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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Inayatullah v General Medical Council  EWHC 3751 (Admin) (21 October 2014)
Cite as:  EWHC 3751 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|GENERAL MEDICAL COUNCIL||Respondent|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
Mr P Mant (instructed by the General Medical Council appeared on behalf of the Respondent
Crown Copyright ©
The background facts
"Q. With the benefit of hindsight and having seen the video footage, having reflected on the last case, having attempted to enhance the electronic notice board still, what you do say now about whether you conducted an examination or not?
A. It is -- I always -- that is the way I work, if I have written something, I should --
Q. Keep your voice up.
A -- I must have done it. Okay. If I have written something I must have done it. But it is a long time ago so I am just speaking from memory. So a possibility I might not have done it, but I am just speaking from my memory . . .
A. What I said is the way I work, I always, when I do something I write it. But here, it was quite some time ago, so I am speaking from my memory. I am speaking from my memory and I might have not done it. I might have done it, I might not have done it.
Q. Just pause. You might have done it, you might not have done it?
Q. Let us explore then how this entry appears written in here. If it is the case that you might not have examined this patient, how do you account for the fact that we have an entry here which is the same entry or the first part of the entry from 30 June 2011 at the top of the page, when we know you did examine the patient, did you write gastrointestinal tract was soft and no viscera was palpable? Explain to the Panel how did that entry get there?
A. Because I examined the patient and that is why the entry has gone [in].
Q. You said a few moments ago in essence, 'Maybe I did and maybe I did not,' so obviously if you did examine that will explain it, but what if you did not?
A. If I did not then I would not write it. I am just speaking from my memory. If I have not done it then I would not write it, but I am just saying, I am not a dishonest person, I would not try to mislead anybody, but what I am saying is that if I have written it, then I have done it. But I am just speaking from memory. I cannot say anything else."
"What he presented is evidence from the EMIS system which is irreconcilable with the footage. The only explanation logically there could be for the disparity in timing is that there was a delay on the part of Dr Inayatullah in pressing L for leave, that he was doing something on 2 August which distracted him and, so having done something else, he went back to the computer, he either then completed the medical record or at least then pressed L and I accept that that is a logical explanation. What the EMIS system printout has done is provided him with a genuinely held, honestly held belief that the footage that was presented by people he is entitled, is he not, to believe were trying to trap him? He is entitled to be suspicious. It supported his belief that there had not been a full representation of the whole consultation and so I have spent a lot of time causing witness to be called and cross-examining them and I am not going to go through the evidence like my learned friend, it is there to be read. There are inconsistencies between them but I accept there is no proof that it has been interfered with. It is not for me to prove it, of course. When you have uninterrupted, continuous video footage I accept there is a good inference that you have seen the whole thing without some analysis."
"I acknowledge the reality that confronted with that evidence and confronted with the logical explanation for the EMIS timings that you will come to the conclusion that you have seen the full footage and with the benefit of hindsight you have seen movement in Dr Inayatullah's position.
Had he not softened his position he would have been criticised from the other side of the room for showing no insight. He softened his position and he is criticised for inconsistency. He is between a rock and a hard place, but having made that concession, necessarily, he exposes himself to the obvious cross-examination, 'Well, Doctor, if that is the full footage, and if you therefore haven't examined the patient, what possible explanation could there be for you recording that other than you having a dishonest motive?' You may think that is something that strikes at this gentleman practitioner's heart, an allegation of dishonesty that he finds impossible to countenance, and scratch his head as he does he becomes increasingly defensive. We have seen the manifestation of that in the answers he has given when repeatedly cornered (as my learned friend would put it). He simply cannot improve, I suspect, on the words I use, 'he works constructively, 'I am not a dishonest person. I have written it down. I wasn't trying to mislead the locum doctors. Why would I? There is no one else I envisage reading the notes. Why would I seek to mislead them? If I wrote it down, I simply can't explain it, I must have done it and if I didn't it's inexplicable.' The one thing of all things he says, and I invite you to accept from him, he did not do so dishonestly.
You may think at times while he was giving his evidence he showed a genuine concern for patients. You may think at times, although he was difficult to follow, he became utterly credible and focused when talking about medical matters. This is a man who has devoted himself to the care of others over decades and dishonesty, we invite you to conclude, is not in his make-up."
