INEQUALITY OF PUNISHMENTS BY THE GMC: COULD THEIR TRIBUNALS BE DISHONEST? WE SHOULD EXPOSE AND SHAME THE CHIEF EXECUTIVE OFFICERS.

Joseph Onwude
Retired Gynaecologist, Statistician, and Epidemiologist.
51 Whitecroft Works, 69 Furnace Hill, Sheffield S3 7AH, United Kingdom.

An article appeared in Medscape about the contentious matter that the General Medical Council is not fit for purpose, which is an intuitive conclusion for a doctor who has been involved in General Medical Council (GMC) procedures at the complaints level, investigations level, Interim Orders Panel hearings (IOP), five Manchester hearings of Fitness to Practice and Residual hearings after Collins J¹, between 13/9/2013 and 2/11/2018. Like me, when you have traveled the GMC corridors, which do not stink of alcohol or otherwise for 5 years, you will surely remember that they stink of Racism and Inequality, and then you remember that the GMC is not fit for purpose.

While trying to remember the views of Richard Smith (1989) in ‘Profile of the GMC: The day of judgment comes closer² and Fiona Goodlee in ‘The GMC, Racism, and Complaints against Doctors’³, both previous Editors-in-Chief of the British Medical Council (The BMJ), I came across to the views of Dr. Sheena Meredith⁴, on 10^th November 2022 of Medscape. The most illuminating word is describing the GMC and its CEO, Mr. Charlie Massey as ignominious – meaning ‘deserving or causing public disgrace or shame.

On the basis that the word ‘racism’ has lost its offensive value in Medicine except by the regulators of Doctors, the GMC, especially as nothing will change with how and why White and Black doctors are treated differently by the GMC, I chose my title carefully based on the overt long-standing experience of the NHS and the GMC.

At the beginning of this article, I had to convince and declare to myself that I never saw racism in the NHS and in how non-GMC personnel are treated. The following titles occurred to me: - ‘Inequality in punishments’, ‘An allegory of Wider General Medical Council Behaviour’ or ‘Why Persecute non-white doctors Differently’, or ‘Racism still exists at the GMC’.

The important question was how Harold Shipman was allowed to kill so many women. He was a white man who was consciously or unconsciously supported by his white colleagues. A black man would not have gotten away with this.

More recently, a spinal neurosurgeon who was found guilty of dishonesty by the GMC and who admitted to dishonesty which is a serious misconduct for any professional and particularly for doctors, was spared any action by the General Medical Council/Medical Practitioners Tribunal Service (GMC MPTS)⁵. Another, a gynaecologic surgeon who was also found guilty of dishonesty by the MPTS, who denied the charge was erased and immediately suspended⁶. However, the Gynaecologist, later was completely cleared of dishonesty on appeal on the basis that the ‘tribunal was wholly wrong to have found dishonesty⁷. Collins J, the Appeal Judge, said that the allegation of Dishonesty must never be repeated by the GMC/MPTS.

These two cases and the decisions on sanctions by the GMC Sanctions Guidance show what can be described as an ‘inequality of punishment after a finding of impairment based on dishonesty between white senior doctors and black senior doctors’, both based on the published GMC Sanctions Guidance 2015⁸.

Dishonesty with intention which the neurosurgeon admitted to, called Mens Rea is especially serious since it is a criminal matter. The dishonest neurosurgeon admitted to dishonesty with intention. He was not punished by the GMC/MPTS because he admitted all charges and had an insight into his intentional dishonest behaviour. After this index case of dishonesty with intention, this neurosurgeon was again trialed for clinical misconduct by the GMC/MPTS in a situation of consenting a patient wrongly but finding the mistake before surgery and then two other situations of not following trust policy when removing chest drains when he was again referred to the GMC for dishonesty. On the other hand, the gynaecologic surgeon who strongly refuted all charges of dishonesty, later supported by Collins J¹ was judged by the GMC/MPTS as lacking in insight into his shortcomings and punished by erasure from the Medical Register.

Yet the sanction of erasure and immediate suspension pending an appeal was reached when there were no clinical complaints or any evidence of dishonesty, let alone, intentional dishonesty against the gynecologic surgeon. He was severely punished. At the Section 40 Statutory Appeal¹, His Lordship, Mr. Justice Collins summed the situation perfectly “that he got up their noses is clear, but still they had an obligation to act fairly, haven’t they”?

