![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmedsowida v General Medical Council [2021] EWHC 3466 (Admin) (21 December 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3466.html Cite as: [2021] EWHC 3466 (Admin) |
||
[New search]
[Context
]
[View without highlighting]
[Printable PDF version]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| DR BASHIR AHMEDSOWIDA |
Appellant |
|
| - and - |
||
GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Mr Peter Mant (instructed by General Medical Council) for the Respondent
Hearing date: 7-8 December 2021
____________________
Crown Copyright ©
Mr Justice Kerr :
Introduction
Sowida)
should be erased from the medical register and imposed an immediate suspension from practice order. Dr
Sowida
challenges those decisions. They were based mainly on findings of serious misconduct amounting to dishonesty. The tribunal found that his fitness to practise was impaired by reason of misconduct and that nothing less than erasure would be a sufficient sanction to protect the public.
Sowida's
appeal is brought on six grounds. In summary, they are that the tribunal (i) misapplied the tests of dishonesty in Ivey v. Genting Casinos (UK) Ltd (t/a Crockfords Club) [2018] AC 391; (ii) made a procedurally unfair late amendment to the charges; (iii) made inconsistent findings of fact; (iv) impermissibly "cumulated" distinct findings of misconduct; (v) at the impairment stage, lowered the test of dishonesty to that of recklessness; and (vi) at the sanction stage, wrongly approached the issue of insight into dishonesty.
Facts in Outline
Sowida
was born in Kabul in 1972. He is a British citizen. He studied medicine and graduated from the Ibne-Sina Balkh Medical School, Balkh University, in Afghanistan in 1996. From 2007 to 2009 he undertook his foundation years in this country at hospitals in Redditch and Sunderland. He then went to Northern Ireland and started specialty training with the Northern Ireland Medical and Dental Training Agency (NIMDTA) in August 2010. His "responsible officer" there was Professor Keith Gardiner.
Sowida
undertook locum postings from January to April 2014 at two hospitals in the Midlands, George Eliot Hospital and Heartlands Hospital, working first in Trauma and Orthopaedics (T&O) and then in T&O and Medicine. The investigation at Antrim Area Hospital then concluded with a final written warning from his employer there, in May 2014. In June 2015, that was reduced on appeal to a "formal warning", to expire in July 2015.
Sowida
was working (from April 2014 to August 2015) at Kettering Hospital as a senior house officer (SHO) in T&O and surgery. He was still subject to the training regime of the NIMDTA. His employment by the Northern Health and Social Care Trust (NHSCT), which operates Antrim Area Hospital, formally ended in August 2014.
Sowida's
name was drafted (the first CV). He provided information for it, but did not draft all of it himself. It included errors about when and where he obtained his medical qualification; more importantly to the tribunal later, it wrongly stated that he had been employed at Antrim Area Hospital as a specialty trainee in T&O from 4 August 2011 to 3 December 2012.
Sowida
did intermittent locum work at Kettering Hospital. On 6 August 2016, he applied for a job at Worcester Royal Hospital (Worcester Royal). His application (the first application) repeated the errors about obtaining his medical qualification, but these were not, subsequently, found to amount to serious misconduct. He discussed the first application with Professor Gardiner on 18 August 2016. He did further locum work for Bedford Hospitals NHS Trust in September and October 2016.
Sowida's
behalf, to Worcester Royal. It included the incorrect information already mentioned. He then worked as a locum in O&G at Worcester Royal from November 2016 to February 2017, before moving to another locum posting at North Devon District Hospital, until at least April 2017. After that, from 24 July 2017 he became a regular employee at Worcester Royal.
Sowida.
They were to the following effect.
Sowida,
the tribunal found, ignored Dr Jaiswal's offer to take over delivery of the baby, which made the delivery more difficult and caused more than anticipated blood loss to the patient.
Sowida's
skills by Dr Caroline Fox, she advised him to perform a "blunt dissection" rather than a "sharp dissection", but Dr
Sowida
performed a sharp dissection. Dr Fox later wrote in the notes that while a sharp dissection was not dangerous to the patient, Dr
Sowida
had said he always used the sharp dissection technique and had not followed her instruction.
Sowida
should have obeyed, but did not obey, her instruction to cease adjustments to suturing because the patient was in pain and discomfort and it was better to stop removing suturing with the aim of improving its placement in the quest for a good cosmetic result, even though the suture placement was not perfect.
Sowida
met Dr Rachel Duckett, the clinical director for O&G at Worcester Royal, to discuss concerns about his performance. The tribunal found that at that meeting Dr
Sowida
falsely stated that he had done three years' work in O&G since 2010 and that he had completed speciality training stages ST1, ST2 and ST3, rather than just ST1 in O&G, as was the case. Dr Duckett asked him to provide details of his training posts and training in O&G.
