Yusuff v General Medical Council

This is an appeal under section 40 of the Medical Act 1983 brought by Dr Olumide Yusuff against a decision of the Medical Practitioners Tribunal (the Tribunal) made on 25^th August 2017 when, following a review hearing, the Tribunal decided that Dr Yusuff’s fitness to practise remained impaired and that he should be suspended for a further period of 6 months. The appellant appeals against the finding of impairment and the sanction.

A further challenge to an order made on 4^th August 2017, when the review hearing was adjourned, which extended the previous period of suspension for two months was not, in the end, pursued. That order was made on a precautionary basis as the order was due to expire on 25^th August 2017. In fact, the review was completed on that date and the Tribunal said:

“[The order of 4^th August 2017] is no longer necessary. It has been superseded by the tribunal’s decision today to impose an order of suspension and therefore will not take effect.”

In the circumstances, I need say no more about that order.

The original disciplinary proceedings took place between September 2015 and March 2016. Dr Yusuff was found guilty of misconduct in relation to matters that occurred in July and August 2013, namely:

In finding that Dr Yusuff’s fitness to practise was impaired, the Tribunal stated that:

“It has not received any evidence that you have taken any steps to remediate your misconduct, or to suggest that you understand the seriousness of your actions. The Tribunal considers that you have not demonstrated any insight into your misconduct. Insight is crucial to the remediation of misconduct of this kind. The Tribunal therefore considers that there is a risk of repetition.”

At the sanction stage, the Tribunal considered that it was not possible to formulate conditions which would address the misconduct found proved. However, although there was evidence of some attitudinal problems, and a risk of repetition, the conduct was not fundamentally incompatible with continued registration. Dr Yusuff was suspended for a period of 12 months. It was suggested that the review Tribunal would be assisted by the following evidence:

The first review hearing took place on 24^th March 2017. Dr Yusuff said that he accepted the findings of the original Tribunal. However, the review Tribunal found that he had demonstrated insufficient understanding of the seriousness of the misconduct and that there was inadequate evidence of regret and insight. The Tribunal also felt that there was inadequate evidence that he had kept his medical knowledge up to date and noted that there was no objective evidence of participation in courses on record keeping and medical ethics. A further period of four months’ suspension was directed

“to allow you to gain genuine and full insight and thereby remediate your misconduct and to enable you to prepare for a review hearing.”

It was then suggested that a future Tribunal reviewing the matter would be assisted by:

The second review which led to the order under consideration commenced on 4^th August 2017. Shortly before the hearing, Dr Yusuff provided a statement and certificates confirming his completion of various online courses. Dr Yusuff gave oral evidence and was questioned on his statement.

At the adjourned hearing on 25^th August 2017, the Tribunal decided that Dr Yusuff’s fitness to practise remained impaired. The reasons for that finding can be broken down into two parts:

When considering the question of sanction, the Tribunal said:

“The Tribunal was mindful that you have now been suspended for a period of 21 months. The Tribunal has noted that, on paper, you express remorse for your actions, but on questioning during oral evidence, you failed to articulate your reflection convincingly. During your period of suspension, despite repeated requests, you have not provided satisfactory evidence which would suggest that you have made sufficient progress in acquiring the required level of insight [into] the misconduct which was found proved and its effects.”

The Tribunal determined that a period of 6 months’ suspension would be sufficient to allow Dr Yusuff to gain genuine and full insight, and thereby remediate the misconduct, and to enable him to prepare for a review hearing.

There are six grounds of appeal, summarised as follows:

The skeleton argument filed on behalf of the appellant identifies a number of matters to which it is said the Tribunal attached little or insufficient weight. In his oral submissions, Mr Hockton indicated that he relied primarily on ground a., that the finding of impairment was wrong. His secondary position was that, suspension for a further period of six months was excessive, even if the Tribunal was right to find that Dr Yusuff’s fitness to practise remained impaired.

In reaching my decision, I have considered all matters set out in the Grounds of Appeal, skeleton arguments and oral submissions of both Counsel.

