Al Nageim v General Medical Council

The Appellant’s perfected grounds of appeal are as follows.

The direction of erasure was unjust given the following circumstances of serious irregularity:

In addition to these matters, the direction of erasure was wrong given that:

Developing these grounds on behalf of the Appellant, Mr Ivill submitted that the Tribunal fell into error by failing to take into account the lapse of time since the Appellant’s most recent misconduct (by December 2020, five and half years since his last payment in April 2015). He said, per [25(e)] of the Sanctions Guidance, this was a powerful mitigating factor.

Next, he said the Tribunal had been wrong to say there had been no independent or objective evidence of the Appellant’s personal hardship in caring for his sick mother at the relevant time. There had been such evidence [pp142-3; pp149-150], which had been referred to, but in any event even if there had been no such evidence, this was not an aggravating factor.

Mr Ivill also said that what the Appellant had done in relation to his salary was an act of omission rather than commission, and that this had been the joint position of the parties. He said the Tribunal had been wrong not to accept this point. What the Appellant had done was fail to alert the Royal Liverpool Hospital that he was still being paid. He had not done anything to procure the payments. He said the Tribunal had therefore mischaracterised the Appellant’s misconduct in a way that made it more serious than it was.

Next, Mr Ivill submitted that the Tribunal’s acceptance in [19] of its sanction determination that it had not been the Appellant’s intention to be dishonest should have been a factor which impacted his level of culpability. He said that, given this finding, erasure was a disproportionate sanction.

It was further submitted that the Tribunal had wrongly treated what it found to have been the Appellant’s lack of honesty in giving evidence, and the fact it had not believed him (see at [41]) as an aggravating factor, despite [52(d)] of the Sanctions Guidance, which provides that ‘a doctor is likely to lack insight’ if they:

“(d)

fail to tell the truth¹⁴ during the hearing (see paragraph 72 of Good medical practice).”

Footnote 14 states: ‘This includes being dishonest or misleading.” Paragraph 72 of Good medical practice provides:

“72.

You must be honest and trustworthy when giving evidence to courts or tribunals.²⁸ You must make sure that any evidence you give or 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.”

Footnote 28 provides: ‘Acting as a witness in legal proceedings (2013) GMC, London.’

In support of this submission, Mr Ivill relied on General Medical Council v Awan [2020] EWHC 1553 (Admin), [38], where Mostyn J said:

“It seems to me that an accused person has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or an enhanced sanction.”

Mr Ivill argued that the Tribunal had referred to there being a lack of honesty in the Appellant’s evidence as part of its decision that his actions were fundamentally incompatible with continued registration (p56, [41]). This suggests that the effect of it not believing his account was a factor that resulted in their decision to impose the enhanced sanction of erasure.

Finally, in an overarching submission, Mr Ivill said that erasure was, in all the circumstances, a disproportionate sanction given that: the Appellant had no previous adverse findings and excellent references; the Tribunal accepted ([28]) that he had developed a sufficient understanding of and insight into the gravity and impact of his actions; he had apologised and was remorseful; and there were now effective and demonstrable workable steps taken to formulate strategies to avoid any repetition.

On behalf of the Respondent, Mr Mant began by emphasising the caselaw to the effect that dishonesty by a professional lies at the top end of the spectrum of gravity of misconduct (see, eg, General Medical Council v Theodoropolous [2017] EWHC 1984 (Admin), [35]), and that where dishonest conduct is combined with a lack of insight, is persistent, or is covered up, nothing short of erasure is likely to be appropriate (see, eg, Naheed v General Medical Council [2011] EWHC 702 (Admin), [22]). He said that even one-off episodes of dishonesty may justify erasure: Nicholas-Pillai v General Medical Council [2009] EWHC 1048 (Admin), [27]. He referred me to the well-known passage in the judgment of Sir Thomas Bingham MR (as he then was) in Bolton v Law Society [1994] 1 WLR 512, 519, to the effect that because orders made by professional disciplinary tribunals are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. He also referred to [124] of the Sanctions Guidance, which states that dishonesty related to matters outside the doctor’s clinical responsibilities (including fraudulent claims for monies) is particularly serious because it undermines the trust which the public places in the medical profession, and that evidence of clinical competence cannot mitigate serious and/or persistent dishonesty.