Sowida
said he wished to resign from his post so he could rejoin his national training programme from 1 December 2017. Dr Duckett stated that he would have to give contractual notice in writing. He then did so. On 17 September 2017 (as appears from Dr Duckett's email of 19 September), Dr
Sowida
emailed Dr Duckett confirming that he wished to resign from his post as of 2 November 2017. They had a discussion and Dr Duckett "formally accepted" his resignation, as she confirmed in her email of 19 September.
Sowida
did not provide the information sought. On 6 October 2017, the divisional medical director at Worcester Royal, Dr Andrew Short, emailed Dr
Sowida
asking for a meeting. No meeting took place. On 27 October 2017, Dr Duckett asked him to meet her in her office. He sent her an email the same day saying: "unfortunately you were busy [sic] to meet me, and I have left a message to the directorate office … to let you know of my attendance".
Sowida
was in email correspondence with Dr Short. The tone of Dr
Sowida's
correspondence was becoming contentious and anxious. Among other things, he said in that email "I have continually been trying to arrange an appointment with you via your secretaries and HR, but to no avail!!!". However, the tribunal later found that Dr
Sowida
had made no genuine attempt to meet Dr Short and, indeed, was avoiding a meeting with him.
Sowida's
resignation from his post at Worcester Royal took effect. Two weeks later, he met his responsible officer based in Northern Ireland, Professor Gardiner, as he was still subject to the training jurisdiction of the NIMDTA. The tribunal found that he told Professor Gardiner, incorrectly, that concerns had not been raised with him about his performance or conduct until after his resignation and that the concerns had only been raised by one person.
Sowida
worked as a locum at North Devon District Hospital. In March 2018, he submitted a job application (the second application) and a further CV (the second CV) to the Birmingham Women's and Children's NHS Foundation Trust (the Birmingham Trust). The application was for a junior clinical fellow post at Birmingham Women's Hospital. The tribunal later found that both the second application and the second CV contained incorrect statements.
Sowida
wrongly stated that his "responsible officer" for training purposes was the North Devon District Hospital and did not declare that he was a trainee with NIMDTA. As for the second CV, the tribunal found that he incorrectly stated that had been employed by North Devon District Hospital from 5 August 2016 up to March 2018; that he failed to mention his employment at Worcester Royal; and that he did not declare that he was a trainee with the NIMDTA.
Sowida's
statements in the first application and the first CV were challenged by the NIMDTA's education manager, Ms Denise Hughes, on 3 May 2018. She put to him that there were inaccuracies in them. Dr
Sowida's
response was that that the inaccuracies "could have been due to clerical, procedural and technical mistakes / on occasion reliance on memory".
Sowida
continued, on 15 May 2018 he emailed Professor Gardiner, still his responsible officer for training purposes, stating that "on 18th August 2016, the day of my ARCP [Annual Review of Competence Progression] to which I was strictly being instructed by (Prof. Gardiner and Dr Murnaghan) to refrain from divulging any related information in relation to the investigation conducted by AAH [Antrim Area Hospital] and NIDMTA" [sic]. The tribunal later found that Dr
Sowida
had not been so instructed.
Sowida
secured the appointment he sought at the Birmingham Women's Hospital, as a junior clinical fellow in O&G. The events described above were investigated by the GMC, and other events of lesser importance which I have not included in the above account, which concentrates on the most important events.
Sowida
produced a detailed witness statement, gave oral evidence was cross-examined. He denied the charges though he did not deny the authenticity of what was written in the relevant documents deployed against him. He contested the accuracy of some contemporary statements about him made by others in the documents.
The Tribunal's Decision
Sowida
was responsible for providing that information, knew it was false, hoped thereby to gain advantage or avoid disadvantage in various ways explained in the tribunal's reasoning, and acted in a manner that ordinary decent people would consider dishonest.
Sowida
had not disputed his role in providing documents that had gone out in his name, he did not accept that he had deliberately tailored the documents to put himself in a better light, nor that he was dishonest. They noted his counsel's assertion that he deeply regretted that full and accurate information was not given in the applications or CVs.
Sowida's
counsel, Ms Rosalind Scott-Bell, submitted that the first, second and third incidents had not generated any disciplinary proceedings; while the missed meetings had been arranged informally and in one instance during Dr
Sowida's
annual leave. He regretted not attending the meetings. She submitted that there was minimal risk of repetition and that he had kept his skills and knowledge up to date through a difficult time. Mr Lee Fish, for the GMC, submitted that Dr
Sowida's
conduct was deplorable and merited erasure.
"in respect of any paragraphs of the allegation which were not found to amount to serious misconduct, the Tribunal determined to consider whether it would be appropriate to cumulate them alongside other paragraphs of the allegation which have been found proved and, if so, to determine whether, in those circumstances, a finding of serious misconduct should be made."
