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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sawati v General Medical Council [2022] EWHC 283 (Admin) (11 February 2022) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2022/283.html Cite as: [2022] EWHC 283 (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 :
____________________
DR RAISAH SAWATI |
Appellant |
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- and - |
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THE GENERAL MEDICAL COUNCIL |
Respondent |
____________________
Ms Catherine Callaghan QC (instructed by GMC Legal) for the Respondent
Hearing dates: 18th & 19th January 2022
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Crown Copyright ©
Mrs Justice Collins Rice:
Introduction
The Tribunal proceedings
(i) The allegations, defences and findings of fact
(a) The first misconduct allegation (patient records/dishonesty)
(b) The second misconduct allegation (unauthorised absence)
(c) The third misconduct allegation (shift-swapping/dishonesty)
(d) The fourth misconduct allegation (self-assessment/dishonesty)
(e) The fifth misconduct allegation (unauthorised absence)
(f) The sixth misconduct allegation (interview/dishonesty)
(f) The 2018 performance assessment
(ii) The conclusions on misconduct and impairment of fitness to practise
168. The Tribunal considered the nature and extent of Dr Sawati's misconduct generally. The Tribunal had found dishonesty in relation to three of the charges which dated from January 2014 to January 2018, a four-year period. At the time of the first incident, the Tribunal recognised that Dr Sawati was a very junior doctor in her first community placement at Alexandra Practice and she was already known to have some performance difficulties.
169. The Tribunal considered whether in the light of its further findings of dishonesty and her missing from duty at Fairfield Hospital in March 2017, Dr Sawati's conduct was part of an habitual failure on her part to deal with professional challenges and address her own shortcomings. The Tribunal considered Dr Sawati may have a capacity to deceive herself in response to particular challenges or difficulties.
…
171. The Tribunal found that Dr Sawati went missing for around two hours while on a night shift at the A&E Department at Fairfield Hospital, without informing anybody. This had the potential to put patients at risk. While there was no evidence that patients did come to harm, the Tribunal was satisfied that Dr Sawati has acted in a way whereby if repeated she is liable in the future to put patients at unwarranted risk of harm.
172. The Tribunal was satisfied that through the three instances of dishonesty and having gone missing for two hours on shift, Dr Sawati brought the reputation of the profession into disrepute.
173. The Tribunal considered that given the various breaches of Good Medical Practice identified in the three instances of dishonesty and her going missing while on shift, Dr Sawati also breached fundamental tenets of the profession.
174. Given the three findings of dishonesty, it follows that Dr Sawati has in the past acted dishonestly.
175. Accordingly, the Tribunal found that all four limbs of Dame Janet Smith's test for impairment are engaged in this case.
(iii) Sanction
The Tribunal also bore in mind its three findings of dishonesty and that dishonesty is difficult to remediate. The combination of proven dishonesty and admitted deficient professional performance, together with Dr Sawati's lack of insight and failure to learn from her mistakes, makes suspension an inadequate sanction in view of the overall seriousness of Dr Sawati's impairments.
a. A particularly serious departure from the principles set out in Good Medical Practice where the behaviour is fundamentally incompatible with being a doctor.
b. A deliberate or reckless disregard for the principles set out in Good Medical Practice and/or patient safety.
h. Dishonesty, especially where persistent and/or covered up.
j. Persistent lack of insight into the seriousness of their actions or the consequences.
243. The Tribunal concluded that Dr Sawati had breached a significant number of paragraphs of GMP [Good Medical Practice] over several years, which demonstrated her serious departure from the principles of GMP and her reckless disregard for them.
244. Dr Sawati's dishonesty over four years was persistent.
245. The Tribunal was concerned by the underdeveloped and incomplete nature of Dr Sawati's insight into her performance deficits and her deficits in professionalism, over a period of years. The Tribunal cannot be satisfied that any improvements made by Dr Sawati have been maintained during her suspension from practice since April 2020. Although she has not had face-to-face contact with patients, she would have had multiple opportunities to undertake CPD and other learning.
246. The Tribunal were aware that when the Performance Assessors came to their conclusion that Dr Sawati was fit to practise on a limited basis, they did not have available to them the findings of dishonesty which were determined by this Tribunal.
247. With regard to Dr Sawati's insight into her dishonesty, her insight remains partial at best. Her failure to tell the truth at the hearing is further evidence of her lack of insight.
Grounds of appeal
Legal framework
102. Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court:
(i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
(ii) the jurisdiction of the court is appellate, not supervisory;
(iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the tribunal;
(iv) the appellate court will not defer to the judgment of the tribunal more than is warranted by the circumstances;
(v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate;
(vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the tribunal for reconsideration.
Analysis
(i) Good character and the findings of dishonesty
46. The Tribunal determined that Dr Sawati knew how to make retrospective entries in the medical records, but tried to conceal that this entry was made retrospectively. Having arrived at this view, the Tribunal took account of Dr Sawati's good character and the evidence of the Performance Assessment in relation to her poor record keeping, which included making inaccurate and imprecise records. However, the Tribunal was satisfied on the evidence before it that Dr Sawati's amendment to Patient A's medical records at 12.20 was not merely an example of poor record keeping, but a deliberate attempt to give the impression that she had spoken to Dr Power about Patient A's respiratory problems.
