Moneim v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court conducts a rehearing and may substitute its own decision, while according appropriate respect to the specialist tribunal’s expertise. Dishonesty in retrospectively altering medical records may arise from an improper motive even where the added information is true, or from knowingly recording false information. A disciplinary allegation need not plead every particular of dishonesty, but the case must be presented clearly enough to give the practitioner a fair opportunity to answer it. Procedural unfairness requires demonstrable prejudice. Findings of dishonesty may be inferred from the documentary record and surrounding circumstances. Where dishonesty is established, substantial respect is due to the professional tribunal’s choice of sanction.

The appellant, a general practitioner, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding that he had dishonestly amended the records of six patients and suspending his registration for 12 months under section 30D(2). He accepted that he had retrospectively amended 32 patient records and did not challenge the findings concerning the other amendments.

The appeal challenged the fairness of the way the dishonesty case had been presented, the evidential basis for the findings concerning six patients, and the suspension. The central issues were whether the Panel had proceeded on a materially different case, whether dishonesty could properly be inferred from the evidence, and whether the sanction was excessive.

1. Appeal jurisdiction. Under section 40 of the Medical Act 1983 and CPR 52.11(3), the appeal was by way of rehearing. The court could substitute its own decision, but had to give appropriate respect to the Panel’s expertise, particularly on professional standards and sanction. The court’s judgment remained a secondary judgment on the application of legal principles to the facts.
2. Dishonesty and procedural fairness. Dishonesty could consist either of altering a record for an improper motive, such as deflecting blame or making conduct appear better, or of making a statement known to be false. The Notice expressly alleged dishonesty. It was not necessary to plead every particular, provided the case was made sufficiently clear to allow a proper opportunity to respond. In the circumstances, the case on falsity became clear during the hearing, especially in relation to Patient 33 through the expert evidence, and by the half-time and closing submissions in the other relevant cases. The appellant had identified no specific evidence or cross-examination that would have altered his case. No procedural prejudice was established.
3. Findings on the evidence. The finding concerning the addition of “as given by vap” to Patient 8’s record was unsafe because the Panel had proceeded on the assumption that ibuprofen caused the side effects, although the records strongly suggested that diclofenac might have been responsible. That finding was quashed. The separate finding concerning “and inform surgery” was supported by the circumstances and remained valid. The findings concerning Patients 10, 15, 17 and 30 were reasonably open to the Panel, whether the amendments were viewed as false entries or as dishonest attempts to improve the records. The finding concerning Patient 33 was supported by unchallenged expert evidence that the recorded coil examination had not taken place.
4. Sanction. The remaining findings involved repeated dishonest amendments over two years. Having regard to the professional tribunal’s expertise, the seriousness of dishonesty findings, and the GMC guidance indicating that striking off would ordinarily be likely, a 12-month suspension was not excessive or wrong. The quashed finding was not remitted because the remaining findings and the overall disciplinary case made remission inappropriate. The appeal was therefore allowed only in relation to one amendment concerning Patient 8 and dismissed otherwise.

The judgment describes an appeal from a Fitness to Practise Panel decision dated 27 April 2010. The Panel suspended the appellant’s registration for 12 months. The High Court quashed one finding of dishonesty concerning Patient 8, declined to remit that issue, and dismissed the appeal on all other grounds.