Gulati v Commission for Social Care Inspection [2004] EWCST 400(EA) (22 June 2005)

Between

Mr R K Gulati – Appellant

And

Commission for Social Care Inspection (CSCI) – Respondent
Case No. [2004] 400.EA

Before:
Rev Maureen Roberts
Ms Elena Fowler
Mrs Bridget Graham

DECISION

Heard on 8th and 9th June 2005 sitting at Blackpool County Court, Chapel Street, Blackpool

This is an appeal against a decision dated 10th August 2004 of CSCI to refuse registration of the Appellant as Co-proprietor (with his wife Dr V Gulati) of the care home Catterall House, Lancaster New Road, Catterall, Lancashire on the grounds that he is not a fit person.

At the hearing the Appellant represented himself assisted, on the 8th June 2005 by his wife Dr V Gulati.  The Respondent was represented by Mr Richard Pearce of Counsel instructed by Hill Dickinson Solicitors.

We heard evidence from the following:

For the Respondent, officers employed by CSCI; Mr Peter Ricketts, at the time of the Appellant’s application, Business Relationship manager, (since 1st January 2005 Assistant Director Community Care and Health with Blackburn with Darwen Council),  Ms Jennifer Hughes inspector. For the Appellant, Mr David Dawson, retired police detective sergeant and now an independent insurance fraud investigator, Ms Anne Unsworth, Practice Manager for Dr V Gulati’s GP practice,  Mr David Smith, retired Assistant Chief Constable for Lancashire, now a civil servant,  Dr V Gulati and the Appellant.

Statutory background

1.   Section 13(1) of the Care Standards Act provides

‘(1)  Subsections (2) to (4) apply where an application under section 12 has been made with respect to an establishment or agency in accordance with the provisions of this Part.

(2)   If the registration authority is satisfied that-

	(a)	The requirements of regulations under section 22 are being and will continue to be complied with (so far as applicable) in relation to the establishment of agency, it shall grant the application; otherwise it shall refuse’.

2.   Regulation 7(1) and 7(3)(a) of the Care Homes Regulation 2001 state:

	7(1)  A person shall not carry on a care home unless he is fit to do so.

(2)	A person is not fit to carry on a care home unless the person-

(a)  is an individual who carries on the care home-

(i)	otherwise than in partnership with others, and he and each of his partners satisfies the requirements set out in paragraph (3);
(ii)	in partnership with others, and he and each of his partners satisfies the requirements set out in paragraph (3);

(b)	is a partnership, and each of the partners satisfies the requirements set out in paragraph (3)

(3)	The requirements are that-

(a)	He is of integrity and good character

Burden of proof

3.   In the case of Peter Jones v CSCI [2004] EWCA Civ 1713 the Court of Appeal held that an applicant (in that case an application to be a manager) “must demonstrate to the Commission and, if there is an appeal to the Care Standard Tribunal that he is a fit person before he can be qualified for registration” (Lord Justice Brooke)

4.   We were directed to Lord Justice Thomas’ remarks in that case. He said “I agree that the provisions of the Care Homes Regulations 2001 are very clear in placing the burden on an applicant.  It is entirely in the public interest that they should do so.  A manager of a care home occupies an important position of trust and must, as my Lord has held, demonstrate that he is fit and proper to hold such a position;  any doubts must be resolved against registration.  This does not deprive an applicant of earning his living as a nurse or in some other occupation, but prevents him, in the public interest, occupying a position of trust, unless he can demonstrate to the Commission that he is fit and proper to occupy that position.”

5.   It was accepted by the Tribunal and the parties, that it was for the appellant to show that he was a fit person.  We also noted the observations of Lord Justice Thomas with reference to the issue of fitness and consider that they apply equally to an application to be a proprietor of a care home.

Background

6.   The Appellant qualified as a doctor in India and came to the U.K. in 1969.  He had a number of jobs until he moved to a practice outside Preston.  His wife, also a GP, joined him in 1979 and they ran a GP practice together in Tarleton, Preston.

