Dr Collen Nkomo v The General Medical Council [2019] EWHC 2625 (Admin)

Transcript

Dr Collen Nkomo v The General Medical Council [2019] EWHC 2625 (Admin) concerned an appeal by Dr Nkomo against the decision of the Medical Practitioners Tribunal to erase his name from the register of medical practitioners; Mr Justice Julian Knowles sitting in the Administrative Court dismissed the appeal.

Dr Nkomo had been convicted on 26 October 2015 at Manchester and Salford Magistrates Court of failing to provide a specimen contrary to section 7(6) of the Road Traffic Act 1988, arising from an incident on 8 February 2015 when he was stopped on suspicion of drink-driving. He received 60 hours of unpaid work and a two-year driving disqualification. On 30 May 2017 he was convicted at Manchester Crown Court of fraud by false representation contrary to sections 1 and 2 of the Fraud Act 2006 and sentenced on 24 July 2017 to 20 months’ imprisonment suspended for 24 months. The fraud involved making false representations to the Child Support Agency between April 2013 and July 2014 about his employment and income, claiming he was not working or was out of the country when in fact he was working regularly as a locum general practitioner earning in excess of £200,000 per year. The dishonesty resulted in him avoiding child maintenance payments totalling approximately £40,800. He maintained his dishonest account under caution on 3 December 2015 before later pleading guilty. Dr Nkomo did not report either charge or conviction to the General Medical Council at the time but self-referred on 14 August 2017.

The Tribunal heard his case over four days in December 2018. Dr Nkomo admitted six misconduct matters including the convictions, sentences and his failure to notify the GMC. The Tribunal found that the fraud conviction involved sustained dishonesty amounting to misconduct that impaired his fitness to practise, though the motoring conviction alone would not have led to a finding of impairment. The Tribunal applied the two-stage approach from Council for Healthcare and Regulatory Excellence v Nursing and Midwifery Council and Grant [2011] EWHC 927 (Admin), determining first that the facts amounted to misconduct and second that the misconduct was sufficiently serious to amount to impairment.

In relation to sanction, the GMC submitted that erasure was the only appropriate sanction given the seriousness of the fraud conviction, the limited mitigating factors and Dr Nkomo’s limited insight. Dr Nkomo contended that suspension was appropriate, relying on a purported distinction in the GMC’s Sanctions Guidance between “sustained acts of dishonesty” for which suspension was appropriate and “dishonesty which is persistent and/or covered up” for which erasure was appropriate. The Tribunal identified aggravating factors including the seriousness of the fraud involving criminal dishonesty over two years and seven months; that the primary victim was his child; his failure to report either matter; partial insight only; and his financial gain. Mitigating factors included personal circumstances including relationship breakdown; absence of issues with clinical competence; commencement of repayment of arrears; low risk of re-offending; a degree of insight; the effect of a more severe sanction; and expressions of remorse.

The Tribunal worked through potential sanctions in accordance with the Sanctions Guidance and concluded that suspension was insufficient because Dr Nkomo’s behaviour lay at the top end of the spectrum of gravity of misconduct. It had regard to Theodoropoulos v General Medical Council [2017] EWHC 1984 (Admin), which established that findings of dishonesty lie at the top end of the spectrum of misconduct and that where a doctor engages in deliberate dishonesty and lacks insight, erasure may in practical terms be inevitable, regardless of whether the misconduct took place in a clinical setting. The Tribunal rejected suspension, reasoning that the fraud lasted two years and seven months, deprived his former partner and son of at least £40,800, was compounded by his failure to report it, he had only partial insight, and he made little acknowledgement of the impact on the profession as a whole. Addressing erasure, the Tribunal held at paragraph 44 that Dr Nkomo’s dishonesty was fundamentally incompatible with being a doctor, which according to paragraphs 97(a) and 109(a) of the Sanctions Guidance was the critical issue in determining whether erasure or suspension was appropriate. It rejected the purported distinction between “sustained” and “persistent” dishonesty. The Tribunal concluded that Dr Nkomo’s behaviour was fundamentally incompatible with continued registration given the serious, deliberate and dishonest nature of the fraud conviction and the length of time he delayed informing the GMC of both convictions. Any lesser sanction would fail to fulfil the overarching objective by failing to mark the seriousness of his conduct, thereby undermining public confidence in the medical profession and proper professional standards.

Dr Nkomo did not challenge the findings on facts or impairment but appealed against sanction under section 40 of the Medical Act 1983, arguing that suspension rather than erasure was appropriate. He raised two grounds: first, that the Tribunal failed to give due weight to the circumstances prevailing in 2012 and 2013 leading to his conduct with the Child Support Agency; and second, that the Tribunal failed adequately to distinguish between conduct meriting suspension as opposed to erasure. Mr Kearney for Dr Nkomo focused on the second ground, submitting that paragraph 93 of the Sanctions Guidance provided that suspension may be appropriate where there is acknowledgement of fault and the tribunal is satisfied the behaviour is unlikely to be repeated, which he said applied here given the low risk of re-conviction and Dr Nkomo’s remorse. He acknowledged that dishonesty had been maintained over time but emphasised the context of a marital dispute and denial of contact by the mother. The GMC submitted that the Tribunal’s decision was unimpeachable, that it carefully weighed all relevant factors, and that the decision was consistent with case law establishing that findings of dishonesty lie at the top end of the spectrum of gravity of misconduct, that where dishonest conduct is combined with lack of insight, is persistent, or is covered up nothing short of erasure is likely appropriate, and that erasure will often be proper even in cases of one-off dishonesty.

