Al Nageim v General Medical Council

In an appeal against a professional disciplinary sanction, the appellate court must respect the specialist tribunal’s evaluative judgment and intervene only where the decision was wrong or unjust because of serious procedural irregularity. Sanctions are protective, not punitive, and must address public safety, confidence and professional standards. Persistent dishonesty involving substantial public money may be fundamentally incompatible with continued registration, despite clinical competence, remediation and personal mitigation. A tribunal may take account of deliberately dishonest evidence about primary facts when assessing insight and sanction, particularly where there is a substantial interval for reflection between the factual and sanction stages. The distinction between omission and commission will not materially mitigate conduct where the practitioner knowingly chooses not to correct an overpayment.

Dr Haydar Al Nageim appealed under section 40 of the Medical Act 1983 against the Medical Practitioners Tribunal’s decision to erase his name from the medical register.

The Tribunal had found that he dishonestly used facilities at a former hospital and knowingly retained salary payments made in error by another NHS trust for 27 months. It also found that he had given untruthful evidence about his state of mind. The appeal challenged the Tribunal’s treatment of delay, personal hardship, omission and commission, insight, untruthful evidence and proportionality. The central issue was whether erasure was wrong or unjust because of serious procedural or other irregularity.

1. Appeal dismissed. The appeal under section 40 of the Medical Act 1983 was a rehearing without hearing the evidence again. Under CPR rule 52.21(3), intervention was justified only if the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The Tribunal’s sanction was an evaluative judgment. Appellate caution was required, particularly because the decision was made by a specialist disciplinary tribunal. The GMC Sanctions Guidance was non-statutory guidance, providing signposts rather than a fixed route. The Tribunal was not required to list every mitigating factor expressly if its reasons, read as a whole, showed that relevant matters had been considered.
3. The Tribunal had adequately considered the lapse of time. Although it had not separately listed historic misconduct as mitigation, the Appellant continued to benefit from the salary payments until he was confronted. The Tribunal’s failure to treat the absence of independent evidence about personal hardship as aggravating was an error, but it was harmless. Personal mitigation carried limited weight, and the misconduct was sustained and repeated.
4. The distinction between omission and commission did not assist the Appellant. His use of hospital facilities involved positive conduct. His retention of the salary payments involved a positive choice not to perform a duty to alert the hospital. In any event, the distinction was not meaningful mitigation.
5. Under Ivey v Genting Casinos (UK) Ltd [2018] AC 391, the practitioner’s own view of whether his conduct was dishonest was irrelevant to dishonesty. The Tribunal was nevertheless entitled to consider the Appellant’s continued false account of his state of mind when assessing insight. The case involved knowingly advancing false primary facts, rather than merely putting the GMC to proof. Nine months had also elapsed between the factual and sanction stages without full insight developing.
6. Persistent dishonesty over years, involving more than £41,000 of NHS money, misuse of hospital facilities and dishonest evidence, was fundamentally incompatible with continued registration. The Tribunal was entitled to conclude that erasure was the only proportionate sanction consistent with public confidence and professional standards.

High Court (Administrative Court): Al Nageim v General Medical Council [2021] EWHC 877 (Admin) dismissed the appeal against the Medical Practitioners Tribunal’s erasure decision. The Tribunal’s underlying factual and impairment findings were not challenged.