(a) The correct approach to good character
From these authorities I derive the following. Whilst a disciplinary Tribunal must take good character evidence into account in its assessment of credibility and propensity, Donkin, supra, and Bryant, supra, show it is an error not to do so, it is not required slavishly in its reasons to give a self-direction to that effect (although if it does do so, there can be no room for argument – a proposition Ms Hearnden did not disagree with). It is sufficient, where the matter is raised on appeal, if the appeal court is able to infer from all the material that the Tribunal must have taken good character properly into account. That is the conclusion I reach in this case. It would be simply unrealistic to suppose that the Tribunal overlooked it, given what it had received orally and in writing including, most importantly, a clear direction from its legally qualified Chair, who was a constituent member of the Tribunal. In Donkin, supra, Maurice Kay LJ said at [25] that, 'I am not satisfied from the text of the stated Reasons that [good character] played any part in its consideration of dishonesty.' That, it seems to me, was a conclusion on the particular facts of that case. I have concluded that is not the situation here.
(b) The Tribunal's handling of good character
26. When considering the question of dishonesty, you must [footnote: Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67] firstly ascertain Dr Sawati's actual knowledge or belief as to the facts: that is, ascertain what she genuinely knew, or genuinely believed the facts to be.
…
28. Secondly, having determined Dr Sawati's state of knowledge or state of belief, the Tribunal must then go on to determine whether her conduct, as you have found it to be, was honest or dishonest by the standards of ordinary decent people.
31. To be clear, good character is not of itself a defence to an allegation.
32. Nevertheless, caselaw [footnote: Wisson v. Health Professions Council [2013] EWHC 1036 (Admin)] has established that good character can properly be material, and is material, at the facts-finding stage of your deliberations when considering a practitioner's credibility. It is not limited to allegations of dishonesty.
33. In Dr Sawati's case, 'good character' arises from the lack of any previous findings against her by the General Medical Council.
34. In general terms, 'good character' is capable of being counted in a practitioner's favour in two ways:
- The Tribunal may decide that good character evidence supports a practitioner's credibility, and so is something which the Tribunal should take into account when deciding whether they believe her evidence (the 'credibility limb'); and
- Good character evidence may mean that the practitioner is less likely to done as alleged in the allegation (the 'propensity limb').
35. The weight that you, as a Tribunal, attach to this at the fact-finding stage is a matter for you. You must, of course, consider all the evidence that has been placed before you that bears on each fact which remains in dispute. Nevertheless, it is one thing that the Tribunal can take into account.
(c) Consideration
(d) Conclusions
(ii) The sanction decision
(a) The 'rejected defence' issue
(b) The 'rejected defence' caselaw: principles and relevant facts
Their Lordships enquired of Mr Greene, counsel for the GMC, whether it was a general GMC practice where charges of professional misconduct were being made to add to the factual allegations on which the charges were based an allegation of dishonesty in the event that the respondent doctor had had the temerity to deny any of the factual allegations. Counsel told their Lordships that it was not the general practice and that he was not aware of a previous case where that had been done. No explanation of why it was thought right to add the allegations of dishonesty in the present case was offered. In their Lordships' opinion the addition of the allegations of dishonesty in the present case was unnecessary and oppressive. The allegations added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him.
In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.
Because sanctions are imposed for public interest reasons (protecting patients and maintaining public confidence in the profession and its standards), a Tribunal is 'clearly entitled' to take into account material other than the allegations before it as potentially relevant to impairment and sanction decisions.
In the view of the panel, which is not disputed, he contested the critical allegations of dishonesty and intention to mislead. That was a fact which the panel were entitled to take into account in determining whether or not his fitness to practise was impaired, even though it did not form a separate allegation against him. Indeed, it is hard to see how it could have done. One can envisage circumstances in which lying to a disciplinary panel may itself amount to professional misconduct such as to lead to a finding that fitness to practise is impaired and a severe sanction. In a case, for example, of alleged clinical error, where a doctor had given false evidence to the panel about it, the panel would not be entitled to treat that as a freestanding ground of impairment of fitness to practise leading to a sanction. If it found that the original clinical error which founded the allegation did not impair his fitness to practise and it was only the lies told to the panel, then that would have to be pursued in separate proceedings, with the charge made the subject of a separate allegation. But that set of circumstances is likely to be highly unusual.
Of course, no sanction was to be imposed on him for his denials as such; however insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must pay close attention to the doctor's current understanding of and attitude towards what he has done.
That was of course in order to deal with whether there was a significant risk of the behaviour being repeated. It is another case therefore in which persistent denial up to and including the sanctions stage was included in an overall assessment of failure of insight.
(1) Dr Khetyar had pretended to conduct legitimate medical examinations on Patients B and C, in each case fondling their breasts for sexual reasons.
(2) Dr Khetyar continued to deny that he had done any such thing, and had given unreliable and in parts incredible evidence in his attempts to describe or explain events.