Sowida
had got his date of birth wrong by four years and although he was "reckless in the way he completed the job application to the Trust in this regard, not caring sufficiently as to the accuracy of the contents, and therefore dishonest", that dishonesty fell short of being serious misconduct. However, falsely identifying his responsible officer as North Devon District Hospital rather than Professor Gardiner in Northern Ireland, and failure to declare that he was a NIMDTA trainee, was serious misconduct (paragraphs 34-36).
Sowida's
interactions with Dr Gardiner in November 2017 and May 2018 were found to be dishonest and to amount to serious misconduct (paragraphs 48-50).
Sowida
accepted the tribunal's decision, he did not accept that he dishonestly gave false and misleading information on six separate occasions. He had also in the proceedings "challenged the accuracy" of written evidence noted at the time by independent persons, which he had not challenged at the time (paragraphs 55 and 56). While professing "remorse" through counsel, he had not done so in contesting the charges, nor in a "reflective piece" or "further oral testimony".
Sowida
had produced a "reflective piece", of seven pages, "to demonstrate my insight, remorse and associated remedial actions". It was carefully researched and fully documented, with footnotes. He recognised the need for doctors to be "open and honest" about qualifications and experience when applying for posts. He accepted "discrepancies/inaccuracies" in information he provided.
Sowida
then stated that he accepted he was:
"careless the way I had provided the information in relation to the application and CV and recognise that the information was inputted was erroneous in a number of respects as I have outlined in my statement to GMC on the 11/02/20 and also in my cross-examination on the 8/10/20 respectively. However, the errors were not motivated by dishonesty. I would however repeat that I deeply regret that full, clear and accurate information was not contained in either the application or the CV."
"after considering each of the tribunal's determinations, I have an understanding as to why the dishonesty is found, whilst reflecting whether the actions have affected the trust of the patients my colleagues. By gaining comprehension regarding the seriousness and depth of the effect these mistakes have on the patient, the healthcare team, and my profession in general, I will make sure that accepting mistakes would not mean that I am only doing this because this is what others want to hear from me. As a response and a preventative measure, I will devise a strategic action plan which I can implement in the future to refrain the same mistakes from happening again."
"I do deeply regret the various comments have been made in relation to
inaccuracies and discrepancies in the information provided, sense of professionalism and dishonesty against me."
"it is Dr Ahmedsowida's case that these errors and inaccuracies were not intentional nor done dishonestly. … Dr Ahmedsowida was not given the opportunity to demonstrate his insight by accepting that he provided misleading information, but that he had no intention to be dishonest."
Sowida:
"does not accept the fundamental findings of the Tribunal in relation to his dishonesty. Although this is his right, Mr Fish submitted that it is difficult in that context to conclude that Dr Ahmedsowida demonstrates any insight today."
Sowida
"has not apologised for his dishonesty; he does not accept that he behaved dishonestly". The tribunal then reviewed its findings again, in some detail. They then turned to the reflective piece, noting its lateness. At paragraphs 47-49 they said this:
"47. … the reflective statement represents a start on the process of remediation. Dr Ahmedsowida has set out principles which could lead to remediation, how they relate to some of the findings and his attitude to them. But it does not address his dishonesty.
48. The overriding difficulty which Dr Ahmedsowida faces in this case is that
essentially it is a case of dishonesty. The Tribunal has found that Dr Ahmedsowida has behaved dishonestly in making applications for employment at Worcestershire Royal Hospital and at the Trust, he has been dishonest in responding to inquiries about his time in Worcestershire Royal Hospital. He has sought to cover up that dishonesty in an interview with Dr A. He has sought to sidestep it by his application for employment at the Trust by further dishonesty. In the view of the Tribunal, he did not attempt to set the record straight when he was at the Trust in later 2018. As he has never accepted his dishonesty, he has never sought to explain it. By the same token, he has never sought to explain the inaccuracies and inconsistencies which the Tribunal has found were occasioned by his dishonesty. He has simply apologised for them.
49. In the absence of any acknowledgment of his dishonesty, the Tribunal is
bound to conclude and does conclude that he has shown no real insight into his misconduct. It must be on that basis that the Tribunal must turn to consider sanction."
Grounds of Appeal
First ground: misapplying the tests of dishonesty
Sowida,
submitted that on numerous occasions the tribunal misapplied the tests in Ivey v. Genting Casinos (UK) Ltd by concluding that his subjective state of mind was "dishonest" before considering the second test, i.e. whether the conduct would be considered dishonest by ordinary decent people. He submitted that this flaw tainted the findings of dishonesty in the case of charges 5,13a-b, 26, 32, 37, 43, 48, 52 and 56.
