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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lawrance v General Medical Council [2015] EWHC 586 (Admin) (13 March 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/586.html Cite as: [2015] EWHC 586 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CATHERINE ANN LAWRANCE |
Appellant |
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- and - |
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GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Mr I Hare (instructed by GMC Legal) for the Respondent
Hearing dates: 11th February 2015
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Crown Copyright ©
Mr Justice Collins:
"On the balance of probabilities, I am persuaded by the evidence of Ms Charlton and, so far as it goes, Dr Pizura that, apart from the two occasions in March 2005, Dr Lawrance was not engaged to work for the claimant's practice after she became a partner to her own practice in August 2004. I cannot exclude the possibility that she occasionally deputised for her husband in making a home visit or some other task but, if that happened, any record of her work she had done was made by him in his own name."
"That being registered under the Medical Act 1983 (as amended):-
1. On 7 March 2005, whilst working as a part time General Practitioner at the Chancellor House Surgery and Tilehurst Village Surgery, Reading ('The Practice'), you recorded consultations you had undertaken at the practice in the name of your husband, Dr Moneim, a GP partner at the practice;
2. On or about 4 December 2009 you provided a statement to Reading County Court to the effect that
(a) you worked at the Practice to a greater or lesser extent until your husband was purportedly compulsory retired on 8 February 2007,
(b) in the latter part of 2006 you became very concerned about problems at the Practice as a product of working there;
3. On or about 28 January 2010 you provided a statement to Reading County Court to the effect that
a. you were providing on-call services to patients of the Practice until your husband was purportedly compulsory retired on 8 February 2007,
b. you provided administrative services to the Practice until February 2007,
c. you provided those services at the request of the Practice;
4. Between 16 May 2011 and 2 August 2011 you provided oral evidence to Reading County Court to the effect that you worked at the Practice from August 2004 until February 2007;
5. You performed no clinical or administrative work at the Practice from August 2004 after February 2007;
6. Your conduct is described at paragraph 1, 2, 3 and 4 was
a. misleading
b. dishonest
And by reason of the matters set out above your fitness to practice is impaired because of your misconduct".
"She has made clear in that conversation and the subsequent conversation that that is not to be taken as any concession or at odds with her admission of certain facts, simply that she does not, I think it is fair to say, physically feel able to cross examine or ask questions of the witnesses".
The use of the adverb 'physically' is of some interest since, as will become clear, the appellant's case is that she became physically ill when realising she was to be confronted by Dr Underwood in particular since under stress she had a history of suffering from severe nausea which had sometimes required medical treatment.
"Dr Lawrance: Yes, I do. I did not expect the witnesses to be here until I was told they were here this morning and I did not receive the witness statements until this morning.
The Chair: I understand that.
Dr Lawrance: I thought I might be able to ask questions but I know that I cannot. I do not know, I do not think I will be able to get legal representation this afternoon or tomorrow, so that is where I am.
The Chair: I am just asking the Legal Assessor whether he thinks that, if she so wished, that Dr Lawrance ought to be able to get legal representation, say, by tomorrow morning or tomorrow lunchtime. I mean, I certainly am aware of being involved in other cases where a lawyer was got at relatively short notice to represent".
The legal assessor in response very sensibly said that even if legal representation could be obtained the next day a representative would be unlikely to be able to proceed since he or she would need time to take proper instructions.
"I would be grateful if you would allow me an adjournment until tomorrow morning so I could follow up with those phone numbers and see whether I can obtain legal representation quickly".
The chair then agreed to adjourn until 10am the following day which should, it hoped, give the appellant time to find out whether she could get representation and how quickly. Perhaps, he said, there might be local people available. By the time the adjournment was granted, it was, the appellant has said, 4pm.
"I just want to say this. I believe that if the hearing is to continue, either now or later, that it will be unjust and unfair after what happened yesterday to me and I have nothing further to say".
The chair said:-
"I am not sure that I understand what you are saying. You were provided with a number of options yesterday. If your point is that the case ought never to proceed that is clearly not a reality".
The appellant's response was to say "Then I am afraid I am going to have to leave", whereupon she left the hearing and the building. The legal assessor informed the panel that he and counsel had wanted to try to get some idea of her position but she declined to speak to them and she said she just wanted to speak to the panel. Following the chair's suggestion that they might try to speak to her again, they left the room only to discover that the appellant had left the building.
