The High Court dismissed an appeal made by the appellant Doctor against a finding on a second review of a substantive order of current impairment and sanction of a 6-month suspension order.
Mrs Justice Yip provides at paragraph 20 of her judgment, 7 conclusions all parties should have in mind in the event a registrant had previously denied the misconduct found proved. This case serves as a practical guide to panels when addressing the question of insight and current impairment on review at a later stage.
The substantive hearing took place before the Medical Practitioners Tribunal between September 2015 and March 2016; Dr Yusuff was found to have committed misconduct in relation to :
- Being dishonest in relation to an entry in a patient’s notes; attempting to destroy the page containing the entry and rewriting the notes with information that was not true.
- Sexually motivated misconduct towards a colleague involving making inappropriate and suggestive comments and gestures and urging her not to tell anyone about it.
- Inappropriate communication with a hospital housekeeper and subsequent dishonesty in claiming to a manager that he had apologised to her when he had not done so.
- Breach of an interim order in commencing a locum post in April 2013 and failing to notify the GMC of that and failing to notify his immediate line manager of the conditions of the interim order.
The substantive sanction imposed was a suspension order for 12 months with the following items which, it was suggested, would be of assistance to a reviewing panel:
- A statement in which he reflected on the Tribunal’s findings and demonstrated that he understood the seriousness of his misconduct.
- Evidence that he had kept his medical knowledge up to date during the suspension.
- Evidence of participation in courses on record keeping and medical ethics.
- Any testimonials or other evidence thought relevant.
The first review hearing took place on 24 March 2017. The panel found that impairment was current and that Dr Yusuff had demonstrated insufficient understanding of the seriousness of the misconduct; that there was inadequate evidence of regret and insight as well as a lack of evidence that he had kept his medical knowledge up to date. A further period of four-months suspension was directed and it was suggested that the reviewing panel would be assisted by:
- A statement in which Dr Yusuff reflected on the Tribunal’s findings.
- A full demonstration of meaningful insight into the misconduct.
- Objective evidence that he had kept his medical knowledge up to date during the period of suspension.
- Objective evidence of participation in courses on record keeping and medical ethics.
- Testimonials or other relevant evidence.
The second review took place on 25 August 2017. The Panel made a finding of current impairment on the basis that:
- There was inadequate evidence of keeping his knowledge and skills up to date.
- The level of insight was partial, limited and somewhat superficial.
A period of 6-months suspension was imposed to allow Dr Yusuff to gain genuine and full insight.
The Doctor appealed the finding of impairment and sanction imposed on 6 grounds, relying primarily on the first ground that:
“The determination on impairment was wrong and based substantially on unfair questioning of the appellant in relation to previous denials of the facts”.
It was argued on behalf of the Doctor that the cross-examination of him by the GMC and the tribunal was “a somewhat unfair line of questioning” and that Doctor Yusuff ought not to have been subjected to further questioning about the original allegations when he had made it clear he did not seek to go behind the facts.
Mrs Justice Yip stated at paragraph 18:
“It would be wrong to equate maintenance of innocence with a lack of insight. However, continued denial of the misconduct found proved will be relevant to the Tribunal’s considerations on review”.
And at paragraph 20:
“I conclude having reviewed all the relevant authorities that at a review hearing:
- The findings of fact are not to be reopened;
- The registrant is entitled not to accept the findings of the Tribunal;
- In the alternative, the registrant is entitled to say that he accepts the findings in the sense that he does not seek to go behind them while still maintaining a denial of the conduct underpinning the findings;
- When considering whether fitness to practise remains impaired, it is relevant for the Tribunal to know whether or not the registrant now admits the misconduct;
- Admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it;
- If it is made apparent that the registrant does not accept the truth of the findings, questioning should not focus on the denials and the previous findings;
- A want of candour and/or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment.”
In coming to her conclusions as set out above, Yip J distinguishes the instant case from that of Amao v Nursing and Midwifery Council  EWHC 147 in which a self-represented nurse had been subjected to questioning on her previous denials of the facts about which Walker J stated that it had been:
“inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied she would be acting improperly if she did not “accept the findings of your regulator.”
However, at paragraph 35 Mrs Justice Yip concludes that:
“Dr Yusuff well understood what he was being asked and was given a fair opportunity to respond to the cross-examination. The real difficulty, it seems to me was the inconsistency between his non-admissions of the misconduct and his expression of genuine remorse over it“.
In practice, a panel would be well advised to establish the position a registered member adopts as to previous findings of misconduct before questioning from the regulator or their own number commences. Further, that the seven conclusions of Mrs Justice Yip be borne in mind when considering current impairment at a review hearing.
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