Mr Mant said that applying these principles, the sanction of erasure was plainly open to the Tribunal, and its decision could not be characterised as wrong. That was because the dishonesty was serious and persistent; the Appellant continued to lie about his state of knowledge; and he showed no insight into those lies. The Tribunal properly applied the Sanctions Guidance and took into account all relevant considerations. There are no grounds for interfering with its specialist judgment about what sanction was required in these circumstances to maintain public confidence and standards and conduct for the profession.

In relation to lapse of time, Mr Mant said that the Tribunal had been well-aware of this factor because in its decision it had referred to the ‘historic’ nature of the allegations. He said that how it was weighed was a matter for the Tribunal, and that it was not capable of affecting the inherent seriousness of the Appellant’s dishonesty. He also pointed out that the Appellant was responsible for at least some of the delay because although he received

On the second matter relied on by the Appellant, namely the Tribunal’s categorisation as aggravating the absence of independent evidence about his personal difficulties, Mr Mant accepted that this was not, ‘strictly speaking’, an aggravating factor, but that this was a harmless error in that there was only limited evidence from friends and family (and not, for example, from occupational health), and it could not justify the Appellant’s persistent dishonesty over a period of years.

On the omission/commission point, Mr Mant said this was just a question of semantics and that reading the Tribunal’s decision as a whole, there was no misdirection of fact. It had been correct to say that to describe what the Appellant had done as being ‘omission’ was not ‘entirely accurate’. The Appellant had chosen not to tell the Royal Liverpool Hospital about his erroneous salary payments. Further, on any view his conduct in

In relation to the fourth matter relied on by the Appellant, namely the Tribunal’s assessment that he genuinely believed he had not been dishonest, Mr Mant said that the Tribunal had given careful consideration to the Appellant’s state of mind in its assessment of insight and remorse, and the weight to be attached to these matters in deciding sanction was primarily a matter for the Tribunal.

Next, on the question of the Appellant’s evidence before the Tribunal, Mr Mant submitted that lies by a practitioner, particularly in a dishonesty case, are plainly relevant to the sanction appropriate to mark the seriousness of the misconduct in the public interest. He said that the Registrant’s dishonest evidence compounded the original dishonesty and constituted a distinct breach of [72] of Good medical practice (see above). Mr Mant relied on Nicholas-Pillai, supra, [15]-[21], where Mitting J suggested that lying on oath could be taken into account in the determination of sanction, and that Hooper LJ in refusing permission to appeal had said the same: [2009] EWCA 1516, [8] (‘The fact that he continues before the panel to give dishonest evidence about what had happened must compound the original dishonesty and be a factor which a panel is entitled to take into account.’)

Finally, Mr Mant submitted that the suggestion that erasure was a disproportionate sanction was not sustainable. He said the Appellant’s dishonesty had been grave and persistent and he had lied to the Tribunal. Any lesser sanction would not have been sufficient to maintain public confidence and uphold standards and conduct for the medical profession.

Section 40 of the MA 1983 provides a right of appeal to the High Court against a sanction imposed by the Tribunal. By virtue of CPR PD52D, [19.1], appeals under s 40 are by way of re-hearing. However, such an appeal 'is a re-hearing without hearing again the evidence': see Fish v General Medical Council [2012] EWHC 1269 (Admin), [28]. The test I have to apply is contained in CPR r 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.”

The correct approach to an appeal against sanction was set out by Mostyn J in Awan, supra, [4]-[13], and is not contentious. The following summary is adapted from that judgment.

When exercising its functions through its disciplinary Tribunal (and generally) the GMC is fixed with the over-arching objective of the protection of the public (see s 1(1A), MA 1983). The pursuit of that objective involves the pursuit of the objectives of protecting, promoting and maintaining the health, safety and well-being of the public; promoting and maintaining public confidence in the medical profession; and promoting and maintaining proper professional standards and conduct for members of that profession (see s 1(1B)).

Therefore, when exercising its disciplinary functions, the overarching objective of the Tribunal is the protection of the public. Thus, a sanctions decision is not penal. Rather, it is motivated only by the need to protect the public. But the decision is not narrowly confined to protecting the health and safety of the public. It extends to maintaining public confidence in the reputation of the medical profession and the need to promote and maintain high professional standards and conduct of its members. Thus, in General Medical Council v Meadow [2007] 1 QB 462, [32], Sir Anthony Clarke MR said:

“The purpose of FTP [fitness to practice] proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP [Fitness to Practice Panel] thus looks forward not back. However, in order to form a view as to the fitness of a person to practise today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past.”