The more serious the allegation the less likely it is to have occurred, therefore the stronger the evidence should be before you conclude that the allegation has been proved. Dishonesty is a particularly serious allegation. However it does not mean that it must be proved to a higher standard of probabilities. As confirmed in the Doherty case of 2008, the standard of proof is finite and unvarying. However, certain circumstances call for heightened examination of the strength and quality of the evidence which includes the inherent unlikelihood of the occurrence taking place, the seriousness of the allegation and the serious consequences which could follow if found proved. It is a matter for you to determine which features apply in this case."
Dr Isacc and Dr Bennett have both provided expert evidence. They were instructed to provide an opinion on whether the standard of care provided by Dr Inayatullah met the standard expected from a reasonably competent general practitioner. However, it is only part of the evidence before you. In reaching a determination on the facts you must consider all of the evidence. Experts have a duty to assist you in reaching a determination on the facts by giving independent, objective and unbiased opinion on matters within their expertise. This duty overrides any obligation to the person from whom he receives his instructions or by whom he is paid. It also includes an obligation to inform all parties and the Panel if the expert's opinion changes from that contained in the report served as evidence.
Drs Isaac and Bennett have expressed their opinion and you are entitled to have regard to this opinion evidence in coming to your own conclusions about this aspect of the case. However, you should bear in mind that having given the matter careful consideration, which will include an assessment of their independence, expertise, conclusions and the quality of the analysis which informs their opinion you may accept the evidence of the expert in whole or in part or reject the expert evidence in whole or in part. It is for you to decide whose evidence and whose opinions you accept and the weight to be attached to such evidence. In this regard expert witnesses are no different from non-expert witnesses."
"Dr Isaac is an experienced expert witness who has given opinion evidence for both the GMC and the defence in hearings before this Tribunal. He also continues to work as a GP three days a week.
Dr Bennett is also an experienced GP. Dr Bennett worked and continues to work in your practice as a locum and on one occasion has had dinner at your home. This was the first case in which Dr Bennett has acted as an expert witness.
The Panel has found both experts overall to be credible. Their views and opinions were clear and they gave lengthy and detailed evidence to assist the Panel. Dr Isaac varied the degree to which he supported or agreed with your clinical practice. He was willing to change his position when new information came to light. Dr Bennett relied largely on his own clinical experience and almost invariably supported your clinical practice.
The views of the two experts on some occasions were similar or the same. Where they differed the Panel looked to the relevant supporting evidence and its understanding of their different professional backgrounds, knowledge and clinical experience to enable it to decide on which evidence to rely. The Panel did consider that on occasions Dr Bennett's evidence indicated that it was not underpinned by the impartiality and independence which would be expected from an expert witness in such circumstances; eg his reference to intuitive assessments. The Panel was not convinced by his evidence on intuition particularly in circumstances where a proper medical history had not been obtained."
"You gave very lengthy evidence. The Panel noted your long experience as a GP and that you were the only permanent GP at the practice albeit supported by locum assistance. It took into account that giving evidence is a stressful experience and that English is not your first language. The Panel also recognised your sense of grievance in being the subject of undercover filming of which you had no knowledge at the time. Nevertheless the Panel agreed with Mr Ferguson's description that you had not 'done yourself many favours' in giving your evidence. Its own view is that on a number of occasions your answers to the questions put to you were evasive, repetitive and unreliable and that your position changed on several occasions; eg as to whether you had carried out an examination of Patient AC at the second consultation. The Panel took the view that even when taking into account appropriate allowances for factors such as the stress of giving evidence and any difficulties in comprehension, parts of your evidence were not credible and this undermined your reliability as a whole."
"Patient AC told the Panel that you did not carry out an examination on him. The Panel has previously determined Patient AC to be an honest and credible witness.
The video footage does not show you carrying out an examination on Patient AC during this consultation. Both Mr Alex Kiehl and Mr Bartley King told the Panel that the footage had not been tampered with. The Panel has previously determined these witnesses to be honest and credible.
You told the Panel initially that you had definitely carried out an examination on Patient AC. You subsequently told the Panel that you may not have carried out an examination but that if it was recorded in the notes then you must have carried out an examination. It was submitted on your behalf that the EMIS system suggests the length of the consultation was longer than that indicated by the footage itself. The Panel noted the EMIS system is doctor operated and therefore although indicative of the length of the consultation, it is not conclusive. In any event the Panel could not infer that an examination had taken place irrespective of the length of the consultation.
