Undercharging an allegation can result in issues further down the line, which Kevin Barrow looks at in more detail in this article.
We look at the recent case of Professional Standards Authority (PSA) for Health and Social Care v (1) General Medical Council (GMC) (2) Mohamed Abdelrahman Battah  6 WLUK 139 which considered whether allegations were undercharged.
The Tribunal hearing
Dr Battah was a locum consultant in Gynaecology and Obstetrics at two NHS Trusts. In September 2017, an Interim Conditions of Practice Order (ICPO) was imposed. Dr Battah had to notify his employer and to stop working until a clinical supervisor was appointed. He was referred to the Medical Practitioners Tribunal (MPT) for clinical failings in relation to 13 patients and that he failed to notify his employer about the ICPO. The GMC did not include an allegation that he had worked without supervision during the prohibited period.
The MPT upheld charges in relation to 13 patients. A redacted version of the ICPO did not show that Dr Battah had to be supervised. Dr Battah’s clinical failures and his failure to inform his employer of the ICPO were deemed serious misconduct. His fitness to practise was impaired. There was no insight and no remediation. The MPT imposed a 12-month suspension order because the conduct was capable of remediation.
The PSA appealed the sanction and submitted the MPT did not sufficiently recognise the gravity of the conduct or properly apply the GMC’s Sanctions Guidance. The PSA also submitted Dr Battah should have been charged with dishonesty, and that the MPT should not have been provided with a redacted ICPO.
The appeal was allowed and the matter was remitted.
Mr Justice Linden agreed that the MPT had insufficient regard to the Sanctions Guidance in reaching its decision and/or did not sufficiently explain why this was not erasure case. The possibility that Dr Battah’s attitude might change if he was given a further opportunity was inconsistent with the Sanctions Guidance and was not appreciated by the MPT. If it was appreciated, the MPT did not explain the reasons which led it to conclude that, nevertheless, the sanction should be suspension.
Mr Justice Linden referred to the case of GMC v Donadio  EWHC 562(Admin) and the distinction between “personal dishonesty”, as referred to in the Sanctions Guidance, and a knowing or deliberate failure or breach of regulatory requirements.
Mr Justice Linden stated:
76. In my view, however, the failure to allege that Dr Battah worked in breach of an Order to stop work until such time as approved arrangements for clinical supervision were in place, was material…
79. Having considered the matter in the light of the helpful submissions that have been made on both sides, it seems to me that the way in which this aspect of the case was charged before the MPT did amount to a serious procedural irregularity.
The allegations before the MPT did not imply that Dr Battah had continued to work. This would have increased the seriousness of the allegations. Patient safety was at risk if Dr Battah had continued working despite the ICPO. This may have tipped the MPT’s decision towards erasure.
The case is a reminder to regulators of the importance that should be placed on drafting charges, considering the mischief in a case and ensuring that this is reflected accurately in allegations being brought against a registered professional. It is also an example the consequences of undercharging and that this can result in a serious procedural irregularity.
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