7.   In February/March 1998 the Appellant was approached by a firm of Solicitors in Preston to carry out medical examinations for persons involved in road traffic accidents.  These reports were to be prepared for submission to insurance companies to assist in the assessment of damages. Unknown to the Appellant, that firm (among others) was being investigated by the insurance industry who suspected that there was large scale fraud being carried out by certain firms of Solicitors and accident claims management firms in the North West in relation to false claims for personal injuries following road traffic accidents.

8.   In 1997 the television programme, World in Action decided to investigate loss recovery companies operating within the Preston area. They decided to follow a claim from beginning to end examining the role of solicitors and medical practitioners. 

9.   The programme sent two reporters, Miss A and Miss B to present themselves as victims of a road traffic accident. No such accident had occurred. They presented themselves for a medical examination which was carried out by the Appellant on 22 April 1998.  They had covert cameras.  Miss A presented as the driver in an accident. The programme showed an examination of 16 seconds; at the conclusion of this a report was prepared by the Appellant mentioning a number of findings which could not have been made after such a short examination and recording complaints e.g. “headaches and tingling numbness” which had not been described by her.  The report prepared by the Appellant concluded that she would recover in 18 months.

10.  Miss B was described as the driver, which was incorrect and it was said she had banged her head and would recover in 18 months.  The reports were identical apart from the names and dates of birth. 

11.  The Appellant gave a lengthy interview to World in Action, against the advice of his defence union. The World in Action programme, lasting 25 minutes was televised. The Appellant was shown in the programme, and as a consequence, he was required to attend a General Medical Council (GMC) hearing which took place in November 2000.

12.  The matters put to him were-

“That being registered under the Medical Act,
1.	a.	On or around 22 April 1998 you carried out a medical examination of Miss A and produced a medical report which was submitted to insurers in respect of a personal injury claim.
	b.	You failed to carry out a proper or adequate examination on which to base your medical report.
c.	You included details in your medical report which you knew, or ought to have known, were false and/or misleading.

2.	a.	On or around 22 April 1998 you carried out a medical examination of Miss B and produced a medical report to be submitted to insurers in respect of a personal injury claim.
b.	You failed to carry out a proper or adequate examination on which to base your medical report.
	c.	You included details in your medical report which you knew, or ought to have known, were false and/or misleading.

And that in relation to the facts alleged you have been guilty of serious professional misconduct.”

13.  The Appellant was represented by Counsel, instructed by his defence union. He admitted all the allegations.  The GMC heard evidence from the Appellant, two character witnesses and saw a video of the World in Action programme.

14.  On 2 November 2000 the GMC concluded:
“Following your consultations with Miss A and Miss B, you produced medical reports which were false, in that they were fabricated and misleading.  You invented both clinical symptoms and physical signs.  The reports, which are almost identical, claim that both Miss A and Miss B had sustained a number of serious injuries at the time of the accident when, in fact, neither had such injuries.

The Council’s published guidance ‘Good Medical Practice’ stresses that registered doctors must be honest and trustworthy at all times.  By your dishonest behaviour you have displayed a compete lack of integrity of the kind that undermines the trust the public place in the profession.  This is unacceptable in a registered medical practitioner.  The Committee have accordingly found you guilty of serious professional misconduct.

The Committee have considered what action, if any, they should take in relation to your registration.  Your explanation for providing these false reports was that, at the time, you were under considerable pressure to produce them, and that you wished to withdraw from providing any more.  The Committee do not accept this.

The Committee have taken into consideration your remorse, your acceptance that you have let the profession down and your undertaking not to do medico-legal work in the future.  They have noted the evidence of your character witnesses who spoke highly of you and the testimonials submitted on your behalf which indicate that you are well respected both by your professional colleagues and patients.

However, given the seriousness of the findings against you the Committee have concluded that they must take action against your registration.  They consider that any action other than erasure would be inappropriate because your behaviour has seriously undermined the trust the public places in the profession.  Accordingly, the Committee have directed the Registrar to erase your name from the Register”,

15.  The Appellant appealed against the sanction.  On 18 April 2001 the appeal was dismissed.

16.  In 2001 the Appellant purchased Catterall House a Care Home, and applied to register as proprietor in July 2001.  The Respondents refused his application. Subsequently, Dr (Mrs) Varsha Gulati applied and was approved to be the proprietor.