A decision on sanction is an evaluative judgment: Bawa-Garba v General Medical Council [2019] 1 WLR 1929, [60]. Where such a judgment is formed after hearing oral evidence then it is particularly difficult to challenge on appeal: Beacon Insurance Company Ltd v Maharaj Bookstore Ltd [2014] 4 All ER 418, [16]-[17]. At [17] Lord Hodge said:

“Where a judge draws inferences from his findings of primary fact which have been dependent on his assessment of the credibility or reliability of witnesses, who have given oral evidence, and of the weight to be attached to their evidence, an appellate court may have to be similarly cautious in its approach to his findings of such secondary facts and his evaluation of the evidence as a whole.”

He cited Biogen Inc v. Medeva Plc [1996] UKHL 18, [54]:

“The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, ‘La vérité est dans une nuance’), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

The need for appellate caution is further enhanced where the decision has been made by a specialist tribunal. In Bawa-Garba, supra, [67], the Lord Chief Justice said:

“That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts.”

Such caution must be exercised whether the conduct in question relates to a clinical error or misjudgement on the part of the respondent or whether it relates to personal conduct by the respondent unrelated to his/her work as a doctor. In Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64, [36], Lord Wilson said:

“An appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence. In a case such as the present, the committee's concern is for the damage already done or likely to be done to the reputation of the profession and it is best qualified to judge the measures required to address it …”

In making that observation Lord Wilson drew no distinction between cases of clinical error and those of non-clinical personal misconduct. The misconduct in that case, domestic violence, was unrelated to Mr Khan's competence as a pharmacist.

As Mostyn J observed in Awan, supra, [10], plainly the degree of caution or diffidence depends on the subject matter of the charges, but it cannot be disputed, as a general principle, that caution, to a greater or lesser degree, must be exercised whatever the subject matter.

The next point made by Mostyn J was that the Sanctions Guidance is only that – guidance - and that it ‘provides signposts to a possible destination rather than a fixed track leading to an inevitable terminus.’. He referred to Bawa-Garba, supra, [83]:

“The Sanctions Guidance contains very useful guidance to help provide consistency in approach and outcome in MPTs and should always be consulted by them but, at the end of the day, it is no more than that, non-statutory guidance, the relevance and application of which will always depend on the precise circumstances of the particular case ..”

When examining the reasoning of a Tribunal a degree of flexibility is required. Phipps v General Medical Council [2006] EWCA Civ 397 establishes the proposition that the Tribunal is under no obligation to record in its reasons every point in favour of the doctor in the evidence it has heard and read. In Re F (Children) [2016] EWCA Civ 546, [22], Munby P said:

“22.

Like any judgment, the judgment of the Deputy Judge has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."

23.

The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360. I confine myself to one short passage (at 1372):

‘The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.’

It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in ‘narrow textual analysis’.”

I am not persuaded that the Tribunal failed to have adequate regard to the time which had elapsed between the period of the Appellant’s wrongdoing and the date of the sanction determination. At [13] of its determination it specifically referred to the submission in mitigation made by Mr Ivill that the events in question were ‘historic’. True it is that it did not list this specifically as a mitigating factor in [28] but, as the authorities I have cited show, it was not required slavishly to list every factor. I also doubt, in truth, how much of a mitigating factor this was on the facts of the case. That is because the Appellant should have, but did not, report that he had wrongly been paid his salary and so benefitted from what he had wrongly received from the time he began to be paid (February 2013) until March 2017, when he was interviewed under caution. No doubt during this time he was hoping that his dishonesty would never come to light.

Overall, the Appellant’s wrongdoing over a sustained period at two hospitals required a wide-ranging investigation by the GMC. It even went to the length (unusually, in my experience) of obtaining expert evidence in connection with the Chester investigation. The investigation obviously took some time. There was no suggestion by Mr Ivill that there had been any culpable delay on the part of the GMC in its investigation of the Appellant’s misconduct or the bringing of the disciplinary proceedings.

I therefore reject this ground of appeal.

Mr Mant conceded that the Tribunal had been wrong to have classified what it said was an absence of independent or objective evidence regarding the Appellant’s personal circumstances as an aggravating factor, and that what it should have done was to regard this as a neutral factor.

