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Record of Determinations –

Medical Practitioners Tribunal

MPT: Dr ALI 1

PUBLIC RECORD

Dates: 01/07/2019 – 11/07/2019

Medical Practitioner’s name: Dr Shah ALI

GMC reference number: 7284246

Primary medical qualification: MB BS 2013 University of East Anglia

Type of case Outcome on impairment New - Misconduct Impaired

New - Deficient professional performance Impaired

Summary of outcome

Suspension, 6 months. Review hearing directed Immediate order imposed

Tribunal:

Legally Qualified Chair Mr Damian Cooper

Lay Tribunal Member: Mr Peter Scofield

Medical Tribunal Member: Dr Jill Edwards

Tribunal Clerk: Mr David Salad 1-8 July 2019 Ms Jean Gleeson 9-11 July 2019

Attendance and Representation:

Medical Practitioner: Present and represented

Medical Practitioner’s Representative: Mr David Morris, Counsel, instructed by RadcliffesLeBrasseur

GMC Representative: Mr Simon Jackson, QC

Attendance of Press / Public In accordance with Rule 41 of the General Medical Council (Fitness to Practise) Rules 2004 the hearing was held in public.



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Overarching Objective Throughout the decision making process the tribunal has borne in mind the statutory overarching objective as set out in s1 Medical Act 1983 (the 1983 Act) to protect, promote and maintain the health, safety and well-being of the public, to promote and maintain public confidence in the medical profession, and to promote and maintain proper professional standards and conduct for members of that profession. Determination on Facts - 09/07/2019 Background

1. Dr Ali qualified in 2013 from the University of East Anglia. He undertook his Foundation Year 1 (‘FY1’) in Health Education England (West Midlands) (‘HEE-WM’) working at the Heart of England Foundation Trust (‘HEFT’). He proceeded to undertake his Foundation Year 2 (‘FY2’) training with HEFT. He was temporarily excluded from HEFT in October 2014 following some concerns regarding his clinical ability. Following an internal investigation by HEFT, no further action was taken against Dr Ali and he continued in closely supervised placements.

2. In February 2015 an Annual Review of Competence Progression (‘ARCP’) was held at HEE-WM. The outcome of the ARCP was that Dr Ali would be given the opportunity to repeat his FY2 year in a new environment supported by a new group of experienced trainers and supervisors who could make an objective assessment of his competencies.

3. Dr Ali was transferred to Russell’s Hall Hospital, part of the Dudley Group of Hospital NHS Foundation Trust (‘the Dudley Trust’). After working in several specialties at the Dudley Trust, he was excluded from his clinical duties in April 2016. At an ARCP Panel Dr Ali received an ‘Outcome 4’ on 17 May 2016. This outcome meant that he had been released from further training by HEE-WM.

4. Dr Ali subsequently appealed the ARCP decision. His appeal was unsuccessful and he was released from FY2 training. Following the outcome of Dr Ali’s appeal, Professor D, the Postgraduate Dean at HEE-WM, referred him to the GMC via a referral form dated 26 August 2016.

5. Dr Ali applied for a post at the Centre for Health and Disability Assessment (‘CHDA’) in September 2016, and began work with them in October 2016. CHDA provides medical advice to the Department for Work and Pensions and the Veterans Agency in cases in which someone makes a claim for benefit.

6. The content of paragraphs 1 – 4 of the Allegation relate to Dr Ali’s knowledge and actions upon initially applying for his role at CHDA during 2016, and his knowledge and actions with regard to submissions made on his behalf at an MPTS Interim Orders Tribunal hearing which took place in August 2017.



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7. Upon learning of the outcome of the Interim Orders Tribunal, CHDA suspended Dr Ali on 23 August 2017 pending an investigation. CHDA’s investigation ended in Disciplinary hearing which concluded in a final written warning. Dr Ali resigned from CHDA in November 2017.

8. The contents of paragraphs 5 – 7 relate to a GMC Performance Assessment undertaken by Dr Ali in July 2018 (‘the Assessment’). The Tribunal has been provided with a report of the Assessment which sets out its format, methodology and findings. The Assessment was carried out by three Performance Assessors (‘the Assessors’), supported by a Performance Assessment Officer, and was composed of several elements. These included two interviews with Dr Ali and third party interviews conducted by the Assessors, a Knowledge Test, and an Objective Structured Clinical Examination (‘OSCE’).

9. Third party interviews were carried out with Dr Ali’s Educational and Clinical Supervisors, along with a number of Dr Ali’s former colleagues. The interviewees were chosen because their previous or current posts would give them direct knowledge of Dr Ali’s practice.

10. The Knowledge Test was a two hour test of 120 single best answer questions which are chosen to reflect, as closely as possible, Dr Ali’s work.

11. The OSCE involved Dr Ali being presented with a number of scenarios chosen to reflect his background and experience. The scenarios are designed to test a doctor’s practical skills, clinical method, and interpersonal skills. Each scenario is set up in a different room or ‘station’ and is designed to last approximately seven minutes. The OSCE can use medical models and equipment and role players as both patients and colleagues.

12. The Assessors also conducted a Case Based Discussion with Dr Ali. This involved a discussion of the reasoning behind Dr Ali’s decision making during the OSCE.

13. The Assessment is scored across eight categories and with reference to the professional standards described in Good Medical Practice, with judgments on each category derived from the findings of the various elements of the Assessment.

14. The Assessors found that there was insufficient evidence to make judgements in the categories of Operative/Technical Skills, Record Keeping and Safety and Quality. They rated Dr Ali’s practice as ‘Cause for concern’ in the category of Maintaining Professional Performance. The Assessors rated Dr Ali’s practice as ‘Unacceptable’ in the categories of Assessment, Clinical Management, Relationships with Patients and Working with Colleagues.

15. The Assessors’ formal opinion was that Dr Ali’s performance was deficient and he was fit to practise on a limited basis.



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The Outcome of Applications Made during the Facts Stage

16. The Tribunal rejected the application of Mr Morris, Counsel acting on behalf of Dr Ali, to restrict the GMC’s cross examination of Dr Ali. The Tribunal’s full decision is included at Annex A.

17. The Tribunal granted the application of Mr Jackson QC, acting on behalf of the GMC, made pursuant to Rule 17(6) of the General Medical Council (Fitness to Practise Rules) 2004 as amended (‘the Rules’), that an amendment be made to sub paragraph 1b of the Allegation. The application was made with the purpose of correcting references to Dr Ali being excluded from his employment at HEFT in 2014, instead referring to his release from his FY2 training programme by HEE-WM in July 2016.

18. The Tribunal also corrected, under Rule 17(6), a typographical error identified in sub paragraph 1c(i) by Mr Morris. In addition, it identified and corrected a typographical error at sub paragraph 1d(ii), ensuring that this referred back to the correct point earlier in the Allegation.

19. In response to a question posed by the Tribunal, Mr Jackson and Mr Morris agreed that an amendment was required under Rule 17(6) to sub paragraph 1a due to disputed evidence as to the specific date upon which Dr Ali was alleged to have signed to confirm his agreement with the declaration set out as part of the application for the CHDA. The Tribunal therefore amended the wording of this sub paragraph to reflect this agreement.

20. The Tribunal considered that all of the amendments set out above could be made without injustice. The text of the Allegation below reflects these amendments which were made throughout the course of the facts stage.