(3) There had been two similar incidents only a year apart. They were both recent in the relevant chronology, that of Dr Khetyar's working life, given that he had worked for only about nine months since the second incident. The second incident occurred despite the fact that the first led to both a police investigation and a referral to the GMC that went no further only because Patient B did not want matters to be pressed.
The relevant history of the case included the doctor's attendance at courses of 'no relevance to the true gravamen of the case proved against him'; apologies crafted to avoid the issue, and remorse going to the effect rather than the causes of the disciplinary proceedings.
I think that it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined.
Mostyn J quoted the passage by Lord Hoffman cited above and continued:
It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.
Consistently with that right, of course, a Tribunal has a duty to protect the public.
(1) Insight is concerned with future risk of repetition. To this extent, it is to be distinguished from remorse for the past conduct.
(2) Denial of misconduct is not a reason to increase sanction.
(3) It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it.
(4) However, attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight.
(5) The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere.
It is clear to me that a significant component in the decision-making process, both as to determination of impairment of fitness to practise, and in the imposition of the sanction of erasure, was the conclusion that the appellant was to be seriously faulted for (a) having contested the allegations against him at the inquest, and not having accepted the Coroner's findings, and (b) having contested the allegations against him at the MPT. The pleas of not guilty (in effect) in both courts were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty.
…
In my judgment 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.
I can see, were a defence to be rejected as blatantly dishonest, then that would say something about impairment and fitness to practise in the future. But there would surely need to be a clear finding of blatant dishonesty for that to be allowed. Absent such a finding it would, in my judgment, be a clear encroachment of the right to a fair trial for the forensic stance of a registrant in the first phase to be used against him in the later phases.
In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment and sanctions phases. Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque (to use Walker J's language) if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired because you have disputed that your fitness to practise is currently impaired.
123. I regard the Appellant's case before the Tribunal about the salary payments as having involved especially egregious untruthfulness and dishonesty. By 2013 he had been a doctor for a number of years and he knew full well how and when NHS doctors are entitled to be paid. He could not have genuinely believed for one second that he was still entitled to be paid by the Royal Liverpool Hospital even after his contract there had come to an end. His claim that he genuinely thought the payments were some sort of ex gratia 'kindness', or a loan by the Hospital, and that after he started working in Wrexham in August 2013 it was perfectly in order for him to receive two NHS salaries, was completely absurd.
124. It follows that I do not consider the Tribunal was at fault in having regard to this dishonesty when it came to assess the Appellant's level of insight. Its approach was in line with what Mostyn J said in Towuaghantse, supra, [72], that dishonesty in knowingly advancing a case of false primary fact certainly 'say[s] something about impairment and fitness to practise in the future'. And there is the point that in this case nine months passed between the facts/impairment stage and the sanction stage, in which time the Appellant had still not developed full insight into his dishonesty.
125. Taking a step back and looking at the Tribunal's reasons as a whole, this was not a case where the Appellant was being punished for daring to contest the GMC's case against him. The Tribunal found that in March 2020 he had advanced a case as to his states of mind at the time of the alleged misconduct which he knew not to be true. By December 2020 the Tribunal was not satisfied that he had full insight into that dishonesty. This was a relevant factor for it to take into account in deciding whether his dishonest misconduct was fundamentally incompatible with his continued registration.
I do not think the principle is sophisticated or complicated. It is just ordinary due process. Contesting the charges, even robustly, should not be treated of itself as evidence of lack of insight; something more must be shown. A finding that blatant lies were told to the tribunal is one possibility. A long hiatus between the fact finding, and impairment and sanction stages may be a contributing feature.
I would not go as far as to accept Mr Forde's submission that only in rare and exceptional cases should conceding dishonesty have a bearing on insight and remediation. Unfortunately, cases of blatant lying and knowingly advancing a false case of primary fact are not all that rare in the professional discipline jurisdictions.
Another way of looking at the issue is to ask whether in substance the tribunal has fallen into the trap of finding that a practitioner's fitness to practise is impaired because he has disputed that very proposition by not admitting to the dishonesty found against him; or, to use different words but similar reasoning, whether the practitioner "admits the primary facts but defends a proposed evaluation of those facts in the impairment phase" (Towuaghantse at [72]).
I cannot accept Mr Mant's submission to the effect that inconsistency between facts found by the tribunal and evidence given by the doctor to the tribunal, not readily explicable as mistaken, is sufficient in itself to found a lack of insight finding through non-acceptance of the dishonesty. That submission does not meet the constitutional point that the doctor has a right to procedural fairness and in particular an unimpaired right of appeal, which would be eroded if the GMC's stance were accepted. The right of appeal is "unqualified" (per Nicola Davies LJ in Sastry at [102]).
In the present case, I have concluded that DrSowida
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.
…
There was no proper examination by the tribunal of the quality of the evidence given by DrSowida,
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.
Mr Mant was driven to invite me to infer that the tribunal must have been satisfied that DrSowida had lied in evidence, without the tribunal having to go to the trouble of saying as much. I do not think that is enough.
(c) Relevant factors in 'rejected defence' cases
(d) Consideration
(e) Assessing the gravity of the misconduct
(f) Conclusions
Remedy
Decision