General Medical Council (2) Professional Standards Authority v Asef Zafar [2020] EWHC 846 (Admin) – Case Digest

General Medical Council (2) Professional Standards Authority v Asef Zafar [2020] EWHC 846 (Admin)

Case Law Digested by Barrister Penny Maudsley

Civil sentence for dishonest and reckless medico-legal report writing deemed too lenient by Court of Appeal. MPT not made aware of Court’s decision. Decision of MPT to suspend replaced with erasure.

Dr Z was a GP but also engaged in private practice, in what was referred to as a ‘report writing factory.’ Dr Z provided medico legal reports for low level personal injury claims which gave him a gross annual income of approximately £350,000.

In December 2011 he was instructed to provide a report on a taxi driver who wanted to make a claim for injuries he sustained following a road traffic collision. On February 12th 2011, Dr Z examined the claimant for about 15 minutes in his surgery and dictated a report in his presence.

On receipt of the report the claimant was unhappy as it stated that he had fully recovered from his injuries. As he was still suffering neck pain Dr Z was asked to amend his report. On the same day, without further examination of the patient, Dr Z amended his report to say recovery would take six to eight months.

Contempt of Court proceedings were commenced in the County Court against Dr Z. Within the trial bundle the first report was included erroneously. This was noted by the solicitors acting for Dr Z and the Judge. Dr Z initially stated that a third party had changed it without his permission and that the first report was the correct report. He later retracted that statement but made a further statement stating the second report was the correct report.

In July 2018 there was a civil Contempt of Court hearing before Garnham J. Dr Z was found guilty of 10 matters of contempt. He was sentenced to 6 months in prison suspended for 2 years.

The judge described the lies in the first witness statement as “particularly despicable as you knew the truth, yet you tried to blame an innocent third party.” The judge further found that the various reckless statements were made to keep the report writing factoryat full capacity and then by a “cowardly desire to cover up what you had done.

Permission was granted to appeal the sentence before the Court of Appeal. In making a declaration that the sentence was unduly lenient the Court of Appeal stated:

In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court.

An expert witness who recklessly makes a false statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally.

Although a declaration was made, the actual sentence was not increased but the Court of Appeal stated that a sentence of 9 to 12 months immediate imprisonment would have been appropriate.

Before the MPT Dr Z was charged with a criminal conviction. The GMC adduced the judgement and sentencing remarks of Garnham J but it was agreed by both parties that the decision of the Court of Appeal would not be placed before the MPT. 

The MPT made a finding that the doctor’s fitness to practise was impaired and having regard to the Sanctions Guidance 2008, imposed a suspension of 12 months with a review.

On appeal, the PSA and the GMC sought to introduce the Court of Appeal’s decision as fresh evidence. Davis LJ stated [p 63]:

Given that judicial evaluation of Garnham J had then itself been judicially re-evaluated in the Court of Appeal, how can it be anything other than logical (and sensible) that  the Court of Appeal judgment itself likewise should have been available to the MPT for these purposes? In truth, the MPT was – through no fault of its own being left to decide the matter on an incomplete (and misleadingly incomplete) basis. That is not a position which ought now to be sustained. It should, on the contrary, be put right.

The MPT should have the most authoritative judicial guidance, on the facts of this case, as to the gravity of Dr Z’s conduct with regard to the good administration of justice. That, essentially, is why the judgment of the Court of Appeal was so relevant and why it was required to be placed before the MPT for its consideration. Once the MPT had such guidance (along with all other relevant matters) then the MPT would reach its own assessment of the gravity of Dr Z’s conduct by reference to the protection of the public. And it undoubtedly had the entitlement to receive the Court of Appeal decision in considering sanction, given the wide provisions of the 2004 Fitness to Practise Rules. [p 68]

The Court of Appeal gave valuable and important guidance as to the limited distinction properly to be drawn between dishonesty and recklessness in this particular context. [p 69]

Davis LJ considered that as the PSA had not been party to the decision to withhold the Court of Appeal’s judgement from the MPT it was entitled to exercise its functions under s.29 of the National Health Service Reform and Health Care Professions Act 2002 and pursuant to s. 40B (3) and (4) of the Medical Act 1983 in seeking to rely on the judgement of the Court of Appeal as fresh evidence. [p 73].

As far as the GMC was concerned the Court could use the power derived under CPR 52.21 (2) to receive fresh evidence. [p74].

‘Given my clear opinion that the agreement to exclude the Court of Appeal decision was wholly erroneous and should never have been made, and given that it operated then to distort the hearing before the MPT and its attempt to achieve an informed and just outcome, I overall conclude that – assuming, for present purposes, that the published judgment of the Court of Appeal is to be styled “fresh evidence” – it should be adduced on this appeal on the application of the GMC.’ [p 77].

The court then had to decide whether to interfere with the decision on sanction. Davis LJ stated [81]

In Khan v General Pharmaceutical Council [2017] 1 WLR a court can more readily depart from a tribunal’s assessment of the effect of misconduct which does not relate to professional performance. That is assuredly so in the present case: where the misconduct relates to dishonesty and recklessness with regard to medico-legal reports, and moreover does so in the context of interference with the administration of justice.

It is now known that the  MPT reached its determination on sanction on a mistaken basis: not knowing, for example, that the sentence of Garnham J had been declared unduly lenient; not knowing of the correct approach to be taken with regard to recklessness in this case; and not knowing where the true seriousness of the case, with regard to the good administration of justice, lay [p 82].

In the present case, there was actual dishonesty in the form of a false witness statement, containing a Statement of Truth. In itself that was a very serious matter. There was also the sustained recklessness – being but little different in seriousness from dishonesty in this context, as the Court of Appeal has held – in circumstances where Dr Z’s conduct was persisted in over a period of time and was designed to be a cover-up. What he did, exploiting his position as a doctor and as an expert witness, struck at the very heart of the administration of justice and involved an abuse of the trust which the courts have to accord to experts. In my clear opinion, in all the circumstances the only proper sanction is erasure. Any lesser sanction would, given the circumstances of this particular case, wholly fail to reflect the gravity of the misconduct involved and wholly fail to achieve the objectives of promoting and maintaining public confidence in the medical profession and in promoting and maintaining proper professional standards and conduct. [p84]

In considering remittal the Court [p 85] stated:

Remittal would serve no purpose. No reasonable panel of the MPT, properly instructing itself, could do anything other than direct erasure. This case is much too grave for any lesser sanction to be considered appropriate or proportionate.

Comment: The case shows that anything other than full probity can lead to erasure and that expert witnesses must take great care when writing and signing expert reports. 

If you are a professional dealing with a professional conduct or fitness to practise allegation, contact Barristers.London without obligation and in strict confidence to see how we might be able assist you and to discuss the potential costs of such work.

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