Apart from your own evidence the Panel has not been provided with any evidence based on your belief that there has been a conspiracy against you involving tampering with the footage of the consultation. It noted that despite the unsuccessful application for an adjournment made in February this year, on the basis that this allegation was categorically denied and time was needed to obtain technical evidence, no such evidence was adduced to support your allegation that the footage had been tampered with. The Panel is satisfied that it has been provided with the entire recording of the consultation based on the credible and reliable witness evidence and the footage itself. The Panel determined that you did not carry out an examination but recorded in the patient notes that you had done so."
"Other than your assertion that you are not dishonest, the Panel noted that you are were unable to provide an explanation as to why you could have failed to perform that examination yet record that you had done so. The Panel has applied the test and has determined that what did you did was dishonest by the standards of reasonable and honest people. It found that you did realise that by recording in Patient AC's notes that you had performed an examination when you had not was dishonest by those standards, especially as you stated in evidence that you had made this note contemporaneously."
"'The Panel has decided in view of the serious nature of the facts found proved, that it is necessary to take action against your registration. The Panel has found that you failed to provide an adequate standard of care for one patient, Ms LG. Your assessment of her condition was seriously below the standards expected of a competent registered medical practitioner; you did not keep clear, accurate, legible and contemporaneous medical records; there was no evidence of a management plan; you did not record decisions made or the information given to the patient.'"
"In light of the matters that brought you before the Fitness to Practise Panel in 2006, the Panel has concluded that your actions and omissions in relation to Patient AC and Patient JB were not isolated incidents in an unblemished career as you have previously been informed of the failures in your clinical management and patient care. Those previous failures included: your failure to keep clear, accurate, legible and contemporaneous records, no evidence of a management plan, not recording decisions made or giving information to a patient which were similar to the matters in respect of which this Panel has made findings of facts. Furthermore the consultations in relation to Patient AC and Patient JB were separate events and, put together with the circumstances which led to your fitness to practise being found impaired in 2006, demonstrate a pattern of your acceptable approach to consultations notwithstanding those who reported on your performance in 2009 had concluded that this approach has been remediated.
This Panel does not consider that your actions are easily remediable and has determined that you have not fully demonstrated that you have taken appropriate remedial steps. The Panel has been provided with documentary evidence of the courses you have undertaken, reflective learning log, your CPD documentation, appraisal documentation and the positive testimonial evidence on your behalf from professional colleagues. The Panel has noted the testimonial evidence provided by patients but it does not appear that the patients were aware of the specific allegations made against you at these proceedings. In any event, the Panel has concluded that none of this current and historical documentary evidence outweighs your misconduct to the extent that it can be said that your fitness to practise is not impaired when balanced against the wider public interest.
The Panel has found that you have breached a fundamental tenet of the medical profession by failing to provide a good standard of practice and care. The Panel has determined your far reaching clinical errors and failures of clinical management in the three consultations could have had serious consequences for these patients. Further the Panel concluded that your actions had brought the profession into disrepute and that your integrity could not be relied upon in view of the finding of dishonesty against you. All four of the criteria outlined by Dame Janet Smith for a finding of impairment were therefore satisfied.
The Panel was concerned at the lack of insight which you demonstrated through the proceedings. At the fact finding stage the Panel previously determined that on a number of occasions your answers to the questions put to you were evasive, repetitive and unreliable and that your position changed on several occasion. The Panel noted this approach was reflected in the 'significant events' relating to the consultation on 30 June 2011 recorded by you in your appraisal documentation which indicated significant differences from the oral evidence which you gave during the hearing. The Panel also considered that this entry was another indicator of your lack of insight in that you put the blame on others rather than accepting any responsibility yourself.
In the light of these factors, the Panel cannot be satisfied that there will be no repetition of your misconduct. Furthermore, and in any event, the Panel considers that the gravity of your misconduct is such that public confidence in the profession and regulatory process would be undermined if a finding of impairment were not made in the particular circumstances of this case. For these reasons the Panel has determined that your fitness to practise is impaired by reason of your misconduct."