The Tribunal was reviewing the appellant’s suspension under the regime prescribed by section 35D of the Medical Act 1983. Under section 35D(5), the Tribunal may on review extend the suspension; order erasure from the register; impose conditions or revoke the suspension.

The procedure to be adopted on a review is set out in Rule 22 of the GMC Fitness to Practice Rules 2014. In Abrahaem v GMC [2008] EWHC 183 (Admin), Blake J described the procedure as “an ordered sequence of decision making”. The Tribunal must first address whether fitness to practise is impaired before considering further sanction. In doing so:

“the review has to consider whether all the concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Tribunal’s satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”

The Sanctions Guidance issued to tribunals provides further direction in relation to review hearings:

“163.

It is important that no doctor is allowed to resume unrestricted practice following a period of conditional registration or suspension unless the tribunal considers that they are safe to do so.

164 In some misconduct cases it may be self-evident that, following a short suspension, there will be no value in a review hearing. However, in most cases where a period of suspension is imposed, and in all cases where conditions have been imposed, the tribunal will need to be reassured that the doctor is fit to resume practice – either unrestricted or with conditions or further conditions. A review hearing is therefore likely to be necessary, so that the tribunal can consider whether the doctor has shown all of the following (by producing objective evidence):

a.

they fully appreciate the gravity of the offence

b.

they have not reoffended

c.

they have maintained their skills and knowledge

d.

patients will not be placed at risk by resumption of practice or by the imposition of conditional registration.”

At paragraph 51 of the Sanctions Guidance, Tribunals are informed that it is important to consider insight, or lack of, when determining sanctions. Paragraph 52 makes the following observations:

“A doctor is likely to lack insight if they:

a.

refuse to apologise or accept their mistakes

b.

promise to remediate, but fail to take appropriate steps, or only do so when prompted immediately before or during the hearing

c.

do not demonstrate the timely development of insight

d.

fail to tell the truth during the hearing”

It would be wrong to equate maintenance of innocence with a lack of insight. However, continued denial of the misconduct found proved will be relevant to the Tribunal’s considerations on review. As paragraph 52 of the Sanctions Guidance makes clear, refusal to accept the misconduct and failure to tell the truth during the hearing will be very relevant to the initial sanction. At the review stage, things will have moved on. The registrant may be able to demonstrate insight without accepting that the findings at the original hearing were true. The Sanctions Guidance makes it clear that at a review hearing the Tribunal is to consider whether the doctor has fully appreciated the gravity of the offence and must be satisfied that patients will not be put at risk if he resumes practice. A want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment. See Karwal v GMC [2011] EWHC 826 (Admin) at paragraph 11 and Irvine v GMC [2017] EWHC 2038 (Admin) at paragraph 83.

In Amao v Nursing and Midwifery Council [2014] EWHC 147, the unrepresented registrant appeared before a disciplinary panel and was found to have committed misconduct involving aggression towards colleagues. At the impairment stage, she was then cross-examined as to whether she agreed with the panel’s findings on each of the factual allegations. The legal adviser made it clear that it would not be proper to seek to get Ms Amao to admit things which she had previously denied but that she could be asked whether she accepted the panel’s findings. The questioning then continued in a manner described by Walker J as focusing relentlessly on past conduct and causing confusion for a litigant in person. The judge said that Ms Amao was perfectly entitled to say that she did not accept the findings of the panel. Walker J thought it was

“inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied she would be acting improperly if she did not “accept the findings of your regulator.”

The reality was that she did not have an appreciation of the real nature of the case that she had to meet in relation to impairment, namely that it was not just past conduct that was relevant but also her insight into what could be done in the future to prevent repetition.

I conclude having reviewed all the relevant authorities that at a review hearing:

An appeal under section 40 of the Medical Act 1983 is by way of rehearing but as Foskett J observed in Fish v General Medical Council[2012] EWHC 1269 (Admin) at [28]:

"it is a rehearing without hearing again the evidence".

This Court will allow an appeal where the decision of the Tribunal was "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings" (CPR 52.11(3)).