Sowida
of (among other things) knowingly providing false information to both Worcester Royal and later to the Birmingham Trust (regrettably, wrapped up in the same charge, charge 13a):
"Where the Tribunal has found that Dr Ahmedsowida included information outlined in any of those paragraphs which was not true, and which he knew to be untrue, it has found that he had formed a dishonest state of mind on the basis that he was deliberately including information with the intention of misleading a reader as to his past history. Further the Tribunal has found that ordinary decent people would regard such actions as dishonest."
Sowida
of (among other things) dishonestly failing to declare in the second CV his employment at Worcester Royal and that he was a trainee with the NIMDTA from August 2010 to March 2018, the tribunal said this at paragraphs 136 and 137:
"Paragraph 13(b) in respect of paragraph 9(d)
136. Found proved. The Tribunal found that Dr Ahmedsowida was deliberately hiding the fact that he was employed by the Hospital by stating that he was employed at the material time at North Devon District Hospital and not correcting that erroneous statement by proper disclosure of his employment at the Hospital. It further found that he did so to protect himself from scrutiny as to what had happened at the Hospital. The Tribunal found that that was a dishonest state of mind and further that ordinary decent people would regard such actions as dishonest.
Paragraph 13(b) in respect of paragraph 9(e)
137. Found proved. The Tribunal found that Dr Ahmedsowida was deliberately hiding the fact that he was a trainee at the NIMDTA by making it appear that his traineeship was in North Devon and not correcting that erroneous impression by proper disclosure of the fact that he was a trainee at the NIMDTA. It further found that he did so to protect himself from inquiries with NIMDTA which would have resulted in a discovery as to what had happened at the Hospital. The Tribunal found that that was a dishonest state of mind and further that ordinary decent people would regard such actions as dishonest."
Sowida's
"dishonest state of mind" having therefore already concluded that he was acting dishonestly before applying the second part of the test. He also said that the reasoning supporting the findings of dishonesty was inadequate.
Sowida
as "fixed with responsibility" for content within the first application and the second application which he had not personally written, but which was either supplied by others or electronically "propagated" from earlier versions of the documents.
"Where the Tribunal has found that Dr Ahmedsowida included information outlined in any of those paragraphs which was not true, and which he knew to be untrue, it has found that he was deliberately including information with the intention of misleading a reader as to his past history. Further the Tribunal has found that ordinary decent people would regard such actions as dishonest."
Sowida's
subjective state of mind about the facts, i.e. whether he believed the information he was imparting was untrue.
Sowida's
motives to be, namely to gain advantage in various ways, or avoid a disadvantage such as (for example) his past at Antrim Area Hospital catching up with him.
Second ground: making a procedurally unfair late amendment to the charges
Sowida
submits that there was a serious procedural irregularity when the tribunal amended charges 9-13 inclusive after hearing closing submissions. The submissions were heard on 15 October 2020. The tribunal deliberated without the parties present in the week of 14 December 2020. The parties were recalled (after prior notice in writing of the reason) on 18 January 2021 to consider what the chair called an "anomaly" in relation to charges 9 and 10; and a "knock-on anomaly" in relation to charges 11, 12 and 13.
Sowida
would have presented his case differently if charges 9-13 were modified as the tribunal proposed. The tribunal rejected Mr Fish's proposed amendments and rejected also Ms Scott-Bell's submission that no amendment should be made. It decided to amend those charges in a manner of its own composition.
"23. The Tribunal determined to amend paragraphs 9, 10, 11, 12 and 13 of the Allegation having ascertained that the paragraphs of the Allegation which alleged failures on the part of Dr Ahmedsowida were not properly pleaded. The Tribunal determined to do so to make sure that the case against Dr Ahmedsowida was properly presented. It was satisfied that it would cause no injustice to Dr Ahmedsowida to amend the Allegation. The Tribunal's full decision is included at Annex F."
Sowida
failed to declare information that ought to have been declared. All four related to the application to Birmingham Trust in March 2018:
(1) Charge 9d asserted failure to declare in the second CV Dr
Sowida's
prior employment at Worcester Royal.
(2) Charge 9e asserted a failure to declare in the second CV that Dr
Sowida
was a trainee with the NIMDTA from August 2010 to March 2018.
(3) Charge 9f asserted a failure to declare in the second CV that Dr
Sowida
had been excluded from "your post at NIMDTA" (i.e. from Antrim Area Hospital) from 21 November 2011 to 31 July 2014.
(4) Charge 10f asserted a failure to declare in the second application that Dr
Sowida
was a trainee with the NIMDTA from August 2010 to March 2018.
Sowida
did not want the Birmingham Trust to know about. The sting of the charges was that he wanted to sanitise his past, leaving out inconvenient facts that might induce the Birmingham Trust not to offer him a job. Standing back, all that is clear enough. It was also the GMC's case that deliberately omitting these relevant matters from the second CV and second application was dishonest.
