of whether Dr Lamming had proved he was fit to be restored the register.

Further, it seems to me that there is much force in Ms Grey QC’s submission that before the Tribunal could begin to assess what weight could properly be given to Dr Lamming’s evidence, and his answers about insight which so impressed them, it first had to engage with the issue of whether the inconsistencies that were apparent in his evidence demonstrated that he was not a trustworthy witness. His evidence was what led the Tribunal to order restoration, but their failures to consider the other matters I have identified meant that that determination was undermined in a fundamental way.

I have therefore concluded that the Tribunal’s reasons were legally inadequate and show that the proper thought processes were not gone through and that the Tribunal failed to address the issues they needed to address before they could reach a proper conclusion on the matter before them. The Tribunal’s decision is wrong and flawed. The appeal is allowed and the Tribunal’s decision is quashed. The matter will be remitted to a differently constituted Tribunal for re-determination pursuant to s 40A(6) of the 1983 Act.

I invite counsel: