Sharma v General Medical Council  EWHC 1471 (Admin)
The appellant appealed against the decision of a fitness to practise panel's decision that he was guilty of misconduct, that his fitness to practise was impaired and to suspend him from practice for a period of 12 months.
The appellant was a General Practitioner who provided medical services from a practice in Stockport. In addition to this, he was employed as a clinical assistant in Dermatology by Stockport NHS Foundation Trust and East Cheshire NHS Trust. At the time of the allegations, the appellant was confined to one session a week at Stepping Hill Hospital, part of Stockport NHS Foundation Trust. He had not carried out any work for East Cheshire NHS Trust for some years by the time of the allegations.
The appellant received a Warning from the GMC in 2007. From January 2008, the appellant practised in partnership with Dr Bani. That relationship became hostile and the partnership was terminated in November 2009. Prior to the termination of the partnership, Dr Bani had made complaints regarding the appellant to the PCT. In December 2009, Dr Bani complained to the GMC. The GMC agreed to the PCT conducting an audit of the appellant's cases although this was strongly resisted by the appellant and came to nothing.
In January 2010, the GMC requested that the appellant complete an Employer Details Form. It was alleged by the GMC that the appellant failed to disclose on the form that he worked for Stockport NHS Foundation Trust. In addition, on 28 October 2010 the Interim Orders Panel made an interim conditions order against the appellant. One of these conditions was that the appellant confine his medical practice to general practice posts.
The panel found proved allegations relating to the appellant's failure to inform his employers of a Warning given to him by the GMC in 2007, failed to provide good clinical care, failed to cooperate with a PCT audit, failed to complete accurately an Employer's Details Form, and failed to inform his employers that he was subject to a Conditions Order. In addition, his conduct in respect of failing to inform his employer of the Warning and Conditions Order was dishonest.
The appellant appealed the panel's findings that he had acted dishonestly and that his fitness to practise was impaired by reason of his misconduct. In particular, the appellant argued that his non-cooperation with the PCT and GMC upon which the finding of impairment was partially based, was due to the ongoing dispute he had with Dr Bani.
The court held that the conclusion of the panel that the appellant was dishonest in failing to inform his employers of the 2007 Warning was wrong. Firstly, it was clear from the wording of the Warning letter that the GMC would inform all current employers of the Warning and that the obligation to inform future employers rested on the appellant.
The court was prepared to accept that the appellant may have owed a contractual duty to his employers however went on to note that this was not the basis of the panel's reasoning who proceeded exclusively by reference to the terms of the Warning letter. The court went on to say that even if that had been the panel's basis, not every breach of duty is dishonest. The court stated "before a breach of a contractual or general professional duty could be held to be dishonest, consideration had and has to be given to all the surrounding circumstances". The court went on to say that no proper consideration had been given as to the appellant's motive and that no one could reasonably have believed that his contract would be terminated on the basis of the Warning.
The court noted that had that panel been reminded of Lord Nicholl's observation in Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 596, then they may have decided the issue differently.
In respect of the appellant's failure to accurately complete the Employer Details Form in 2010 and inform his employer of the Conditions Order, the court held that the panel was fully entitled to reach the conclusions they did. In addition, the panel had been entitled to conclude that no insight had been demonstrated by the appellant into the very important point that he had not cooperated in the timely completion of investigation and that the conduct which had been found proved might, in consequence, occur in the future.
The panel's decision to suspend the appellant had not been wrong by reason of the panel's incorrect conclusion in relation to the failure to inform the hospital of the Warning.