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GMC Entrapment GENERAL MEDICAL COUNCIL (GMC) AND ENTRAPMENT PROFESSOR JAMES CAVENEY SHARP IHEAL CITING CASE NUMBER: CO/1370/2006 COUNCIL for the REGULATION of HEALTHCARE PROFESSIONALS (CRHP) And 1. GENERAL MEDICAL COUNCIL 2. Dr GURPINDER SALUJA JUDGMENT GOLDRING J, High Court of Justice INTRODUCTION
Although the Case was considered from the standpoint of ‘entrapment’, it was more concerned with the matter of the ‘stay’ in proceedings reached by the FPP and it was this Decision that was appealed. In short, Saluja was visited by an undercover Journalist, bearing on her person, a tape recorder, without so declaring, on the random possibility that the Practitioner could be persuaded to agree to dispense a ‘Sick Note’. There was no previous history of Saluja having done so before. The recording obtained by the Journalist, Rachel Dobson, was of poor quality, described by the Judge thus: “The recordings were not very clear”. I am not certain why he referred to the recording in the plural. A sum of money amounting to £1,000 was offered by the Journalist for a Sick Note. It appeared, from the tape recording(s), Saluja was prepared to provide a Note at some future date in payment of that sum. As this was prima facie evidence used against the Practitioner I should have considered there were grounds for having the material excluded from the FPP Hearing and this argument used at the time of the Appeal. It was not done. Goldring J determined that an abuse of process was not made and, in consequence, the FPP Decision to ‘stay’ proceedings was inappropriate. He quashed the FPP Decision for a stay and allowed the Appeal. In his Order, he castigated the GMC for taking “nine working days” at the original Hearing of the Case. ENTRAPMENT In the opinion of the Judge, the GMC Legal Assessor confused entrapment by agents of the state or agents provocateurs, such as the police, and what were termed “commercial” or “non state” agents, such as the Journalist in this Case. As a result, the FPP was misled and came to the wrong Decision. The authorities considered, in addition to any referred to earlier, were: 1. Section 40 of the Medical Act 1983, ‘right of appeal to the High Court of FPP Decisions by a Practitioner’; 2. Articles 6, ‘right to a fair hearing’, and 8(1), ‘right to privacy’ and (2), ‘interference by a public body in accordance with the law’, of the European Convention of Human Rights; 3. Section 78 of the Police and Criminal Evidence Act 1984; and 4. Several precedent cases considered by the English Courts and the European Court of Human Rights. Paragraph 4divided into cases, in which agents of the state and non-state agents were involved. Of the non-state cases of agents provocateurs, all by journalists, four examples were quoted. These were: (i) R v Shannon [2001] 1 CR App Rep 12; The case closest to the present Case was Hasan, which went on Appeal to the Privy Council (PC), the Court determining appeals at the time. Hasan was offered £1,000 – seems to be the going rate – by a “journalist pretending to be an asylum seeker” for “a bogus medical report”. Hasan was also approached by, it seems, another “journalist pretending to be a claimant in a road traffic accident wanting a false report to boost his claim for damages”. Lord Hope of Craighead for the PC said, in finding against the Appeal: “The essence of the complaint against him [Hasan] was that he was willing, when approached, to enter into transactions in his professional capacity which were profoundly dishonest”. GMC and ENTRAPMENT The GMC has a long history of being involved in entrapment of Medical Practitioners. By “involved”, I mean collusion with the media, journalists and other Medics. In recent times, these include: I. Dr JC Sharp, author of this paper, who, in 1989 was entrapped by a Journalist, Duncan Campbell, aka Sinclair, acting for The New Statesman, the British Broadcasting Corporation (BBC) and the GMC. Campbell was coached by Medics how to pretend to be the Partner of, what came to be known in the media, a pseudo-patient. The tape recording and transcript were used as prima facie evidence against Sharp. The identification of Campbell as an agent provocateur was not made known until many years later. Sharp was found guilty of SPM and his name erased from the Register. It has not been restored. II. Drs Chalmers and Davis, also entrapped by Campbell, found guilty of SPM and their names erased, in 1991. Chalmers was reinstated some years later. Davis was not contactable subsequently. III. Dr JAH Muir was entrapped by Mazher Mahmood, of the News of the World, on four separate occasions in 2000, by audio and film. Copies of the tapes were used in evidence, by the GMC, against Muir. The original tapes were never disclosed. He was found guilty of SPM and his name erased, probably permanently, from the Register. IV. Dr M Singh was entrapped by Mazher Mahmood, aka M Khan [see III above], on two occasions in 1999, and the material used by the GMC to find Singh guilty of SPM and his name erased, probably permanently, from the Register. V. Dr Makkar was entrapped by two freelance Journalists, Paul Samrai and Ajit Singh Khokhar, in 2001, and a meeting taped and, subsequently by Jon Ungoed-Thomas, staff reporter with the Sunday Times, also in 2001, when the “meeting was covertly recorded”. The tape recordings yielded two different transcripts. The first recording was in Punjabi and translated by Samrai. The tapes, for what they were worth, were used in evidence by the GMC. Makkar was found guilty of SPM and his name erased, probably permanently, from the Register. VI. Dr Dzikowski was visited by a Journalist, M Chapman of the BBC Radio, in 2001, and the visit secretly recorded: Chapman pretended to be a patient. Chapman admitted to being coached by Dr Mike Phillips, described by Chapman as “an adviser to the doctors Watchdog, the General Medical Council”. In this Case, there were two tapes, the original and an edited copy, and two different transcripts. The GMC used the copy tape and one of the transcripts – eeny meeny miny mo. The original tape has not been produced. Collusion between BBC, the Journalist, a Medic and the GMC took place. Dzikowski was eventually found guilty of SPM and his name erased from the Register. It has not been restored, insofar as I am aware. Sources: The Practitioners with their agreement to publish, PCC Minutes and The Strange Case of Dr Shipman and Mr Hyde II The Red Rose James Caveney Sharp 2005 HALO Publications. CONCLUSION When I hear of a case of entrapment, in which the GMC has a stake, I presume the GMC is involved, by way of collusion, with medical practitioners, the media, newspapers and journalists. © Professor James Caveney Sharp
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[Home] [NHS Exposed] [Patients] [Health Workers] [NHS in Crisis] [Legal Issues] [Media] [Helpdesk] [Public Views] All copyright remains with original authors unless otherwise stated. |
An
Appeal was made by the Council for the Regulation of Healthcare Professionals
(CRHP), now Council for Healthcare Regulatory Excellence (CHRE), against
a Decision by the GMC Fitness to Practise Panel (FPP) of January 19th
2006 to stay proceedings against Dr Saluja, who had earlier been charged
with Serious Professional Misconduct (SPM), on the principle that there
was “an abuse of process on the basis of entrapment”. CRHP
– it is not clear why the Council’s earlier title has been
used in this Case – appealed the ‘stay’ as it is qualified
to do under Section 29 of its Constitution, established by the National
Health Service Reform and Health Care Professions Act 2002 and, specifically,
subsection (4)(a), which particularises that “a relevant decision…
has been unduly lenient”.