Sanusi v General Medical Council [2019] EWCA Civ 1172
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Dr Abayomi Lukman Sanusi v the General Medical Council [2019] EWCA Civ 1172 concerned an appeal by the appellant, a doctor, from the dismissal by Kerr J of his appeal against the sanction of erasure imposed by a Medical Practitioners Tribunal for serious professional misconduct including dishonesty. The Court of Appeal (Lady Justice Simler, Mrs Justice Theis and Lord Justice David Richards) dismissed the appeal.
The appellant had qualified as a doctor in Turkey in 2003 and worked in the UK, including as a Registrar in General Surgery at South Tees Hospital NHS Foundation Trust from October 2010. Concerns arose in October 2012 about his clinical care of Patient A (a 67-year-old admitted for elective hernia repair) and in January 2014 about Patient C (a 92-year-old with severe calf pain) whom he allegedly failed to assess sufficiently when requested by colleagues. Internal disciplinary action led to a final written warning. In December 2014 concerns regarding his management of Patient F (a 72-year-old admitted with abdominal pain and constipation) resulted in dismissal with notice on 3 July 2015. South Tees Trust referred his conduct to the General Medical Council on 8 July 2015.
On 1 July 2015 the appellant had applied for employment as a Specialty Doctor in General Surgery at Rotherham NHS Foundation Trust. He did not disclose written warnings or disciplinary findings in the electronic form. At interview on 30 July 2015 (by which time he had been informed of his dismissal) he stated there was an ongoing investigation involving one incident and he had resigned due to an intolerable working situation with a colleague, whereas in fact the disciplinary investigation had concluded and he had been dismissed. The tribunal later found these statements untrue. Rotherham Trust withdrew its conditional offer of employment on 8 September 2015, citing failure to give full details of his fitness to practise history and reason for leaving South Tees, and referred this to the General Medical Council.
Following commencement of employment at Doncaster and Bassetlaw Hospitals NHS Foundation Trust in October 2015, the appellant’s clinical supervisors (Dr Olubowale and Dr Kolar, Consultant Breast Surgeons) provided positive reports. From February 2017 he worked as a trainee GP, supervised by Dr Alison Roberts, who also provided a positive testimonial noting he was reliable and addressed concerns keenly through learning, although she identified some clinical concerns. The appellant sent this reference and other materials including testimonials, appraisals and patient letters to the General Medical Council.
The General Medical Council sent a rule 7 letter on 11 October 2016 setting out draft charges. The appellant responded in detail, disagreeing with allegations relating to Patients A, C and F, denying deliberate misleading or dishonesty regarding the Rotherham application and stating he had reflected and improved his communication and clinical skills. He attached testimonials from supervisors and said the rule 7 response should be read together with evidence and responses previously supplied. A notice of allegation was sent on 30 August 2017, with notice of hearing on 31 August 2017 stating the hearing would commence on 2 October 2017 with an estimated length of twenty days. The notice informed him of his right to representation, to present evidence and call witnesses, or make written representations, and warned that the tribunal could proceed in his absence under rule 31 and impose sanctions including erasure.
By witness statement dated 15 September 2017 the appellant stated he would not attend the hearing because he was not legally represented, could not afford legal services and had limited permitted absences from the GP training programme commenced in February 2017. His statement ran to twenty-eight pages and described the evidence as inaccurate, biased and non-representative. He characterised South Tees Trust as having a negative culture involving harassment and verbal abuse and suggested he had been persecuted. He accepted his communication regarding Patient A could have been better and said he had undertaken remedial action, but maintained he was treated in an undermining manner afterwards. His reflection section stated he harboured no bitterness but that his major mistake was continuing to work in an unsupportive organisation. The statement included a brief section on sanction asking that the impact already caused not be underestimated or overlooked and that further sanctions would amount to repeat infliction of punishment.
The tribunal hearing commenced on 2 October 2017 in the appellant’s absence. The tribunal first considered whether to proceed without him, having regard to a redacted version of his statement relevant only to service and absence. It noted he had commenced GP training with limited permitted absences, had not requested postponement and concluded he had voluntarily absented himself and was unlikely to attend on any future date. The tribunal determined it was fair and in the public interest to proceed, given allegations dated from 2012 to 2015, and it could proceed without injustice. No adverse inference was drawn from his absence. There has been no appeal from this decision.
The tribunal heard evidence from Mr Anthony Peel, an expert, to the effect that the appellant’s care of all three patients fell seriously below the standard expected of a reasonably competent registrar. All three complaints involved the allegation that the appellant failed to attend patients when asked by colleagues. The tribunal heard live evidence from witnesses of fact and found no support for allegations of victimisation, harassment or malicious allegations by colleagues.