17.  The Appellant’s involvement in the operation of the home was defined and limited by a pre-registration agreement.
The following areas were considered acceptable:
•	Maintenance of buildings
•	Transport of residents
•	Contact with residents socially
•	Acting in an advisory capacity to Dr (Mrs) Gulati, with the clear understanding that final decision making would be her responsibility as registered proprietor
•	Some staffing and personnel matters, for example wages
•	Other administrative functions which are not related to Dr (Mrs) Gulati’s statutory responsibilities

	Direct involvement in the following areas was not considered acceptable:
•	Residents finances
•	The provision or management of resident’s care
•	The recruitment and disciplining of staff
•	The daily operational business of the home, including advising the manager or staff
•	The maintenance of any statutory records

18.  As Dr Varsha Gulati operates a GP practice, she is not able to be present at the home constantly, and therefore a registered manager is required for the home. There have been a number of acting managers and applications for their registration.  However, none of these have been successful.  At present there is an acting manager who is intending to apply for registration as manager.

19.  On 27 February 2004 the Appellant applied to become the registered co-proprietor. This application was refused and it is from that refusal that the Appellant appeals.

The Evidence

20.  We heard from the then Business Relationship Manager and the Inspector for the Respondent.  They both explained the procedure for receiving and dealing with the application.  Both impressed us as professional officers, honestly doing their jobs.  The Inspector (Ms Hughes) had sent out the pre-interview questionnaire to the Appellant and was one of the officers conducting the standard fit person interview.  She confirmed that at the end of the interview they had concluded “Satisfactory response: Open and Clear in approach to care provision.  Recognises and Respects the regulatory process:  Approve the registration without conditions.” 

21.  The inspector knew that the Appellant had been struck off the medical register. Her fit person interview report, together with references, and a transcript of the GMC hearing were considered by the Business Relationship Manager, (Mr Ricketts) who had the ultimate responsibility for making the decision about registration.  He said that the GMC findings were significant, on the issue of fitness. Having said that he told us he had read and considered all the information submitted to him by the inspector before reaching his decision to refuse registration.

22.  The Appellant’s witnesses spoke unanimously of the Appellant’s caring nature and commitment to the Care Home, Catterall House.  We had the advantage of hearing from Mr Dawson who as a private investigator had been at the forefront of investigating the insurance fraud in the North West and from Mr Smith who as a police officer had been involved in the strategy of the investigation.  Both of them knew the Appellant as their GP.

23.  The Practice Manager confirmed that the Appellant worked 15 hours a week in an administrative capacity at the Surgery and was at Catterall House “more than full time”.

24.  Both former police officers stressed that the Appellant had not been charged with criminal offences. Mr Dawson said that the Appellant had been an innocent man duped into doing the medical examinations and then put under great pressure to do them.  Both witnesses felt that the GMC disposal was harsh and failed to take into account that there was a wider picture of criminal fraud which did not directly involve the Appellant.

25.  Mr Dawson said to us “I am able to say that I have found nothing which could call into question the honesty, discretion and integrity of the Appellant.  Anything done or said by the appellant on that fateful day was in complete harmony with what had then become an accepted procedure throughout the medical and legal profession when dealing with minor insurance injury claims.  The real culprits of the day were those doctors and solicitors who produced medical reports without seeing the patient and in many cases for non existent patients, of which, the Appellant is certainly not one of them”.

26.  The Appellant confirmed his reasons for wanting to be registered as the co-proprietor. He said “my wife is a full time GP that is a demanding and exhausting job.  The added responsibility of Catterall House is getting too much for her.  I am currently allowed to look after the maintenance of building and staff wages etc.   I would like to share the burden of my wife as regards her responsibilities of Catterall House.”

27.  He acknowledged that there had been difficulties in appointing a manager with the necessary qualifications and approval.  The present acting manger is intending to apply to be registered.

28.  With reference to the medical examinations in the World in Action programme and the GMC hearing the Appellant stated that he had made a mistake in appearing on the television programme (against the advice of his defence organisation).  He thought that he had done nothing wrong and had nothing to hide.  He described how he became involved in the medical examinations and the pressure put upon him to do them and alter parts (which he resisted).

