Al Nageim v General Medical Council

This is an appeal by Dr Haydar Al Nageim, the Appellant, under s 40 of the Medical Act 1983 against the decision of the Medical Practitioners Tribunal (MPT/the Tribunal) dated 4 December 2020 erasing his name from the register of medical practitioners that is kept by the Registrar of the General Medical Council (the GMC) under s 2 of the Medical Act 1983 (the MA 1983).

In a factual determination dated 16 March 2020 the Tribunal found misconduct proved against the Appellant relating to:

his dishonest use of on-call rooms and surgical day centre facilities at the Countess of Chester Hospital (the Chester Hospital);

his dishonest failure to notify the Royal Liverpool & Broadgreen University Hospital NHS Trust (the Royal Liverpool Hospital) of salary payments made to him over 27 months totalling £41 266.16 (net) which he knew had been made in error.

On 18 March 2020 the Tribunal found that the Appellant’s fitness to practice was impaired by reason of his misconduct.

This appeal is against the sanction of erasure only. There is no appeal against the Tribunal’s findings of fact or its determination of impairment.

I held a remote public hearing by Microsoft Teams on 17 March 2021. The Appellant was represented by Mr Ivill and the Respondent by Mr Mant. I am grateful to both of them for their written and oral submissions.

At the relevant time, the Appellant was a junior doctor specialising in Trauma and Orthopaedics. Between 4 August 2010 and 2 August 2011, he was employed by the Chester Hospital.

Between August 2012 and February 2013, the Appellant worked as a locum in the Trauma and Orthopaedic Department at the Royal Liverpool Hospital.

Between February and August 2013, the Appellant was not working and lived with parents on the Wirral.

From 7 August 2013 until 5 August 2014, the Appellant was employed as a core surgical trainee in Trauma and Orthopaedics at Wrexham Maelor Hospital.

It was alleged that after the Appellant’s employment with the Chester Hospital ended, on one or more occasions between July 2012 and February 2014, he provided false information and out-of-date identification in order to gain access to on-call rooms (used for overnight accommodation) and other Hospital facilities, such as the showers in the Jubilee Day Surgery Centre, and the Education Centre.

It was alleged that the Appellant knew that he was not entitled to access these facilities as he was no longer employed at the Hospital. It was also alleged that he knew that the information he provided to gain access (eg name and bleep number) was untrue, and that his actions had been dishonest.

It was further alleged that following the conclusion of his employment at the Royal Liverpool Hospital in February 2013, the Appellant wrongly continued to receive salary payments from that Hospital from 27 February 2013 until 29 April 2015. It was alleged that he knew he was still being paid when he was not entitled, and that he had failed to alert the Hospital about its error, and that his actions had been dishonest.

Matters first came to light on 23 February 2014 when the Appellant tried to gain access to an on-call room at the Chester Hospital but was refused entry by a suspicious security guard, and the police were called.

On 1 March 2017, the Appellant was interviewed under caution by fraud investigators from the Mersey Internal Audit Agency (MIAA) about his use of facilities at the Chester Hospital and the salary payments from the Royal Liverpool Hospital.

The allegations against the Appellant were set out in [10] of the Tribunal’s factual determination:

a false name;

a false bleep/contact number

false identification details;

a false bleep/contact number;

on the dates set out in Schedule 3, on one or more occasion you

you used your Chester Hospital identification badge to access the:

Jubilee Day Surgery Centre, on the dates set out in Schedule

Education Centre, on the dates set out in Schedule 5;

You knew that the information you provided as set out at paragraphs 1ai, 1aii, 1bi, and 1bii was untrue.

Your actions as described at paragraphs 1a and 1b were dishonest by reason of paragraph 2.

You knew that after 2 August 2011 you were no longer an employee at Chester Hospital and were therefore not entitled to use the On Call Room(s), Jubilee Day Surgery Centre or the Education Centre.

Your actions as described at paragraphs 1c, 1d, and 1e were dishonest by reason of paragraph 4.

Between 27 February 2013 and 29 April 2015 you received the salary payments at set out in Schedule 6 from Royal Liverpool and Broadgreen University Hospital NHS Trust (‘Royal Liverpool’) when you were no longer an employee of Royal Liverpool (‘the Payments’).

You failed to alert Royal Liverpool to the fact that you had received the Payments after your employment had ended.

You knew that you were no longer an employee of Royal

Your actions as described at paragraph 7 were dishonest by reason of paragraph 8.

I need not set out the dates in the various Schedules; suffice it to say that they specified a large number of dates between July 2012 and January 2014.

The Appellant admitted some of the allegations against him, namely, [1c], [1d(i)], [1(d)(ii), [1e] and [6]. He denied the other allegations.

