Professional Standards Authority for Health and Social Care- PSA v (1) GMC and (2) Parvan Kaur Uppal [2015] EWHC 1304 (Admin)

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The Professional Standards Authority brought an appeal against a decision of the General Medical Council's Medical Practitioners Tribunal Service ["the Panel"] that Dr Uppal's fitness to practise was not impaired and not to impose a warning on her registration, despite her being found to have acted dishonestly. The appeal, although successful, reiterated the judiciary's belief that not every case of dishonesty will lead to a finding of current impairment of fitness to practise.

Mrs Justice Lang's Judgment is helpful as she considers the authorities on impairment in some detail in order to support the judiciary's approach on the above. However, a caveat to this is that Lang J states that Dr Uppal's circumstances leading to the Panel's findings were "exceptional".

Background Facts

Dr Uppal was a General Practitioner ["GP"] trainee, practising at Birchwood Medical Practice ["the Practice"]. On 13 December 2011 Baby A's mother telephoned the Practice distressed as Baby A had been diagnosed with a viral illness and the symptoms had been worsening. Dr Uppal spoke to the mother and said that there were no routine appointments available at the Practice and that if the mother were concerned, she should take Baby A to A&E. On 19 December 2011 the Practice received a letter from the hospital confirming that Baby A had been admitted via A&E and had been intubated and ventilated. Baby A's mother later made a complaint to the Practice that despite her telephone call, no one had contacted her following Baby A's admission to hospital.

On 30 December 2011 and following a discussion between senior practitioners regarding the complaint, Dr Uppal told one of the seniors that she had telephoned Baby A's mother having received the letter from the hospital. She further stated that she had been told by the mother that Baby A's condition had deteriorated after she had provided her on-call advice and that this had made her feel relieved.

On 13 January 2012, senior practitioners questioned Dr Uppal about her sequence of events again and proposed checking the Practice's phone records. Dr Uppal proceeded to suggest that she may have in fact telephoned Baby A's mother from her mobile phone. When it was further suggested that her mobile phone records could be checked, Dr Uppal admitted to lying about telephoning Baby A's mother.

A fitness to practise hearing was held by the General Medical Council's ["GMC"] Medical Practitioners Tribunal Service ["the Panel"] and a decision was reached on 19 September 2014. The Panel found that Dr Uppal's actions amounted to misconduct, but went on to decide that her fitness to practise was not impaired and it was not appropriate to issue her with a formal warning.

The Panel determined that this was an isolated incident and that Dr Uppal had demonstrated insight and had taken steps to avoid any repetition. She was also at the time a GP trainee and there was evidence provided to show her exemplary professional and personal conduct. Dr Uppal also submitted evidence to demonstrate a difficult working environment whereby she was unsupported, uncomfortable and constantly monitored.

The Professional Standards Authority ["PSA"] appealed the decision pursuant to section 29(4) of the National Health Service Reform and Health Care Professions Act 2002, on the following grounds:

  1. The Panel's findings and analysis of Dr Uppal's misconduct were inadequate ('Ground 3')
  2. The Panel erred in concluding that Dr Uppal's fitness to practise was not impaired and it failed adequately to address her misconduct ('Ground 4')
  3. In the alternative, the Panel ought to have issued a warning in respect of her misconduct ('Ground 5')
  4. The Panel failed to give adequate reasons for its decision ('Ground 6')

The reason why the grounds were numbered as such was that the PSA had dropped Grounds 1 and 2 prior to the appeal hearing.

Judgment

Handed down by the Honourable Mrs Justice Lang.

Ground 3 – inadequate findings of misconduct

The PSA made several submissions relating to the Panel's decision on misconduct and impairment. Chiefly amongst these was the fact that Dr Uppal had seemingly continued her dishonesty by lying about making the call from her mobile phone.

For the most, Lang J found that the Panel was "well aware of the evidence" and "fully aware of the facts". She did not accept that the Panel failed to appreciate the extent and nature of the misconduct, and hence its seriousness.