"Having determined that suspension would be an insufficient response to your misconduct the Panel concluded that erasure is the only appropriate sanction. Although in principle the clinical aspects of your misconduct are remediable there is limited evidence that you are capable of remediation as this requires insight which you have persistently failed to demonstrate. The Panel concluded that your un-remedied misconduct is fundamentally incompatible with continued registration as a doctor.
The Panel took into account the non-exhaustive list of features listed in paragraph 82 of the ISG, which may justify erasure and is of the view that the following five factors from that list apply to your case:
- 'Particularly serious departure from the principles set out in Good Medical Practice, ie behaviour fundamentally incompatible with being a doctor.
- A reckless disregard for the principles set out in Good Medical Practice and/or patient safety.
- Abuse of position/trust . . .
- Dishonesty, especially where persistent and/or covered up.
- Persistent lack of insight into seriousness of actions or consequences.'
The Guidance makes it clear that erasure may be the appropriate sanction if any of the listed factors are present. In your case the Panel found that these five factors individually and collectively demonstrate that the removal of your name from the register is the only appropriate and proportionate measure.
Accordingly, the Panel has determined to direct that your name be erased from the Medical Register."
"12 . . . The appeal is by way of a re-hearing. The relevant practice direction offers no guidance as to what this means: see CPR 52 PD. 116 (2). Clearly it is not an appeal confined to a point of law, but neither at the other end of the spectrum is it a de novo hearing, where the court hears the witnesses giving evidence again. The basis of intervention appears to be broader than that for judicial review.."
"15 . . . The test on appeal is whether the decision of the Fitness to Practise Panel can be said to be wrong. That to my mind follows because this is an appeal by way of rehearing, not review. In any event grave issues are at stake and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. However, in considering whether the decision of a Fitness to Practise Panel is wrong the focus must be calibrated to the matters under consideration. With professional disciplinary tribunals issues of professional judgment may be at the heart of the case. Raschid was an appeal on sanction and in my view professional judgment is especially important in that type of case. As to findings of fact, however, I cannot see any difference from the court's role in this as compared with other appellate contexts. As with any appellate body there will be reluctance to characterise findings of facts as wrong. That follows because findings of fact may turn on the credibility or reliability of a witness, an assessment of which may be derived from his or her demeanour and from the subtleties of expression which are only evident to someone at the hearing. Decisions on fitness to practise, such as assessing the seriousness of any misconduct, may turn on an exercise of professional judgment. In this regard respect must be accorded to a professional disciplinary tribunal like a Fitness to Practise Panel. However, the degree of deference will depend on the circumstances. One factor may be the composition of the tribunal. In the present case the Panel had three lay members and two medical members. For what I know the decision the Panel reached might have been by majority, with the three lay members voting one way, the two medical members the other. It may be that some at least of the lay members sit on Fitness to Practise Panels regularly and have imbibed professional standards. However, I agree with the submission for the appellant in this case that I cannot be completely blind to the current composition of Fitness to Practise Panels."
"A person's fitness to practise shall be regarded as 'impaired' for the purposes of this Act by reason only of —
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practise as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
"19. Whatever the meaning of impairment of fitness to practise, it is clear from the design of section 35C that a panel must engage in a two-step process. First, it must decide whether there has been misconduct, deficient professional performance or whether the other circumstances set out in the section are present. Then it must go on to determine whether, as a result, fitness to practise is impaired. Thus it may be that despite a doctor having been guilty of misconduct, for example, a Fitness to Practise Panel may decide that his or her fitness to practise is not impaired.
20. As to the meaning of misconduct and deficient professional performance, Jackson J addressed some aspects of these concepts in Calhaem v General Medical Council  EWHC 2606 (Admin);  LS Law Medical 26:
"(1) Mere negligence does not constitute 'misconduct within the meaning of section 35C(2)(a) of the Medical Act 1983. Nevertheless, and depending upon the circumstances, negligent acts or omissions which are particularly serious may amount to 'misconduct.
(2) A single negligent act or omission is less likely to cross the threshold of 'misconduct' than multiple acts or omissions. Nevertheless, and depending upon the circumstances, a single negligent act or omission, if particularly grave, could be characterised as 'misconduct'.
(3) 'Deficient professional performance' within the meaning of 35C(2)(b) is conceptually separate both from negligence and from misconduct. It connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the doctor's work.