"Paragraphs 9d-f and 10f were dishonest by reason that the facts and matters which you did not declare were true and you had an obligation to declare them when submitting the second CV and the second application to the Trust [Birmingham Trust] for employment."
Sowida
would always have been aware that dishonesty was alleged against him in relation to the failures to disclose information, not just where he positively gave out false information.
Sowida
"the opportunity to present his case in a way which directly responded to the charges as the panel ultimately considered them". He submitted that amendments during the tribunal's deliberations should be confined to "rare exceptional cases", of which this was not one. The amendments, he suggested, were critical to the findings of guilt leading to erasure.
Sowida
knew the case he had to meet: that he had been under an obligation to disclose that information and had dishonestly not done so.
"[t]here will … be cases where a late amendment of the allegations … will be justified, even after the evidence has been heard and findings of fact have been made."
Sowida's
part. He did, indeed, know the case he had to meet. I agree with the tribunal's determination that the amendments could be made without injustice and I reject the second ground of the appeal.
Third ground: making inconsistent findings of fact
Sowida
submits that the tribunal made "serious procedural errors by making inconsistent determinations". This submission relates to the issue of responsibility for the content of the first application to Worcester Royal in August 2016 and the second application to the Birmingham Trust in March 2018. To understand the argument, it is necessary to explain the tribunal's findings on various charges.
Sowida
completed the application form for the first application in which he completed the declaration at the end of the form "which confirmed that the information which you had provided was true and complete". Charge 11a then alleged (among other things) that he included information in the first application "as outlined in paragraph 6a-g that was untrue".
Sowida
stood accused of falsely stating in the declaration he completed that the information in the application form for the first application was true and complete when, in fact, that information was not true and complete. Charge 12a then went on to allege that he knew it was not true and complete: "[y]ou knew that the information included in the … First Application as outlined in paragraph 6a-g was untrue".
Sowida's
"actions as described at paragraphs 6 … were dishonest by reason of paragraphs 11 and 12". By that meandering route Dr
Sowida,
therefore, stood accused not only of falsely stating that the information in the declaration at the end of the form for the first application was true and complete; but also of doing so dishonestly.
Sowida
was thereby accused of falsely and dishonestly stating in the declaration at the end of the form he completed for the second application that the information in the form was true and complete when in fact it was not.
Sowida
said he did not complete it personally; it was completed and submitted by his wife or a Ms Lorraine Charlton, a ward manager at the hospital in Sunderland where he had worked. Even so, he admitted (through counsel) completing the application form.
Sowida
later made when the accuracy of the form was challenged, and the lateness of his evidence that his wife or Ms Charlton had filled in the form, the tribunal concluded at paragraph 42 that Dr
Sowida
had been the "guiding hand" for the way the form was completed.
Sowida
was "fixed with having provided that information" (paragraphs 81(e) and (f)). Charge 10i, though admitted, was not proved because "the Tribunal did not find that Dr Ahmedsowida completed the Second Application in this respect".
Sowida
had not personally completed substantial parts of the forms for the first and second applications, including the declarations at the end of them, the tribunal should have found "not proved" all charges consequential on that finding. The tribunal, he argued, had sought to "cherry pick" items in the forms for which responsibility was attributed to Dr
Sowida,
apparently on the basis of recklessness.
Sowida
from personal responsibility for the declarations, yet find him responsible for the incorrect content preceding them. The first and second applications (and the first and second CVs) were "the proverbial dog's breakfast", perhaps because English is not Dr
Sowida's
mother tongue, and were not properly checked. But, importantly, he did not himself verify the correctness of the content; nor was there any evidence that any of the supporting documents were false or falsified.
Sowida
responsible for some parts of the content of the forms for the first and second applications, but not other parts. He relied on the reasoning supporting the findings to the effect that Dr
Sowida's
was the "guiding hand" in the two applications and, indeed, the first and second CVs, which were subjected to the same forensic examination and "nuanced" findings as the two application forms.
Sowida
was responsible for parts of the forms for the first and second applications, but not other parts of them. The tribunal was entitled to decide that he determined to a large extent what information of substance would go in the forms even though someone else and not he entered that information on a computer and submitted it electronically.
Sowida
was "fixed with" having provided certain information may be analytically sound but is not the same as the first stage of the two stage dishonesty test. Casual and reckless indifference to the truth may evidence a subjective belief that certain matters stated are untrue, for it may be relevant to whether a professed belief in their truth is genuinely held (see Lord Hughes JSC's judgment in Ivey at [74]). But casual and reckless indifference to the truth is not itself the first stage of the test.