Mr Justice Julian Knowles reviewed the legal framework, noting that section 40 confers a right of appeal to the High Court and that under CPR PD52D appeals are by way of rehearing but without hearing the evidence again. The court may allow an appeal if the Tribunal’s decision was wrong or unjust because of serious procedural or other irregularity. He rehearsed the principles from Yassin v General Medical Council [2015] EWHC 2955 (Admin) governing such appeals, including that the Tribunal’s decision is correct unless the contrary is shown, that the court must give appropriate weight to the Tribunal as a specialist body, that the Tribunal has the benefit of seeing witnesses, that the overall value judgment is akin to a jury question to which there may reasonably be different answers, and that findings will only be disturbed if outside the generous ambit within which reasonable disagreement is possible. He emphasised that particular force is given to the need to accord special respect to the Tribunal’s judgment on sanction, with an appellate court only interfering where the decision is wrong.

The judge considered the principles from Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 concerning appellate review of sanctions determinations. The Court of Appeal held that a sanctions determination is an evaluative multi-factorial decision, a mixture of fact and law sometimes described as a jury question about which reasonable people may reasonably disagree. There is limited scope for an appellate court to overturn such a decision: the court should only interfere if there was an error of principle in carrying out the evaluation or if the evaluation was wrong in the sense that it fell outside the bounds of what the adjudicative body could properly and reasonably decide. This general caution applies with particular force to a specialist adjudicative body with greater experience in its field than the courts.

Mr Justice Julian Knowles held that Dr Nkomo had not demonstrated that the Tribunal erred in a way that permitted intervention to overturn its finding that erasure was appropriate. The conclusion reached was one which was open to the Tribunal. This was a case of serious dishonesty and the decision that it warranted erasure did not fall outside the bounds of what the Tribunal could properly and reasonably have decided. He noted that paragraphs 109(a), (b) and (h) of the Sanctions Guidance indicate that erasure may be appropriate for a particularly serious departure from Good Medical Practice where behaviour is fundamentally incompatible with being a doctor, deliberate or reckless disregard for principles in Good Medical Practice, and dishonesty especially where persistent and/or covered up. Dishonesty itself may place misconduct within the erasure bracket, especially where persistent. Paragraph 92 of the Sanctions Guidance makes clear that suspension is appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration, distinguishing it from conduct requiring erasure. He was bound to afford substantial deference to the Tribunal’s decision on which side of the line Dr Nkomo’s dishonesty lay.

The judge reviewed case law establishing that dishonesty by a doctor is almost always extremely serious, that findings of dishonesty lie at the top end of the spectrum of gravity, that where dishonest conduct is combined with lack of insight, is persistent, or is covered up nothing short of erasure is likely appropriate, that erasure will often be proper even in one-off dishonesty, that misconduct need not occur in a clinical setting before erasure becomes appropriate, that misconduct involving personal integrity impacting on the profession’s reputation is harder to remediate than poor clinical performance, and that in such cases personal mitigation should be given limited weight as the profession’s reputation is more important than an individual member’s fortunes. He noted the Tribunal’s findings at paragraph 51 that Dr Nkomo’s fraud offence was serious, deliberate and dishonest, lasting over two years and resulting in a gain to him of £40,800 and consequent loss to his child and partner, and that the offences were aggravated by his failure to report them in timely fashion. The Tribunal had found that paragraphs 109(a), (b) and (h) were all engaged. At paragraph 41 the Tribunal stated that Dr Nkomo’s fraud lasted two years and seven months and deprived his former partner and son of at least £40,800, he compounded that by failing to notify the GMC, his behaviour clearly lay at the top end of the spectrum of gravity of misconduct, he had only developed partial insight, and there was little acknowledgement of impact on the profession’s reputation as a whole.

Mr Justice Julian Knowles held that these findings, taken together, more than entitled the Tribunal to conclude that the dishonesty in this case was fundamentally incompatible with Dr Nkomo’s continued registration and justified erasure. The Tribunal did not err by failing to give due weight to the circumstances prevailing in Dr Nkomo’s life in 2012 and 2013. The Tribunal expressly referred to them at paragraphs 29 and 50 of its determination and in any event weight was a matter for the Tribunal. The Tribunal correctly stated at paragraph 50 that matters of personal mitigation carry less weight in the regulatory context. The submission that there is a meaningful distinction between “sustained” and “persistent” dishonesty was rightly rejected by the Tribunal. The Sanctions Guidance is not intended to set a rigid tariff and should not be construed like a statute. The Tribunal was required to consider all the circumstances and determine for itself whether Dr Nkomo’s conduct was compatible with continued registration. For the reasons given, it did not err in this assessment.

In short, the appeal was dismissed as the Tribunal’s conclusion that Dr Nkomo’s serious, sustained fraud offending was fundamentally incompatible with continued registration and warranted erasure was an evaluative judgment that fell well within the bounds of what it could properly and reasonably decide.

Biogen Inc. v Medeva [1997] RPC 1
Pharmacia Corp v Merck & Co Inc [2002] RPC 41
Holdings Ltd v United Parcels Service Ltd [2007] 1 WLR 1325
R (Smech Properties Ltd) v Runnymede Borough Council [2016] JPL 677, [2016] EWCA Civ 42
Khan v General Pharmaceutical Council [2017] 1 WLR 169, [2016] UKSC 64, [2017] 3 All ER 873
Yeong v General Medical Council [2009] EWHC 1923 (Admin)
Absolute Living Developments v DS7 Ltd & Ors [2018] EWHC 171 (Ch)
Bolton v The Law Society [1994] 1 WLR 512
GMC v Stone [2017] 4 WLR 207, [2017] WLR(D) 681, [2017] EWHC 2534 (Admin)
Re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911
Yassin v the General Medical Council [2015] EWHC 2955 (Admin)

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