The Allegation and the Doctor’s Response

21. The Allegation made against Dr Ali is as follows:

That being registered under the Medical Act 1983 (as amended):

1. You applied for a job at the Centre for Health and Disability Assessment (‘the CHDA’) and as part of the application:

a. on or after 1 October 2016, you signed to confirm your agreement with the following declaration: ’any and all proceedings for professional misconduct (whether in the UK or overseas) and/or any performance review procedures (or their equivalent) and/or police action and/or court cases of which you have been or are the subject



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have been made known to your line manager, the lead clinician for your function centre’s chief medical offices and any future proceedings will be made known immediately.’; Amended under Rule 17(6). To be determined

b. when you signed the agreement as set out at paragraph 1a, you knew that you had been removed released from FY2 training programme by Health Education England on or about 26 July 2016 at the Heart of England NHS Foundation Trust (‘HEFT’) on 10 October 2014; Amended under Rule 17(6). To be determined

c. on 8 September 2016, during a telephone interview, you answered no to the following questions:

i. ‘have you ever n been under investigation by an employer or professional body, if so details?’; Amended under Rule 17(6). To be determined

ii. ‘do you have any pending issues with your professional registration body?’; To be determined

iii. ‘do you have any local/employer complaints which are currently under review (not necessarily by NMC/GMC/HCPC)?’; To be determined

d. when you answered the questions as set out at paragraph 1c, you knew:

i. you had been awarded an ARCP outcome of 4 and therefore released from the training programme in line with the UK Foundation Programme Reference Guide 2012; To be determined

ii. Health Education England would discuss your release from training as set out at paragraph 1b 2b with the GMC. Amended under Rule 17(6). To be determined

2. On the 18 August 2017 at an Interim Orders Tribunal of the Medical Practitioners Tribunal Service you allowed submissions to be made in your presence that you were working in your role at the CHDA:

a. without any concerns; Admitted and found proved

b. and performing to an entirely acceptable standard. Admitted and found proved



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3. At the time of the submissions at the Interim Orders Tribunal as set out at paragraph 2, you knew that you had been subject to a Performance Improvement Action Plan (‘PIAP’) at the CHDA between the following dates:

a. 8 February to 25 March 2017; Admitted and found proved

b. 4 to 31 July 2017. Admitted and found proved

4. Your actions were dishonest as described at paragraph:

a. 1a by reason of paragraph 1b; To be determined

b. 1c by reason of paragraph 1d; To be determined

c. 2 by reason of paragraph 3. To be determined

5. On 9 and 10 July 2018 you underwent a General Medical Council assessment of the standard of your professional performance. Admitted and found proved

6. Your professional performance was unacceptable in the following areas:

a. assessment; Admitted and found proved

b. clinical management; Admitted and found proved

c. relationships with patients; Admitted and found proved

d. working with colleagues. Admitted and found proved

7. Your professional performance gave cause for concern in the following area: maintaining professional performance. Admitted and found proved

And that by reason of the matters set out above your fitness to practise is impaired because of your:

a. misconduct in respect of paragraphs 1-4 To be determined b. deficient professional performance in respect of paragraphs 5-7. To be determined

The Admitted Facts

22. At the outset of these proceedings, through his counsel, Mr Morris, Dr Ali made admissions to some paragraphs and sub-paragraphs of the Allegation, as set out above, in accordance with Rule 17(2)(d) of the General Medical Council (GMC)



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(Fitness to Practise) Rules 2004, as amended (‘the Rules’). In accordance with Rule 17(2)(e) of the Rules, the Tribunal announced these paragraphs and sub-paragraphs of the Allegation as admitted and found proved.

The Facts to be Determined

23. In light of Dr Ali’s response to the Allegation made against him, the Tribunal is required to determine whether his knowledge and actions upon initially applying for his role at CHDA during 2016, and his knowledge and actions with regard to submissions made on his behalf at an MPTS Interim Orders Tribunal hearing which took place in August 2017, were dishonest.

Factual Witness Evidence

24. The Tribunal received evidence on behalf of the GMC from the following witnesses:

• Dr A, Chief Medical Officer at CHDA, in person.

25. The Tribunal also received evidence on behalf of the GMC in the form of witness statements from the following witnesses who were not called to give oral evidence:

• Mr B, Investigation Officer at the GMC;

• Dr C, Head of Medical Education at the Dudley Trust;

• Professor D, Postgraduate Dean at HEE-WM’.

26. Dr Ali provided his own witness statement and also gave oral evidence at the hearing.

Documentary Evidence

27. The Tribunal had regard to the documentary evidence provided by the parties. This evidence included, but was not limited to:

• Performance Assessors’ Report to the General Medical Council, dated 14 September 2018; • Interim Orders Tribunal Determination dated 18 August 2017; • relevant correspondence between the GMC and HEE-WM’, and between the GMC and CHDA; • CHDA contractual documents including a Statement of Particulars, Supplementary Agreement and an acknowledgement of an Employee Contractual Handbook; • written record of telephone interview with SJB, agents for the CHDA; • written record of the CHDA face to face interview with Dr Ali and correspondence related to the CHDA disciplinary hearing of 30 October 2017;



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• CHDA Performance Improvement Action Plan (‘PIAP’) documentation; • GMC Fitness to practise referral form completed by Professor D; • NHS England ARCP history notes, various dates;

• chronology of events drafted by the GMC; • Dr Ali’s reply to the GMC’s ‘Rule 7’ letter setting out his initial response to the Allegation against him.

The Tribunal’s Approach

28. In reaching its decision on facts, the Tribunal has borne in mind that the burden of proof rests on the GMC and it is for the GMC to prove the Allegation. Dr Ali does not need to prove anything. The standard of proof is that applicable to civil proceedings, namely the balance of probabilities, i.e. whether it is more likely than not that the events occurred as alleged.

29. In its deliberations on paragraph 4, which alleges dishonesty, the Tribunal applied the test set out by Lord Hughes in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 (‘Ivey’). It bore in mind that it should first ascertain the actual state of Dr Ali’s knowledge or belief as to the facts and should then decide whether his conduct was dishonest by applying the objective standards of ordinary decent people. The Tribunal’s Analysis of the Evidence and Findings

30. The Tribunal has considered each outstanding paragraph of the Allegation separately and has evaluated the evidence in order to make its findings on the facts.

Sub paragraph 1a

31. The Tribunal noted that sub paragraph 1a alleges that on or after 1 October 2016, Dr Ali signed to confirm his agreement with a declaration (the text of which is set out above).

32. The Tribunal noted that Dr Ali has not disputed that he electronically signed all three contractual documents provided to him by CHDA (a Statement of Particulars, Supplementary Agreement and Employee Contractual Handbook). Whether all or only some elements were signed on 1 October has been a matter of contention. By 3 October Dr Ali had completed the online signature of the required elements of his contract to the satisfaction of CHDA. It therefore found sub paragraph 1a proved.

Sub paragraph 1b

33. Sub paragraph 1b alleges that when Dr Ali signed the agreement set out at sub paragraph 1a, he knew that he had been released from his FY2 training programme by HEE-WM on 26 July 2016.



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34. The Tribunal took into account that Dr Ali emailed Ms E of SJB Medical on 26 September 2016, informing her of the ‘Outcome 4’ and attaching the letter sent to him from HEE-WM confirming the outcome. The Tribunal considered that Dr Ali’s email to Ms E demonstrated that he knew that he had been released from his FY2 training programme by this point, and had acted upon this by informing SJB Medical. In addition, the Tribunal has seen correspondence from Professor D explaining the ‘Outcome 4’ decision and the result of Dr Ali’s appeal against that decision in July 2016. It therefore found sub paragraph 1b proved.