By decision dated 18 October 2017 the tribunal found many (but not all) factual allegations proven, giving detailed consideration to the evidence and the appellant’s witness statement. The tribunal concluded each failure to provide good clinical care in respect of Patients A, C and F individually amounted to serious misconduct. Regarding the Rotherham application, the tribunal accepted the appellant had persuaded himself and genuinely believed the South Tees investigation was mainly down to personality clashes and that the General Medical Council investigation was a formality, even though this was not in fact the case. The tribunal found that expressing a genuinely held belief, however misguided, could not amount to serious misconduct. However, the tribunal found the failure to disclose his dismissal, the false statement that he had resigned due to an intolerable working situation and failure to disclose the South Tees investigation were dishonest statements or omissions made with a view to obtain work he knew he was unlikely to obtain if he told the truth. That amounted to serious misconduct. These findings have not been challenged on appeal.
On impairment, the tribunal held that to date the appellant had demonstrated a concerning lack of insight and inability to accept responsibility for his actions, sought to justify his behaviour and continued to place blame on others and minimise his role, seeing himself as a victim where others were “out to get him”. There had been no evidence of remediation provided to the tribunal. He had shown limited remorse and no insight into the impact his conduct could have had on patients or the profession. The tribunal concluded it could not be satisfied there was no future risk of repetition and was concerned that without developing insight or remediation the appellant might place patients at risk of harm. As to the dishonesty findings, the tribunal acknowledged it was one single incident but found it serious because Dr Garner was repeatedly and deliberately misled during the interview as to reasons for leaving South Tees, the appellant claiming to have resigned rather than having been dismissed, for the purpose of securing employment which was immediately withdrawn upon discovery of his dishonesty. The tribunal referred to the position of privilege and trust occupied by doctors in society, who are expected to act with integrity, and concluded fitness to practise was impaired. There is no challenge, substantive or procedural, to any of these findings and conclusions.
There is nothing on the face of the decision to suggest the tribunal considered whether to adjourn pre-sanction stage to afford the appellant the opportunity to make further submissions. In relation to sanction, the tribunal considered available sanctions in ascending order of gravity by express reference to the Sanctions Guidance. The tribunal noted mitigating factors: incidents all took place in one employment and there was no evidence of issues with character or performance either before October 2012 or since July 2015. There was no evidence the appellant’s misconduct caused actual harm to patients, although it posed potential risk of serious harm. The tribunal had regard to two testimonials from Consultant Surgeons at Doncaster and Bassetlaw Hospitals NHS Foundation Trust speaking of his abilities in positive terms during employment from 1 October 2015 to 4 October 2016. However, the tribunal noted the authors appeared unaware of the nature of allegations or these proceedings, which impacted upon the weight which could be attached to them. The tribunal understood the appellant had been undergoing GP training since February 2017 but said no evidence had been submitted in relation to this. Kerr J subsequently found the tribunal was clearly ignorant of Dr Roberts’ letter, which not only confirmed GP training was taking place but also that it was going quite well. The General Medical Council was in possession of that letter but the tribunal was not.
The tribunal rejected suspension on the basis there was no evidence of any meaningful insight, acknowledgement of fault or steps taken towards remediation and no evidence upon which it could properly conclude there was any real prospect of remediation in the future. The tribunal found the appellant’s misconduct was not limited to clinical failings but extended to dishonest conduct which, although not persistent or covered up, was serious because it involved lying in an attempt to obtain employment as a surgical registrar performing the same duties for which he had been dismissed only four weeks earlier. A doctor engaging in dishonest conduct will invariably be at risk of erasure, all the more so where the doctor does not engage with the hearing, acknowledge dishonesty, show potential for remediation or show development of insight. The tribunal concluded the appellant’s proven misconduct was fundamentally incompatible with continued registration. The tribunal took into account the impact erasure would inevitably have, noting from his statement dated 15 September 2017 that he had embarked upon a GP training programme in February 2017. However, it concluded the need to protect patients and the public interest outweighed the appellant’s personal interests. Erasure was the only sufficient sanction to protect patients, maintain public confidence in the profession and send a clear message to the appellant, the profession and the public that his misconduct constituted behaviour unbefitting of a registered doctor. The tribunal therefore directed that the appellant’s name be erased from the Medical Register.
The appellant appealed against the sanction decision only and was legally represented before Kerr J. It was accepted before Kerr J that the tribunal was justified in proceeding in the appellant’s absence but submitted that the tribunal should have considered adjourning at the sanction stage or pausing to allow the doctor to produce further documentary evidence as to remediation, insight or remorse or to attend to give evidence at the sanction stage. The failure to take either step meant the hearing proceeded without any further material directed to remediation, insight or remorse. The sanction imposed was therefore unfair and disproportionate. Kerr J dismissed the appeal. He found the appellant did not understand that attending the tribunal hearing should take priority over his training and although he appreciated the nature and extent of the hearing, he did not appreciate the peril of erasure. He did not seek legal advice, citing financial constraints.