Sowida
being the ultimate source of (or being "fixed with" responsibility for) false items of information in the forms for the first and second applications, except to the extent that the tribunal found the information in question was false and that he knew it was false: see the tribunal's findings on charge 12a through to 12d (and, in relation to the first and second CVs, 12b and 12c), at paragraphs 100-119.
Fourth ground: impermissibly "cumulating" distinct findings of misconduct
Sowida's
fourth ground is that the tribunal was wrong "to cumulate findings of misconduct on some [charges] to make a determination of serious misconduct on others". This contention arises from passages in the tribunal's determination on impairment. At paragraph 19, they cited extracts from Schodlok v. GMC [2015] EWCA Civ 769, in the judgment of Vos LJ at [63], of Beatson LJ at [72] and of Moore-Bick LJ at [73], agreeing with Vos LJ's judgment.
"… the GMC charged these 3 matters [i.e. the first, second and third incidents] in one paragraph of the Allegation and … they all concern Dr Ahmedsowida's failure to follow the instructions of supervising colleagues. In those circumstances, the Tribunal concluded that as the GMC has presented the case in this way, it should have been clear to Dr Ahmedsowida that any adverse findings by the Tribunal on these matters could be cumulated when considering misconduct. The Tribunal has concluded that it is fair to do so. On this basis, it has found that Dr Ahmedsowida's failure to follow the instructions of Dr C when considered alongside his failure to follow the instructions of Dr B and Dr D, amounts to serious misconduct."
"generalised concerns about the doctor's behaviour, even if supported by evidence of specific incidents, could not properly found a finding of misconduct and impairment unless that formed the subject of a specific charge against the doctor."
"whether it is open to a fitness to practise panel to conclude on the basis of a series of findings of non-serious misconduct that they collectively constitute serious misconduct".
The court was not asked to consider and did not consider whether it was open to a panel to elevate to "serious" misconduct a matter that in isolation would be non-serious, where that matter is considered alongside another matter which in its own right constitutes serious misconduct.
"I do not think that we should opine on the theoretical possibility that, in a particular case on different facts, a series of non-serious misconduct findings could, taken together, be regarded as serious misconduct. For my part, I would not think that the possibility of taking such a course in a very unusual case on very unusual facts should be ruled out, but I would prefer to leave the argument for a case in which such facts were said to arise. In the normal case, I do not think that a few allegations of misconduct that are held individually not to be serious can or should be regarded collectively as serious misconduct."
"70 … I am less sceptical than he is about whether a series of non-serious misconduct findings could, when taken together, be regarded as serious misconduct which impairs a doctor's fitness.
71. I consider that, notwithstanding the virtual unassailability of the findings of primary fact and assessments of the credibility of witnesses by the specialist Fitness to Practise Panel, this is a case in which the appeal from the Panel should be allowed. This is because, for the reasons my Lord has given, the Panel … took into account its findings of non-serious misconduct in determining whether Dr Schodlok's fitness to practise was impaired".
Fifth ground: at the impairment stage, lowering the test of dishonesty to that of recklessness
"contained slightly different information as to Dr Ahmedsowida's degree than that set out in the NIMDTA form dated 1 February 2010. It was not necessarily taken therefrom. Moreover, it discloses the fact that Dr Ahmedsowida was working in General Surgery in Moscow (Zhokovsky) between 13 February 1999 and 1 January 2002. The fact that he was qualified as a doctor at that time may therefore be discerned from the document itself. Although Dr Ahmedsowida does not state the date of his degree with any accuracy, his failure to do so does not appear to have had a motive. Further, it is most unlikely that in 2017, when the First CV was submitted to Worcestershire Royal Hospital for a locum appointment, the date and place of his degree would have been of much relevance to the appointment. By then he had completed his foundation years and his first year of specialty training. The Tribunal has therefore determined that, although Dr Ahmedsowida was reckless in the way he completed the First CV, not caring sufficiently as to the accuracy of the contents, and, therefore, dishonest and in breach of paragraph 71 of GMP, his dishonesty in this regard falls short of amounting to serious misconduct."
Sowida's
degree and qualifications. At paragraph 123, the tribunal stated:
"Dr Ahmedsowida stated that he was studying for an MBBS between January 2003 and August 2007 in Balkh Medical University (Moscow), when he had been awarded his MD in Balkh University, Afghanistan in 1996. In part, he was dishonestly maintaining the untruth which he had entered in his NIMDTA application dated 1 February 2010 which he signed. Further, by placing Balkh University in Moscow, he was making it more difficult for the reader of the First CV to make enquiries about his degree, and in particular the date of the award."