Sub paragraph 1c (i – iii)

35. The attention of the Tribunal was drawn, by both Counsel, to the status of the record of the telephone interview on 8 September 2016, between Ms F of SJB Medical and Dr Ali, as hearsay evidence. The telephone record had been provided to the Tribunal as part of the agreed evidence bundle in advance of the hearing. Further, it had been tested by both Counsel in questions put to Dr A and to Dr Ali during oral evidence. Both Counsel agreed, before the Tribunal adjourned to make its determination on facts, that it was a matter for the Tribunal what weight it attached to that evidence. 36. In determining what weight, if any, to attach to the record of the telephone interview, the Tribunal noted that it had received no explanation from the GMC in relation to why it had neither a written witness statement before it, nor had heard oral evidence from the creator of the record. However, it also noted that this was a record created contemporaneously during the telephone interview by the interviewer herself. It believed it was Ms F’s professional responsibility to complete the record correctly, as required of SJB Medical by the CHDA. The Tribunal could see no reason for Ms F to have either incorrectly recorded answers given to her or otherwise misrepresented the information in the record.

37. The Tribunal noted that sub paragraph 1c(i-iii) alleges that on 8 September 2016, during the telephone interview, Dr Ali answered ‘no’ to several questions with regard to investigations, issues and complaints that had been opened or arisen about him in the course of his professional work. 38. Dr Ali maintained that he did not know how Ms F had come to record the answers ‘no’ to the three questions set out at sub paragraph 1c(i–iii), stating that he had not been asked those questions. He said in his oral evidence that he had given Ms F the actual answers to these questions at a previous, unrecorded, phone conversation with Ms F one or two days before the phone interview of 8 September, during which he had also disclosed both the fact that he had received the ‘Outcome 4’ decision and that this had given rise to a pending issue with the GMC. 39. Dr A gave evidence that the form which had been filled in by Ms F, and was now before the Tribunal, was mandatory for all such CHDA telephone interviews, and



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CHDA expected all questions on the proforma to be asked and answers recorded on it. 40. Mindful of its nature as hearsay evidence, the Tribunal nevertheless considered the record of the telephone interview to be significant and compelling evidence. It was clear from the evidence of Dr A that the form was in a CHDA prescribed format, was intended to be used for CHDA telephone interviews, and was mandated for use by SJB Medical when acting as agent of the CHDA in undertaking such interviews. On that basis, the Tribunal determined that the CHDA had a clear expectation of SJB Medical that all questions would be asked and all answers recorded accurately. 41. The Tribunal noted Dr Ali’s assertion that he had disclosed answers material to the questions in paragraph 1c(i-iii) of the Allegation in another conversation with Ms F 24 to 48 hours earlier. However, the Tribunal was concerned that this was raised for the first time in Dr Ali’s oral evidence and it had seen no evidence of this conversation ever taking place. 42. The Tribunal concluded that it was inherently unlikely that Ms F had not asked the questions required of her in compliance with the mandatory interview pro forma, as Dr Ali asserted. Furthermore, having asked those questions it was highly improbable that she should have recorded answers which were not, in fact, given. Finally, the Tribunal also concluded that if an earlier conversation had taken place in which Dr Ali had made the relevant declarations it was even more improbable that Ms F should, only a short time later, record that the answers given were ‘no’ when, on Dr Ali’s evidence, she knew that this was not the case. 43. It was therefore satisfied that it was more likely than not that Dr Ali was asked the relevant questions and that the answers given were correctly recorded on the form as ‘no’ by Ms F. Accordingly, it found 1c(i-iii) of the Allegation proved. Sub paragraph 1d (i-ii) 44. Sub paragraph 1d alleges that when Dr Ali answered the questions as set out in sub paragraph 1c, he knew that he had been awarded an ARCP ‘Outcome 4’ and therefore released from the training programme and that HEE-WM would discuss his release from training with the GMC. 45. In submissions made by Mr Morris on his behalf, Dr Ali has accepted that by the date of the telephone interview with Ms F on 8 September 2016 he was aware that he had been awarded an ARCP ‘Outcome 4’ and released from his FY2 training programme. He has also accepted that he knew that HEE-WM had plans to discuss the matter with the GMC. The Tribunal noted the letter from Professor D to Dr Ali of 1 August 2016 in which this is explained to him. Accordingly, it found paragraph 1d(i-ii) proved.



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Paragraph 4 46. The Tribunal noted that Paragraph 4 alleges that Dr Ali’s actions were dishonest in a number of ways, referring to specific parts of the Allegation.

Sub paragraph 4a – Dishonesty in relation to Dr Ali’s actions set out at sub paragraph 1a by reason of his knowledge set out at sub paragraph 1b

47. The Tribunal noted that before signing any of the contractual documents on either 1 or 3 October 2016, Dr Ali had emailed Ms E of SJB Medical on 26 September 2016, informing her of the ‘Outcome 4’ and attaching the letter sent to him from HEE-WM. The Tribunal considered that SJB Medical were, at that point, acting as agents of CHDA in terms of recruitment.

48. The Tribunal was satisfied that it was a reasonable expectation on Dr Ali’s part that, having disclosed the ‘Outcome 4’ decision letter to SJB Medical, it would be passed on by them to the relevant staff at CHDA. It therefore found that the actual state of Dr Ali’s knowledge or belief at the time of his signing the relevant contractual declarations referred to at sub paragraph 1a, was that he had properly disclosed the fact of his release from training by HEE-WM.

49. Having established Dr Ali’s knowledge or belief as to the facts at the time he signed the various contractual declarations with CHDA, the Tribunal moved on to decide whether his conduct was dishonest by the objective standards of ordinary decent people. It considered that, by these standards, Dr Ali’s signing to agree with the statement at sub paragraph 1a was not dishonest as he knew that he had disclosed the ‘Outcome 4’ and could reasonably expect that this would have been passed on to relevant staff at CHDA.

50. In these circumstances, the Tribunal found sub paragraph 4a not proved.

Sub paragraph 4b – Dishonesty in relation to Dr Ali’s actions set out at sub paragraph 1c by reason of his knowledge set out at sub paragraph 1d

51. Having found paragraphs 1c(i-iii) and 1d(i-ii) proved, the Tribunal went on to consider the state of Dr Ali’s knowledge or belief as to those facts. 52. Dr Ali asserts that the relevant questions were never asked. The Tribunal found that not to be a genuinely held belief. The Tribunal considered that, at the time of the 8 September telephone interview, Dr Ali knew of his ARCP ‘Outcome 4’ and that his recent training would be discussed with the GMC. Nevertheless he knowingly answered ‘no’ when asked questions to which disclosure of that information was highly relevant and to which ‘yes’ was the appropriate answer.



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53. The tribunal determined that by the standards of ordinary decent people such conduct would be considered dishonest. Accordingly, it found paragraph 4b proved. Sub paragraph 4c - Dishonesty in relation to Dr Ali’s actions set out at paragraph 2 by reason of his knowledge set out at paragraph 3

54. Dr Ali admitted paragraphs 2 and 3, namely that on 18 August 2017 at an MPTS Interim Orders Tribunal he allowed submissions to be made in his presence by his representative, Mr G, that he was working in his role at the CHDA without any concerns and was performing to an entirely acceptable standard. However, he knew when these submissions were made that he had been subject to a Performance Improvement Action Plan (‘PIAP’) at the CHDA between 8 February – 25 March 2017 and 4 – 31 July 2017.