(4) A single instance of negligent treatment, unless very serious indeed, would be unlikely to constitute 'deficient professional performance'.
(5) It is neither necessary nor appropriate to extend the interpretation of 'deficient professional performance' in order to encompass matters which constitute 'misconduct'."
"32. So those are the parameters for considering the issues raised in this appeal in relation to the findings. It is plain that where the conclusion of the FTP is largely based on the assessment of witnesses who have been 'seen and heard', this court will be very slow to interfere with that conclusion. Nonetheless, the court has a duty to consider all the material put before it on an appeal in order to discharge its own responsibility, appropriate deference being shown to conclusions of fact reached on the basis of the advantage of having seen and heard the witnesses. Where this court does not feel disadvantaged by not having heard the witnesses, and the issues can be addressed with little emphasis on the direct assessment of the evidence by the Panel, it is in a position to take a different view in an appropriate case.
33. To the extent that reliance is placed in support of an appeal on what is alleged to be wrong or misleading advice by the Legal Assessor, the approach of this court was reviewed by the Court of Appeal in Gopakumar v GMC  EWCA Civ 309. Tuckey LJ (with whom Sir Anthony Clarke MR, as he then was, and Jacob LJ agreed), having referred to the General Medical Council (Legal Assessors) Rules 2004, said this at paragraph 30:
'By rule 2 the legal assessor is required to advise on any question of law referred to him and to intervene to advise the Panel where there is a possibility of a mistake of law being made or where he learns of any irregularity in the conduct of the proceedings.
34. He continued as follows:
'31. So the differences between judge and jury in a criminal trial and members of a Panel and its legal assessor are obvious. The Panel is not a jury. They take legal advice from the assessor but they are not bound to follow it. The assessor is not a judge. He gives legal advice but does not give directions as such and does not sum up the evidence to the Panel.
32. These differences alone show that the analogy with criminal proceedings is not a good one. But this conclusion is confirmed by the two cases relied on by the Judge. Libman v GMC  AC 217 was principally concerned with the test to be applied by the Privy Council (then the appellate body) when considering whether to upset a finding made by the then Disciplinary Committee of the GMC. But at page 221 when summarising the general propositions to be drawn from earlier decisions of the Privy Council Lord Hailsham said:
'4. The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee … on points of law … The committee under its president are masters both of law and of the facts and what might amount to mis-direction in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's . . . advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision . . . .
In R (Campbell) v GMC  EWCA Civ 250 this court approved Lord Hailsham's propositions as still governing the approach that any court should adopt to decisions made by the then Professional Conduct Committee of the GMC. Mr Wilby argued that things have changed, at least since Libman was decided, because at that time the Disciplinary Committee was comprised entirely of doctors. As a result of the Human Rights Act a lay element has had to be introduced so the committees are now more like juries than they used to be. I do not think this makes any difference. It assumes that doctors have a greater knowledge of the law than the lay members who are now selected to sit on the Panel.'
33. So unfettered by any criminal analogy was there anything wrong with the legal assessors direction in this case? Was it unfair? Does it cast doubt upon the Panel's decision?'
35. Those cases set the essential parameters within which an appeal against the findings made is to be considered by this court. In relation to the Legal Assessor's advice, the question is whether it was unfair such that it casts doubt on the Panel's decision."
"13 . . . I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case (at 812) that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.
14. Finally, I should say something about the notion of inherent probabilities. Lord Nicholls said, in the passage I have already quoted, that —
'the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.'
15. I wish to lay some stress upon the words I have italicised. Lord Nicholls was not laying down any rule of law. There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely. If, for example, it is clear that a child was assaulted by one or other of two people, it would make no sense to start one's reasoning by saying that assaulting children is a serious matter and therefore neither of them is likely to have done so. The fact is that one of them did and the question for the tribunal is simply whether it is more probable that one rather than the other was the perpetrator."
"17. Lord Hoffmann's formulation accepts that there are civil proceedings in which the criminal standard, or something very like it, applies - for example, football banning orders which involve infringement of a Treaty right of freedom of movement (cf Goff v Chief Constable of Derbyshire  QB 1213) - but where in civil proceedings the standard of proof is the balance of probabilities a single standard applies. The possibility that, as a matter of common sense, a limited degree of flexibility in application remains was accepted by Lord Carswell in In re Doherty at paragraphs 27 and 28, but in terms which effectively strip it of legal content.