I was provided with a fairly substantial bundle of authorities and Mr Hockton referred to the line of cases dating back to the time when the appellate jurisdiction was exercised by the Privy Council. I am not sure it was necessary to go through them in quite so much detail. The principles applying to appeals to this Court are very well known and there is no significant dispute between the parties as to the approach to be adopted.

It is well established that the court should give proper deference both to the Tribunal's specialist nature and to the fact that the Tribunal has the advantage of seeing and hearing witnesses give evidence. I have in mind the much quoted passage from the judgment of Auld LJ in Meadow v General Medical Council [2006] EWCA Civ 1390 [2007] QB 462, [197]:

"... 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 over-all value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers."

Further, I also bear in mind that in the recent case of Professional Standards Authority v The Health and Care Professions Council and Doree [2017] EWCA Civ 39, Lindblom LJ said at paragraph 38:

“Whether a registrant has shown insight into his misconduct, and how much insight he has shown, are classically matters of fact and judgment for the professional disciplinary committee in the light of the evidence before it. Some of the evidence may be matters of fact, some of it merely subjective. In assessing a registrant's insight, a professional disciplinary committee will need to weigh all the relevant evidence, both oral and written, which provides a picture of it.”

Equally, it is clear that the Court can and will interfere to correct material errors of law and fact and will exercise its own judgment as to the application of the principles to the facts of the case (see Raschid and Fantani v GMC [2007] EWCA Civ 46; [2007] 1 WLR 1460 at paragraph 20). The Court will also intervene if there has been some material unfairness in the proceedings before the Tribunal.

As I have indicated, the Tribunal had a written statement from Dr Yusuff and copies of certificates from courses he had undertaken. Dr Yusuff gave oral evidence and was questioned by Mr Hockton, by Counsel for the GMC (who was not Mr Mant) and by each member of the Tribunal.

I have carefully considered Dr Yusuff’s statement and the transcript of his oral evidence in full, although I will not quote extensively from the evidence.

The thrust of the appellant’s statement was that he had reflected on the events that led to his suspension and that he felt “deeply ashamed” of his actions and apologised unreservedly. He stated that he understood the impact his actions and behaviour will have had on others and expressed “considerable remorse” for acting in the way that he did. He then highlighted the serious consequences of his suspension for him and his family and said that he would always conduct himself properly in the future. Dr Yusuff then listed the courses he had attended and summarised his learning from them and explained how he had kept his medical knowledge up to date. He also suggested that chronic stress caused by an excessive workload may have contributed to the misconduct. At the relevant time, he was working in a locum Senior House Officer role although he had previously been a Registrar. He concluded his statement by suggesting that he wished to return to work as a Registrar and “not partake in any SHO shifts which contributed to these situations in the first instance”.

It is fair to say that the statement lacked detail in many respects. It was notable that Dr Yusuff had previously denied the allegations against him. From his statement, it appeared that he was now admitting the misconduct. However, he had not clearly stated that he now accepted the truth of the findings against him. There was nothing to explain his apparent change of heart and no explanation as to how he had developed remorse. There was limited detail as to how he had reflected on and applied his learning from the courses he had attended to his own situation.

It is difficult to assess things like remorse and insight on paper. The statement may have reflected genuine sentiments on the part of Dr Yusuff. On the other hand, it could be seen as perhaps containing stock phrases simply reciting that which the previous review had indicated would assist. I am not at all surprised that Counsel for the GMC and the Tribunal members wished to explore what lay behind Dr Yusuff’s expressions of remorse and shame.

It emerged from questioning that the appellant did not in fact admit to the misconduct although he respected the Tribunal’s findings and did not wish them to be reopened. That put him in something of a difficult position, but the difficulty was largely of his own making. He had chosen to express remorse and shame for his actions (not simply for the position he found himself in) with a view to demonstrating his insight. At the same time, it was apparent that he wished to maintain his original denials. Mr Mant says that was disingenuous. It was certainly inconsistent. Genuine remorse and shame for his conduct would necessarily have involved accepting the misconduct but he was not doing so.