55. Dr Ali accepted in his evidence at this hearing that he now realises that he was not performing to an entirely acceptable standard. However, he has consistently maintained that, at the time of the Interim Orders Tribunal of 18 August 2017, he believed that his performance in his role at CHDA was entirely acceptable. He stated that he believed that the PIAPs he had undertaken were similar to a Professional Development Plan (‘PDP’), which is a process that all doctors use as part of continuing professional development activity, and are not considered to be a tool used to target specific improvements necessary in a doctor’s practice.

56. The two PIAPs that Dr Ali had undertaken were both at Level 1. Dr A gave evidence that Level 1 PIAPs were a relatively informal process, as opposed to the more formal Level 2 PIAPs which involved human resources input. She stated that they were initiated with a meeting at which it would be set out why the PIAP was being put in place and with expectations upon the member of staff clarified, along with how progress would be reviewed.

57. The Tribunal considered that a PIAP was not the same as a PDP, and that PIAPs of any level were only put in place when the need for an improvement in performance was identified. However, it accepted that it was plausible that Dr Ali’s knowledge and belief about the PIAPs at the time of the IOT of 18 August 2017 was not the same as that of the CHDA managers. There was no evidence before the Tribunal stating how Dr Ali’s line manager at CHDA, Mr I, had presented the purpose of a Level 1 PIAP to Dr Ali, and no evidence that he had ever discussed the potential of a Level 2 PIAP. In light of Ms A’s evidence as to the informality of the Level 1 process, the Tribunal considered it plausible that this could have come across to Dr Ali as similar to a PDP.

58. In addition, the Tribunal found it to be significant that an email sent to Mr G by Mr I on 17 August 2017, the day before the IOT, could easily have reinforced Dr Ali’s own view that his performance at CHDA was without concern. Mr I does not mention either PIAPs or any concerns with Dr Ali’s performance. In response to Mr



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G’s queries including questions as to the nature of the assessment of Dr Ali’s work on a national and local basis, Mr I set out:

Dr Ali’s work is subject to national auditing and to regular local internal reviewing process. It is correct that Clinical Standards Leads (senior clinicians who give clinical advice) are always available by telephone but that in some of the smaller sites there is not always a CSL on site. This is Dr Ali’s avenue of support which he regularly uses to seek advice and check that he is making the correct decisions. Dr Ali uses this support at the appropriate level.

59. Mr I did not refer specifically to the PIAPs or state that Dr Ali’s performance was anything other than satisfactory. As Dr Ali’s line manager, he had been responsible for meeting with Dr Ali to initiate and review the PIAPs, so had full knowledge of the need for them. The Tribunal accepted that, having seen this email from his line manager the day before the Interim Orders Tribunal hearing, Dr Ali could reasonably have construed it as confirming his belief that he was working at an entirely acceptable standard. He thus allowed Mr G, who was acting entirely properly on behalf of his client on the information available to him at short notice, to submit this on Dr Ali’s behalf to the Interim Orders Tribunal.

60. Having established Dr Ali’s knowledge or belief as to the facts at the time of the Interim Orders Tribunal, the Tribunal moved on to decide whether his conduct was dishonest by the objective standards of ordinary decent people. It considered that, applying these standards, Dr Ali’s conduct was not dishonest.

61. In these circumstances, the Tribunal found sub paragraph 4c not proved.

The Tribunal’s Overall Determination on the Facts

62. The Tribunal has determined the facts as follows:

That being registered under the Medical Act 1983 (as amended):

1. You applied for a job at the Centre for Health and Disability Assessment (‘the CHDA’) and as part of the application:

a. on or after 1 October 2016, you signed to confirm your agreement with the following declaration: ’any and all proceedings for professional misconduct (whether in the UK or overseas) and/or any performance review procedures (or their equivalent) and/or police action and/or court cases of which you have been or are the subject have been made known to your line manager, the lead clinician for your function centre’s chief medical offices and any future proceedings



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will be made known immediately.’; Amended under Rule 17(6). Determined and found proved as amended

b. when you signed the agreement as set out at paragraph 1a, you knew that you had been removed released from FY2 training programme by Health Education England on or about 26 July 2016 at the Heart of England NHS Foundation Trust (‘HEFT’) on 10 October 2014; Amended under Rule 17(6). Determined and found proved as amended

c. on 8 September 2016, during a telephone interview, you answered no to the following questions:

i. ‘have you ever n been under investigation by an employer or professional body, if so details?’; Amended under Rule 17(6). Determined and found proved as amended

ii. ‘do you have any pending issues with your professional registration body?’; Determined and found proved

iii. ‘do you have any local/employer complaints which are currently under review (not necessarily by NMC/GMC/HCPC)?’; Determined and found proved

d. when you answered the questions as set out at paragraph 1c, you knew:

i. you had been awarded an ARCP outcome of 4 and therefore released from the training programme in line with the UK Foundation Programme Reference Guide 2012; Determined and found proved

ii. Health Education England would discuss your release from training as set out at paragraph 1b 2b with the GMC. Amended under Rule 17(6). Determined and found proved as amended

2. On the 18 August 2017 at an Interim Orders Tribunal of the Medical Practitioners Tribunal Service you allowed submissions to be made in your presence that you were working in your role at the CHDA:

a. without any concerns; Admitted and found proved



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b. and performing to an entirely acceptable standard. Admitted and found proved

3. At the time of the submissions at the Interim Orders Tribunal as set out at paragraph 2, you knew that you had been subject to a Performance Improvement Action Plan (‘PIAP’) at the CHDA between the following dates:

a. 8 February to 25 March 2017; Admitted and found proved

b. 4 to 31 July 2017. Admitted and found proved

4. Your actions were dishonest as described at paragraph:

a. 1a by reason of paragraph 1b; Found not proved

b. 1c by reason of paragraph 1d; Determined and found proved

c. 2 by reason of paragraph 3. Found not proved

5. On 9 and 10 July 2018 you underwent a General Medical Council assessment of the standard of your professional performance. Admitted and found proved

6. Your professional performance was unacceptable in the following areas:

a. assessment; Admitted and found proved

b. clinical management; Admitted and found proved

c. relationships with patients; Admitted and found proved

d. working with colleagues. Admitted and found proved

7. Your professional performance gave cause for concern in the following area: maintaining professional performance. Admitted and found proved

And that by reason of the matters set out above your fitness to practise is impaired because of your:

a. misconduct in respect of paragraphs 1-4 To be determined b. deficient professional performance in respect of paragraphs 5-7. To be determined

Determination on Impairment - 10/07/2019



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1. The Tribunal now has to decide in accordance with Rule 17(2)(l) of the Rules whether, on the basis of the facts which it has found proved as set out before, Dr Ali’s fitness to practise is impaired by reason of misconduct and/or deficient professional performance. The Evidence 2. The Tribunal has taken into account all the evidence received during the facts stage of the hearing, both oral and documentary. In addition, at this stage of the hearing, the Tribunal received two further documents from Mr Morris: an extract of GMC’s ‘Publication and disclosure policy Fitness to practice’ published 13 May 2019 and an annex to the GMC document ‘Changes to the information we publish and disclose about a doctor’s fitness to practise’ entitled ‘Publication and disclosure policy’ effective October 2013 and due for review in May 2017 (‘the Annex’). Submissions 3. On behalf of the GMC, Mr Jackson submitted that, by reason of the facts admitted and those found proved, Dr Ali’s fitness to practise is currently impaired. Mr Jackson submitted that principle bases for this are:

a. the seriousness of the doctor’s misconduct in terms of failing to disclose key information to a prospective employer, in accordance with his obligations under Good medical practice (2013) (‘GMP’)

b. his lack of insight into his conduct, and c. lack of remediation, reflected by his persistent denials of the now proved behaviour before the Tribunal.

