Hussain v General Medical Council

On an appeal under section 40 of the Medical Act 1983, primary factual findings, especially findings based on witness credibility, are rarely disturbed. Materiality and reliance may assist in deciding dishonesty, but they are not prerequisites. A tribunal must distinguish an inaccurate statement from dishonesty. Careless inaccuracies concerning qualifications may not be dishonest where the surrounding evidence indicates simple carelessness. By contrast, fabricating feedback and presenting plagiarised material as a trainee’s own work may properly be found dishonest under the two-stage test in Ghosh. Serious dishonesty, lack of insight and impaired fitness to practise may justify erasure.

Dr Fazal Hussain appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s decision that his fitness to practise was impaired and that his name should be erased from the medical register. The Panel found allegations proved concerning inaccurate qualification details in a curriculum vitae, the completion of another person’s multi-source feedback, and plagiarism in training records. It also found dishonesty, serious misconduct and impairment. The central issues were whether the factual findings and dishonesty findings were sustainable, whether fitness to practise was impaired, and whether erasure was proportionate.

1. Appeal standard. The appeal was a rehearing, but the court had no oral evidence. Under section 40 of the Medical Act 1983, the decision could be disturbed only if it was wrong or unjust because of a serious procedural or other irregularity. Primary findings, particularly those based on credibility, were virtually unassailable: Southall v GMC [2010] EWCA Civ 407, para 47, and Bhatt v GMC [2011] EWHC 783 (Admin), para 9.
2. Dishonesty. The Panel correctly applied the two-stage approach in R v Ghosh [1982] QB 1053. Materiality and reliance may provide evidential assistance, particularly where a false statement is relied on, but neither is a precondition to dishonesty. The court nevertheless held that the qualification entries, although wrong, careless and misleading, were not dishonest. The age of the qualifications and the appellant’s genuine higher qualification in the relevant subject supported simple carelessness. The Panel had also risked conflating falsity with dishonesty.
3. Multi-source feedback and plagiarism. The Panel was entitled to find that completing feedback which purported to come from another person was dishonest. It was also entitled to find plagiarism dishonest. Sharing entries under the heading asking what the trainee had learned represented that the material was the trainee’s own work. No express plagiarism policy was required to support that conclusion.
4. Impairment and sanction. The findings of dishonesty concerning the feedback and plagiarism amounted to serious misconduct. The appellant’s complete lack of insight supported the finding that his fitness to practise was impaired. The error concerning dishonesty in relation to the curriculum vitae did not undermine the misconduct finding. Erasure was a proportionate response.
5. Disposition. The appeal was dismissed.

Fitness to Practise Panel: On 26 June 2013 the Panel found the allegations proved, determined that the appellant’s fitness to practise was impaired and directed erasure from the register.

High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was dismissed.