In General Medical Council and Professional Standards Authority for Health and Social Care v Zafar [2020] EWHC 846 (Admin), the Court held that it had been wrong for the GMC and registrant to agree to exclude a relevant Court of Appeal judgment from the bundle put before a panel on the question of sanction.

Dr Zafar, a GP, had a private practice providing medical reports for low level personal injury claims, producing some 5,000 reports a year.  In December 2011, he was instructed to produce a report for a taxi-driver, Mr Iqbal, who had been in a road traffic accident some 11 weeks earlier.  He duly examined Mr Iqbal for about 15 minutes and recorded that the mild pain and stiffness he experienced at the time of the accident had resolved and that Mr Iqbal had made a full recovery. 

Mr Iqbal was unhappy with the report.  Mr Iqbal’s solicitors told Dr Zafar that Mr Iqbal was still suffering moderate to severe pain and asked whether it was likely he would recover in the next six to eight months and “if so, can you please amend your report”.  Dr Zafar produced a second report, with no mention of the first report, but dated the same date as the first report.  In this second report, Dr Zafar said that the pain and stiffness in Mr Iqbal’s neck still persisted and would resolve fully six to eight months from the accident.  Mr Iqbal commenced proceedings in the County Court, placing reliance on the second report.  The insurers against whom Mr Iqbal was claiming became aware of Dr Zafar’s first report and brought contempt proceedings against him.

At the hearing of the contempt claim in July 2018, the trial judge found ten grounds of contempt of court on the part of Dr Zafar proved.  Some of the grounds related to specific false statements in the second report.  Others related to statements made in two witness statements in which first Dr Zafar sought to blame someone else for making the alterations which appeared in the second report without his permission, and then later sought to argue that he was responsible for the second report and that it was accurate.  The trial judge held that in all but one of the instances, Dr Zafar had acted recklessly.  He only found one instance of dishonesty, namely the attempt to blame someone else for the amendment of the first report. The trial judge committed Dr Zafar to prison for six months, suspended for two years. 

An appeal was heard by the Court of Appeal in February 2019. The Court of Appeal did not interfere with the trial judge’s findings of fact.  The Court of Appeal said that “without seeking to lay down an inflexible rule, we take the view that an expert witness who recklessly makes a false statement in a report or witness statement verified by a statement of truth will usually be almost as culpable as an expert witness who does so intentionally.  This is so, because the expert witness knows that the court and the parties are dependent on his or her being truthful, and has made a declaration which asserts that he or she is aware of his or her duties to the court and has complied with them”.  The Court of Appeal disagreed with the trial judge’s sentence, holding instead that an immediate sentence of 12 months imprisonment would have been appropriate.  However, the sentence was not actually increased, the Court of Appeal indicating that declaring the sentence unduly lenient sufficed. 

Dr Zafar self-referred himself to the GMC.   At a hearing before a panel of the MPTS in May 2019, the substantive judgment and sentencing remarks of the trial judge were put before the panel.  However, Dr Zafar objected to the Court of Appeal judgment being placed before the panel and the GMC agreed that it could be excluded.  The panel determined that suspension was the appropriate sanction.  Both the GMC and the Professional Standards Authority appealed. 

The GMC accepted that the concession not to put the Court of Appeal decision before the panel was erroneous.  It argued that it should not, having regard to public interest considerations, be precluded from relying on the Court of Appeal decision at the appeal hearing.  The GMC argued that without knowledge of the Court of Appeal decision, the panel had seriously underrated the gravity of Dr Zafar’s conduct.  The Authority argued that it had not been a party to the agreement to exclude the Court of Appeal judgment from being placed before the panel and so could not be bound by it.  The Authority argued that the panel’s failure to have regard to the Court of Appeal judgment was a serious procedural error.  Both the GMC and Authority argued that erasure was the only proper sanction.

The Court held that without the Court of Appeal judgment, the panel decided the matter on a misleadingly incomplete basis.  Given that Dr Zafar’s conduct related to his medico-legal practice, it was essential in considering sanction that the panel should have before it the most authoritative judicial guidance on the gravity of Dr Zafar’s conduct with regard to the good administration of justice.  The Court held that, had the panel known that the sentence of the trial judge had been declared unduly lenient and had it known of the limited distinction to be drawn between the proven act of dishonesty and the proven act of recklessness, then the panel would have made a different assessment as to the gravity of Dr Zafar’s conduct.

Dr Zafar argued that it was unfair to permit the Court of Appeal judgment to be relied upon at that stage because it had been excluded before the panel by agreement.  The Court dismissed this for two reasons.  First, the Court held that the agreement made before the panel could not bind the Authority.  Secondly, as far as the GMC was concerned, the Court held that it was within its power under CPR 52.21 (2) to receive fresh evidence on an appeal.  The Court noted that, in normal civil litigation, parties to proceedings should be held to their compromises, be they wise or unwise.  However, regulatory proceedings were conducted in the public interest with the object of protecting the public.  That factor was relevant to the overall exercise of discretion and accordingly the Court held that, on the basis that the judgment of the Court of Appeal was “fresh evidence”, it should be adduced on the appeal on the application of the GMC.

Finally, the Court held that, once the Court of Appeal judgment was formally admitted, the only proper sanction in Dr Zafar’s case was erasure.  The Court said it would have reached this conclusion even in the absence of the Court of Appeal judgment, as the trial judge’s sentencing remarks were so damning and Dr Zafar’s conduct, with his sustained dishonesty and recklessness, had gravely interfered with the administration of justice.

The Court quashed the sanction of suspension and ordered erasure of Dr Zafar’s name from the register.

This article is part of our regular professional regulatory newsletter, read other articles in the August 2020 edition here.