General Medical Council v Christopher Lamming [2017] EWHC 3309 (Admin)

Posted by Christopher Pataky on
This was an appeal by the General Medical Council (GMC) against the decision of the Medical Practitioners Tribunal (MPT) to restore the Respondent to the Register of medical practitioners which is maintained by the Appellant.

The Respondent had previously been suspended from the Register for a three month period in 2004 (the first matter). The Respondent was subsequently erased from the Register following separate proceedings in 2008 (the second matter).

During the course of the restoration hearing, the Respondent provided an account in respect of the second matter that was inconsistent with that which he had provided during the course of the 2007-2008 proceedings. Despite noting this, the MPT did not come to any conclusion about why the account given had changed and what the potential impact of this was.  Instead it simply concluded that the dishonesty that had previously been established had been remediated and would be unlikely to be repeated.

The GMC sought to appeal the decision on the basis that the MPT's reasons for restoring the Respondent were flawed and failed to properly address or reach proper conclusions upon which the GMC had put its case, namely that the evidence showed that the Respondent had demonstrated a lack of insight into his dishonest behaviour and therefore continued to have a propensity to act dishonestly.  It contended that the Respondents fitness to practise continued to be impaired.

The Court agreed and concluded that the MPT's reasoning was inadequate and where provided, it had been erroneous. The MPT's decision to restore the Respondent was therefore quashed.

Facts

The Respondent qualified as a doctor in 1991. In 2002-2003 he wrote a number of letters to other healthcare professionals in which he claimed that he had been awarded a PhD. In addition he also presented a number of statements about his clinical experience.

In due course these assertions came before the Professional Conduct Committee in the form of allegations that he had misrepresented his qualifications and experience. During the course of the proceedings (the first matter), the Committee concluded that the Respondent had misrepresented the extent of his patient contact, that he had not been awarded a PhD and that the Respondent had 'show(n) little insight into the seriousness of (his) repeated dishonest actions'.  The Respondent was suspended for a period of three months following which he returned to work as a doctor.

Following this, in 2007-2008, separate disciplinary proceedings (the second matter) began which related to the alleged dishonest retention by the Respondent of the NHS salary that had been wrongly paid to him. Between January 2000 and November 2000, whilst the Respondent was undertaking 'Out of Programme Experience (OOPE)' in the USA, salary payments from the Trust had continued because the Respondent had not completed the necessary documentation that ought to have stopped payment during this period. As a result of this, a net salary of £31,275.80 was paid to the Respondent that he was not entitled to receive.

During the course of the proceedings, the Respondent's case had been that from an early stage in 2000 he had known about the overpayments but that he had not been dishonest in accepting them. In 2001, in response to a request by the Trust to pay the money back, the Respondent had stated words to the effect that he had believed that the money had represented funding for his study leave.

The Committee concluded that the Respondent had been dishonest both in respect of his receiving the payment on 12 separate occasions (from about January – November 2000) but also in respect of the statement that he had subsequently made to the Trust. The Committee stated that the Respondent had seemingly changed his evidence on more than one occasion and that it had 'grave concerns that (his) dishonest actions amount(ed) to a serious and deep-seated behavioural problem, leading to a significant risk that this behaviour may be repeated'.  The Committee determined that erasure from the Register was the appropriate sanction.

In 2017, the Respondent applied for restoration to the Register. The onus at this juncture was therefore on the Respondent to satisfy the Committee that his application should be allowed.

During the course of the proceedings the Respondent submitted in respect of the second matter, that he had given his father a lasting power of attorney over his property and financial affairs whilst he had been in the USA, that he had not had much contact with his father whilst he had been abroad and that he had presumed that his father had thought the payments into his account related to his work abroad. In evidence he asserted that the issue around payment received had not been 'one of intentional dishonesty' and that it had not been until around November 2000 that he had 'noticed that unusually large sums of money had passed though (his) account'.

It was the GMC's case before the Committee that the account provided by the Respondent differed markedly from the account that he had previously provided such that it demonstrated a continuing propensity for future dishonesty as well as a lack of insight into his previously established dishonesty. The cross-examination on behalf of the GMC focussed upon the different accounts that the Respondent had provided.

In its determination, the Committee acknowledged that the Respondent had provided an inconsistent account of events to that which he had provided in 2007. The Committee determined that it was not going to 're-litigate the facts found proved by the 2007 Panel (and that) the Panel gave far more weight to [the Respondent's] responses to the questions put to (him) by the tribunal itself, which went to the issue of insight'.   In respect of the Respondent's assertions that he had been 'mortified' by his behaviour the Committee concluded that '(his) evidence at that stage of the hearing was sincere and truthful'. The Committee determined that the dishonesty from both 2004 and 2007 had been remediated, was highly unlikely to be repeated, and therefore that his name should be restored to the Register.

In considering the appeal the Court determined that the 'principle question which the 2017 Tribunal should have had at the forefront of its mind' was whether the evidence that had been heard was capable of resolving in the Respondent's favour the concerns that the previous Committee had raised [82].

Within the judgment attention was drawn to the four factors in this case which had had been noted by the previous Committee (insight; propensity for dishonesty; inconsistency in the evidence; risk of re-occurrence).

The Court determined that it was incumbent on the Committee to 'grapple' with Dr Lammings various accounts which were inconsistent with a genuine acceptance of dishonesty as this was the only means by which the question of insight and propensity could be assessed.

In considering the decision that had been made in respect of the restoration application, it was apparent that the Committee had noted that the Respondent had given inconsistent evidence compared to the 2007 account. It was also apparent that the Committee had felt that elements of his evidence had not been 'sincere or truthful'. In such circumstances the Committee was duty bound to 'confront the lack of truthfulness head on and consider and reach conclusions about its impact on the overall issues (listed above) that it had to consider'.

The Court concluded that the Committee's reasoning was 'plainly inadequate' and 'erroneous' in that (1) having determined that it was not going to re-litigate the facts found proved in 2007, the Committee incorrectly decided that it was also not going to reach any conclusions in respect of the changes in Respondent's evidence and the potential reasons for this (2) it restricted its consideration to the question of insight when there were other questions that ought to have been answered including propensity before a reliable determination could be made as to the appropriateness of restoration.

As a result of these failures, the determination had been 'undermined in a fundamental way'. The appeal was allowed, the decision quashed and it was ordered that the matter be remitted to a differently constituted Committee.

Commentary

The judgment provides a helpful reminder of the relevant principles to be applied where an appeal is being made against the decision of a professional committee and also where an appeal particularly relates to the adequacy of the reasons that have previously been provided.

In addition, the judgment serves to highlight what should be the starting point and main focus of a Committee when considering a restoration application. It also has relevance to other cases where a Committee is reviewing what has happened following a previous decision and where an assessment needs to be made as to whether or not an individual concerned continues to be currently impaired.

About the Author

A Barrister within the Professional Regulatory team in London. Christopher provides advice and advocacy and undertakes investigative work for a range of regulators.

Christopher Pataky
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