Kerr J found the appellant provided the General Medical Council with a substantial number of documents over a considerable period but although some were sent to the tribunal, many were not. Material available to the General Medical Council but not sent to the tribunal included appraisal documents, a tool for assessment and peer review dating from October 2015, certificates of courses completed, expressions of appreciation from former patients, results of clinical evaluation exercises, results of a patient feedback exercise involving an interpersonal skills questionnaire and the letter from Dr Roberts dated 1 August 2017. These missing materials did not go before the tribunal and were not available when it evaluated the available sanctions and considered mitigating circumstances. On the question of adjourning before dealing with sanction, Kerr J concluded there was no basis for criticising the tribunal’s decision not to adjourn and contact the appellant before proceeding to consider sanction. Following General Medical Council v Adeogba [2016] EWCA Civ 162 he held that in the context of the disciplinary jurisdiction exercised by Medical Practitioners Tribunals, it will rarely be unfair for a tribunal to proceed straight to the question of sanction rather than pausing to invite attendance from a registrant who has voluntarily absented himself.
Although Kerr J found procedural unfairness in the failure by the General Medical Council or the tribunal to ensure the tribunal had all the appellant’s documents available to it, particularly given the clear statement in the appellant’s witness statement that certain documents had been excluded from the material provided, Kerr J held on the facts that the failure to ensure the tribunal had sight of all this material was not reasonably capable of affecting the outcome. The tribunal’s decision on sanction would still have had to reflect the gravamen of the main findings. The absence of insight and appreciation of the seriousness of his misconduct, the difficulty in showing the required remediation in the case of dishonesty and the overriding need to preserve public confidence in the profession led Kerr J to conclude that no harm was done by what went wrong and the decision to erase the appellant’s name from the Medical Register must stand.
The appellant, now acting in person, appealed with permission granted by Leggatt LJ on two grounds: whether the tribunal should have notified the appellant of its findings of misconduct and given him an opportunity to make submissions before proceeding to sanction; and whether the judge was right to find that the process by which the sanction decision was reached was not rendered unfair by the failure of the General Medical Council to provide the tribunal with evidence which the appellant had asked to have taken into account in mitigation.
Lady Justice Simler (with whom Mrs Justice Theis and Lord Justice David Richards agreed) dismissed the appeal. On the first ground, the appellant contended that as a matter of equity, fairness, due process and procedure, the tribunal should have paused briefly before embarking on the sanctions stage to consider whether an adjournment was necessary in the interests of justice or should have contacted him to enquire whether he wished to attend or make written representations before the draconian step of erasure was taken. He relied on Sukul v Bar Standards Board [2014] EWHC 3532 (Admin) and Lawrance v General Medical Council [2015] EWHC 586 (Admin) where courts concluded that the disciplinary tribunal should have afforded an opportunity for the appellant to make representations as to sanction following findings of professional misconduct. He submitted he demonstrated no intention to frustrate the process, engaged fully throughout the lengthy investigation and was effectively prevented from attending the hearing because of his GP commitments. As an unrepresented litigant who had misunderstood the procedural requirements an adjournment might more readily have been granted.
Lady Justice Simler held the authorities relied on by the appellant were to be treated with considerable caution in light of General Medical Council v Adeogba. In Adeogba Sir Brian Leveson PQBD gave guidance on the approach in a regulatory context to proceeding in the absence of a registrant. The Court of Appeal approved the use in this context of criteria governing continuing with a criminal trial in the absence of a defendant as a useful starting point but highlighted the differences between a criminal trial and the hearing of disciplinary allegations by a professional regulator whose objective is the protection of the public. The Court of Appeal made clear the analogy between criminal prosecution and regulatory proceedings could not be taken too far given the important regulatory objective of the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners and the absence of any
Sukul v BSB [2014] EWHC 3532
Lawrance v GMC [2015] EWHC 586
General Medical Council v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR3867
General Medical Council v Hayat [2018] EWCA Civ 2796
Faniyi v Solicitors Regulation Authority [2012] EWHC 2965
Held v General Dental Council [2015] EWHC 669
Elliott v Solicitors Disciplinary Tribunal & another [2004] EWHC 1176
R v Chief Constable of Thames Valley Police , ex parte Cotton [1998] IRLR 344
R (Smith) v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 3315
General Medical Council v Theodoropolous [2017] EWHC 1984 (Admin), [2017] 1 WLR 4794
General Medical Council v Jagjivan [2017] EWHC 1247 (Admin), [2017] 1 WLR 4438
Sanusi v General Medical Council [2018] EWHC 1388