The sanctions guidance⁸ does to not give the MPTS the discretion to reach different sanctions for proven dishonesty based on insight. Dishonesty, a very serious misconduct, is always a very serious misconduct. And particularly if this can be shown to be an intentional or repeated offence, as in this case of the neurosurgeon.

Therefore, why would the MPTS dole out markedly different punishments? What was the difference between these two consultant surgeons? The spinal neurosurgeon was a white man and the gynaecologic surgeon was a black man.

Firstly, all white and non-white doctors will want to know how the supposedly independent GMC and MPTS in concert, can prove dishonesty and then erase a doctor from the medical register when the independent investigation committee of the GMC as prosecutor and independent adjudication committee of the GMC, the MPTS, did not present any evidence or could justify their decision on any evidence at the appeal level? How can His Lordship, Mr. Justice Collins state that a finding of dishonesty based on the evidence is “a finding which no reasonable tribunal could conceivably have reached”? Why are the GMC, the supposedly independent legal assessor and the MPTS, the adjudicator colluding against registrants? The only possibility is that the GMC assumes non-white doctors are guilty and cannot be proven innocent. Even criminals are assumed to be innocent until proven guilty, as a Human Rights entitlement (Article 6.1, HRA, 1998).

All non-white doctors will want to know why the GMC and MPTS are still acting in concert, despite section 60 of the Medical Act 1983 (2015 amendment) which makes them statutorily independent bodies to erase a doctor and immediately suspend him without evidence to convince Collins J, yet be lenient for intentional, repeated and admittedly dishonesty for another surgeon, the neurosurgeon?

One explanation is that the GMC and the MPTS do not appear to understand the concept of dishonesty. There is no need to ask the GMC and MPTS to correct their procedures, only to read and apply what has been set out for them in the Medical Act 1983, as amended in 2015.

His Lordship, Mr. Justice Singh declared that there was flawed reasoning in five counts of dishonesty against a doctor and opined that the panel showed “a fundamentally flawed understanding of the concept of dishonesty”⁹. Similarly, in allegations about dishonesty and proved against the gynaecological surgeon, Collins J could not find enough phrases to describe the finding of dishonesty, quoting a few: “an impossible allegation”, “the charge is as close to nonsense as it comes”, “the tribunal was clearly wrong” and “the tribunal was wholly wrong”. So much so that Mr. Justice Collins ruled that the allegation of dishonesty should never be repeated in further hearings¹. 

In another judgement¹⁰, Collins J inferred on what the GMC understands by a charge of dishonesty. He states that “Of course, if a Tribunal on the facts concludes that something which is denied has taken place, then the question arises as to what should follow from that.  There are often factual disputes which may be resolved against a doctor.  The Tribunal must be very careful in such circumstances not to regard that as in any way necessarily indicative of dishonesty, because otherwise any denial which was, in the view of the Tribunal in due course, not substantiated could on one view indicate dishonesty by the GMC/MPTS Tribunal”.¹⁰

On the face of it, this suggests that the GMC/MPTS tribunal might be guilty of dishonesty itself with its decisions. Legally though, it means that a Tribunal may well decide that something occurred which a party to litigation claims did not take place. The Tribunal should be careful how they proceed in order that their decisions are not challenged by Judicial Review on the grounds that the supposed act upon which they decided a case did not in fact occur.

In a sense, it is a warning to the MPTS and their legal assessors to think harder before they incur inappropriate court time and expense during appeals because of reckless indifference to what should be common sense law. The legal advisers are exposed to criminal acts too just to earn a few bucks. At least one barrister from Onwude v GMC¹ died after I sued him. Did he kill himself out of disgrace of the criminal action I took against him? I promise I had nothing to do with it, African JUJU or not.

This warning must apply to barristers who might also recklessly take on ‘GMC Fitness to Practice cases or GMC appellate cases’ which breach their code of conduct (Rule 704 (c) or recently changed to rC9 because doctors now have enough clarity to scrutinize their behaviour.

A second explanation is that the GMC and the MPTS do not appear to understand the consequences of a charge of dishonesty on a professional man. If it did, why does it ask its solicitors to draft a charge of dishonesty against a doctor when it does not have evidence to substantiate the charge? Why does the GMC ask its barristers to draft or plead dishonesty when there is no evidence to support this? Why do the barristers agree to this, against their BSB code 704(c)? This is perhaps the time to put these barristers under scrutiny, if they continue to abuse rule 704 (c) because they do not expect doctors to know that they have broken their code of practice.¹¹ And is this the only code of practice that barristers regularly breach? We must become vigilant.