The Tribunal heard from a number of witnesses on behalf of the GMC and the Appellant, and received a quantity of documentary evidence. It found the following allegations not proved: [1(a)(i)], [1(a)(ii)], [1(b)(i)], [1(b)(ii)], [2], [3], [4] (in respect of the Education Centre); [5] (in relation to [1(d)(ii)]).

Of the allegations which the Appellant had denied, the Tribunal found the following proved: [4] (in relation to the on-call rooms and the Jubilee Day Surgery Centre); [5] (in respect of [1(c)], [1(d)(i)] and [1(e)]; [7]; [8]; and [9]). In holding that the Appellant had acted dishonestly (per [5] and [9]), the Tribunal applied the test for dishonesty in Ivey v Genting Casinos (UK) Ltd (trading as Crockfords Club) [2018] AC 391, [74]:

In relation to [4] and the on-call rooms the Tribunal found:

In relation to [4] and the Appellant’s use of the shower facilities in the Jubilee Day Surgery Centre, which were located in a clinical area, the Appellant’s evidence was that he would use them after playing football (ie, occasions not connected with his NHS work). The Tribunal accepted at [42]-[46] that although the Appellant may have genuinely believed (as he claimed) that he was entitled to use the showers during the period he was employed at the Wrexham Hospital because he was an NHS worker, he had also used them on 38 occasions between February 2013 and August 2013 when he had been unemployed, and so could not have had any such genuine belief.

In relation to [5] the Tribunal found as follows.

Regarding the alleged dishonesty arising out of [1(c)] (use of on-call rooms), the Tribunal said it had found that the Appellant had not had a genuine belief that he was entitled to use these rooms, and his actions had been dishonest. It pointed out, for example, that he might have deprived a doctor who was genuinely on-call of the use of one of the rooms.

The Tribunal also found dishonesty arising out of [1(d)(i)] (use of the showers in the Jubilee Day Care Centre) because, it said, no-one is entitled to use clinical facilities for non-clinical purposes, and there were implications for infection control.

In relation to [1(e)], which was the occasion on 23 February 2014 when the Appellant had been refused access by a security guard (a Mr Bowker) and the police had been called, the Tribunal said that the Appellant accepted that he had tried to access an on-call room. It was nearly midnight when the Appellant arrived at the Hospital. He had been accompanied by a female, who had remained in her car. The reason the police were called was because by then the Hospital was aware of the issue and was on the look-out for the Appellant. He said that he was unable to remember the name or any other identifying features of this female, whom he had arranged to meet at a cinema, other than she was blonde and a nurse. He claimed this female simply accompanied him to the Chester Hospital so that, following his enquiries about a room, he could show her the way back to the motorway. The Tribunal was understandably sceptical about that story.

The Tribunal said at [55]-[56]:

It concluded at [57]:

In relation to [7], [8] and [9], and the undoubtedly more serious allegations about the Appellant’s dishonest retention of salary payments from the Royal Liverpool Hospital to which he had not been entitled, the Tribunal found (at [58] et seq) that the Appellant had known that he was not entitled to the salary payments. It rejected his account that at a meeting in December 2012 with a consultant, a person from Human Resources and (possibly) someone from finance, which had been called because of his poor performance and to tell him that his contract would not therefore be extended, he had been told that the Hospital would continue to pay him even after his employment ended.

The Appellant’s case, in summary, was that he thought the payments were some sort of ex gratia ‘kindness’ by the Hospital. Later, in his evidence to the Tribunal, his account changed and he said he thought the payments had been a loan which he would have to repay at some stage.

He told the fraud investigators in the interview in March 2017:

His account was that the Human Resources person had said:

The Tribunal noted that during the March 2017 interview, the Appellant had repeatedly referred to the salary payments as a ‘kindness’ from the Royal Liverpool Hospital. He referred to the monies as a ‘godsend’ and said:

The Appellant said that he could not recall when he had first noticed that he was still receiving his salary after his employment at the Royal Liverpool Hospital had finished, but that when he did notice, he linked it to what he said he had been told at the meeting in December 2012, and that he believed it was some form of loan from the Hospital.

He said that the first time he knew he had been paid in error was during the interview with fraud investigators in March 2017. He said that he thought that the loan had come to a ‘natural end’ in April 2015 and that he would be contacted by the Trust about repayment. He said that when he commenced working at the Wrexham Hospital and continued to receive his Royal Liverpool salary, this had been as a ‘safety net’ should his personal circumstances require him to leave work.

In his cross-examination before the Tribunal the Appellant conceded that he had made no enquires with the Royal Liverpool Hospital regarding the terms of the ‘loan’, for example, the sum to be repaid; the interest rate; or when repayment was to commence.