4. Mr Jackson further submitted that Dr Ali’s fitness to practise is also currently impaired by reason of the failure of his performance assessment in July 2018. 5. Mr Jackson stated that the Tribunal is also entitled to have regard to the evidence which Dr Ali gave to the Tribunal, and to conclude that in the time which has elapsed since these events, Dr Ali has shown no real insight. 6. On behalf of Dr Ali, Mr Morris submitted that Dr Ali has admitted his deficient professional performance and accepts that his fitness to practise is thereby impaired. 7. In relation to misconduct, Mr Morris stated that this is a single incident of dishonesty involving the non-disclosure of relevant information to a prospective employer. He acknowledged that this is clearly serious and informed the Tribunal that he had been instructed by Dr Ali that he accepts the findings of the Tribunal and acknowledges that this represents a serious falling short of standards expected and justifies a finding that his fitness to practise is impaired.



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8. Mr Morris did however submit that Dr Ali’s non-disclosure comes at the lower end of the spectrum of seriousness. He drew the Tribunal’s attention to the Annex. He invited the Tribunal to consider the information the GMC discloses at specific stages of its investigatory process following a referral, specifically the provisions set out in paragraphs 29,30 and 38. Mr Morris stated that the matters brought to the GMC’s attention had not been the subject of a GMC investigation and even had the GMC decided to proceed with a full investigation; it would not be the GMC’s policy to disclose details to potential employers. He submitted that this was not an excuse for Dr Ali’s non-disclosure but did go towards the seriousness of this misconduct. The Relevant Legal Principles 9. The Tribunal reminded itself that at this stage of proceedings, there is no burden or standard of proof and the decision on impairment is a matter for the Tribunal’s judgement alone. 10. In approaching the decision, the Tribunal was mindful of the two stage process to be adopted. First it must determine whether the facts found proved in relation to dishonesty amounted to misconduct. Secondly, it must decide, if misconduct is found, whether that misconduct and/or deficient professional performance could lead to a finding of current impairment. 11. The Tribunal must determine whether Dr Ali’s fitness to practise is impaired today, taking into account Dr Ali’s conduct and performance at the time of the events and any relevant factors since then such as whether the matters are remediable, have been remedied and any likelihood of repetition. The Tribunal’s Determination on Impairment Misconduct 12. In considering this head of impairment the Tribunal confined its determination on impairment in relation to the misconduct found in paragraph 4b, where the Tribunal found Dr Ali’s actions to be dishonest. The Tribunal noted that there were a number of other findings and admissions relating to Dr Ali’s knowledge and actions upon applying for his role at CHDA during 2016 and his knowledge and actions with regard to submissions made on his behalf at an MPTS Interim Orders Tribunal hearing which took place in August 2017. The Tribunal has determined that these could not, and did not, amount to misconduct in themselves, independent of its findings relating to paragraph 4. 13. In making its decision the Tribunal had regard to GMP and in particular paragraphs 1,5,65,66 and 71 which state:



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‘1 Patients need good doctors. Good doctors make the care of their patients their first concern: they are competent, keep their knowledge and skills up to date, establish and maintain good relationships with patients and colleagues, are honest and trustworthy, and act with integrity and within the law.’

‘5 In Good medical practice, we use the terms ‘you must’ and ‘you should’ in the following ways. ■ ‘You must’ is used for an overriding duty or principle…’

‘65 You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.’ ’66 You must always be honest about your experience, qualifications and current role.’

‘71 You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading. a You must take reasonable steps to check the information is correct. b You must not deliberately leave out relevant information.’

14. The Tribunal concluded that Dr Ali’s behaviour in dishonestly failing to disclose relevant information to a prospective employer fell far short of the standards of conduct that the public and patients are entitled to expect from all registered medical practitioners. It was satisfied such behaviour would be viewed by the public, patients and members of the profession as wholly unacceptable. The Tribunal was in no doubt that Dr Ali’s behaviour fell seriously short of the standards of conduct reasonably to be expected of a doctor as to amount to misconduct. 15. The Tribunal, having found that facts found proved amounted to misconduct, went on to consider whether, as a result, Dr Ali’s fitness to practise is currently impaired. 16. The Tribunal considered whether the factors as set out by Dame Janet Smith in her Fifth Shipman Report and cited by Cox J in CHRE v NMC and Grant (2011) EWHC 927 (Admin) at paragraph 76 were present in this case, namely:

”Do our findings of fact in respect of the doctor's misconduct…show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a

patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or



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c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the

future." 17. The Tribunal considered that sub paragraph a. is not relevant in this case. However, the Tribunal was of the view that Dr Ali’s actions did bring the profession into disrepute. Having regard to paragraph 5 of GMP, which places honesty and trustworthiness as an overriding duty or principle, it was also of the view that he had breached a fundamental tenet of the profession. The Tribunal has already determined that Dr Ali has acted dishonestly. 18. The Tribunal next considered matters of insight, remorse, remediation and likelihood of repetition. The Tribunal recognised that remediation is more difficult to establish in cases involving dishonesty and, in particular, where that dishonesty has been contested by a practitioner but found proved by the Tribunal during a hearing. The Tribunal has noted that although Dr Ali did not give evidence at this stage of the hearing, he did state, through Mr Morris, that he accepted the Tribunal’s findings and acknowledged that they represented a serious falling short of standards expected and justified a finding that his fitness to practise is impaired. The Tribunal was of the view that this acceptance demonstrates the beginnings of insight but that this is far from complete. It also noted that Dr Ali has not provided any expressions of remorse. Having regard to all the circumstances of the case the Tribunal could not be satisfied that there is no future risk of repetition. 19. This Tribunal has a duty to maintain the reputation of the profession and to declare and uphold proper standards of conduct and behaviour. Doctors occupy a position of privilege and trust in society and are expected to act with integrity. The public is entitled to expect that doctors will be honest and trustworthy at all times. The Tribunal was in no doubt that public confidence in the medical profession would be undermined if it were not to make a finding of impairment in all the circumstances of this case. 20. The Tribunal has therefore concluded that Dr Ali’s fitness to practise is impaired by reason of misconduct. Deficient Professional Performance 21. The Tribunal then considered whether Dr Ali’s fitness to practise is impaired by reason of deficient professional performance.



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22. As outlined in its determination on facts Dr Ali underwent a GMC Performance Assessment on 9 and 10 July 2018 and his professional performance was found to be unacceptable in the following areas:

• assessment • clinical management • relationships with patients • working with colleagues.