I agree that the Tribunal’s took the wrong approach to this evidence. The testimonials put forward on behalf of the Appellant speaking to his clinical competence and his good character, and stressors in his life between about 2011 and 2015 arising from illness in his family, were not challenged by the GMC, and so they should have been accepted by the Tribunal at face value as mitigating evidence.

However, I do not think that the Tribunal’s error means that its decision on sanction was wrong or was rendered unjust by a serious irregularity. That is because, firstly, as Bolton, supra, makes clear (as do many other cases), personal mitigation can only have limited weight in professional disciplinary proceedings. Second, the Appellant’s misconduct was not a single error of judgment committed at a time when he was under particular stress; it was sustained and repeated dishonest misconduct over a period of years. Third, as the

For these reasons I am entirely satisfied, all other things being equal, that the Tribunal’s decision would inevitably have been the same even if it had not made this small error (cf. R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315, [10]). I therefore reject this ground of appeal.

There is nothing in this point. The submission made on the Appellant’s behalf was that his retention of salary had been an act (or acts) of omission rather than commission, and this should have been given more weight. In its reasons, the Tribunal said at [39]:

“39.

The Tribunal had heard submissions from both parties that Dr Al Nageim’s dishonesty regarding to the salary overpayment amounted to acts of omission rather than commission. The Tribunal was not satisfied that this was an entirely accurate representation of Dr Al Nageim’s actions. At Chester Hospital, Dr Al Nageim sought access to facilities that the Tribunal found he knew he was not entitled to use. In regard to the salary payments from Royal Liverpool, the Tribunal accepted that Dr Al Nageim’s evidence that he was not aware of payments for the first few months. However, when he did become aware of those payments and subsequently became employed again by another NHS Trust, the payments continued and only stopped when Royal Liverpool discovered the error. He chose to allow the payments to continue. Further, Dr Al Nageim conceded in evidence that had this not occurred, he would not have sought to raise the issue with Royal Liverpool himself. Dr Al Nageim received £41,266.16 (net) of NHS money over a 27 month period, during which time he travelled abroad and commenced a new salaried position at a different NHS Trust.”

I cannot fault this reasoning. The misconduct at the Chester Hospital was undoubtedly positive misconduct as opposed to mere omission by the Appellant. Just looking at the salary retention, it was not wholly accurate to describe this as an omission by the Appellant. In its factual determination the Tribunal found that the Appellant had known he was being paid when he was not entitled and that he had not informed the Hospital although he was under a duty to do so. In other words, he made a positive choice not to do something he was under a duty to do. In these circumstances, the distinction between omission and commission is essentially meaningless. Even if what the Appellant did was an omission, then this was not any meaningful mitigation.

I therefore reject this ground of appeal.

At [19] of its sanction determination the Tribunal said that it accepted, by reference to the Appellant’s ‘reflections’ document and his oral evidence, that he genuinely believes that

I would observe that the Appellant’s own view of whether he was dishonest was actually irrelevant. The effect of the decision in Ivey, supra, was to remove from the test for dishonesty the defendant’s subjective view about whether he had been dishonest. As Mostyn J remarked in Bux v General Medical Council [2021] EWHC 762 (Admin), [89], such a finding is a throwback to the old law which is no longer necessary.

In any event, I do not accept the submission that the Tribunal failed to give this factor sufficient weight. In its decision it carefully considered this factor alongside all of the other matters going to the question of the Appellant’s insight and it reached a conclusion – that he had some, but not yet full, insight into his wrongdoing – which was open to it on the evidence.

I therefore reject this ground of appeal.

In the section of its decision headed ‘Insight’, the Tribunal said:

“24.

In considering insight, the Tribunal was invited to conclude by Mr Moran, on behalf of the GMC that Dr Al Nageim had failed to tell the truth to the Tribunal on five occasions. Mr Moran had referred the Tribunal to five paragraphs of its own determination on the Facts. He reminded the Tribunal that, in relation to Chester

Hospital, it had found that it was ‘was not persuaded that Dr Al Nageim’s belief about his entitlement to use the rooms was genuine’. In relation to the On Call Rooms, Dr Al Nageim said that ‘he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. The Tribunal found that the alleged belief of Dr Al Nageim to not be genuinely held and that it was not a credible position for him to adopt’ and that, in relation to the Jubilee Day Centre, ‘the Tribunal was not persuaded that Dr Al Nageim genuinely believed he could use the shower facilities, in a clinical area of a hospital he was not employed by, for non-clinical purposes’. Further, the Tribunal had concluded that Dr Al Nageim’s evidence about 23 February 2014 had been ‘less than honest’. Regarding the salary payments from Royal Liverpool, ‘the Tribunal concluded that Dr Al Nageim did not genuinely believe he was entitled to the salary payments’.

