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					GENERAL MEDICAL COUNCIL

FITNESS TO PRACTISE PANEL (MISCONDUCT)


Regent’s Place, 350 Euston Road, London NW1 3JN


Monday 9 May 2011



Chairman:            Miss Sheleen McCormack


Panel Members:       Mrs Sylvia Dean
                     Dr Fiona Sim


Legal Assessor:      Ms Lucia Whittle-Martin




CASE OF:


FOSTER, Richard David




(DAY ONE)


                       __________________________


MISS KATE BEX, of Counsel, instructed by GMC Legal, appeared on behalf of
the General Medical Council.

DR FOSTER was present but not represented.

                       __________________________

            (Transcript of the shorthand notes of T A Reed & Co Ltd
                             Tel No: 01992 465900)
                        ___________________________
                                INDEX

                                                              Page


Charges read                                                    2

Admissions                                                      5

Opening submissions

       MISS BEX                                                 6

AMANDA EWINGTON, Sworn

       Examined by MISS BEX                                    11
       Cross-examined by DR FOSTER                             21
       Questioned by THE PANEL                                 21

Charge 5 (amended) read                                        23

Admission re amended charge 5                                  24

DR FOSTER, Sworn

       Personal statement                                      27
       Cross-examined by MISS BEX                              29
       Questioned by THE PANEL                                 34
       Further cross-examined by MISS BEX                      37

Closing submissions

       MISS BEX                                                39
       DR FOSTER                                               40

Advice from THE LEGAL ASSESSOR                                 40

Determination (extract)                                        41

Determination (handed down)                                    43



PLEASE NOTE: Copies printed from email may differ in formatting and/or
page numbering from hard copies
     A         THE CHAIRMAN: Good morning, everyone. Dr Foster, are you ready?

               DR FOSTER: Yes.

               THE CHAIRMAN: Both parties?

               MISS BEX: Yes. Good morning.
     B
               THE CHAIRMAN: Thank you. Dr Foster, I understand that you are not represented and you
               are representing yourself today.

               DR FOSTER: That is correct. I have obtained advice from the Medical Defence Union.
               I agreed to represent myself.
     C         THE CHAIRMAN: It is going to be slightly awkward today because what we need to do is to
               turn the microphones on and off. Once I finish speaking to you, could I ask you to turn your
               microphone off. Then I will speak to Miss Bex as well.

               Miss Bex, you are counsel, instructed by GMC Legal and you are representing the General
               Medical Council today.
     D         MISS BEX: I am.

               THE CHAIRMAN: Dr Foster, could I also introduce myself. Then I will go to the individuals
               on the Panel who can introduce themselves to you. My name is Sheleen McCormack. I am a
               lay panellist and I am chairing the hearing today, and this week. Do you want to introduce
               yourself?
     E
               DR SIM: I am Fiona Sim.

               THE CHAIRMAN: Thank you. Then on my right.

               MRS DEAN: I am Sylvia Dean, a lay panellist.

     F         THE CHAIRMAN: Thank you. I understand you have already met our Legal Assessor to the
               Panel, Ms Lucia Whittle-Martin.

               THE LEGAL ASSESSOR: Good morning.

               THE CHAIRMAN: Dr Foster, I also need to read out the emergency evacuation procedures
               for London to accord with our health and safety procedures.
     G
               (Emergency evacuation procedures read)

               I understand, Miss Bex and Dr Foster, that there are some preliminary matters that you wish to
               discuss. Beyond that we are not aware of what you are going to ask of us. Miss Bex, would
               you like to start?

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     A         MISS BEX: The learned Legal Assessor and I have been speaking to Dr Foster in order to
               introduce ourselves, put him at his ease and to try and explain the procedures. Clearly it is
               difficult always with a registrant who is unrepresented. In the course of those discussions it
               became clear that it would assist if we had, perhaps, another 25 minutes or half an hour to be
               able to speak to Dr Foster and also for Dr Foster to consider some of the matters that we had
               discussed.

     B         It seems highly likely that when the allegations are put to Dr Foster some, if not all, will be
               admitted. It is really in respect of that, which of course ultimately will shorten proceedings,
               that I ask on our joint behalves for some further time in order that Dr Foster has a proper
               opportunity to consider what we have discussed this morning.