Sowida's
application to the Birmingham Trust for a junior clinical fellow post at Birmingham Women's Hospital. The tribunal stated at paragraphs 30 and 31 (with my italics again):
"30. The false information as to Dr Ahmedsowida's degree (paragraph 9(a) of the Allegation). The Tribunal had regard to paragraphs 92, 109 and 125 of its determination on the facts. For similar reasons to those set out above in relation to paragraph 7(a) of the Allegation, the Tribunal does not find that Dr Ahmedsowida's dishonesty in this regard amounted to serious misconduct.
31. The false date of birth (paragraph 9(b) of the Allegation). The Tribunal had regard to paragraph 92, 110 and 126 of its determination on the facts. The Tribunal did not consider that Dr Ahmedsowida's statement that he was born on 1 January 1976, as opposed to 1972, will have been made with the intention of securing himself a locum position in 2017. His actual date of birth was registered with the GMC at that time. The Tribunal has therefore determined that, although Dr Ahmedsowida was reckless in the way he completed the First CV [sic] in this regard, not caring sufficiently as to the accuracy of the contents, and therefore dishonest and in breach of paragraph 71 of GMP, his dishonesty falls short of amounting to serious misconduct."
"125. Found proved. Dr Ahmedsowida was dishonestly maintaining the untruth which he had entered in his NIMDTA application dated 1 February 2010 which he signed which stated that he was awarded an MBBS on 1 January 2003. He had been awarded his MD in Balkh University, Afghanistan in 1996.
…..
126. Found proved Dr Ahmedsowida was dishonestly maintaining that he was born on 1 January 1976."
"34. The false date of birth (paragraph 10(d) of the Allegation). The Tribunal had regard to paragraphs 82, 95, 115 and 130 of its determination on the facts. The Tribunal did not consider that Dr Ahmedsowida's statement that he was born on 1 January 1976, as opposed to 1972, will have been made with the intention of securing himself a position at the Trust. His actual date of birth was registered with the GMC at that time. The Tribunal has therefore determined that, although Dr Ahmedsowida was reckless in the way he completed the job application to the Trust in this regard, not caring sufficiently as to the accuracy of the contents, and therefore dishonest and in breach of paragraph 71 of GMP, his dishonesty falls short of amounting to serious misconduct."
Sowida
being "reckless … and therefore dishonest", Mr Forde's complaint is of dilution of the standard of dishonesty to a test where dishonesty is established by proving that the words used in between apply: "in the way he completed the job application to the Trust in this regard, not caring sufficiently as to the accuracy of the contents". That is, of course, not the law.
Sowida
could not properly respond to the charges where reckless was found and that this was a serious procedural irregularity; cf. Professional Standards Authority for Health and Social Care v. Nursing and Midwifery Council and Macleod [2014] EWHC 4354 (Admin), per Andrews J at [39]-[40]. It was not relevant that the conduct found to be reckless was not classed as serious misconduct. The recklessness findings were a wrong assessment of Dr
Sowida's
state of mind.
Sowida's
favour, was not material, could not have affected the outcome and should be treated as a mere linguistic infelicity, remembering that narrow textual analysis was to be avoided.
Sowida
was "reckless … and therefore dishonest" because of the way in which he completed the first CV, the second CV and the job application to Birmingham Trust, "not caring sufficiently as to the accuracy of the contents". The language used at the stage of determining the facts is harsher. The clear findings about the same conduct are of deliberate deception amounting to dishonesty. That language cannot be reconciled with the language used at the impairment stage.
Sowida
was dishonest because, as stated at the impairment stage, he was not careful enough about ensuring the accuracy of the contents of the first and second CVs and the form for the application to the Birmingham Trust.
Sixth ground: at the sanction stage, wrongly approaching the issue of insight into dishonesty
Sowida's
reflective piece was flawed because they said it did not address the issue of dishonesty whereas, manifestly, it did. And, it was submitted, the tribunal was wrong to determine that the absence of any acknowledgment of dishonesty meant the tribunal were bound to conclude that Dr
Sowida
had shown no real insight into his misconduct.
Sowida
also contended that the tribunal had erred by wrongly failing to weigh in the scales not just the public interest in maintaining public confidence in the profession but also the public interest in (per Lord Hoffmann in Bijl v. GMC (Privy Council, 2 October 2001) at [13]:
"not … feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment."
Sowida
had dishonestly given false and misleading information on six occasions and that he had challenged the accuracy of contemporary accounts, not challenged at the time. They found an absence of insight despite remorse expressed through counsel. There was, I reiterate, no reflective piece at that stage, though Dr
Sowida
had started work on it and it was available three days later.
Sowida's
"right" not to accept the "fundamental findings … in relation to dishonesty". His submission implied that exercising that right must be at the expense of making it "difficult … to conclude that Dr Ahmedsowida demonstrates any insight today". Put the other way round, the submission would require him to forego his right not to accept the findings of dishonesty, to help persuade the tribunal that it was remediable.