Ground 4 – impairment of fitness to practise

The PSA submitted that the conclusion that Dr Uppal's fitness to practise was not impaired was unduly lenient and therefore wrong. It was further submitted that not enough weight was given to the public interest element and excessive weight was given to Dr Uppal's apology. The PSA relied upon R (CR HCP) v NMC & Kingdom [2007] EWHC 1806 (Admin); Parkinson v NMC [2010] EWHC 1898 (Admin); and Hassan v General Optical Council [2013] EWHC 1887 (Admin) in that "the fitness to practice of a doctor who acts dishonestly is impaired by that dishonesty".

In her Judgment, Lang J commented that this approach could not be right, as it did not accurately reflect the current authorities on the matter. Lang J highlighted that in regulatory cases, even those of dishonesty, a separate assessment of impairment is required and therefore not every act of dishonesty will result in impairment.

To further support her methodology, Lang J took some time in looking at the case law on impairment:

Authorities on Impairment

Lang J began by looking at Cox J's Judgment in CHRE v NMC & Grant [2011] EWHC 927 (Admin) whereby he in turn refers to Siber J in R (on the application of Cohen) v GMC [2008] EWHC 581 (Admin).

Cox J said (see paras 62 -63):

"Any approach to the issue of whether a doctor's fitness to practice should be regarded as 'impaired' must take account of the the need to protect the individual patient, and the collective need to maintain confidence [in the] profession as well as declaring and upholding proper standards of conduct and behaviour of the public in their doctors and that public interest includes amongst other things the protection of patients, maintenance of public confidence….I must stress that the fact that the stage 2 is separate from stage 1 shows that it was not intended that every case of misconduct found at stage 1 must automatically mean that the practitioner's fitness to practice is impaired."

In regard to the wider public interest in determining questions of impairment of fitness to practise, Cox J referred to Goldring J in R (on the application of Harry) v GMC [2006] EWHC 3050 (Admin) and Mitting J in Nicholas-Pillai (see para 72) in that;

"…the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle something which can be taken into account either in his favour of against him by the panel."

In Yeong v GMC [2009] EWHC 1923 (Admin) the importance of the wider public interest was looked at in a case involving a doctor having a sexual relationship with a patient. Sales J in Yeong advocated a different approach to Mitting J:

"…Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient…a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession."

Cox J agreed with Sales J's analysis and said that this had a greater impact on fitness to practise proceedings belonging to non-GMC regulators. This is because other regulators, unlike the GMC, do not have a power to issue a warning where no impairment is found; the registrant is instead acquitted.

A detailed test to finding impairment has been provided by Dame Janet Smith in her Fifth Report to the Shipman Enquiry (9 December 2004). Dame Smith provided steps A to C for panels to consider when looking at impairment. This test was neatly surmised in the guidance provided by Cranston J in Cheatle v GMC [2009] EWHC 645 (Admin) (see para 32):

"There is clear authority that in determining impairment of fitness to practise…regard must be had to the way the person has acted or failed to act in the past."

In looking at Meadow v GMC [2006] EWHC Civ 1390 Sir Anthony Clarke MR said:

"In short, the purpose of [fitness to practise] 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 thus looks forward not back. However, in order to form a view as to the fitness 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."

In her Judgment and in consideration of the above, Lang J said that lying to senior colleagues about communications with patients and their families is a very serious breach of trust and of professionalism. However, this was an "exceptional case" and the Panel were entitled to find that Dr Uppal was not impaired.

Ground 5 – warning

The Panel had the ability to give Dr Uppal a warning even though her fitness to practise was not found to be impaired. Lang J looked at the GMC's 'Guidance on Warnings' with particular reference to the test for issuing warnings and dishonesty and concluded that "the decision not to issue Dr Uppal with a warming for her misconduct was unduly lenient".

Ground 6 – failure to give adequate reasons

Lang J did not find the Panel's reasons lacking and criticised the PSA for "embarking upon a forensic examination of the determination" where a Panel is constituted of non-legal lay members and thus one must allow for imperfect drafting.

The appeal was successful on Ground 4 alone and the Court was to impose an appropriate warning to Dr Uppal in the Panel's place.

Appeal allowed

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