Mr. Justice Collins also opined that the appointment of a new retired judge as Chairman of the MPTS would help towards the appointment of competent Tribunal chairmen, suggesting that previous Tribunal chairmen may have been deficient or illiterate. The implications are clear that doctors may have been short changed by the previous chairman of the MPTS, for example, Mr. David Pearl who was an academic specialist on Muslim Law.

Absent unnecessary repeated challenges to the High Courts which will show the GMC in less omnipotent light, the only hope for doctors, apart from dismissing everyone currently involved with the GMC investigation committee and the MPTS, I agreed with Collins J that Dame Caroline Swift, a retired proper judge who has now taken over as chairman of the MPTS would be the answer for doctors. Fortunately or unfortunately, she has been replaced by Her Honour, Judge Deborah Taylor who has been selected as the new Chair of the Medical Practitioners Tribunal Service (MPTS) and will take up the role on 1 March 2023.

I strongly believe that personal actions against GMC senior officials, especially for criminal cases will be very effective. For example, Mr. Charlie Massey, the current CEO is in criminal court for fraudulent misrepresentation in stealing a registrant’s License to Practice. Similarly, Mr. Jim Percival who is supposed to be a proper lawyer, as the current Principal Legal Adviser is in Civil Court for for Non-Delegated Negligence. Mr. Niall Dickson is in criminal court, as previous CEO of the GMC for Aiding and Abetting forgery and perjury and Perverting the Course of Justice. There are at least 11 cases against the GMC executives in Criminal Court. Although these happened in 2015, a criminal charge has no time limitation. 

Equality in how all doctors are dealt with will be an important outcome for doctors. No one has recently suggested that the colour of the skin is important in how the GMC and MPTS have dealt with all doctors but when you travel the corridors of the MPTS or look at the list of doctors who are suspended or erased, some doctors do feel the colour of their skin, although most of them are British. Unfortunately, the NHS needs these non-whites too.

Dame Caroline Swift has been recommended by another senior High Court Judge³. Non-white doctors must believe that she will feel the pain from the inequality of previous or future decisions of the MPTS.

In 1996, Fiona Godlee, then an editor of the BMJ and recently overtaken by another Editor-in-Chief, wrote an editorial about the ‘GMC, racism, and complaints against doctors. There was no doubt that the concept expressed in 1996 still existed in 2019, based on one clear case¹ or others. A senior Editor of the BMJ, Richard Smith thought the GMC was not fit for purpose for other reasons. There are many publications that show that the GMC is not fit for purpose and there are many historical publications to back this.

References

1. Onwude v GMC [2017] EWHC 601 (ADMIN).

2. Smith R. Profile of the GMC. The day of judgment comes closer. BMJ 1989; 298 (6682): 1241–1244.

3. Fiona Godlee. The GMC, Racism, and Complaints against Doctors. Editorial. BMJ 1996; 312: 1314.

4. Sheena Meredith. 'Dysfunctional' GMC Labelled 'Not Fit for Purpose' After Latest Blunder, 10^th November 2022, Medscape.

5. Clare Dyer. Surgeon who operated on wrong vertebrae has no action taken against him. BMJ 2017; 357: 1817 (Published 10 April 2017).

6. Clare Dyer. Gynaecologist is struck off for dishonesty and intention to cause distress. BMJ 2016; 355: i6828 (Published 22 December 2016).

7. Clare Dyer. Gynaecologist whose erasure was quashed in High Court is fit to practice. BMJ 2018; 363 doi: https://doi.org/10.1136/bmj.k4760 (Published 08 November 2018). Cite as: BMJ 2018; 363: k4760.

8. GMC Sanctions Guidance (2015). http://www.mpts-uk.org/DC4198_Sanctions_Guidance, Dec 2015_64896602 pdf. 

9. Uddin v GMC [2012] EWHC 2669 (Admin) at 58.

10. Bale v GMC [2017] EWHC 804 (admin).

11. Bar Standards Board. Rule 704 (c). 2017.

12. MPTS. High Court Judge Made New Chair of Doctors Tribunal Service. http://www.mpts-uk.org/about/news/11160.asp