A GP who lied and signed a false witness report should have been jailed immediately rather than handed a suspended sentence – but he will still avoid prison, the Court of Appeal has ruled.
Judges in Liverpool Victoria Insurance Company Ltd v Zafar found Dr Asef Zafar had been dealt with too leniently and in principle upheld an appeal by the insurance company. However, they opted not to jail the doctor after concluding their judgment could only provide guidance which was not previously available to those sentencing for contempt of court.
‘The judge did not identify any powerful factor or combination of factors in favour of suspension,’ said Sir Terence Etherton (pictured), Lord Justice Hamblen and Lord Justice Holroyde. ‘We have however come to the conclusion that we should not impose a more severe sentence… our remaking of the decision would not result in any increase in the sentence, albeit that our reasons for reaching that outcome differ from those of the judge.’
In October Mr Justice Garnham found 10 grounds of contempt proved against the doctor and sentenced him to six months’ imprisonment, suspended for two years. He jailed solicitor Kamar Abbas Khan for 15 months.
LV sought on appeal to increase the doctor’s sentence on the grounds it was wrong in principle and too lenient.
The court heard Dr Zafar, who made £350,000 a year from writing 5,000 reports, produced two versions of a report for one particular claim, with significant differences in the seriousness of the injuries diagnosed. The misconduct was uncovered when the original report was mistakenly included in the trial bundle.
The judge said Dr Zafar was so busy he gave no thought to whether amended statements were justified and did not care whether his report was true or false: he did as he was asked by Khan and accepted what he said about the client’s continuing symptoms.
The doctor was found to be ‘weak and cowardly’ in failing to acknowledge his mistakes, having lied about the revised report and been ‘wholly reckless’ in what he said in other statements. But the judge also found it was Khan’s misconduct which started ‘this whole sorry affair’ and a suspended sentence was appropriate for Dr Zafar.
Appeal judges stressed the deliberate or reckless making of a false statement in a court document would usually be serious enough for a prison sentence – particularly in the case of an expert witness. This was not mitigated by the comparatively modest sum involved in the underlying claim.
The attempted cover-up, and making of further false statements, ‘significantly increased’ the doctor’s culpability, judges ruled.
The judges said the sentence should have been significantly longer than six months and served immediately rather than suspended.
The doctor had been motivated by a concern for financial profit, acted with deliberate dishonesty and persisted with in the conduct which constituted his contempt.
The General Medical Council, which regulates doctors, has confirmed Dr Zafar was made subject to interim conditions on his registration at an interim orders tribunal in November. He must not undertake any medico legal work, including writing reports or giving evidence in court. The GMC's investigation is ongoing.