Thus, the Tribunal concluded:

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. It noted that, in his witness statement, Dr Al Nageim concedes that at the meeting:

The Tribunal noted that at the meeting, Royal Liverpool agreed to provide paid leave to Dr Al Nageim over the Christmas break, removed his on-call responsibilities which he said were challenging at the time, and arranged for him to finish his contract at Royal Liverpool in a supported, supervised clinical attachment role under Mr Santini. The Tribunal concluded that it was clear that this was the ‘help’ Dr Al Nageim was told he would receive. The Tribunal noted that there was no evidence, beyond Dr Al Nageim’s, that the Royal Liverpool intended to provide any financial support to Dr Al Nageim either during his final contracted month or afterwards.

Taking all of the above into account, the Tribunal concluded that Dr Al Nageim did not genuinely believe he was entitled to the salary payments. Instead, it concluded that Dr Al Nageim knew that the payments he received over a period of 27 months from Royal Liverpool were made in error. The Tribunal concluded that, having viewed the salary payments as a ‘safety net’, Dr Al Nageim consciously decided not to alert Royal Liverpool. Its conclusion is supported by Dr Al Nageim’s inconsistent evidence about the nature of the salary payments and the lack of any evidence to show Royal Liverpool intended to provide him with financial assistance.

While not material to its consideration of whether Dr Al Nageim’s belief was genuinely held, the Tribunal did not accept that either of his accounts for the reasons he was in receipt of salary payments from Royal Liverpool was plausible or reasonable, particularly as he knew Royal Liverpool were not satisfied with his clinical performance during his post and were not extending his contract. Therefore, it would be entirely unreasonable to believe Royal Liverpool would continue to pay his salary until April 2015.

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.”

In relation to [9] the Tribunal found:

The Tribunal therefore went on to consider whether, by the standards of ordinary decent people, Dr Al Nageim’s actions in knowing he was not entitled to the payments he received from Royal Liverpool, and not alerting them to the error was dishonest.

The Tribunal considered that even if either of Dr Al Nageim’s explanations regarding his receipt of the salary payments had been accepted, ordinary, reasonable and honest people would have considered his actions dishonest.

The Tribunal considered that any reasonable and honest

The other explanation offered by Dr Al Nageim was that the salary payments were issued as a ‘kindness’ to assist him during a period of relative financial hardship during the time he was not employed following his contract at Royal Liverpool ending. However, having started another post six months later, ordinary decent people would expect that, having secured a new salaried position, Dr Al Nageim would have, at that point, confirmed with Royal Liverpool that he was no longer in need of the financial assistance. Having not alerted Royal Liverpool and allowed the payments to continue following a return to salaried employment, considering them a ‘safety net’ , would again be considered to be dishonest by ordinary reasonable and honest people.

However, the Tribunal had concluded that Dr Al Nageim knew that he was not entitled to the payments and was receiving them in error. It concluded that Dr Al Nageim failed to alert Royal Liverpool to their error during his receipt of the salary payments, or for almost two years after they had stopped. The Tribunal concluded that to have received such a large sum over a long period and not to have alerted Royal Liverpool to it, would be considered dishonest by ordinary, reasonable and honest people. Therefore, it found paragraph 9 of the Allegation proved.”

At the sanction determination in December 2020 the Tribunal had written and oral evidence from Mr John Aspden, executive coach and leadership development facilitator; the Appellant’s oral testimony; a personal statement of reflections from the Appellant; testimonials in support of the Appellant from various former colleagues, his two mentors, family and friends; and a CPD bundle including CPD course reflections.

The GMC submitted that erasure was the only appropriate sanction in this case, given the gravity and scale of the Appellant’s misconduct and dishonesty. The GMC reminded the Tribunal that it had found that the Appellant’s dishonesty had not been a one-off incident, but that there had been a pattern of dishonesty. It pointed out that the Tribunal had concluded that the Appellant’s dishonesty had arisen from his sense of entitlement. This was a reference to [20] of the Tribunal’s findings on impairment, where it said:

At [7] the Tribunal said:

The GMC went on to submit that the Appellant’s final position appeared to be that he did not believe he had been dishonest, either at the time of events or in hindsight. It accordingly submitted that as the Appellant did not believe he had been dishonest, it could not be said that he had sufficient insight.

The GMC submitted that the realistic choice facing the Tribunal was between suspension or erasure, and that given all the circumstances, the only proper sanction was erasure.

On behalf of the Appellant, Mr Ivill submitted that erasure would not be a proportionate sanction in this case, nor would it be in the public interest. He said that the Appellant had demonstrated insight into his misconduct, that he now understood the seriousness of the proved misconduct, and that he recognised why it was unacceptable. Mr Ivill submitted that the Appellant understood the wider impact of his actions and why they should never be repeated.

