Ahmed v The General Medical Council [2019] EWHC 2173 (Admin)

Transcript

Ahmed v The General Medical Council [2019] EWHC 2173 (Admin) concerned an appeal by a consultant in acute medicine, Dr Syed Ahmed, against a decision by the Medical Practitioners Tribunal directing that his name be erased from the medical register. The appeal was heard in the High Court (Administrative Court) by Mr Justice Pepperall, who dismissed it.

Dr Ahmed had been employed by Stockport NHS Foundation Trust as a consultant at Stepping Hill Hospital between January 2007 and February 2016. Under his job plan he was contracted to work 11.625 programmed activities of four hours per week, which included direct clinical care on ward A1, the Acute Medicine Unit, and the Acute Assessment Unit, as well as supported programmed activity for professional development and clinical administrative work. Between March and May 2015 he provided additional consultant cover on escalation wards, including A14 and C5, which operated as part of the trust’s waiting-list initiative during a period when the number of patients exceeded available beds. In May 2015 irregularities were identified in his claims for payment for work done on the escalation wards. After an internal investigation he was dismissed for gross misconduct and the matter referred to the General Medical Council.

The Fitness to Practise Panel heard evidence over sixteen days in October and November 2018 from seventeen witnesses. It found that Dr Ahmed had dishonestly claimed additional remuneration for working on the escalation wards during times when he was already being paid for direct clinical care or supported programmed activity. Specifically, it concluded that his declarations on claim forms stating that his additional work had been “performed outside my regular contractual commitment” were knowingly untrue on thirty days between 1 April and 22 May 2015. The tribunal also found that he had made dishonest duplicate claims for payment on four occasions, and that he had dishonestly claimed payment for work on 18 to 19 May 2015 on ward A14 when he was being paid for study leave. It concluded that Dr Ahmed’s fitness to practise was impaired by reason of misconduct and directed that his name be erased from the register.

Dr Ahmed appealed under section 40 of the Medical Act 1983, contending that the tribunal had been wrong to find that he made knowingly false statements and that he acted dishonestly. He accepted that if the tribunal’s findings of fact stood there were no separate grounds for challenging either the finding of impairment or the sanction. Before Pepperall J, counsel for Dr Ahmed argued that the tribunal had appeared “wilfully deaf” to the defence case and had failed to make sufficient allowance for the fact that English was not Dr Ahmed’s first language when assessing his credibility. It was submitted that the tribunal had failed to have proper regard to evidence supporting the defence case that it was common practice to displace direct clinical care time, particularly the evidence of Drs Bonny, Ali and Dizayee who, it was said, worked in the same way. It was also submitted that the legal assessor had failed to advise the tribunal as to the principle that fraud is inherently improbable, as articulated in Sharma v The General Medical Council [2014] EWHC 1471 (Admin) and Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. More generally, Dr Ahmed argued that this was not a case of moonlighting but rather a doctor who worked in two capacities for the same employer with the trust’s full knowledge, fitting additional duties around his existing commitments by working extra hours, displacing non-patient-facing activities to his own time, and utilising periods when he had completed his direct clinical care obligations.

Pepperall J set out the well-established principles governing appeals under section 40 of the Medical Act 1983, emphasising that such appeals are by way of rehearing and may only be allowed where the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. He observed that the tribunal is a specialist body whose understanding of what the medical profession expects of its members deserves respect, that it has the advantage of hearing and seeing the witnesses, and that findings of primary fact, particularly those founded upon an assessment of the credibility of witnesses, are virtually unassailable. He cited Southall v General Medical Council [2010] EWCA Civ 407, in which Leveson LJ held that findings of fact will only be reversed if they are sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence had been misread, and Gupta v The General Medical Council [2002] 1 WLR 1691, in which Lord Rodger explained that the appeal court acknowledges that the first instance body enjoys an advantage precisely because it is in a better position to judge the credibility and reliability of evidence.