18. Lord Carswell approved observations of Lord Justice Richards in R (On application of N) v Medical Health Review Tribunal  EWCA Civ 1605, in which he had observed at paragraph 62 that there was flexibility in the application of the standard and that - pursuant to that flexibility - the seriousness of consequences of a finding could be taken into account. He expressed approval of those observations but added a qualification which he described as small but which, on my understanding of his words, effectively stripped it of legal consequence. In paragraph 28 he observed:
'It is recognised by these statements that a possible source of confusion was the failure to bear in mind with sufficient clarity the fact that in some contexts the court or tribunal has to look at the facts more critically or more anxiously than in others before it can be satisfied to the requisite standard. The standard itself is however finite and unvaried . . . The seriousness of the allegation requires no elaboration. A tribunal of fact will look closely into the facts grounding an allegation before it before accepting that it has been established. The seriousness of consequences is another facet of the same proposition. If it is alleged that the bank manager has committed a minor peculation that could entail very serious consequences for his career, so making it the less likely that he would risk doing such a thing. These are all matters of ordinary experience requiring the application of good sense on the part of those who have to decide such issues. They do not require a different standard of proof or especially cogent standard of evidence, merely appropriately careful consideration by the tribunal before it is satisfied of the matter which has to be established.'
19. In that last sentence Lord Carswell, in my opinion, laid down the true proposition of law.
20. Of course in disciplinary proceedings the tribunal must look with the greatest care at accusations which potentially give rise to serious consequences. But in determining whether or not they occurred, it applies a single unvarying standard, the balance of probabilities. If satisfied it is more likely than not that the facts occurred, then it must find them proved and draw appropriate conclusions as to sanction."
"19. It was common ground between the parties that for a finding of dishonesty to be made, the GMC must prove that (a) the act or omission concerned was dishonest by the standards of reasonable and honest people and (b) that the practitioner must have realised that what he or she was doing was dishonest if applying those standards. The onus of proof rests throughout on the GMC and the applicable standard of proof is the civil standard – that is the balance of probabilities. However, as Lord Nicholls observed in Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 at 586:
'The balance of probabilities standard means that a court is satisfied that an event occurred if a court considers that on the evidence the occurrence of the event was more likely than not. In assessing the probabilities, the court will have in mind as a factor to whatever extent it is appropriate in the particular case that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before court concludes that the allegation is established on the balance of probabilities. Fraud is usually less likely than negligence… Built into the preponderance of probabilities standard is a generous degree of flexibility in respect of the seriousness of the allegation.'"
Mr Forde submitted, and I agree, that the principle identified by Lord Nicholls of Birkenhead in Re H applies in relation to allegations of dishonesty such as those that gave rise to the findings of dishonesty in this case. It is noteworthy that the legal assessor did not draw the attention of the FTPP to this point, which is one that all fact-finding tribunals applying the civil standard of proof are bound to have regard to when considering an allegation of dishonesty. In my judgment he ought to have done so. However, on the facts of this case, in my judgment this might, and I emphasise the word 'might', have made a difference in relation only to one of the allegations of dishonesty. In my judgment it was immaterial to the others for reasons that will become apparent. "
"11. Mr Darlington refers us to the case of R v Lloyd  2 Cr App R 355, which itself cites the well-known case of R v Vye (1993) 97 Cr App R 134, where Lord Taylor LCJ said this:
'To summarise, in our judgment the following principles are to be applied.
(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements.
(2) A direction as to the relevance of his good character to likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements.'
The case of Lloyd quotes a further passage from Vye at its page 479 as follows:
'Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this Court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case.'"
The dishonesty finding
"Although memory is affected by the passage of time, this case concerns certain features which go beyond a failing memory. In particular Dr Inayatullah does not accept that the recording of his consultation with Patient AC on 2 August 2011 is the complete footage. He asserts that the recording has been tampered with, which is in stark contrast to the evidence you have heard from the GMC witnesses. The evidence on this issue is diametrically opposed and it is not possible to reconcile both sides. Your assessment therefore of a witness's credibility and reliability will be central to your determination of the facts."