Dr Ali’s professional performance was found to be cause for concern in the following area:

• maintaining professional performance. The assessment team concluded that the standard of Dr Ali’s performance had been deficient and that he was fit to practise on a limited basis. 23. The Tribunal noted Dr Ali’s acceptance that his fitness to practise is impaired by reason of his deficient professional performance. However, the Tribunal also undertook its own consideration of the matter. 24. The Tribunal was of the view that Dr Ali has demonstrated some insight into the deficiencies in his practice by his admissions at the outset of this hearing and, again, by his acceptance of impairment at this stage of the hearing. The Tribunal noted that it had seen no evidence of any efforts to remediate by Dr Ali. However, the evidence before the Tribunal indicates that Dr Ali has not undertaken clinical work since April 2016 and it would, therefore, be difficult for him to demonstrate remediation in relation to his clinical practice. 25. The Tribunal concluded found Dr Ali’s fitness to practise also to be currently impaired by reason of deficient professional performance. Determination on Sanction - 11/07/2019 1. Having determined that Dr Ali’s fitness to practise is impaired by reason of misconduct and deficient professional performance, the Tribunal now has to decide in accordance with Rule 17(2)(n) of the Rules on the appropriate sanction, if any, to impose. The Evidence



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2. The Tribunal has taken into account evidence received during the earlier stages of the hearing, where relevant to reaching a decision on sanction. The Tribunal received further evidence on behalf of Dr Ali in the form of an extract from a learning portfolio. Submissions 3. On behalf of the GMC, Mr Jackson submitted that the appropriate sanction in this case was one of erasure. He drew the Tribunal’s attention to various paragraphs of the Sanctions Guidance (February 2018) (‘the SG’). He submitted that the doctor has demonstrated no remorse for his actions and provided no evidence of any remediation. Mr Jackson emphasised the importance of probity in medical practice, which applies to all doctors irrespective of their career stage. He submitted that the Tribunal should, when looking at insight and future risk of repetition, take into consideration its findings at paragraph 18 of its determination on facts. He submitted that Dr Ali had not simply denied the allegation but provided a false explanation to the Tribunal during this hearing and that he was not frank when giving his evidence. 4. On behalf of Dr Ali, Mr Morris reminded the Tribunal that, at the outset of this hearing, Dr Ali admitted that his professional performance was unacceptable and he has thereby demonstrated insight into his clinical deficiencies. Mr Morris stated that in these circumstances the appropriate, proportionate sanction for Dr Ali’s deficient professional performance would have been the imposition of conditional registration. 5. In relation to the misconduct element of this case, Mr Morris submitted that the dishonest concealment of material adverse work history in a job application is serious, but that in assessing how serious it was, it should be noted that shortly after his phone interview Dr Ali effectively disclosed his ARCP ‘Outcome 4’ and his consequent release from training and the reasons for it. He did this before signing his employment contract. Further, the GMC did not notify Dr Ali of HEE’s referral and its decision not to investigate. He further submitted that the closure of the referral meant that the GMC would not disclose the HEE information to any enquirer. Mr Morris submitted that, while this did not excuse Dr Ali’s non-disclosure at telephone interview, it does suggest that, from the GMC’s perspective, the information did not raise the possibility of any risk to patient safety or threat to the wider public interest. This was a single incident of dishonesty which was not repeated or persistent and in over 2 and a half years since this incident there has been no repetition of similar behaviour.

6. Mr Morris submitted that Dr Ali has demonstrated that he does not have any attitudinal problem or general inability to recognise dishonesty and its seriousness, such as would render his behaviour fundamentally incompatible with being a doctor. Mr Morris submitted that the absence of repetition during the 2 and a half years since the incident is itself cogent evidence of insignificant risk.

7. Mr Morris submitted that erasure is unnecessary and would be disproportionate and draconian. He concluded that the circumstances set out above



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point to a period of suspension of significantly less than the maximum period of 12 months being the appropriate, proportionate sanction.

The Tribunal’s Determination on Sanction 8. The decision as to the appropriate sanction, if any, to impose is a matter for the Tribunal alone, exercising its own judgment. In reaching its decision, the Tribunal has taken account of the SG, and the three elements of the statutory overarching objective. 9. In making its decision, the Tribunal had regard to the principle of proportionality, and it weighed Dr Ali’s interests with those of the public. 10. The Tribunal has also borne in mind that the purpose of a sanction is not to punish or discipline a doctor, although it may have a punitive effect. In making its decision, the Tribunal also considered and balanced the mitigating and aggravating factors in this case which are outlined below: Mitigating Factors 11. The Tribunal took into account the following mitigating factors:

• Dr Ali’s insight into his deficient professional performance is demonstrated by his admissions in the Rule 7 response on his behalf, his witness statement and at the commencement of this hearing

• it is now over 2 and a half years since Dr Ali’s misconduct and there has been no evidence presented to the Tribunal that there has been any repetition of similar behaviour since

• Dr Ali has not previously been found to have impaired fitness to

practise.

Aggravating Factors 12. The Tribunal balanced those mitigating factors against what it considered to be the aggravating factors in this case, namely:

• whilst Dr Ali has demonstrated that he has the beginnings of insight in relation to the Tribunal’s finding of dishonesty, this insight has been neither timely nor sufficient



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• the Tribunal has already found that Dr Ali’s account, given in oral evidence, of the telephone interview and any preceding conversation with the interviewer, was neither credible nor reliable.

13. In deciding what sanction, if any, to impose the Tribunal considered each of the sanctions available, starting with the least restrictive. No action 14. The Tribunal first considered whether to conclude the case by taking no action. The Tribunal determined that bearing in mind Dr Ali’s dishonest conduct and his deficient professional performance, and in the absence of any exceptional circumstances, it would neither be sufficient, proportionate nor in the public interest to conclude this case by taking no action. Furthermore such an outcome would not satisfy the overarching objective. Conditions 15. The Tribunal next considered whether it would be sufficient to impose conditions on Dr Ali’s registration. It has borne in mind that any conditions imposed need to be appropriate, proportionate, workable and measurable. The Tribunal was of the view that the deficient professional performance aspect of this case could possibly have been addressed by the imposition of a robust set of conditions, if it was being considered in isolation. However, the Tribunal had also to consider the misconduct in this case. 16. The Tribunal had regard to the serious nature of Dr Ali’s misconduct, namely dishonesty. In the Tribunal’s opinion, there were no conditions which it could apply that would adequately deal with such misconduct. Furthermore, even if it had been possible to formulate appropriate conditions to address the gravity of his misconduct, conditional registration would not be a proportionate sanction given the Tribunal’s primary responsibility in this situation. This was to promote and maintain both public confidence in the medical profession and proper professional standards and conduct for members of that profession. The Tribunal therefore determined that the imposition of conditions on Dr Ali’s registration would not be sufficient. Suspension 17. The Tribunal then considered whether it would be appropriate to suspend Dr Ali’s registration and, if so, for what period. In doing so, it gave particular consideration to the relevant sections of the SG.

‘91 Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has



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a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92 Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration.’

18. The Tribunal also had regard to the non-exhaustive list of features set out in paragraph 97 of the SG which might lead a Tribunal to conclude that suspension is the appropriate and proportionate response. These include:

‘97 Some or all of the following factors being present (this list is not exhaustive) would indicate suspension may be appropriate. a A serious breach of Good medical practice, but where the doctor’s misconduct is not fundamentally incompatible with their continued registration, therefore complete removal from the medical register would not be in the public interest. However, the breach is serious enough that any sanction … f No evidence of repetition of similar behaviour since incident. g The tribunal is satisfied the doctor has insight and does not pose a significant risk of repeating behaviour.’