Mr Hockton complains that Dr Yusuff was subjected to “a somewhat unfair line of questioning from the GMC and tribunal”. In relation to the cross-examination, he says “Both the manner and the content of the questioning were somewhat harsh and aggressive.” The questioning by the Tribunal is described as “Kafkaesque”, adopting the description used by Walker J in Amao. It is suggested that Dr Yusuff should not have been subjected to further questioning about the original allegations and as to whether he accepted the findings when he had made it clear that he did not seek to go behind the findings of fact.

The questioning of Dr Yusuff was probing and fairly lengthy. Mr Hockton suggested that the cross-examination was hostile from the start. My view, having considered the transcript, is that the cross-examination did not cross the line into impropriety but it might have been done better. It perhaps would have been sensible to establish at the outset whether or not the doctor accepted the truth of the findings and then to frame the remainder of the questions based on his answer. It is, in my judgment, important for those representing the GMC to recognise that the doctor should be given a fair opportunity to demonstrate his insight into the gravity of the offending and his remediation.

I consider that Counsel may have taken an overly adversarial approach given the nature of the proceedings. However, I would not wish to be seen to be criticising him too strongly. There is no doubt that he was entitled, and indeed required, to probe what Dr Yusuff had said in his statement and not simply to take it at face value. I am conscious that Counsel who appeared below did not appear before me and so I have not heard any representations from him. It may also be unfair to be critical without having been present at the hearing and seen how Dr Yusuff gave his evidence. It is very clear that the Tribunal had concerns about the lack of clarity as to his position. I sense that there may very well have been a degree of frustration that it was difficult to get a straight answer from Dr Yusuff.

In any event, I am satisfied that the legally qualified Tribunal Chair maintained proper control of the cross-examination and did ensure that Dr Yusuff was able to give his evidence in a way that was fair to him. For example, he made sure that Dr Yusuff understood that he was being given an opportunity to accept his misconduct or not but was entitled not to answer the question. Once Dr Yusuff had been given the opportunity to make any admissions or comments on the findings, Counsel was asked to move on. Unlike in Amao where the registrant was confused and did not appreciate the case she had to meet, it is apparent from the transcript that Dr Yusuff well understood what he was being asked and was given a fair opportunity to respond to the cross-examination. The real difficulty, it seems to me, was the inconsistency between his non-admission of the misconduct and his expression of genuine remorse over it. That, as I have said, was a difficulty he created.

The responses from Dr Yusuff were evasive, lacking in clarity and detail and at times rather odd. By way of one example, he was asked a perfectly proper question about evidence in his statement about a course on sexual assault. He said that this had assisted in relation to the sexual misconduct towards his colleague and that he had noted the “salient points”. He was asked what those salient points were. Far from a summary of the key learning points, he responded with a garbled response about psychoanalysing the female, psychoanalysing the male and understanding “how the human body is turned the way you do not want it”. Even allowing for English not being Dr Yusuff’s first language it is very hard to discern that he had properly understood the importance of acting with total propriety in all dealings with colleagues.

I find the transcript of Mr Hockton’s re-examination of Dr Yusuff illuminating. It appears that Dr Yusuff was led to some degree in order to obtain evidence that he appreciated that the misconduct found against him would have had an impact on others. He did volunteer that being dishonest with colleagues would impact on patient care. When asked about the impact on the other doctor though he again was vague until Mr Hockton was driven to say “Focus on the question. What impact does it have?” That rather suggests that even his own Counsel recognised there were some gaps in his evidence.

Following that exchange, the Tribunal put their questions to Dr Yusuff. The questioning has to be seen in light of the lack of clarity in what Dr Yusuff had said up to that point. Mr Somerville, who I believe was the lay member, began. For my part, I have some discomfort about his line of questioning. Again, though I do not intend to be too critical. I note that Mr Hockton did not object to the questions and the Chair (who had intervened during the cross-examination) did not stop them. Mr Somerville was not framing his questions as a lawyer might. He made it clear his questions were addressed to one discrete area. His concern is summed up in his second question where he asked “Can I understand why you feel ashamed of actions which you may or may not feel actually happened?” It is clear that what he was driving at was whether or not the expressed remorse and shame were genuine. The answers he got from Dr Yusuff were again somewhat confusing. This then led Mr Somerville to ask directly about the findings and whether Dr Yusuff accepted he had acted dishonestly and/or in a sexually inappropriate way.

