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

Judgment date 25th January 2015

The Appellant a consultant ophthalmologist appealed to the High Court against the decision of a Fitness to Practise Panel (the “Panel”) of the General Medical Council (the “GMC”) that his fitness to practice was impaired by reason of his misconduct relating to his receiving payment for the treatment on Trust premises of five private patients.

Background

The Registrant had been employed as a Consultant Ophthalmologist by East and North Hertfordshire Trust (the “Trust”) between December 2005 and May 2011. In that time the Registrant provided treatment to both NHS and private patients at Welwyn Garden City Hospital (the “Hospital”). There was a system in place for the payment by private patients of the appropriate fees both for the services of the consultant concerned and for the use of the Trust's premises which required the Consultant to notify the Trust of the treatment provided.

In the period between 5th February and 11th April 2008, the Appellant administered Lucentis injections to five private patients on a number of occasions on Trust premises.  It was alleged that no record of their treatment had ever been passed to the Private Patient Office at the Trust and that the Trust had not received the appropriate payments in respect of their attendances at the hospital.

Following an internal investigation and subsequent referral to the GMC, a decision was taken in January 2012 that no further action should be taken. However, on the basis of subsequent representations by the Trust raising concerns about the nature of the investigation and issues of patient safety the GMC decided to re-open the case. A hearing was convened before the Panel in late February and early March 2014, (6 years after the events giving rise to the allegation).

GMC decision

At the hearing the Panel accepted evidence that no paperwork had been received by the Trust relating to the Appellant’s  treatment of the five private patients, and that although "the system may not have been robust and there may have been administrative oversights", it was unlikely that that would account for the Appellant’s failure to notify the Trust of the treatment. The Panel concluded that the Appellant was aware of his duty to inform the Trust through the usual channels that he was treating private patients on Trust premises.

The Panel went on to find an allegation of dishonesty against the Appellant proved, stating:

“The Panel is in no doubt that, according to the ordinary standards of reasonable and honest people Mr Soni's actions, in charging for Lucentis and not providing payment to the Trust, would be considered dishonest. It also considers that Mr Soni must have realised that what he was doing was dishonest”

The Panel directed that the Appellant’s registration be suspended for 6 months, clarifying that:

“The decision made by the Panel in relation to dishonesty was not made solely on the basis of the source of the Lucentis. The Panel determined that Mr Soni had knowledge of the system for the processing and billing of private patients, and what his part in the process was.”

Appeal Submissions

The Appellant submitted that the decision of the Panel should be quashed on the following  grounds:

  1. There had been an abuse of the process as the GMC and the Trust had acted together to re-open the case against the Appellant, and had subjected him to inordinate and inexcusable delay;
  2. The Panel failed to ensure that the Appellant had a fair trial; and
  3. The Panel's findings were contrary to the weight of the evidence.

The GMC accepted that the Panel had made findings which it ought not to have made in relation to the source of the drug Lucentis administered by the Appellant. The GMC submitted that the court should exercise its power under s40(7)(d) of the Medical Act 1983 to remit the case to the Registrar to refer it to a freshly-constituted Panel.

It was submitted on behalf of the Appellant that even if there might be grounds for a freshly constituted Panel to make a finding of dishonesty, a fair hearing was no longer possible given the passage of time since the events giving rise to the allegations.

Appeal Decision

Holroyde J rejected the first and second grounds of Appeal on the basis that the GMC was entitled to consult with the Trust regarding the Appellant’s case and that the Panel’s refusal to recuse itself did not provide a sufficient basis on which to conclude that the Appellant had not received a fair trial.

In relation to the third ground of the appeal Holroyde J determined that there was evidence on which the Panel could be satisfied that the Appellant had failed to ensure that his treatment of private patients on Trust premises was brought to the attention of the Trust and that the Appellant knew that he was required to provide such information to the Trust. Furthermore the Panel could be satisfied that the Appellant had retained all of the fees which he received from the five private patients and that he had not paid any part of those fees to the Trust.

However the Judge, having  considered the terms in which the GMC had formulated the allegations, considered that proof of those allegations required evidence that the fees received by the Appellant included a sum for the use of hospital facilities and that he had deliberately and dishonestly withheld any such payment from the Trust.  

The Judge found there was no direct evidence to that effect concluding that:

“the Panel must have started from the finding that Mr Soni knew he should provide a record of treatment of private patients; added its findings that no record was in fact provided of these five private patients; … assumed (without sufficient evidence) that there had been a deliberate failure to account to the Trust for sums which Mr Soni had in fact received in respect of the use of hospital facilities; and then concluded that such conduct must on the balance of probabilities show deliberate dishonesty…

The Panel was wrong to do so, because a finding against Mr Soni of a failing of administration, even of negligent administration, does not without more justify a finding of dishonesty.”

In addition the Judge considered that the Panel had failed to give appropriate weight to both the evidence as to the deficiencies in the system of recording private patients and the evidence of the Appellant’s positive good character. The Judge concluded that the panel had made a wrong determination against the Appellant.

In considering whether to remit the case to the Registrar the Judge, having regard to the principles in Southall v GMC [2010] EWCA Civ 484 concluded that:

“This court is in as good a position as the Panel was to assess the sufficiency of the evidence; and if the evidence is insufficient, then the public interest cannot be served by a further hearing of it. I conclude not only that the Panel was wrong in the decision which it made, but also that if the case were to be remitted, no future panel could be in any different position.”

The Judge accordingly quashed the decision of the Panel to suspend the Appellant’s registration and did not remit the case to the Registrar.

This case highlights the need for Tribunals to undertake a detailed and objective assessment of the evidence before finding an allegation of dishonesty proved. Panels considering such an allegation should not only pay careful regard to the possible motive for any alleged dishonesty but should also exercise caution when dismissing alternative explanations for a Registrant’s behaviour. The Judge’s ruling in this case to quash the Panel’s decision and his refusal to remit the case for reconsideration evidences the robust approach that can be taken by the High Court in cases were a Tribunal has failed to carry out such an assessment.