Kimmance v General Medical Council [2016] EWHC 1808 (Admin)

Background
Dr Kimmance (the Appellant) was involved in a family dispute, which led to a relationship breakdown and ultimately, his separation from his daughter. Court proceedings ensued, including a number of injunctions issued by the county court which were breached by the Appellant. Subsequently, the Appellant sent what was categorised as a large number of “intemperately worded” communications between 2012 and 2014.

These communications formed the basis of the charges brought against him by the General Medical Council (GMC).

Facts
The charges brought against the Appellant were, in summary:

a) that he had sent a large amount of correspondence to Durham County Council, Durham Constabulary and local authority schools which had resulted in a “police information notice” being issued again him in November 2012 under the Protection from Harassment Act 1997;

b) that an injunction issued by the Durham County Court in November 2013 restraining such communications was breached, with further offensive emails being sent to a number of social workers;

c) that he had sent a large amount of correspondence to public bodies in West Berkshire District Council, schools and the Children and Family Court Advisory and Support Service, leading to another injunction issued by the Reading County Court in September 2014; and

d) that he breached the injunction issued in September 2014 when he sent further offensive and threatening correspondence in September and October 2014.

It was alleged that the above matters amounted to misconduct.

The Panel found the facts proven and found that the Appellant’s fitness to practise was impaired. In its decision the Panel noted that although there were no clinical concerns, the Appellant had demonstrated no insight into his misconduct, and that lack of insight had been aggravated by his sending of inappropriate correspondence to the GMC and its staff in the lead-up to the hearing.

The Panel determined there were no mitigating factors in the matter, that the Appellant’s actions had undermined the public’s trust in the medical profession, and that his actions had demonstrated a “profound and persistent lack of insight into the seriousness of his actions and consequences...” Accordingly, the Panel determined erasure from the register was the only sanction sufficient to maintain public confidence in the profession, and that although it had the potential to affect the Appellant professionally and financially, his interests were outweighed by the public interest in the circumstances.

Prior to the hearing at the GMC, the Appellant had made an application seeking that the Panel recuse itself on the basis of a conflict of interest in the case of two Panel members (the Panel Chair and another Panel member). His objection was that the two Panel members “are from professions which run the family justice system – social workers and lawyers”. This application was rejected by the Panel on the basis that no relevant conflict of interests could be shown.

Appeal
The grounds of appeal were, in summary, as follows:
1. Bias
Before the Court it was clarified that the concern in relation to bias was not that the two GMC panel members had any personal connection, or aversion, to the Appellant or to the factual background of the case. Rather, it was that the Panel Chair’s background was in local authority management, a similar background to the GMC’s witnesses in the case with whom the Appellant was in conflict. Additionally, it was said that the appearance of bias in respect of the lay member existed because of the Appellant’s sympathy to the fathers’ rights movement, which is critical of the justice system. To clarify, the lay member in the case was a barrister practising criminal law.

Mr Justice Kerr rejected this argument, noting it amounted to “no more than a generic grievance against persons involved in professions” and it came “nowhere near” fulfilling the test for an appearance of bias.

2. Dishonesty
This ground was brought due to various references, in the records of proceedings, to the Appellant’s supposed dishonesty. It was argued that the case was opened for the GMC on the basis of dishonesty, notwithstanding the fact that dishonesty formed no part of the charge.

At the fitness to practise hearing the representative for the GMC had accepted dishonesty did not form part of the charge, but noted the Panel had determined the material the Appellant sent was offensive and this was particularly so given the descriptions he had given of some of the social workers. The representative for the GMC had invited the Panel to consider whether the Appellant had acted dishonestly or was likely to act dishonestly in the future.

On appeal it was argued that it was procedurally unfair for the Panel to be addressed on such grounds given dishonesty formed no part of the charge, and further that the content of the Appellant’s communications did not have to be false to be offensive.

On appeal, Counsel for the GMC stated that the Panel had been fully aware it was not dealing with a dishonesty allegation and therefore there was no irregularity. He further submitted the assertions made by the Appellant in his communications were baseless, therefore to a point, dishonesty could be read into the charges.

Mr Justice Kerr found that references made to dishonesty were irregular. He found they were immaterial to the charges, irrelevant, distracting and should not have been relied upon. He disagreed dishonesty was implicit in the charges, finding the essence of the misconduct had nothing to do with whether the Appellant believed in the truth of what he was alleging; rather it was his use of language that was key.

