Malhar Soni v General Medical Council [2015] EWHC 364 (Admin)

A doctor, S, has succeeded in his appeal against a finding of dishonesty and the imposition of a six month suspension.

The judge concluded that the FTP Panel had made a wrong determination. It had "conflated separate issues, and made unjustifiable assumptions… it must have confused grounds for suspicion with evidence sufficient to prove…"

Background

S was employed as a consultant ophthalmologist at the Queen Elizabeth II Hospital, Welwyn Garden City. In addition to his NHS patients, S also saw and treated private patients. A system was in place for such patients to be charged for the services of the consultant and for the use of the trust's premises and resources.

The General Medical Council (GMC) alleged that, between February and March 2008, S saw and treated five patients by administering injections of the drug Lucentis; no record of the treatment provided had been passed to the appropriate office of the NHS Trust; and the trust had not received the appropriate payments.

In November 2009, an investigation by the Local Counter Fraud Specialist (LCFS) concluded that there was insufficient evidence to proceed to any criminal charge but that there was sufficient evidence for matters to be referred to the GMC.

In May 2010, the trust began an internal investigation. In May 2011, before this investigation concluded, S resigned from the trust. However, the trust continued with its process and an internal disciplinary hearing concluded that S had committed gross misconduct and would have been summarily dismissed had he not resigned.

The GMC also investigated but, in January 2012, concluded its case by taking no further action. In February 2012, the trust wrote to the GMC urging it to review its decision. As a result of a meeting which took place between the GMC and the trust in April 2012, the GMC re-opened its case.

GMC hearing

In February and March 2014, six years after the events giving rise to the allegations, the matter came to a hearing before the Fitness to Practise Panel.

The disputed allegations against S were that he had:

  1. failed to inform the Private Patients office that the five patients were private patients
  2. failed to inform the Private Patients office that the five patients had been treated on Trust premises
  3. retained the full fees paid to him by the five patients
  4. failed to make appropriate payments to the trust from the fees received

and that in relation to (c) and (d) he had been dishonest.

The way that private patients paid for treatment received at NHS Hospitals included the use of a Private Patient Agreement Form (PPA). By signing this document, the patient agreed to pay the trust for use of hospital services and facilities, and for any medication. The form also referred to the patient's liability to pay the consultant. This system meant that the patient would receive three bills: one for the consultant's services, one from the trust for use of hospital facilities, and a third from the trust's pharmacy.

L was the Private Patient Administration Manager responsible for invoicing patients who had filled in a PPA. She gave evidence which demonstrated that the system for charging private patients that had been in place was not robust and that paperwork could go missing.

At the end of the GMC's evidence, S's counsel made a submission of no case to answer in that there was insufficient evidence to find the alleged facts and dishonesty proved. This was rejected.

The Panel found all the allegations, including dishonesty, proved.

As was found on appeal, it was at this point that the Panel fell into serious error. The Panel made a determination which went beyond the evidence it had heard and beyond the allegation which the GMC had made.

The GMC's case had been that S had failed to account to the trust for sums due to it for use of the hospital's facilities. The Panel made a finding that S had not made payments to the trust for the use of Lucentis. However, the GMC had not alleged that S had used Lucentis from the hospital pharmacy to treat his private patients and there was no evidence that he had done so. Neither had the GMC alleged that S had failed to account to the trust for Lucentis and there had been no evidence presented that he had so failed.

This error had the effect of significantly increasing the sums which the Panel found S had dishonestly retained after billing his patients from a maximum of £660 to £13,000.

S's counsel made an unsuccessful application for the Panel to recuse itself on the ground it had made a determination which was not open to it.

The Panel went on to find that S's dishonesty amounted to serious misconduct and that his fitness to practise was impaired. It imposed a suspension of six months.

The appeal

S appealed on the grounds that the Panel had acted as no reasonable Panel should have done and were wrong and unjust in that:

  1. there was an abuse of process in the way the GMC's case had been reopened following the review requested by the trust, and that there had been a long and inexcusable delay
  2. the Panel failed to ensure that S had a fair trial
  3. the Panel's findings were contrary to the weight of the evidence.

The GMC initially resisted all grounds of appeal on the basis that, even though the Panel had made findings which it should not have done, that irregularity had had no effect on the Panel's final decision. The GMC later changed its position and instead asked the court to remit the case to the Registrar so that it could be heard by a differently constituted panel.

S asked for the Panel's findings to be quashed on the basis that there was insufficient evidence to find misconduct. The GMC submitted that there was such evidence and that the public interest meant that the case should be re-heard.

The parties, however, agreed that, if the court found that there was insufficient evidence on which a future panel could reasonably make a finding of dishonesty, the case should not be remitted.

Grounds of appeal (a) and (b) were rejected. In relation to (c) it was held that there was evidence that S had failed to ensure the Private Patients office was properly informed of his treatment of private patients but that was not sufficient for a finding of dishonesty.

It was the patients themselves – not S – who were responsible for payments to the trust for use of its services and facilities. The formulation of the charges required the GMC to show that S had deliberately withheld the payments he had received from the private patients which should have been passed to the trust.

The Panel had not had sufficient regard to S's good character and the deficiencies in the system for charging private patients. Additionally, the sums of money at stake were relevant. It was correct that there may be a finding of dishonesty in relation to a small amount of money but "there must first be evidence justifying the inference of dishonesty. In that respect the absence of any convincing financial motive is a relevant consideration…".

It was held that no future panel would be able to make a finding of dishonesty on the evidence and it was not appropriate to remit the case. The determination of the Panel was quashed.