25.

The Tribunal considered its determinations and the evidence it had heard on these points again and was satisfied that Dr Al Nageim had not given the Tribunal a true account on five occasions in the course of his evidence at the first stage of these proceedings.

26.

Taking all of the above into account, the Tribunal concluded that Dr Al Nageim’s insight into his misconduct was now developing. It concluded that Dr Al Nageim had sufficient insight into the gravity and seriousness of his actions, their impact on public confidence and the profession and that he had reflected on, and put strategies into place to ensure he did not repeat his behaviour. However, the Tribunal was not satisfied that Dr Al Nageim had developed any insight into his actions in not telling the truth, particularly to this Tribunal; nor had he reflected on his assertion that another witness in this case, Mr Bowker, had been incorrect about what had occurred on 23 February 2014 and had sought to discredit his account.”

At [29] when it came to consider aggravating factors, the Tribunal listed as a factor:

“Dr Al Nageim did not tell the Tribunal the truth in his evidence in March 2020 and did not demonstrate any insight into this.”

At [41] it said:

“41.

The Tribunal determined that it was the scale of Dr Al Nageim’s dishonesty regarding the salary payments from Royal Liverpool that was key to its consideration as to whether Dr Al

Nageim’s actions were fundamentally incompatible with continued registration. The Tribunal considered the extent of Dr Al Nageim’s dishonesty in relation to the salary payments from Royal Liverpool, coupled with the additional dishonesty relating to misuse of Chester Hospital facilities and his lack of honesty in his evidence to the Tribunal. Given the persistent nature of his dishonesty, the Tribunal concluded that Dr Al Nageim’s actions were fundamentally incompatible with continued registration.”

Mr Ivill argued this approach conflicted with what Mostyn J said in Awan, supra, [38][40]:

“38.

It seems to me that an accused person has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or an enhanced sanction.

39.

It is for this reason that explicit admissions of culpability tend not to be given in the impairment and sanctions phase. Rather, language alters to the passive voice and statements in the genre of ‘I am sorry if what I have said has caused you to take offence’ are made. Thus, in the case of General Medical Council v X [2019] EWHC 493, which has some striking similarities to this one, the ‘admission’ following the factual finding was (at para 32):

‘Dr X had instructed [counsel] to admit on Dr X's behalf that what the tribunal had found proved was serious and deplorable.’

40.

That is some distance away from admitting explicitly the truth of what the tribunal had found proved. In my judgment, in the absence of any significant hiatus between the factual finding and the impairment/sanctions phase in which full reflection can be undergone, that is as much as can reasonably be expected of an accused professional who has defended the case on the ground that he did not do what was alleged.”

The question of whether being found by a Tribunal to have given untrue evidence at the fact-finding stage can properly be used at the impairment or sanction stages was considered again by Mostyn J in Towuaghantse v General Medical Council [2021] EWHC 681 (Admin), [58]-[77]. In that case the Tribunal ordered the doctor’s name be erased from the medical register after a misconduct hearing for failings in relation to the clinical care of a new-born baby on whom he had operated and who tragically died. Following an inquest, the Coroner recorded a narrative verdict that identified three specific failures by the doctor which directly contributed to the baby’s death.

At [59]-[60] Mostyn J said:

“59.

I have set out above at para 14 an extract from para 31 of the impairment decision. I draw attention to the sentence: ‘In particular, Mr Towuaghantse failed to accept any of the Coroner's findings’ (my emphasis).

60.

In similar vein in para 32 of the sanctions decision the MPT said this:

‘The Tribunal noted Mr Towuaghantse's change of stance as the hearing progressed. There was more evidence of insight provided at the sanction stage than at the preceding ones in that Mr Towuaghantse had placed more emphasis on his own failings than before. However it could not ignore the fact that, particularly at the first stage of the hearing when the Tribunal was considering the facts, Mr Towuaghantse had tried to attribute to others at least some of the responsibility for what had happened to Patient A. In the judgment of the Tribunal, that was a particularly regrettable feature of the case.’ (my emphasis)”

Mostyn J said at [61]-[62]:

“61.