               THE CHAIRMAN: Thank you for that. Dr Foster, is there anything that you would like to
               add to what Miss Bex has already said?
     C
               DR FOSTER: No. What was just said would be helpful to me, thank you.

               THE CHAIRMAN: You have asked for 25 or 30 minutes, Miss Bex. Shall we make it until a
               quarter past ten? Would that be sufficient time for both of you?

               MISS BEX: Thank you.
     D
               THE CHAIRMAN: Thank you very much. We shall rise until that point.

                                                     (Short adjournment)

               THE CHAIRMAN: Are we ready to start, Dr Foster?
     E
               DR FOSTER: Yes.

               THE CHAIRMAN: Hopefully this has provided you with sufficient time to reach some
               decisions. Without more time being wasted on that, Dr Foster, can I ask you to confirm your
               name and your registration number, please?

     F         DR FOSTER: It is Dr Richard David Foster, and my registration number I think is 01547166.

               MISS BEX: Can I help? It is 1547166.

               DR FOSTER: Apologies.

               THE CHAIRMAN: Thank you very much. I am now going to turn to the Secretary to the
     G         Panel to read out the allegation and the alleged facts.

               THE PANEL SECRETARY: The Panel will inquire into the following allegation against
               David Richard Foster, MB BCh 1972 University of Wales:

               That being registered under the Medical Act 1983 (as amended),

     H
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     A         1.     Between August 2009 and February 2010 you were employed as a
               Consultant Radiologist at the Princess of Wales Hospital, Abertawe Bro
               Morgannwg University Health Board;

               2.    You signed a medical certificate for patient MC dated 25 August 2009
               and when you did so,

     B                i.      You were not the medical practitioner with whom MC was
                      registered,

                      ii.  You were not a medical practitioner within the practice where
                      MC was registered,

                      iii.   You did not have access to MC’s medical records,
     C
                      iv.     You did not consult MC’s records before signing the medical
                      certificate,

                      v.    You stated on the certificate that you had full access to MC’s
                      medical records and
     D                vi.   You stated on the certificate that the records were consulted
                      when you completed your examination of MC.

               3.     You signed a medical certificate for patient MA dated 3 November
               2009 and when you did so,

     E                i.      You were not the medical practitioner with whom MA was
                      registered,

                      ii.  You were not a medical practitioner within the practice where
                      MA was registered,

                      iii.   You did not have access to MA’s medical records,
     F
                      iv.     You did not consult MA’s records before signing the medical
                      certificate,

                      v.    You stated on the certificate that you had full access to MA’s
                      medical records and

     G                vi.   You stated on the certificate that the records were consulted
                      when you completed your examination of MA.

                4.   You signed a medical certificate for patient LW dated 19 January 2010
               and when you did so,

                      i.      You were not the medical practitioner with whom LW was
     H                registered,

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     A
                              ii.  You were not a medical practitioner within the practice where
                              LW was registered,

                              iii.    You did not have access to LW’s medical records,

                              iv.     You did not consult LW’s records before signing the medical
     B                        certificate,

                              v.    You stated on the certificate that you had full access to LW’s
                              medical records and

                              vi.   You stated on the certificate that the records were consulted
                              when you completed your examination of LW.
     C
                       5.   You signed a medical certificate for patient W dated 3 November 2009
                      and when you did so,

                              i.      You were not the medical practitioner with whom W was
                              registered,
     D                        ii.   You were not a medical practitioner within the practice where
                              W was registered,

                              iii.    You did not have access to W’s medical records,

                              iv.     You did not consult W’s records before signing the medical
     E                        certificate,

                              v.    You stated on the certificate that you had full access to W’s
                              medical records and

                              vi.   You stated on the certificate that the records were consulted
                              when you completed your examination of W.
     F
                       6.     Your conduct as set out in paragraphs 2.v. and vi., 3.v and vi., 4.v. and
                      vi. and 5.v. and vi. was,

                              a.      Misleading,

                              b.      Dishonest;
     G
                      And that by reason of the matters set out above, you fitness to practise is
               impaired because of your misconduct.

               THE CHAIRMAN: Thank you very much. Dr Foster, this is the part in the
               proceedings where the Panel asks whether you admit any or all of the allegations that
               have been read out to you.
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     A         DR FOSTER: Can I take them individually? I admit sections 2, 3, 4 and 5.

