Al Nageim v General Medical Council [2021] EWHC 877 (Admin) (20 April 2021)

Dr Haydar Al Nageim appealed against his erasure from the medical register for dishonest use of on-call rooms and not declaring salary payments made in error.

The Medical Practitioners Tribunal Service (MPTS) found misconduct proved against Dr Nageim relating to:

  1. his dishonest use of on-call rooms and surgical day centre facilities at the Countess of Chester Hospital;
  2. his dishonest failure to notify the Royal Liverpool & Broadgreen University Hospital NHS Trust of salary payments made to him totalling £41 266.16 which he knew had been made in error.

The MPTS found that Dr Nageim’s fitness to practice was impaired by reason of his misconduct and removed him from the register.

Dr Nageim’s appeal is against the sanction of erasure only. There is no appeal against the Tribunal’s findings of fact or its determination of impairment.

Circumstances

After Dr Nageim’s employment with the Chester Hospital ended but on one or more occasions between July 2012 and February 2014, he provided false information and out-of-date identification in order to gain access to on-call rooms (used for overnight accommodation) and other Hospital facilities, such as the showers and the Education Centre.

Furthermore, following the conclusion of his employment at the Royal Liverpool Hospital in February 2013, Dr Nageim wrongly continued to receive salary payments from that Hospital from 27 February 2013 until 29 April 2015.  He knew he was still being paid when he was not entitled, and that he had failed to alert the Hospital about its error, and that his actions had been dishonest.

The GMC submitted that erasure was the only appropriate sanction in this case, given the gravity and scale of the Appellant’s misconduct and dishonesty.

Grounds of appeal

Dr Nageim’s appealed on the basis that Dr Nageim’s erasure was unjust and wrong on the basis that the MTPS did not add the appropriate weight to issues and did not take into account all the relevant factors.

Mr Justice Julian Knowles refused the appeal on all grounds.

On the issue of the MPTS falling into error by failing to take into account the lapse of time since the Appellant’s most recent misconduct, Knowles J said this was not the case because the MPTS made reference to this in its determination and:

“Overall, the Appellant’s wrongdoing over a sustained period at two hospitals required a wide-ranging investigation by the GMC. It even went to the length (unusually, in my experience) of obtaining expert evidence in connection with the Chester investigation. The investigation obviously took some time. There was no suggestion by Mr Ivill that there had been any culpable delay on the part of the GMC in its investigation of the Appellant’s misconduct or the bringing of the disciplinary proceedings.”

On the ground advances in relation to the absence of evidence as an aggravating factor Knowles J said

“I cannot fault this reasoning. The misconduct at the Chester Hospital was undoubtedly positive misconduct as opposed to mere omission by the Appellant. Just looking at the salary retention, it was not wholly accurate to describe this as an omission by the Appellant. In its factual determination the Tribunal found that the Appellant had known he was being paid when he was not entitled and that he had not informed the Hospital although he was under a duty to do so.”

Finally, on the ground of Dr Nageim’s intentions relating to dishonesty, Knowles J said:

“I would observe that the Appellant’s own view of whether he was dishonest was actually irrelevant. The effect of the decision in Ivey, supra, was to remove from the test for dishonesty the defendant’s subjective view about whether he had been dishonest. As Mostyn J remarked in Bux v General Medical Council [2021] EWHC 762 (Admin), [89], such a finding is a throwback to the old law which is no longer necessary.

“I have anxiously considered whether, overall, the sanction of erasure was disproportionate. I accept all of the points made by Mr Ivill on behalf of the Appellant. But the inescapable fact is that the Appellant was found to have behaved in a sustained and dishonest manner over a period of years and to have pocketed over £41 000 of NHS money which he knew he was not entitled to. He frankly admitted that if the payments had continued after April 2015, he would have continued to keep them and would not have reported the matter. To get an idea of the scale of the Appellant’s dishonesty, it is worth noting that the Sentencing Council’s Definitive Guideline for offences of fraud shows that the obtaining of £40 000 by fraud over a period of time would likely attract a sentence of imprisonment.”

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