General Medical Council v (1) Nwachuku; (2) Professional Standards Authority [2017] EWHC 2085 (Admin)

Posted by Guy Micklewright on

Facts

Dr Nwachuku was a full time trainee GP in a surgery. He was also undertaking several shifts as a locum, in various capacities. His contract of employment permitted him to do other work, provided he had the agreement of his trainer/educational supervisor and so long as they did not impact on his contracted duties.

Between 8:00 pm and 8:00 am on the nights of 9, 10 and 11 October 2015 Dr Nwachuku was engaged to provide Senior House Officer locum cover at the Royal National Orthopaedic Hospital. At 5:00 am on the morning of Monday 12 October 2015 he attempted to leave the hospital in order to be back in time for his GP duties at 8:30 am. Dr Nwachuku signed and submitted a timesheet representing that he had worked 8:00 pm to 8.30 am on all three nights.

The GMC brought proceedings which alleged, amongst other matters, that Dr Nwachuku had acted dishonestly in submitting that timesheet for payment. Dr Nwachuku denied dishonesty, asserting that he believed that the error would be corrected. The tribunal of the MPTS found that he had acted dishonestly. However, it did not find his fitness to practise impaired and issued a warning instead.

The GMC appealed against the decision of the tribunal to find Dr Nwachuku's fitness to practise unimpaired. Dr Nwachuku made a cross-application for permission for judicial review of the tribunal's finding that he had acted dishonestly and, flowing from that, the imposition of a warning.

Judgment

Mrs Justice O'Farrell dismissed the application for judicial review, holding that it was not reasonably arguable.

As regards the GMC's appeal, the court held that the principles outlined in GMC v Jagjivan & PSA [2017] EWHC 1247 were applicable.

The court granted the GMC's appeal, for the following reasons:

  • The dishonesty was clearly serious; Dr Nwachuku had filled out a timesheet for personal gain;
  • The tribunal gave undue weight to the testimonials as they did not address the question of Dr Nwachuku's honesty;
  • The tribunal gave undue weight to the late admissions of dishonesty;
  • The tribunal gave undue weight to Dr Nwachuku's reflective statement in concluding that the conduct was remediable; and
  • The dishonesty warranted a finding of impairment to protect the public and maintain confidence in the profession.

Commentary

This case is a reminder that, in cases where the tribunal's judgment regarding impairment relates to facts where the tribunal's specialist experience does not place it in a better position than the court to weigh the relevant factors, the courts are less inclined to show deference to the tribunal's judgment. The courts may be less willing to interfere with the judgment of the tribunal where the facts of the case relate to clinical matters and/or the practitioner has given evidence as to their insight.

About the Author

Guy is a specialist advocate, with particular experience in fitness to practise cases and is cited as a 'leader in the field' in Chambers UK, A Client Guide to the Legal Profession 2013.

Guy Micklewright
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