Hussain v General Medical Council

In professional disciplinary proceedings, dishonesty is assessed by applying the relevant objective standard and then considering the practitioner’s own awareness of that standard. Where a panel accepts evidence that a trainee fabricated feedback or submitted wholly copied work without reading the underlying material, dishonesty may be inevitable. Bereavement may mitigate misconduct but does not provide a defence to dishonesty.

Fitness to practise is assessed at the hearing. A past period of misconduct does not prevent a finding of current impairment where the practitioner shows no insight. Sanction is protective rather than punitive. Erasure may be proportionate where dishonesty demonstrates untrustworthiness and is compounded by a continuing lack of insight.

Dr Fazal Hussain appealed against the dismissal of his appeal from a Fitness to Practise Panel decision. The Panel had found allegations proved concerning inaccurate qualifications in a CV, fabrication of multi-source feedback, plagiarism in training records, and dishonesty. It found his fitness to practise impaired and ordered erasure from the Medical Register.

His appeal to the Administrative Court was dismissed by His Honour Judge Bird. The Court of Appeal considered whether the Panel had confused falsity with dishonesty, whether the dishonesty findings on the feedback and plagiarism allegations were sustainable, whether bereavement and the passage of time affected impairment, and whether erasure was proportionate.

1. Appeal dismissed. The Court proceeded on the basis that the Administrative Court judge’s conclusion on the CV allegation was correct, because the GMC had not cross-appealed. That conclusion did not affect the remaining allegations.
2. On the multi-source feedback allegation, the Panel was entitled to accept the healthcare assistant’s evidence that Dr Hussain had completed the relevant section himself and that it did not represent her views. Once that evidence was accepted, the finding of dishonesty was inevitable. The issue did not depend on any ambiguity in the word false.
3. The same applied to the plagiarism concerning The Citadel. Although dishonesty in submitting partly copied work might depend on degree, submitting wholly another person’s work while not having read the book made dishonesty inevitable. An earlier interim-order decision did not assist, since no oral evidence had been heard and the test for interim suspension differed.
4. The two-stage dishonesty direction based on R v Ghosh [1982] QB 1053 was accepted and applied. The panel first asks whether reasonable and honest people would regard the conduct as dishonest, and then whether the practitioner must have realised that it was dishonest by that standard. Longmore LJ added that the objective standard should in future be adapted for professional discipline to refer to reasonable and honest doctors.
5. Fitness to practise is assessed at the time of the hearing. Lack of insight was highly relevant. The passage of time, the short period of misconduct, personal strain and good character did not prevent a finding of continuing impairment where Dr Hussain denied wrongdoing, attacked witnesses and showed complete lack of insight. Bereavement was not a defence to dishonesty, although it could be mitigation.
6. Sanction is protective, not punitive. Applying Gupta v GMC [2002] 1 WLR 1699, erasure was proportionate in light of dishonesty towards trainers, continuing untrustworthiness and lack of insight. Ouseley J added that the Panel’s difficult professional judgment was one to which it was entitled to come and should be upheld unless clearly wrong.

• Court of Appeal (Civil Division): in [2014] EWCA Civ 2246, dismissed the appeal.
• Administrative Court: His Honour Judge Bird dismissed Dr Hussain’s appeal from the Fitness to Practise Panel’s findings of impairment and erasure.
• Fitness to Practise Panel: found the substantive allegations and dishonesty proved, found fitness to practise impaired, and ordered erasure from the Medical Register.