Sowida
could not offer because he did not accept that he had acted dishonestly (see paragraph 30 of the determination on sanction). The reflective piece, they said (paragraph 47) was a start but "does not address his dishonesty". That was true in one sense: that he did not address the issue of dishonesty by admitting to it.
Sowida
had expressed remorse about and apologised for the inaccuracies and inconsistencies but that he had not explained them, only apologised for them. They went on to say explicitly (accepting the substance of Mr Fish's submission) that "[i]n the absence of any acknowledgment of his dishonesty", the tribunal was "bound to conclude that he had shown no real insight into his misconduct".
Sowida
had accepted the tribunal's findings, subject to his right of appeal against them. He had apologised for his wrongdoing. He could do no more. The tribunal had failed to give credit for the considerable insight he had shown in the reflective piece, though without compromising his right of appeal.
Sowida's
problem had been "attitudinal" in nature and remediable. He presents no danger to the public. The sanction of suspension would be a proportionate substitution for that of erasure, submitted Mr Forde.
Sowida's
actions were dishonest and "no analysis of what caused him to act dishonestly". The tribunal were right to approach the assessment of insight on that basis; see, e.g. Irvine v. GMC [2017] EWHC 2038 (Admin), per Holroyde J (as he then was) at [83]. And any insight shown in the reflective piece was insufficient to justify a more lenient sanction (see, e.g. Farah v. GMC [2008] EWHC 731 (Admin), per Sullivan J (as he then was) at [21]).
Sowida's
proposition that the tribunal overlooked the weight to be given to the mitigating features and the desirability of his career surviving if that could happen without unacceptable damage to public confidence in the profession. The wrongdoing here was too serious for that.
Sowida
had lied when giving his evidence. He submitted, however, that such was the "inevitable consequence of the findings that it made". Thus, he said he did not personally complete the documents and did not intend to mislead, yet the tribunal found that he deliberately provided untrue information that was untrue intending to mislead prospective employers.
Sowida
had maintained that the content of the emails to Drs Duckett and Short was true and that the tribunal had found otherwise and that he had knowingly given a false account in those emails; and that Dr
Sowida
had disputed the accuracy of contemporaneous notes and denied making any false statements; while the tribunal found that the notes were accurate and that he had deliberately provided information that was untrue.
"it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court."
Sowida
did face the jeopardy of a more serious outcome because of having contested the charges and because of the manner in which he contested them. I accept that there was a gap of about three months between the fact finding stage and the impairment and sanction stage. In Al Nageim, the gap was nine months and the allegations related to events longer ago than in this case. During the three month hiatus, Dr
Sowida
was working in a coronavirus ward during a period of partial lockdown.
Sowida,
as distinct from his resistance to and refusal to admit the charges. There were some findings about his credibility, but those were mixed with other findings accepting large parts of his evidence; notably, on the issue of mixed authorship of misleading documents and extant source material finding its way from earlier documents into later ones.
Sowida
had lied in evidence, without the tribunal having to go to the trouble of saying as much. I do not think that is enough. Mr Mant then relied mainly on statements found by the tribunal to have been made at the time, forming the subject of the charges, and the veracity of which Dr
Sowida
affirmed during his evidence, not surprisingly since he could not otherwise have denied the charges.
Sowida
that he had not accepted, and therefore not apologised for, being dishonest; see paragraphs 30 and 47-49 of the determination on sanction. At the earlier impairment stage, he had "challenged the accuracy" of written evidence noted at the time (impairment determination, paragraph 54). He had not, the tribunal noted, expressed "remorse" in the course of contesting the charges nor (yet) in a reflective piece (paragraphs 55-56).
Sowida
would have to admit to the dishonesty found. Had he done so, Mr Forde would have been unable valiantly to strive (largely but not wholly unsuccessfully) to persuade me that his client was not dishonest. He would have been met with his client's own admission of dishonesty to the tribunal. His right of appeal against the finding of dishonesty would, in practice, be illusory.
Conclusions and Disposal
Sowida
his refusal to admit to dishonesty, at the impairment and sanction stage.
Sowida
may have something of a mountain to climb because of the principle famously stated by Sir Thomas Bingham MR (as he then was) in Bolton v Law Society [1994] 1 WLR 512, 519, that personal mitigation counts for less than in other contexts because of the imperative need to uphold and maintain public confidence in the profession.
Sowida's
dishonesty was not necessarily irremediable. I think it is right that the impairment and sanction determinations should be reconsidered in the light of this judgment. I will therefore remit the proceedings to the Medical Practitioners Tribunal Service.
Sowida,
be treated as dishonest conduct; and (iii) the decisions on impairment and sanction must be taken without reference to or taking into account Dr
Sowida's decision to contest the allegations made against him or the manner in which he contested them.