The medical member, Dr Thomas, then asked questions about how the training Dr Yusuff had undertaken related to the misconduct found against him. That was entirely proper. She then picked up on the rather odd comment about the difference between men and women but Dr Yusuff’s response did not provide any sensible clarification. She then asked how Dr Yusuff thought that returning to work as a Registrar rather than a SHO would help. He responded that he was more comfortable as a Registrar and suggested he would be under less pressure. In the course of final submissions, Dr Thomas also asked some questions about the training Dr Yusuff had undertaken to elicit the detail of what he had done. I do not consider any of the questions from Dr Thomas to have been inappropriate or unfair.

The Chair, Mr Moulder, limited himself to a few questions to see whether Dr Yusuff understood how the complainants felt about his misconduct. Again, I see nothing inappropriate about that.

I suggest it would have been preferable to avoid questioning that may have appeared to have been reopening issues dealt with at the original hearing. Some of Mr Somerville’s questions may have fallen into that category. However, I have to ask myself whether any of the questioning created material unfairness. Looked at as a whole, I do not consider it did.

Dr Yusuff was given a fair opportunity to explain his position, to demonstrate insight into the gravity of the offending and to explain the steps he had taken by way of remediation.

At the previous review, the Tribunal had made it clear that they did not think the witness statement before them demonstrated adequate understanding of the seriousness of the misconduct or any actual examples of how understanding had been developed. They highlighted generic comments from the statement and the absence of detail (see paragraph 27 of the decision of 24 March 2017).

In my judgment, the lack of clear evidence as to Dr Yusuff’s understanding and remediation did not result from any unfairness in the questioning but rather reflected his inability to give such evidence. His attempt to express remorse and shame without admitting the misconduct may have contributed to this.

Insofar as Ground a. alleges that the finding of impairment was unjust as a result of some serious procedural irregularity or other unfairness in the hearing, I reject that. I must go on to consider whether the decision that Dr Yusuff’s fitness to practise was impaired was ‘wrong’.

The finding that Dr Yusuff had provided inadequate evidence of keeping his knowledge and skills up to date was at first glance surprising as the GMC appeared to concede that the evidence of the courses he had attended was sufficient. However, the question of whether Dr Yusuff had maintained his skills and knowledge during his suspension remained one for the judgment of the specialist tribunal. They gave clear reasons for their decision, noting that the training consisted of 17 online courses attracting 14 CPD points and that it was not accompanied by any meaningful reflection. That finding was justified on the evidence.

The Tribunal also expressed concern about Dr Yusuff’s expressed desire to return as a Specialist Registrar following his extended absence from clinical practice, having not undertaken any form of clinical attachment. Mr Hockton is critical of that on the basis that the previous review had not suggested that a clinical attachment was necessary. However, it seems to me that the Tribunal’s concern was entirely justified. Dr Yusuff’s evidence to the effect that he would be under less pressure in the more senior post is worrying. After a reasonably lengthy absence, he would need to satisfy himself as well as the Tribunal that his knowledge and skills are sufficiently up to date to meet the responsibility of a senior role.

The finding that Dr Yusuff’s oral evidence was evasive and inconsistent is unassailable, in my judgment. I agree with it. Having dismissed the suggestion that the questioning was materially unfair, I find no reason to interfere with the judgment of the Tribunal that Dr Yusuff’s insight was partial, limited and somewhat superficial. In the circumstances, there is no basis for concluding that their decision of impairment was wrong.

