Hussain v General Medical Council  EWCA Civ 2246. The Court of Appeal dismissed an appeal against the decision of the Administrative Court, which in itself was an appeal against a decision of the Fitness to Practise Panel of the Medical Practitioners’ Tribunal Service (“the Panel”). The Court of Appeal found that the appellant’s fitness to practise remained impaired by reason of the misconduct they found proved against him and his lack of insight into his failings; as such, erasure was a proportionate sanction.
The appellant began training as a general practitioner in August 2009. In February 2010, he began a placement at the Townhead Surgery in Settle. As part of his training, he was required to use an ‘e-portfolio’, in which he recorded his thoughts and reflections on his training for assessment by his trainers. He was also required to provide ‘multi-source feedback’ obtained from his colleagues concerning his clinical performance and professional behaviour. His colleagues were required to provide this without reference to the appellant.
In March 2010, his trainers raised concerns about his capabilities. During the internal investigation, the appellant, in conversation with one of his trainers, admitted that there were errors in the C.V. he had submitted to the surgery; he claimed that these were honest mistakes caused by submitting his C.V. “in a rush”. His trainer accepted that this was a mistake but explained to the appellant that this raised an issue of probity. His trainer recorded later on that the appellant did not seem to understand why this was a probity issue.
In September 2010, a panel investigated various matters to do with the appellant’s e-portfolio, in accordance with the Code of Conduct for the Royal College of General Practitioners’ Trainee ePortfolio and Workplace Based Assessment. It issued the appellant with a warning. On 1 February, an Annual Review of Competence Progression panel, which assesses trainee general practitioners against the competences for general practice, recommended that the appellant be released from his training. This was confirmed on appeal and the appellant was referred to the General Medical Council in May 2011.
It was alleged that the appellant had made false statements on his C.V. concerning his academic qualifications. It was further alleged that the appellant had completed a multi-source feedback relating to himself on behalf of one of his colleagues and had attributed to her views that were false. It was also alleged that the appellant had plagiarised resources for use in his e-portfolio. As a result, it was alleged that the appellant’s conduct was dishonest and that his fitness to practise was impaired by his misconduct.
The Panel found all of the allegations proved.
The appellant appealed to the Administrative Court where Bird J dismissed the appeal. Bird J concluded that the Panel had the benefit of hearing the evidence at first hand and commented that the main issue before him was whether the appellant was dishonest.
Bird J discussed the allegation relating to whether the appellant was dishonest in the contents of his C.V. and in doing so, considered the test from R v Ghosh. Bird J commented that he doubted “reasonable and honest people would regard what Dr Hussein did as dishonest. It was certainly wrong, careless and regrettably misleading, but in my judgment not dishonest”.
Bird J agreed with the Panel that the appellant’s conduct in respect of the multi-source feedback form and plagiarism in his e-portfolio were, according to the standard of reasonable and honest people, dishonest and that the Panel was entitled to conclude that the appellant himself must have realised that this was dishonest.
The appellant appealed the Administrative Court’s decision to the Court of Appeal.
Handed down by Bean LJ, Ouseley J and Longmore LJ
Ground 1 – Conflation of falsity with dishonesty
The appellant submitted that Bird J found that the Panel (in relation to the C.V. allegation) had conflated falsity with dishonesty. As such, it was “inconceivable” that they had not made the same error in respect of the other charges which they had found proved.
Bean LJ agreed that “the word “false” was ambiguous when used as a description of the inaccurate entries on [the appellant’s] CV” although he also commented that it was difficult to see how Bird J could accept the Panel’s findings of fact but also conclude that the attribution of dishonesty was “unsustainable”. However, this ambiguity did not carry into the other allegations. In respect of the allegations regarding the multi-source feedback form and plagiarism of the e-portfolio, the findings of dishonesty were inevitable.
This ground of appeal was dismissed.
Ground 2 – Failure to consider the appellant’s state of mind
The appellant’s father had died shortly after he started his placement. The appellant submitted that the Panel “failed to give proper weight to his troubled state of mind”arising from this. Bean LJ stated “Grief caused by bereavement is not a defence to a charge of dishonesty”.
Ground 3 – Impairment and sanction
The appellant submitted that, both in respect of impairment and sanction, the Panel gave inadequate weight to the fact that all the allegations related to a “short, aberrant period”in the appellant’s life. Further, the appellant had been under great strain at this time and the Panel had not adequately considered the appellant’s good character.
Bean LJ commented that “the presence or absence of insight into one’s failings is often relevant to whether a doctor’s fitness to practise remains impaired”. The appellant’s case was that he had done no wrong, his colleagues who initially raised concerns were “racists” and that the colleague to whom the multi-source feedback form was attributed was lying in order to get him removed from the practice. As Bird J had found, the appellant had a “complete and total lack of insight” into his conduct and therefore, notwithstanding the length of time between the allegations and the case, the appellant’s fitness to practise had remained impaired.
Bean LJ referred to a passage from the decision of the Privy Council in Gupta v GMC when considering whether the sanction of erasure was appropriate. He quoted the statement of Lord Rodger of Earlsferry at 1702: “the sanction of erasure was wholly appropriate for the protection of the public and of the standing of the profession”. In view of the findings of dishonesty and the appellant’s lack of insight, Bean LJ determined that the Panel could not be criticised for finding erasure to be the proportionate response.
Ouseley J agreed with Bean LJ and made further comment that the appellant’s misconduct was founded on dishonesty towards his trainers and was further compounded by “serious but false” allegations about his colleagues, showing “a total lack of insight into his earlier misconduct”.
Ouseley J also commented that the Legal Assessor’s advice regarding the meaning of the word “false” could create some uncertainty as to when the intention behind an inaccurate statement should be considered. However, he suggested that “it may not be much of a problem in practice”.
Longmore LJ agreed and stated that he believes that the test for the Panel should be to decide “whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest”.
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