However, he concluded the references to dishonesty did not amount to a material irregularity. This conclusion was reached on the grounds that:

i. the Panel had been fully aware that the true essence of the charge did not include dishonesty; and

ii. the language used in the Appellant’s communications had been so serious and offensive that there could be no realistic prospect of the Appellant escaping erasure from the register.

3. Failure to inform the Panel of a testimonial
Counsel for the Appellant submitted the Panel had not been informed of a particular piece of evidence that was favourable to him; specifically, a particularly positive testimonial from a medical colleague. She argued its absence was a material irregularity.

Counsel for the GMC accepted the reference was favourable, and it was not ideal that it had not been brought to the Panel’s attention. However, he submitted its absence was not a vitiating factor constituting an irregularity that should affect the Panel’s decision on sanction. He argued this on the bases that the Appellant did not attend the hearing, the concerns at the heart of the matter were far removed from being about the Appellant’s clinical skills or practice and thirdly, the Panel was well aware of that fact as well as the fact that the matters at issue had nothing to do with patient safety.

Mr Justice Kerr carefully considered whether the reference would have weighed in mitigation when the Panel was considering the matter of sanction, and found it would have. He found it was wrong that the Panel was not told about the reference.

Notwithstanding, Mr Justice Kerr concluded that although this was an irregularity, it was not a material one as the charges against the Appellant were so serious that the reference could not realistically have led to a lesser sanction.

He did, however, warn the GMC that in future cases, where the behaviour complained of was not such that it would inevitably lead to erasure, its failure to bring evidence of this type to a Panel’s attention may well lead to the Panel’s decision being quashed.

4. Reference to health
The Appellant’s Counsel raised concern that the legal assessor had made reference to the Panel’s discretion to refer him for a health assessment, yet there was no particular health issue. Mr Justice Kerr noted this suggestion had been made out of concern that if the Appellant had been present, he may have wished to raise this himself. Mr Justice Kerr determined while this may have been unnecessary, it did not lead to any unfairness.

5. Documentation
It was argued at sanction stage that reference was made to documents written by the Appellant that were not the subject of the charges against him.

Mr Justice Kerr considered the content of those documents and determined they were relevant to the question of remediation and insight and were therefore relevant at the sanction stage.

6. Insufficient attention given to the meaning of “offensive”
Counsel for the Appellant submitted that insufficient attention had been given to what types of behaviour should be considered offensive, threatening or harassing.

Mr Justice Kerr rejected this argument, agreeing with the approach taken by the Panel in relation to the meanings given to “offensive”, “threatening” and “constituting harassing behaviour”. The Panel had found those words or phrases should be taken in their ordinary, everyday usage, which was proper in the circumstances.

7. Disproportionate Sanction
Finally, it was submitted on the Appellant’s behalf that the sanction of erasure was disproportionate; noting the misconduct in this case was not linked at all to the practice of medicine itself.

Mr Justice Kerr was quick to decide the sanction of erasure was proportionate. He noted even allowing for what went wrong at the GMC hearing, there was no realistic alternative to erasure. He determined doctors must be people who do not write documents of the type the Appellant did, even where they feel they have been severely wronged, and the Appellant needed to conduct his private life and the fight to secure contact with his daughter in “a manner befitting a doctor”, which he did not do.

The appeal was dismissed.

Conclusion
Mr Justice Kerr’s judgment contains a number of useful points which should be considered and reflected upon not only in the context of GMC proceedings, but also in the wider regulatory and fitness to practise context.

Firstly, this decision reaffirms the status of public interest as being at the heart of fitness to practise cases. This was made clear by Mr Justice Kerr’s consideration that although the outcome had severe consequences for the Appellant, the public interest prevailed.

Registered practitioners must take note that it is not just their practice within the work place that may lead to a fitness to practise issue.

Secondly, the judge’s warning to the GMC to take real care when bringing evidence to the attention of the Panel should be heeded by all regulatory bodies in similar proceedings, to avoid any unnecessary and undue quashing of a panel decision.

Thirdly, in considering insight and remediation, Mr Justice Kerr set out what he considers this to mean in reality:-

“that a doctor or other professional who has done wrong has to look at his or her conduct with a self-critical eye, acknowledge fault, say sorry and convince a panel that there is a real reason to believe he or she has learned a lesson from the experience.”

He also commented that registrants are not made fully aware of the dangers of not attending fitness to practise proceedings, particularly where issues of insight and remediation are of crucial importance. This is a factor which should be carefully considered by those who advise and represent registered practitioners.