A general medical practitioner who was found by the Medical Practitioners Tribunal to have dishonestly altered medical notes without indicating that they had been so altered, appealed to the Administrative Court against the findings and resulting erasure from the medical register.

The GMC’s primary case was that the there was a clinical failure based, in summary, on a failure to send Patient A for a chest X-ray when she complained of shortness of breath and that the amendments to the notes were a dishonest cover up of this clinical failure.

The doctor admitted that the original notes were wrong, and her case was that she was not dishonest. She had corrected the notes to reflect what had happened.

At that stage the GMC added charges of inadequate notetaking which contradicted the original charge alleging that the amendments were false and dishonest.

Before the Tribunal the doctor accepted allegations that she failed to make an adequate record of the consultation in that she recorded “SOB” [shortness of breath] rather than “no SOB”, she did not record the absence of chest pain and she did not record the absence of weight loss and discussion regarding Patient A’s X-ray.

Having admitted those charges at the start of the hearing, the Chair announced the allegations proved.

Counsel for the GMC then asked the Tribunal to find the matters not proved as they were contrary to the primary GMC case. It was submitted on behalf of the doctor that it was possible to have a primary and secondary case provided that they were not mutually exclusive, but in this case they were mutually exclusive.

After the opening submissions, the Chair stated she would advise the Tribunal that the facts remained in dispute. Counsel for the doctor refused to withdraw the admissions. The Tribunal found the admissions to be withdrawn and not proved.

The doctor contended on appeal that this was not correct and the admissions were not withdrawn.

For the doctor it was submitted that the added charges were a serious irregularity. They were mutually exclusive of the primary charges, and cited Sloan v General Medical Council .

An analogy was made between criminal law and regulatory law, submitting that there could be alternative but not mutually exclusive charges: R v Nelson .

The court rejected the first ground of appeal on the basis that there had been no procedural irregularity. It followed that the Tribunal was entitled, as it did, to consider the primary case and to prefer Patient A’s account as being consistent with the contemporaneous note.

It was then entitled to consider that there had been a clinical misjudgement. There was also dishonesty in the amendment of the notes without pointing out in the notes that they were amended, and further dishonesty in the way in which the doctor dealt with the complaint including by sending the amended notes without highlighting that they had been amended.

The second and third grounds were the wrong refusal of the GMC to disclose material capable of undermining reliability or credibility of Patient A, and wrong failure of the Tribunal to order disclosure of it.

In the court’s judgment there was no reason to believe that there were additional documents capable of supporting or adversely affecting the other party’s case. The primary position of the GMC, reviewed on appeal, was that the GMC had turned its mind to the proper test and disclosed what needed to be disclosed.

The nature of disclosure was that the parties acted as gatekeepers, having professional duties to make the relevant disclosure. In this case the matter of disclosure was considered by the Tribunal and the GMC. It had not been shown that the matter was neglected by either or that there was a wrong test applied or that the matter was not evaluated.

It had not been shown that there was an inference that there were or were likely to be documents which had not been disclosed which ought to have been disclosed.

The Tribunal was also entitled to come to the view that the area of the request was of very marginal relevance. In all the circumstances, there was no procedural error in the non-production of further documents, nor in the case management decision of the Tribunal not to order such production. There had been no serious procedural error.

Fourthly it was contended that there had been a wrong prohibition of the Tribunal of cross-examination of the expert Dr Williams in respect of A’s medical notes.

In cross-examination Dr Williams was asked what he would have expected if Dr B had read the previous notes of patient A. The purpose of the question was to try to establish that if Dr B had been told the history which Patient A asserted, coupled with Dr Rahim’s notes, his clinical management would be expected to be quite different, notably he would have been subject to the mandatory NICE guidance to refer for an X-ray which he did not do.

GMC’s counsel objected to the question. The defence submitted it put in issue whether Patient A had given that history to Dr B at all.

In oral argument, the Chair said: “You can see that there is nothing to be gained by asking Dr Williams about this apart from potentially to criticise Dr B who is not giving evidence at the tribunal – which you have already.”

In the court’s judgment, the observations of the Chair were properly made and there was no procedural irregularity. The Tribunal was entitled to avoid speculation and confine the examination to the evidence of Patient A and the contemporaneous notes.

The fifth ground was the wrong approach of the Tribunal to factual determination by determining allegations 5-7 before the clinical allegations. By focusing first on whether the amendments to the records were not accurate and not on the clinical shortcomings, the Tribunal failed to concentrate on the medical approach of Dr Rahim.

In the judge’s view, that argument ignored the fact that at the heart of the case was whether the amended records of the consultations were accurate records of what occurred. There was nothing unfair or illogical about approaching matters in that way.

This criticism was an impermissible attempt to impugn the fact finding of the Tribunal which the Tribunal at first instance was bound to consider, and it infringed the principles set out by Cranston J in Yassin v General Medical Council.

The Sixth ground was wrong assessment of the facts by the Tribunal and was subsumed largely in the discussion of ground 2.

The Tribunal’s approach to the evidence was to determine whether the facts alleged had been proved; to give separate consideration to evidence in relation to each individual allegation; and noting that the burden of proof rested on the GMC not the doctor.

The Tribunal’s analysis as to the notes, the amendments and the evidence of the witnesses in relation to each consultation was set out under the headings of allegation 5, allegation 6 and allegation 7. That was an entirely proper approach. The Tribunal was entitled to reach the conclusions which it did, and this ground too must fail.

The decision of the Tribunal was not wrong, nor was there a serious procedural or other irregularity or any injustice thereby. It followed that the appeal was dismissed.