19. The Tribunal has already noted in its determination on impairment that Dr Ali’s conduct was a significant departure from the principles laid down in GMP. It has further stated that it could not be satisfied that there is no future risk of repetition. Nonetheless it noted that Dr Ali’s dishonest conduct took place on 8 September 2016 but that, prior to him taking up employment some two to three weeks later, he had made the necessary disclosures of his ‘Outcome 4’ and release from training. The Tribunal considered that Dr Ali’s misconduct was a single incident of dishonesty which was not persistent, repeated or covered up. It also noted that there has been no repetition in the two and a half years since. The Tribunal was of the view that any risk of repetition was not significant. It concluded that Dr Ali’s actions, although serious, were not fundamentally incompatible with continued registration. 20. In all the circumstances, the Tribunal was satisfied that a period of suspension was the appropriate and proportionate sanction in this case.



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21. The Tribunal was also satisfied that erasure would be an inappropriate, disproportionate and unnecessary sanction in Dr Ali’s case. 22. The Tribunal then considered the question of the appropriate duration of the order. The Tribunal determined that Dr Ali’s registration should be suspended for a period of six months. This period was necessary to signal the seriousness with which the Tribunal viewed Dr Ali’s misconduct. It considered that this period of suspension would provide Dr Ali with time to reflect on his misconduct and develop his understanding of the importance of honesty and integrity at all times, whilst also sending a signal to Dr Ali, the profession and the public, that his conduct was wholly unacceptable. 23. The Tribunal determined to direct a review of Dr Ali’s case. A review hearing will convene shortly before the end of the period of suspension, unless an early review is sought. The Tribunal wished to clarify that at the review hearing, the onus will be on Dr Ali to demonstrate how he has reflected on, remediated and developed insight into the conduct that has brought him to this hearing. It therefore may assist the reviewing Tribunal if Dr Ali provides:

• evidence that he has developed insight into his own misconduct and that he

has reflected deeply on the importance of honesty and integrity

• evidence of any learning Dr Ali has undertaken to assist him in demonstrating his efforts to remediate his misconduct

• testimonials from persons of standing which attest to his good character during the suspension period

• evidence of any measures he has taken during the period of suspension to ensure his continued professional development, including steps he has taken to maintain his clinical knowledge.

24. Dr Ali will also be able to provide any other evidence that he considers will assist the Tribunal in reviewing his case.

Determination on Immediate Order - 11/07/2019 1. Having determined that Dr Ali’s registration should be suspended for a period of six months, the Tribunal has considered, in accordance with Rule 17(2)(o) of the Rules, whether Dr Ali’s registration should be subject to an immediate order of suspension. Submissions 2. On behalf of the GMC, Mr Jackson submitted that, in light of the Tribunal’s findings which include performance concerns as well as a remaining risk of repetition of



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dishonest conduct, an immediate order of suspension should be imposed. Although Mr Jackson submitted that concerns about patient safety did not arise in this case, he also submitted that there were long standing concerns about Dr Ali’s clinical competence which preceded the Performance Assessment. 3. On behalf of Dr Ali, Mr Morris submitted that it was not necessary to make an immediate order. Mr Morris told the Tribunal that the GMC has accepted that the risk to patient safety is not applicable here. In regard to the wider public interest, he submitted that the Tribunal has already found that a period of suspension for six months is an appropriate sanction to fulfil this. Mr Morris said an order was not required in the doctor’s own interest. Mr Morris told the Tribunal that Dr Ali had stopped working clinically as a doctor from April 2016 up until the Interim Orders Tribunal in August 2017, when conditions were placed on his registration. Mr Morris submitted that it would be effectively impossible for Dr Ali, should he try, to find employment as a doctor and that there are no good reasons why an immediate order should be placed upon his registration. The Tribunal’s Determination 4. In making its decision the Tribunal has exercised its own judgement. It has considered the section of the SG which deals with immediate orders. Paragraph 172 states that the Tribunal may impose an immediate order if it determines that it is necessary to protect members of the public, or is otherwise in the public interest, or is in the best interests of the doctor. 5. The Tribunal determined that, in view of its previous findings including that Dr Ali’s professional performance is deficient, an immediate order of suspension is necessary for the protection of the public. The Tribunal had regard to Dr Morris’s submission that it may be effectively impossible for Dr Ali to find employment as a doctor, however it was of the view that it would nonetheless be inappropriate to allow Dr Ali to return to unrestricted practice. 6. Dr Ali did not complete his FY2 training, despite having two opportunities to do so, because of concerns relating to his clinical practice. The Performance Assessment found that his performance gave rise to ‘cause for concern’ in one area, and was found to be ‘unacceptable’ in four areas. The Assessors concluded that his performance was deficient and that he was fit to practise only on a limited basis. 7. Having determined that Dr Ali’s registration should be suspended, this Tribunal had no power to impose conditions requiring clinical supervision. It was mindful that, should Dr Ali choose to appeal its determination, he would be free to practise without restriction for an indefinite period. Notwithstanding Mr Morris’s submission about the practicalities, the Tribunal has a statutory responsibility to protect members of the public. In exercising that responsibility the Tribunal had regard to paragraph 173 of the SG which states:



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An immediate order might be particularly appropriate in cases where the doctor poses a risk to patient safety.

It was of the view that should Dr Ali undertake clinical work without supervision such a risk would be posed. 8. This means that Dr Ali’s registration will be suspended from today. The substantive direction, as already announced, will take effect 28 days from when written notice of this determination has been served upon Dr Ali, unless an appeal is made in the interim. If an appeal is made, the immediate order will remain in force until the appeal has concluded. 9. The interim order currently imposed on Dr Ali’s registration will be revoked when the immediate order takes effect. 10. That concludes this case. Confirmed Date 11 July 2019 Mr Damian Cooper, Chair



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ANNEX A – 04/07/2019

Application to restrict the extent of GMC cross examination

1. On day two of this hearing, Mr Morris, Counsel, acting on behalf of Dr Ali, raised an objection to a line of questioning pursued by Mr Jackson QC, representing the GMC, in his cross examination of Dr Ali. 2. Mr Morris objected to Mr Jackson’s questions to Dr Ali in relation to two answers recorded by Ms F of SJB Medical as part of job interview conducted by telephone on 8 September 2016. SJB Medical, an employment agency, was at that time involved in recruitment of staff for the Centre for Health and Disability Assessments (‘CHDA’) which advises the Department for Work and Pensions and the Veterans Agency in cases in which there is a claim for benefit. Dr Ali entered into, and was subsequently successful in, this recruitment exercise.

3. The questions to which Mr Morris objected specifically related to answers recorded in the interview pro forma about Dr Ali’s previous appraisals, and his current role. In pursuing his line of questioning on these matters Mr Jackson put it to Dr Ali that he had lied or sought deliberately to mislead in his answers to Ms F.