29.  He had given evidence to the GMC hearing, that after the day he was covertly filmed by World in Action he had written a letter to the solicitors to say he was stopping the work. The letter said “when these reports are completed and hence sent to you I would be pleased to do some more”.  This, the Appellant said, was to ensure that he got paid.

30.  The Appellant then said that now he denied the allegations put to him by the GMC. At the time he said had had no choice but to comply with the advice of his defence organisation, and the barrister representing him.  When he was pressed on this issue the Appellant said he was doing a proper job as a doctor and if there were short cuts they were proper ones.  He denied that he had lied to the GMC.  He had appealed against being struck off and this appeal had been dismissed.

31.  The Appellant was struck off for the maximum period of five years. In his written statement he said, “Now even GMC will be reinstating me in March 2006.” 

32.  We considered watching the World in Action television programme. However we concluded that this was not going to help the Tribunal in its decision. We had verbal evidence of the contents of the programme. The GMC had seen the programme and we had the full transcript of the GMC hearing.

Findings 

33.  In November 2000, the Appellant was found guilty of serious professional misconduct and erased from the register. No criminal charges were ever brought against him.

34.  Since April 2001 (after the appeal against erasure) the Appellant has assisted administratively in his wife’s general practice and has, in effect, run the care home,  Catterall House albeit under restrictions imposed by the Respondent. There has never been an approved manager in post in the home.

35.  We accepted the Respondent’s evidence that they had approached the Appellant’s application to be a co-proprietor with an open mind.  The GMC’s decision was important and was weighed as part of the overall picture.  We accept their evidence that there is no rule that such a GMC finding automatically precludes an applicant from registration but it would be viewed seriously particularly when there are findings of dishonest behaviour and lack of integrity. 

36.  Neither the Appellant nor his two ex-police officer witnesses appeared to grasp the seriousness of the professional misconduct finding made against the Appellant, and its potential effect on an application to become a proprietor of a care home for elderly people.

Conclusions

37.  All professions have guidance on standards and a procedure for investigating and dealing with misconduct.  In the case of the medical profession this is carried out by the GMC.  We have read the transcript of the GMC hearing and its conclusions: that the Committee found the Appellant, ‘guilty of serious professional misconduct’.

38.  It may be that additional evidence could have been put to the GMC by the two ex-police officer witnesses. We have had the advantage of hearing that evidence. In our view it explains the background and acts as mitigation.  It does not excuse the professional misconduct.

39.  The Appellant sought to change his evidence to us about the matters before the GMC.  His regret was about appearing on the television programme which then led to him being identified and brought before the GMC.  We find that he did contradict himself, struggled to answer difficult questions, and gave answers that he felt would achieve this appeal.

40.  The Appellant and his family have been through a distressing and very difficult time.

41.  The findings of professional misconduct were made by the GMC after a hearing in 2000. It does not help the Appellant before this Tribunal to try and minimise his actions in 1998, to refer to his actions as an ‘error of judgement’ or seek to contradict the evidence he gave to the GMC.

42.  The Appellant has to satisfy the Tribunal that he is now of “good character and integrity”.  We accept without hesitation that there have never been any criminal proceedings against him.  We also accept the argument that in the courts a person can be deemed to be of good character, despite a previous conviction if, for example, the conviction was a long time ago, and/or the defendant’s conduct shows he has changed.

43.  We conclude that the Appellant’s endeavour to minimise his conduct 7 years ago and contradict his evidence to the GMC do bear on the question of his integrity and character. In addition he has put a number of points, in a misleading way. He stated that he had sent a letter of resignation, to the solicitors, in 1998.This was produced to the GMC, and did not say that he was resigning. His written statement in these proceedings, that, ‘Now even the GMC will be reinstating me in March 2006’ implying that it would be automatic, is not true. 

44.  He has not satisfied the Tribunal that he is a fit person to be a co-proprietor of Catterall House Care Home.  We therefore dismiss his appeal.

We uphold the decision of the Commission for Social Care Inspection.  The decision was unanimous.

Appeal dismissed

Rev Maureen Roberts (Chairman)
Ms Elena Fowler
Mrs Bridget Graham
Date: 22 June 2005