It is clear to me that a significant component in the decisionmaking process, both as to determination of impairment of fitness to practise, and in the imposition of the sanction of erasure, was the conclusion that the appellant was to be seriously faulted for (a) having contested the allegations against him at the inquest, and not having accepted the Coroner's findings, and (b) having contested the allegations against him at the MPT. The pleas of not guilty (in effect) in both courts were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty.

At para 56 of the sanctions decision the MPT said ‘in the absence of evidence of remediation there remains a risk of repetition.’ The ‘absence of evidence’ referred to must have included the forensic stance of the appellant in defending the allegations against him both at the inquest and before the MPT.” 63. At [63] he re-iterated what he had said in Awan, supra:

“In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.”

He then cited what Lord Scott said in Misra v General Medical Council [2003] UKPC 7, [17], where charges had been brought which included an allegation that the doctor had lied in his response to the initial complaint made to the GMC. Mostyn J said Lord Scott had ‘deprecated’ this practice. Lord Scott said:

“17.

Their Lordships find the inclusion in the charge of allegations that Dr Misra gave information he knew to be untrue rather puzzling. The substantive allegations against Dr Misra were that he had been informed of each of the four telephone calls and requests for home visits. Dr Misra had admitted being informed of only two of them. So there was a substantive issue as to whether he had been informed of the other two. If he were to maintain his denial at the hearing and be believed that would be an end of the issue. If his denial were to be disbelieved then the Committee would have to consider his conduct regarding Mrs Berryman on the footing that he had received four requests to visit her but had failed to do so and on the footing also that he had lied on oath about two of the telephone calls. What the GMC's point was in adding to the charge first an allegation that he had earlier told the same lie to Mr Berryman and secondly that the lie had been repeated in his solicitor's letter to the GMC is not clear. Their Lordships enquired of Mr Greene, counsel for the GMC, whether it was a general GMC practice where charges of professional misconduct were being made to add to the factual allegations on which the charges were based an allegation of dishonesty in the event that the respondent doctor had had the temerity to deny any of the factual allegations. Counsel told their Lordships that it was not the general practice and that he was not aware of a previous case where that had been done. No explanation of why it was thought right to add the allegations of dishonesty in the present case was offered. In their Lordships' opinion the addition of the allegations of dishonesty in the present case was unnecessary and oppressive. The allegations added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him.”

At [64] Mostyn J commented:

“64.

A strict textual interpretation of this passage would confine the oppressive conduct to the formulation of charges based on the registrant's forensic reaction to the initial complaint in the pretrial period. But the underpinning reasoning surely applies equally to the situation, as here, where a registrant has doughtily defended allegations against him in the fact-finding phase. It surely leads to say that it is equally oppressive for that defence by the registrant to be used against him in the impairment and sanctions phases.”

At [65], Mostyn J referred to Amao v Nursing and Midwifery Council [2014] EWHC 147, where Ms Amao was found in the fact-finding phase to have acted aggressively towards colleagues. In the impairment phase, 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. Her refusal to do so contributed to a finding of a high risk of repetition which led to a finding of impairment to practise which in turn led to her being struck off the register. At [161], [163], Walker J held:

“161.

Ms Amao was perfectly entitled to say that she did not accept the findings of the panel: she had a right of appeal which she was entitled to exercise. In all the circumstances it was thoroughly inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied that she would be acting improperly if she did not ‘accept the findings of your regulator’.

…

In his decision at [66]-[68] Mostyn J referred to Awan, supra, and what he had said in [38] of that decision (see above). At [69] he said that, in contrast, in Yusuff v General Medical Council [2018] EWHC 13 (Admin), Yip J heard a challenge to a decision on a review which was held some time after the initial sanction was imposed. At [18] she observed that, ‘as para 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.’ Mostyn J said that she had further observed that a want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment. Paragraph 52 of the Sanctions Guidance states that ‘a doctor is likely to lack insight if they… failed to tell the truth during the hearing (this includes being dishonest or misleading).’

At [71] Mostyn J commented as follows:

“71.

It is hard to square these statements with Lord Scott's comments in Misra. In the criminal sphere there is no principle of a plea in aggravation by the prosecutor whereby he seeks an enhanced sentence because the defendant's defence was rejected as untrue. A plea of not guilty attracts no aggravation; a plea of guilty, however, attracts mitigation. In my opinion that axiom should equally apply in disciplinary proceedings. I can see, were a defence to be rejected as blatantly dishonest, then that would say something about impairment and fitness to practise in the future. But there would surely need to be a clear finding of blatant dishonesty for that to be allowed. Absent such a finding it would, in my judgment, be a clear encroachment of the right to a fair trial for the forensic stance of a registrant in the first phase to be used against him in the later phases.”

