High Court turns down appeal against MPTS determination of dishonesty and sanction of 6 months suspension in case of Kuzmin v General Medical Council [2023] EWHC 60 (Admin).

In this case, the Appellant, Dr Kuzmin, was the subject of a GMC investigation that was commenced in late 2016 following concerns about his clinical performance.  An Interim Orders Tribunal took place on 15th November 2016, which imposed interim conditions on Dr Kuzmin’s registration. The most significant condition was condition 8 which I set out in full:

“8. You must inform the following persons of the conditions listed at 1 to 7:

a. your employer and/or contracting body

b. your responsible officer (or their nominated deputy)

c. your immediate line manager at your place of work, at least one working day before starting work (for current and new posts including locum posts)

d. any prospective employer and/or contracting body, at the time of application

e. the responsible officer of any organisation where you have, or have applied for, practising privileges and/or admitting rights, at the time of application

f. any locum agency or out-of-hours service you are registered with

g. the organisation on whose medical performers list you are included or seeking inclusion, at the time of application”

Prior to the imposition of the interim orders conditions (early 2016), Dr Kuzmin reached the status of ST2 GP registrar in the Portsmouth deanery. His intended progression to ST3 in March 2016 was delayed following his annual review, because his e-portfolio failed to meet all the requirements of the curriculum and accordingly his ST2 training was extended for a period of six months. As an ST2 registrar he obtained work at a GP practice in Southsea in August 2016, but at the end of the six-month period a further extension was required on review, which meant that Dr Kuzmin did not achieve ST3 status until April 2017.

In the meantime, as part of his training, and to enable him to continue through the registrar levels, Dr Kuzmin was required to undertake some out of hours (OOH) work under supervision and he was on the deanery list as eligible for such work. Some of this should have been undertaken at an earlier point in his ST3 training, but he was able to apply for registration with the Hampshire GP out of hours service (HDOCS) in August 2016, which was managed, principally, to enable out of hours rota sessions and speciality training for GP registrars. At this time Dr Kuzmin provided several documents to enable his registration on the system and signed a document known as an “honorary contract” in relation to out of hours training.

He completed two sessions of OOH work before November 2016, being approximately 36 hours.

At this time he still had ST2 status, and if this status had been known he would not have been permitted to undertake such sessions. When it did become known, he was not permitted to continue access to OOH training utilising the online system.

In June 2017, and now an ST3 registrar, Dr Kuzmin wanted to pursue his OOH training requirements and requested the regional rota manager for HDOCS to “Please resent (sic) my login name and password.”

It transpired from this request that Dr Kuzmin was involved in an ongoing GMC investigation, and was the subject of interim conditions that required Dr Kuzmin to inform HDOCS of the conditions, and should do so before commencing any work.

As a result of an apparent non-disclosure of his conditions when contact was first made with HDOCS, the GMC became further involved in relation to the question as to whether or not there had been compliance with condition 8.  Allegations were formulated charging Dr Kuzmin of dishonesty.

After a protracted period of time, the MPTS eventually determined that there had been misconduct, and that the doctor’s fitness to practise was thereby impaired. The tribunal chose to impose the sanction of suspension of six months.

Appeal

Dr Kuzmin advanced eight separate grounds of appeal however, His Honour Judge Graham Wood KC, commented that, on behalf of Dr Kuzmin, it was submitted that the issues for the court, into two separate areas.

The first is in relation to the finding of the tribunal in respect of his registration (or employment) with HDOCS. If there was no basis in fact or law for this finding, then the appeal should succeed. This would be on the premise of there being no duty on Dr Kuzmin to notify his conditions if he did not come within any of the subparagraph requirements of condition (8). This area is further broken down into three points, namely the interpretation of condition eight, the sufficiency of the evidence of Ms Vann, and the question as to whether or not the decision was a perverse one.

The second area is in relation to the further evidence which was precluded by the tribunal. Although this is not pursued as a separate challenge implicating a failure at stage II, it is nevertheless said that this court has a power to admit the statement as fresh evidence and to decide the appeal on such a basis.

 Ruling

Judge Graham Wood KC commented that:

Central to the Appellant’s case is the assertion that the process of enabling trainee registrars to undertake out of hours work as part of their ST3 training was not a registration process at all, simply an online facility by which the training was managed. It is for this reason that he has sought to rely upon the evidence of Dr Tim Wright. The argument before the MPT, pursuing a theme which was developed in cross-examination of the principal witness Charlotte Vann, and repeated in this court, is that if Dr Kuzmin was not formally registered with HDOCS at the time that he sent the relevant email seeking his login details, and as matter of strict interpretation of condition 8 (f), which is how it should be approached there was no requirement to let the agency know about his conditions. In simple terms, he did not come within the ambit or scope of the condition.

He said, however, that this argument was “without foundation” because, amongst other reasons:

  1. condition 8 was clearly intended to be expansive or inclusive, rather than restrictive or exclusive;
  2. The argument that the MPTS’ attempt to provide a definition of “registration” was wrong as a matter of law was no more than an assessment of the evidence;
  3. the work details form, in which the doctor acknowledged that HDOCS out of hours training was a service which he was expected to be in a position to provide, was properly regarded as significant and relevant to the question of registration.

Judge Graham Wood KC, was critical of the delays in bringing the matter to a conclusion, saying:

It is regrettable that a process which has been set up with public protection as its primary purpose should take so long to resolve disciplinary matters involving healthcare professionals, especially when the circumstances which have ultimately given rise to the sanction occurred over five years ago, and in the meantime the practitioner has completed his training as a GP and is now currently in practice, subject of course to a suspension which has yet to be implemented because of this appeal.

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