The judge rejected the submission that the tribunal had failed to make proper allowance for Dr Ahmed’s command of English, noting that there was no suggestion before the tribunal that any linguistic allowance was necessary and no apparent instances of misunderstanding. He held that the tribunal had properly engaged with the evidence both for and against Dr Ahmed when assessing whether consultants were entitled to displace direct clinical care. He noted that at paragraphs 60 to 67 of its determination the tribunal had referred to evidence from trust managers and fellow consultants that they would not expect doctors to displace direct clinical care or to submit claims for work done during time for which they were already being paid. The tribunal had also considered, at paragraph 70, the evidence of Dr Bonny that it was “common practice” to use direct clinical care time to work on a second ward and to claim payment for doing so, but had borne in mind that Dr Bonny’s job plan was different, that he performed extra duties on only four occasions over four months, and that he stated he worked at least twenty more hours per week. Further, at paragraph 71 the tribunal had considered the submission that Dr Ahmed worked in the same way as Dr Dizayee but concluded that Dr Dizayee’s work in the care of the elderly department was very different from Dr Ahmed’s work and that Dr Dizayee had specific direct clinical care administrative time incorporated in his ward round and started his scheduled work at 9 am rather than 8 am. The tribunal had concluded that the weight of evidence was that consultants were not expected to perform additional cover responsibilities at the time they were scheduled to undertake their regular contractual commitment.

Pepperall J was satisfied that the tribunal had the issue of the inherent implausibility of fraud firmly in mind. The point had been made in closing argument, emphasised by an exchange with the legal assessor, and the tribunal had recorded the submission at paragraph 23 of its decision and returned to it at paragraph 113. The tribunal had also borne in mind Dr Ahmed’s positively good character in assessing his credibility and on the issue of propensity, as reflected at paragraphs 34(a), 34(b) and 113. The judge held that this was a case where notwithstanding such arguments and Dr Ahmed’s good character it was open to the tribunal to find dishonesty on the balance of probabilities, applying the test laid down in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. The tribunal had first ascertained subjectively Dr Ahmed’s actual state of knowledge and belief as to the facts before determining objectively whether his conduct was dishonest by the standards of ordinary decent people.

The judge found that the tribunal had properly taken into account the sheer scale of Dr Ahmed’s additional work on the escalation wards, which made it impossible for him to have fitted in such duties by simply displacing supported programmed activity and administrative time. The balance of the evidence had supported the finding that doctors could not displace direct clinical care and were not entitled to additional payment for work done during hours they were already contracted to work. The evidence that Dr Ahmed often accepted offers of work on escalation wards between 7.45 and 8 am meant that there was little or no time for him to attend the escalation ward before starting contracted work at 8 am. Accordingly, the declarations on claim forms that he was claiming for work “performed outside my regular contractual commitment” were plainly false. The tribunal had been entitled to rely on the evidence of duplicated claims and the events of 18 to 19 May 2015, when Dr Ahmed claimed both study leave and additional payment for work during the same hours on an escalation ward, rejecting as dishonest his evidence that he had forgotten he was on study leave until arriving at work. The judge found that the tribunal’s conclusions were not “out of tune” with the evidence and were properly open to it.

Pepperall J rejected the general complaint that the hearing had been unfair, detecting no evidence of bias or general unfairness in the tribunal’s conduct. He noted that while the tribunal had made serious findings against Dr Ahmed it had also dismissed other allegations and taken considerable care to analyse the evidence and arguments. He held that the evidence fell a long way short of that required to establish such a submission. In short, the tribunal was entitled to find that Dr Ahmed had dishonestly claimed payment for work on the escalation wards on numerous occasions and its decision to direct erasure from the register could not be faulted on appeal.

Braganza v BP Shipping [2015] UKSC 17; [2015] 1 WLR 1661
Sharma v. The General Medical Council [2014] EWHC 1471
Gupta v General Medical Council [2002] 1 WLR 1691, [2001] UKPC 61
Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67; [2018] Crim LR 395, [2018] AC 391

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