He expressed his conclusions as follows in [72]-[77]:

“72.

In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment and sanctions phases. Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque (to use Walker J's language) if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired because you have disputed that your fitness to practise is currently impaired.

73.

The rejection of the appellant's defence on the facts by the MPT in this case did not entail a finding that he was guilty of blatant dishonesty or the deliberate misleading of the tribunal. It is true that in a number of respects the appellant's case on the facts was rejected on the balance of probability but it is clear that the rejection did not involve fixing him with blatant dishonesty. Take for example allegation 4(a). That said that at the conclusion of Patient A's first operation, the appellant failed to pay attention to the concerns being raised by the anaesthetic staff whilst the baby remained on the operating table. In support of the allegation the GMC adduced evidence from the anaesthetists Dr Waring and Dr Clement. The appellant did not suggest that they were lying; rather, he sought to put a different complexion on their evidence by saying that he himself had noticed the signs but that he expected things to improve within a few hours. The rejection of that account did not involve making a judgment whether the appellant was lying or telling the truth. It merely preferred, on balance of probability, the evidence of the anaesthetists to that of the appellant.

74.

It is perfectly normal in a forensic process, where there are two versions of events, for one version to be preferred by the factfinder (on the balance of probability) but without a consequential condemnation of the exponent of the other version as a liar. This unsententious approach reflects a judicial self-awareness of our fallibility as fact-finders, as Baroness Hale of Richmond recognised in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11 at [56] where she said:

‘… the ‘risk’ is not an actual risk to the child but a risk that the judge has got it wrong. We are all fallible human beings, very capable of getting things wrong.’

And to similar effect in Re L and B (Children) [2013] UKSC 8, [2013] 1 WLR 634 at [43] where she said:

‘… the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities …’

(original emphasis)

75.

In my judgment, in the absence of findings of blatant dishonesty, the MPT should not have used against the appellant in the impairment and sanctions phases his decision to contest the allegations made against him in the Coroner's court. Nor should the MPT have used against the appellant in those phases his failure to accept those findings in circumstances where they were soon replicated by charges brought against him by the GMC before the MPT. It is in this sense that the conclusions of the Coroner were unfairly deployed against him.

76.

Nor should the MPT have used against the appellant in the impairment and sanctions phases his decision fully to contest the charge before the tribunal. His deployment of a robust defence, which was his right, should not have been construed as a refusal to remediate, let alone an incapacity to remediate.

77.

Therefore, I have reached the conclusion that the decisionmaking processes that led to the finding of impairment, as well as the decision on sanction, were unjust because of a serious procedural irregularity. I reiterate my opinion in GMC v Awan at [40] that the absence of any significant gap between the findings of fact and the commencement of the impairment and sanctions phases means that it is unrealistic to expect a registrant who has unsuccessfully defended the fact-finding phase then almost immediately in the impairment phase to demonstrate full remediation by fully accepting in a genuinely sincere manner everything found against him. In my opinion the capacity of the registrant to remediate sincerely should be judged by reference to evidence unconnected to his forensic stance in the fact-finding phase (unless the fact-finding decision included findings of blatant dishonesty by the registrant).”

Judgment in Towuaghantse was handed down on 24 March 2021, after the hearing in the appeal before me. Mr Ivill and Mr Mant drew it to my attention and made short submissions on it.

Mr Ivill submitted it reinforced the approach in Awan, supra, namely that it is not fair for a doctor to face the risk of enhanced sanction if the defence is disbelieved. He again emphasised the Tribunal’s finding that the Appellant had not intended to be dishonest.

Mr Mant submitted that the approach of Mitting J in Nicholas-Pillai, supra, was to be preferred, but that in any event this was a case where the Appellant had been blatantly dishonest and hence this was a factor which could properly be taken into account on the question of fitness to practice.

I turn to my conclusions on this ground of appeal in light of Mostyn J’s reasoning and observations.