Even had I concluded that there had been some unfairness in the questioning such as to vitiate the decision on impairment, I would not have felt able to conclude on the evidence I have seen that Dr Yusuff has discharged the “persuasive burden” on him to demonstrate that the previous concerns had all been satisfactorily addressed. In the circumstances, had I been inclined to quash the decision on impairment I would have remitted to a new Tribunal for the decision to be remade. In practical terms, it may be that this would not have resulted in reconsideration at a much earlier stage than the next review hearing.

When the matter is next reviewed, the Tribunal will need to be careful not to fall into the trap of questioning Dr Yusuff in detail or at length about matters he denies. No doubt, Dr Yusuff can assist the process by being clear and direct as to his position. If the reality is that he maintains his denials, expressions of remorse and shame are unlikely to be viewed as genuine evidence of insight and remediation.

The remainder of the grounds of appeal are directed towards the suspension. It is said that this was wrong and disproportionate; that it failed to balance the public interest with the appellant’s interests and to have regard to the public interest in allowing otherwise competent doctors to return to practice. It is suggested that conditions of practice should have been imposed rather than a further period of suspension. Alternatively, the suspension should have been for less than 6 months.

In the skeleton argument ten factors are set out to which it is said little or no weight was given. I have considered all those matters and looked at the question of sanction in the round.

It is right that Dr Yusuff had already served a fairly lengthy period of suspension. It is also fair to note that, without in any way trivialising it, his misconduct was not at the most serious end of the range. It had occurred during a limited period. There was no suggestion of prior misconduct or of repetition afterwards (albeit Dr Yusuff worked only for limited periods under conditions). The doctor had suffered severe consequences as a result of being unable to work which had impacted on his family. It might be thought that this will bring home to him the seriousness of what happened and play some part in his future conduct.

As the Sanctions Guidance makes clear, sanctions are not imposed to punish or discipline doctors although they may have a punitive effect. Proportionality requires the Tribunal to weigh the interests of the public against those of the doctor. However, the main reason for imposing sanctions is to protect the public and if the Tribunal determines that a certain sanction is necessary to protect the public, that sanction must be imposed even where it leads to difficulties for a doctor. There is a public interest in allowing competent doctors to return to practice but only when it is safe for them to do so. That is the very thing the Tribunal had to consider at the review.

Having found impairment, the Tribunal were bound to consider sanctions, working upwards from the least restrictive option. On the basis that the finding of impairment was valid, Mr Hockton does not contend that Dr Yusuff should have been allowed to return to unrestricted practice. He submits that conditions of practice should have been imposed or that a lesser period of suspension should have been ordered.

The Tribunal concluded that conditions would not be workable given the doctor’s continuing lack of insight and absence of full engagement with the recommendations made by the original Tribunal and at the first review. This was a judgment that the specialist Tribunal were entitled to reach on the evidence before them. They had proper regard to the Sanctions Guidance and their approach was unimpeachable.

There is nothing within any of the grounds of appeal or the additional matters set out in the appellant’s skeleton argument that allows me to interfere with the judgment of the Tribunal in relation to the further suspension. The Tribunal were entitled to be concerned about the continuing lack of insight which they had found in light of the appellant’s oral evidence. Further, their concern about the extent to which he had kept his skills and knowledge up to date was not unreasonable and was relevant to sanction. In those circumstances, they were entitled (indeed bound) to order a further period of suspension.

The period of suspension was longer than had been imposed at the last review. In the context of Dr Yusuff apparently having not been able to demonstrate sufficient insight and remediation in the four months provided for at the first review, it was not unreasonable to make the period longer on this occasion. The suspension was not designed to further punish Dr Yusuff but rather to offer further opportunity for genuine insight and remediation.

The total period of suspension which Dr Yusuff has now served may be seen as harsh viewed solely as a punishment and from his perspective. However, that is not the correct viewpoint. The Tribunal having adopted the correct approach, having regard to the Sanctions Guidance and the ordered decision-making required of them, cannot be said to have been wrong in imposing a further period of suspension for 6 months.

It follows from what I have said, that I see no basis for overturning the decisions of the Tribunal in relation to impairment or sanction. The review hearing was not unfair and all conclusions reached were open to the Tribunal on the evidence.

This appeal therefore fails and is dismissed.