He submitted there had been extensive remediation in this case and reminded the Tribunal that the Appellant had accessed coaching and mentoring, undertaken relevant courses and stated more than once that if he were in the same position again, he would act differently. He referred the Tribunal to the examples of this in the Appellant’s reflections, including a situation where he received a further payment after the end of a hospital contract and had immediately queried it with the relevant finance department.

He went on to submit that the events in question could be regarded as historic and that they had occurred when the Appellant was very junior and had been dealing with challenging family circumstances and working full time. He said that the risk of repetition was low and there were a number of positive testimonials in support of the Appellant. He submitted that the Appellant’s commitment to the profession was not in doubt and that he was a well-regarded doctor with enormous potential. He said that suspension would be a proportionate sanction.

In its determination the Tribunal began (at [17]) by reminding itself that:

At [21] the Tribunal said it was satisfied that the Appellant understood the gravity of his misconduct and the impact such actions have on patients, the public and the profession, and that he had sufficient insight into this. It went on to say that the Appellant was ‘now’ genuinely remorseful.

At [24]-[26] it said:

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.

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.”

The Tribunal then considered mitigating and aggravating factors.

At [28] it identified the following mitigating factors: the Appellant had developed a sufficient understanding of the gravity and impact of his actions; he had developing insight, which was sufficient insight in parts; he had apologised and expressed genuine remorse following this Tribunal’s findings; he had taken steps to formulate strategies to avoid any repetition of his unacceptable behaviours and demonstrated that they are working, for example in seeking immediate reassurance from the finance department at a hospital when he received a payment following the end of his contract; he had provided excellent references which spoke to his skills as a clinician, state that he is a well-regarded doctor who has much to contribute as stated by both his mentors; and he had no previous adverse findings against him.

At [29] it identified the following aggravating factors: his dishonesty formed a pattern, was persistent and only stopped when he was discovered; he committed dishonesty against his former employer, the NHS, by accepting salary payments to which he was not entitled for 27 months, and conceded that he would have allowed this to continue had the error not been discovered; he stated in evidence that the time period covering the misconduct was a time of great personal strain; however, there was no independent or objective evidence before the Tribunal demonstrating this; his misconduct spanned a number of years, including when he chose to take a lengthy holiday while in receipt of money to which he knew he was not entitled and earlier he had been in receipt of an additional NHS salary; and he had not told the Tribunal the truth in his evidence in March 2020 and had not demonstrated any insight into this.

At [30] it said:

The Tribunal then went through the available sanctions in ascending order of seriousness. At [34] it said (as both parties had submitted) that the only realistic choice in this case was between suspension and erasure. It said that the question it needed to ask was whether the Appellant’s dishonest conduct was fundamentally incompatible with continued registration. This was a reference to [92] of the Sanctions Guidance produced by the GMC:

The Tribunal then said it regarded [97] (in relation to suspension) and [109] (in relation to erasure) of the Sanctions Guidance to be relevant. Paragraph [109(a) and (h)] state that the following factors may indicate that erasure is appropriate: a particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor ([109](a)]); dishonesty, especially where persistent and/or covered up [109(h)]). The Tribunal went on to quote the following paragraphs of the Sanctions Guidance:

The Tribunal concluded:

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

The Tribunal concluded that Dr Al Nageim’s actions represented a particularly serious departure from GMP, in that honesty is a fundamental tenet of the profession, and he had been persistently dishonest over a period of years, including not telling the truth during this hearing. While his insight was now developing, Dr Al Nageim showed no insight during the earlier stage of these proceedings and has yet to demonstrate any insight into all aspects of his dishonesty.

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

The Tribunal concluded that, having knowingly received money to which he was not entitled and acted dishonestly with two separate NHS Trusts, erasure from the medical register was the only appropriate and proportionate sanction in this case. It determined that any lesser sanction would not promote and maintain public confidence in the medical profession, or uphold proper professional standards and conduct for members of the profession. The remediation, insight and clinical competence of Dr Al Nageim did not outweigh this conclusion.

The Tribunal therefore determined that Dr Al Nageim’s name be erased from the Medical Register.”

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

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

The Tribunal omitted to take account of a relevant mitigating factor;

The Tribunal erroneously categorised a factor as aggravating;

The Tribunal erroneously categorised the Appellant’s conduct as being other than an act of omission.

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

The Tribunal gave insufficient weight to its acceptance that it was not the Appellant’s intention to be dishonest;

Undue weight was given to the fact that the Appellant’s evidence was disbelieved;

The sanction of erasure was disproportionate in the circumstances of the case.

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:

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

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

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:

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):

wrong; or

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:

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:

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

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:

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:

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]:

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:

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]:

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:

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.

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:

At [41] it said:

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

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):

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:

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

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:

At [64] Mostyn J commented:

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:

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:

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

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.

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:

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.

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.

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:

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

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.