"Given Dr Lawrance's attendance at this hearing, the Panel is satisfied that she is aware of these proceedings. Furthermore, the Panel adjourned yesterday in order for Dr Lawrance to be provided the opportunity to seek legal representation…….
Dr Lawrance has not provided the Panel with any information regarding whether she made an attempt to secure legal representation, nor has she applied for the hearing to be adjourned. Instead, she withdrew from the hearing without adequate explanation.
The allegations relate to events between 2005 and 2011. The Panel is mindful of the detrimental effect of a further delay on the memory of the witnesses. It has also borne in mind the inconvenience that would arise for the witnesses who will have to make arrangements to provide evidence to this Panel.
Given the efforts made by you and the Legal Assessor to ensure Dr Lawrance was made aware of the options available to her, the time that has already been provided and Dr Lawrance's subsequent departure without explanation, the Panel concluded that neither a short adjournment, nor a longer one to a date in the future, would be likely to result in the attendance of the doctor with or without legal representation.
In all circumstances, the Panel considers that Dr Lawrance has voluntarily waived her right to be present or represented at this hearing. It considers that it is in the public interest for this hearing to proceed and that it has exercised its discretion in determining to do so.
The Panel does not draw any adverse inference from Dr Lawrance's absence. It is an experienced Panel, conscious of its obligations to ensure that the hearing is fair to all parties."
"Then when it came to the judgment at the end the judge said "You did use the books and you were not in the surgery: I am sorry all of that is unreliable and particularly Dr Pizura and Jan Charlton were totally credible witnesses, you were just not there for those things".
This is hardly an accurate reflection of the judges' conclusion which I have set out in paragraph 11 above.
"I only ask because it would be clear if she did not know what the witness statements contained then she would not really be in a position to say whether she wanted them to come or not".
If that was intended to suggest that contrary to what the appellant had said, she had seen the statements, it was unfortunate. The appellant obviously knew what had been said against her at the County Court and, as I have said, she clearly was under the misapprehension that she could give evidence to deal with the issues without the need for the witnesses to be called and cross examined.
"The standard of proof required at this stage is what is described as the civil standard of proof, that is proof on the balance of probabilities. A fact will therefore be established by the GMC if you think more likely than not to have happened."
That is entirely correct and no elaboration was needed in relation to establishing whether the appellant's statement and evidence were accurate. In relation to dishonesty, the direction was as follows:-
"….you should consider whether the conduct was objectively misleading or dishonest. In the case of dishonesty you should also be satisfied that the conduct would have been considered dishonest by Dr Lawrance."
Ms Davies argued that the second sentence was a misdirection in that it failed to apply the correct Ghosh test which was that the appellant must have realised that her actions would have been regarded as dishonest by the standards of ordinary and decent people. However, she recognised in argument that the test stated by the legal assessor was in reality more favourable to the appellant and so that argument was abandoned.
"In the absence of any insight on Dr Lawrance's part, and in view of the fact that she has maintained her false account of events, the Panel could not be satisfied that she would not repeat her misconduct."
Quite apart from the absence of any opportunity to hear her on this, it is difficult to see what basis there was for a conclusion that she might be dishonest in the future. The panel, in deciding on erasure, stated that it had no evidence before it of any insight or recognition of wrongdoing nor had it received any testimonial evidence as to the appellant's integrity in general. There was no reassurance that she would not repeat her misconduct. While she had left the hearing and the building, it was not to be assumed that once told that the panel had found dishonesty established and she faced the possibility of erasure she would not have sought advice and wished to attend. She has since sought such advice and has appealed. I am clearly of the view that fairness dictated that the panel should have been prepared to adjourn to give her the opportunity to attend before the appropriate sanction was imposed.
"1. Particularly serious departure from the principles set out in Good Medical Practice (i.e. behaviour fundamentally incompatible with being a doctor).
2. A reckless disregard for the principles set out in Good Medical Practice and/or patient safety.
3. Dishonesty, especially where persistent and/or covered up.
4. Persistent lack of insight into the seriousness of actions or consequences."