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High Court strikes off medical reports doctor for contempt

Davis: Air of unreality about arguments

A doctor who received a suspended sentence for contempt of court over a false medical report has been erased from the medical register by the High Court.

Asef Zafar had only been suspended for a year by the Medical Practitioners Tribunal (MPT), but for reasons the court found inexplicable, the tribunal had not been given a damning Court of Appeal ruling about his conduct.

An expert and NHS doctor based in Surrey, he had run a “factory” producing 32 medical reports a day and the insurer Liverpool Victoria brought civil contempt proceedings against him.

In 2018, Mr Justice Garnham handed Mr Zafar a sentence of six months [1], suspended for two years, after finding him guilty of 10 of 16 allegations.

He said Mr Zafar was reckless rather than dishonest in amending a report to extend the recovery period for whiplash injuries from a week to up to eight months. A solicitor prosecuted alongside him was imprisoned for 15 months.

But in February 2019, the Court of Appeal ruled that the judge had been overly lenient [2], since the recklessness bordered on dishonesty, and that Mr Zafar should have been jailed too.

“We do not think the respondent could have appealed successfully against a term of 12 months, and we cannot think that a term of less than nine months was appropriate,” it said.

However, despite allowing the appeal, the court decided not to increase Mr Zafar’s sentence, as it had used the case to issue guidance on sentencing for civil contempt.

MPT proceedings were already underway on the back of Garnham J’s ruling, and the General Medical Council (GMC) indicated that it wanted to add the ruling to the bundle. But the medic’s lawyers objected and the regulator backed down.

In General Medical Council & Ors v Zafar [2020] EWHC 846 (Admin) [3], Lord Justice Davis, sitting in the Administrative Court with Mr Justice Holgate, said that “at first sight and indeed at second sight” it was “extraordinary” that the ruling was withheld from the MPT. He said the GMC had not adequately explained why it agreed to this.

After the MPT suspended Mr Zafar for a year, the GMC and Professional Standards Authority for Health and Social Care appealed, saying it should have had sight of the ruling.

Davis LJ found “an air of unreality” about much of Mr Zafar’s arguments against this. It was, he said, “essential that, in considering sanction, the MPT should have the most authoritative judicial guidance, on the facts of this case, as to the gravity of Dr Zafar’s conduct with regard to the good administration of justice”.

Not only did the Court of Appeal find Garnham J’s sentence unduly lenient “but also it gave valuable and important guidance as to the limited distinction properly to be drawn between dishonesty and recklessness in this particular context: a distinction which Garnham J (and in consequence the MPT) had emphasised but which the Court of Appeal corrected”.

The Court of Appeal also corrected the error of the judge of taking a dishonest witness statement as the most serious aspect of the contempt, finding instead that it was putting forward a revised report as his honest and independent opinion.

Had the MPT known this, Davis LJ, it was “unthinkable, to my mind, that it would have expressed itself as it did”.

While it may be that, in “ordinary” civil litigation, parties should ordinarily, in the interests of finality, be held to their compromises “be they wise or unwise”, these were proceedings conducted in the public interest and with the object of protecting the public, he said.

Davis LJ went on: “What he did, exploiting his position as a doctor and as an expert witness, struck at the very heart of the administration of justice and involved an abuse of the trust which the courts have to accord to experts.

“In my clear opinion, in all the circumstances the only proper sanction is erasure.

“Any lesser sanction would, given the circumstances of this particular case, wholly fail to reflect the gravity of the misconduct involved and wholly fail to achieve the objectives of promoting and maintaining public confidence in the medical profession and in promoting and maintaining proper professional standards and conduct.”

The judge added that the MPT should have erased Mr Zafar from the register just on Garnham J’s ruling anyway.