Although the Tribunal did not use the phrase ‘blatantly dishonest’ to describe the Appellant’s evidence before it, in my judgment it could aptly be so described. To take the two ends of the spectrum of defences referred to by Mostyn J, this was a case where the Appellant was advancing a positive defence about what he said he believed had been his entitlement to use Chester Hospital facilities (even though he no longer worked there and his use was not connected with his work as a doctor), and what he said had been his belief about why he was being paid his salary by the Royal Liverpool Hospital (even after his contract had come to an end and, later, he started to receive his Wrexham salary in addition). In other words, to borrow the language of [72] of Mostyn J’s judgment, the Appellant’s defence involved the ‘allegation of primary concrete facts’ rather than being ‘a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts’.

The Tribunal found as a fact that that the Appellant did not have either of the states of belief that he claimed in his evidence he had had. These were findings that he knowingly advanced a false case before the Tribunal. Thus, at [41] it said:

“41.

… Dr Al Nageim said that he believed, at the time, the NHS effectively offered free accommodation to NHS workers throughout the UK who wanted to use such accommodation for any purpose they wish. It accepted that Dr Al Nageim may have been unaware that a cost was charged internally for the use of such rooms in 2014. Nevertheless, the Tribunal found that Dr Al Nageim knew he was not entitled to use the On Call Rooms at

Chester Hospital in the manner that he did.”

Regarding his salary, it found at [68]-[69], [73]:

“68.

The Tribunal was not persuaded that Dr Al Nageim genuinely believed the salary payments were a ‘kindness’ or a ‘loan’. His evidence about the payments was inconsistent; his MIAA interview in March 2017, makes no reference to his understanding that the payments were a loan, and his witness statement from February 2020, makes no reference to the payments being made as a ‘kindness’ . Dr Al Nageim’s description of the conversation with the lady from Royal Liverpool offering him ‘help’ could not reasonably be interpreted as a reference to a loan of over £67,000 of public money.

69.

The Tribunal was not persuaded that Dr Al Nageim genuinely believed that he received the salary payments after sharing the personal circumstances and concerns he had shared with Royal

Liverpool staff at the 14 December 2012 meeting …

…

73.

Having concluded that Dr Al Nageim knew that he was not entitled to the salary payments and that it was his genuinely held belief that they were being made in error, it follows that Dr Al Nageim did have a duty to alert Royal Liverpool to the payments. Therefore, having not alerted Royal Liverpool, Dr Al Nageim did fail in his actions. Accordingly, the Tribunal found paragraphs 7 and 8 of the Allegation proved.”

I regard the Appellant’s case before the Tribunal about the salary payments as having involved especially egregious untruthfulness and dishonesty. By 2013 he had been a doctor for a number of years and he knew full well how and when NHS doctors are entitled to be paid. He could not have genuinely believed for one second that he was still entitled to be paid by the Royal Liverpool Hospital even after his contract there had come to an end. His claim that he genuinely thought the payments were some sort of ex gratia ‘kindness’, or a loan by the Hospital, and that after he started working in Wrexham in August 2013 it was perfectly in order for him to receive two NHS salaries, was completely absurd.

It follows that I do not consider the Tribunal was at fault in having regard to this dishonesty when it came to assess the Appellant’s level of insight. Its approach was in line with what Mostyn J said in Towuaghantse, supra, [72], that dishonesty in knowingly advancing a case of false primary fact certainly ‘say[s] something about impairment and fitness to practise in the future’. And there is the point that in this case nine months passed between the facts/impairment stage and the sanction stage, in which time the Appellant had still not developed full insight into his dishonesty.

Taking a step back and looking at the Tribunal’s reasons as a whole, this was not a case where the Appellant was being punished for daring to contest the GMC’s case against him. The Tribunal found that in March 2020 he had advanced a case as to his states of mind at the time of the alleged misconduct which he knew not to be true. By December 2020 the Tribunal was not satisfied that he had full insight into that dishonesty. This was a relevant factor for it to take into account in deciding whether his dishonest misconduct was fundamentally incompatible with his continued registration.

I have anxiously considered whether, overall, the sanction of erasure was

The sanction of erasure imposed in this case was consistent with the GMC’s Sanctions Guidance and, in particular, [124], [125(a)] and [128], which I quoted earlier.

The nature, scale and extent of the Appellant’s dishonesty in this case meant that, despite his good qualities and clinical competence, an order for erasure was virtually inevitable:

I am therefore unable to characterise the Tribunal’s decision as wrong or disproportionate, and I therefore dismiss this appeal.