4. Following initial discussion in session, the Tribunal heard formal submissions on the matter from both Counsel on day three of the hearing. Submissions 5. Mr Morris told the Tribunal that he had objected to the line of questioning as it was ‘fundamentally and intrinsically’ unfair to Dr Ali. He submitted that Mr Jackson had raised these points only to assist him in seeking to prove the paragraphs of the Allegation which relate to dishonesty concerning other matters. He reminded the Tribunal that it is no part of the GMC’s Allegation against Dr Ali that he had been dishonest during the telephone interview when answering Ms F’s questions with regard to his appraisals or his job role at that time. He stated that unfairness would arise if Mr Jackson were allowed to proceed with such questioning as Dr Ali had received no proper notice of these allegations before the hearing, and they had appeared for the first time during cross examination. He said that, in these circumstances, Dr Ali would be deprived of the opportunity to give instructions to his legal team, as he was on oath and could not speak to them about the case. This would prevent any investigations with a view to seeking further relevant documents on the matters or setting out his specific response to these matters in the form of a witness statement. Mr Morris submitted that these factors would make re-examination on these points virtually impossible. 6. Mr Morris referred the Tribunal to Chauhan v GMC [2010] EWHC 2093 (Admin) (‘Chauhan’), a case involving Mr Chauhan, a consultant orthopaedic and



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trauma surgeon, in which the Fitness to Practise Panel considering the case (‘the Panel’) made findings of fact in relation to matters that were extraneous to those specifically set out in the Allegation. It then relied on those findings in making its determination on the Allegation itself. Mr Morris stated that Mr Justice King had made it clear in his judgment on Chauhan that this was unfair. In allowing Mr Chauhan’s appeal, Mr Justice King had set aside the Panel’s findings on facts. 7. Mr Jackson submitted that Chauhan was distinguishable from Dr Ali’s case. He said that the GMC accepted that it would not be appropriate to invite the Tribunal to make specific findings in relation to disputed facts as a basis for then concluding that Dr Ali has a propensity to be dishonest. Neither should it then be the means by which the Tribunal found paragraphs of the GMC’s Allegation relating to dishonesty proved. 8. Mr Jackson submitted that, in this case, he was asking questions about the previously disclosed and agreed evidence bundle, part of which was the unredacted third party records of Dr Ali’s telephone and face to face interviews for his role at CHDA. He submitted that, but for the paragraphs of the Allegation relating to professional performance, the case is about Dr Ali’s probity and it was both permissible and appropriate, having regard to the GMC’s overarching objective, to test Dr Ali’s credibility. He referred the Tribunal to GMC v Chandra [2018] EWCA Civ 1898 and [2019] EWCA Civ 236 (addendum to judgment) (‘Chandra’), stating that Lady Justice King set out in the judgment that the overarching objective is to be held uppermost in the minds of tribunals of inquiry at all stages of their deliberations such as those that decide upon cases brought by the GMC. He stated that the case of Banerjee v GMC [2017] EWCA Civ 78 (‘Banerjee’) illustrated the same point. 9. Mr Jackson submitted that the GMC was entitled to ask questions about what Dr Ali was and was not asked during the phone interview of 8 September 2016 along with his responses, as this was relevant to the consistency and credibility of his evidence. 10. Mr Morris responded that Chandra and Banerjee were restoration cases in which facts are not found in the same manner as in new Medical Practitioners Tribunals (‘MPTs’) and were not governed by the procedure set out in Rule 17 of the Rules in the same manner as MPTs. The Tribunal’s approach 11. The Tribunal noted that Mr Morris’s application was not specifically concerned with admission or exclusion of evidence under Rule 34(1). Rather, his submissions were made in regard to what he stated was a need to safeguard the procedure for Medical Practitioners Tribunals set out in Rule 17 of the General Medical Council (Fitness to Practise) Rules 2004 (as amended) (‘the Rules’). A procedural direction



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was required from the Tribunal on the GMC line of questioning in order to ensure the fairness of proceedings for Dr Ali. 12. The Tribunal therefore considered carefully the case of Chauhan and the relevance of the other authorities referred to in submissions of Counsel. The Tribunal’s decision 13. The Tribunal noted that it has not yet reached the stage of making findings on any of the factual matters before it, whether or not they relate directly to paragraphs of the Allegation. Before it begins its deliberations on the facts of the case, both parties will have the opportunity to make submissions on what weight, if any, it should place on any of the evidence that it has received. The Tribunal is well aware of its duty not to make findings of fact in relation to extraneous matters which are not the subject of the Allegation. 14. The Tribunal also noted that paragraph 1 of the Allegation relates to the recruitment process at CHDA. It particularly concerns the extent to which (in the telephone interview and when signing the contractual declaration) Dr Ali availed himself of the opportunities provided by that process to be appropriately candid in disclosing to his prospective employer relevant investigations, issues and restrictions affecting his professional practice. 15. The Tribunal considered that Dr Ali’s case is distinguishable from that of Chauhan in a material way with specific regard to the timing of when evidence became available to the parties. It noted that Mr Morris had drawn its attention paragraphs of 80-84 of Chauhan, which concern evidence raised for the first time by a witness giving oral evidence at the hearing. In relation to this evidence, counsel acting for the GMC and Mr Chauhan had agreed between them via email correspondence that this evidence was not relevant to the Allegation and neither had made submissions that the Panel should make a finding with regard to that evidence. The Panel nevertheless proceeded to determine an issue of fact based on this evidence and Mr Justice King found that he had ‘no doubt’ that these findings contributed to the Panel finding Mr Chauhan dishonest with regard to other matters which were included in paragraphs of the Allegation. 16. In contrast, the documentary evidence adduced with regard to the content of Dr Ali’s telephone interview of 8 September 2016 was included in the document bundle properly available to both parties before this hearing and subject to redaction by agreement. There has been no redaction of the elements of the telephone interview about which Mr Jackson questioned Dr Ali. These questions therefore relate to documentary evidence, completed by a third party, Ms F, which has been considered appropriate to be put before the Tribunal. Given this, the Tribunal considered that Dr Ali had proper notice and time to prepare with his legal team



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before the hearing with regard to the matter of the interview. Indeed the interview is addressed within Dr Ali’s witness statement prepared before the hearing. 17. The Tribunal considered that, in these circumstances, it was fair to permit Mr Jackson to pursue lines of questioning which may provide the Tribunal with an opportunity to assess Dr Ali’s overall reliability and credibility as a witness. This includes questions with regard to the telephone interview of 8 September 2016, the face to face interview of 15 September 2016 and the circumstances relating to the contractual declaration. It considered that it would be artificial to restrict questioning to the extent that it refers only to the content of boxes on the questionnaire which are directly linked to paragraphs of the Allegation. The Tribunal was of the view that questions with regard to the content of the interview as a whole may be appropriate to provide context and understanding of Dr Ali’s knowledge and actions in the interview setting, and may support it to make a decision with regard to the credibility and consistency of Dr Ali’s evidence as a whole. It was fair, in the Tribunal’s view, to permit the GMC to explore apparent inconsistencies in Dr Ali’s explanation of documents in the agreed evidence bundle. It would consider what findings of fact it was appropriate to make once it had heard all the evidence and the submissions of counsel at the end of stage 1. 18. In all the circumstances, the Tribunal determined to reject Mr Morris’s application that it prohibit Mr Jackson from asking further questions regarding a lack of probity on Dr Ali’s part on matters which were not directly linked to paragraphs of the Allegation. It was satisfied that it is capable of taking into account any evidence which may result from such questioning in the light of submissions on facts made by both parties. It will then place such weight upon it as it considers to be fair and appropriate during careful deliberation as part of its consideration of Dr Ali’s credibility and consistency as a witness. It concluded that no unfairness to Dr Ali would result from adopting such a course.

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