               THE CHAIRMAN: Can we just pause there? If we go back to the allegation, we
               have 1. You admit that?

               DR FOSTER: Yes.

     B         THE CHAIRMAN: Then 2.

               DR FOSTER: 1 is my occupation, is it?

               THE CHAIRMAN: Yes.

               DR FOSTER: Sorry. 2 I admit.
     C
               THE CHAIRMAN: Is that in its entirety? (i) to (vi)?

               DR FOSTER: Yes.

               THE CHAIRMAN: Thank you.
     D         DR FOSTER: And 3.

               THE CHAIRMAN: That is also (i) through to (vi) that you admit?

               DR FOSTER: Correct. And 4 (i) to (vi).

     E         THE CHAIRMAN: Yes.

               DR FOSTER: And 5 (i) to (vi).

               THE CHAIRMAN: Yes, thank you.

               DR FOSTER: With regard to number 6, I would accept my conduct was misleading,
     F         but I would not accept that my conduct was dishonest.

               THE CHAIRMAN: Thank you very much. Just for me to confirm for the record
               what it is that you have admitted, in regards to the allegation you admit, and this Panel
               finds proved, paragraph 1 of the allegation. You have admitted and this Panel finds
               proved paragraph 2 in its entirety of the allegation. In relation to paragraph 3, you
               have admitted, and this Panel has found proved, the entirety of that part of the
     G         allegation, which is 3. In relation to paragraph 4, you have admitted, and this Panel
               has found proved in its entirety, that part of the allegation. In relation to paragraph 5,
               you have admitted, and this Panel has found proved in its entirety, that part of the
               allegation. In relation to paragraph 6 you have admitted (a) that your conduct as set
               out in paragraphs 2 (v) and (vi), 3 (v) and (vi), 4 (v) and (vi) and 5 (v) and (vi) was
               misleading, but you have not admitted paragraph (b) of charge 6, in that your conduct
               was dishonest. Is that right?
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     A         DR FOSTER: That is correct.

               THE CHAIRMAN: Thank you very much. I think, therefore Miss Bex, we move to
               the next part in the procedure, which is that not all of the allegation has been found
               proved and I would ask that you would without more open your case.

               MISS BEX: These allegations date to between August 2009 and February 2010.
     B         They concern the licensing enforcement within the Vale of Glamorgan Council of
               Hackney Carriage and Private Hire Drivers Licences.

               In 2009 the Council introduced requirements when applying for or renewing a
               hackney carriage and private hire driver’s licence. One requirement was that every
               applicant would require a medical, namely a group 2 medical. That medical
               examination must be carried out by the applicant’s own general practitioner and the
     C         purpose of the medical is to establish whether the applicant is fit and proper to drive
               or to continue driving. The document sent to the drivers asks them to complete the
               form with their GP.

               The requirements adopted by the Council are based on the guidelines set out in the
               group 2 medical documentation provided by the DVLA. In January 2010 information
               was received by the Vale of Glamorgan Council that that procedure may not always
     D         have been followed. As a result, the complaint against Dr Foster came to light. At
               the end of January 2010 Amanda Ewington, who is employed by the Vale of
               Glamorgan Council, contacted Dr Foster and, in the course of that telephone
               conversation, Dr Foster told her that he was not the general practitioner of four taxi
               drivers for whom he had issued medical certificates. When asked whether he had had
               access to their medical records when carrying out the medical examinations Dr Foster
     E         had said, “No,” but he had assured her that he had obtained a full medical history by
               questioning the applicants themselves, as opposed to considering their medical
               records.

               Inquiries continued. It came to light that Dr Foster was not the four taxi drivers’ NHS
               general practitioner but had been acting, as he described it, as their private doctor at
               the time of the examinations. The medical certificates themselves contain a proforma
     F         with a number of declarations. It is those declarations that the GMC suggest that
               Dr Foster firstly completed inaccurately. It will be a matter for the Panel to decide
               whether that was simply misleading, as Dr Foster accepts, or whether in fact it was
               dishonest.

               Can I hand out to you a copy of the bundle. Dr Foster has been provided with a copy
               of it, although if there are sufficient it may be helpful if Dr Foster has another,
     G         because I know that his file is broken.

               THE CHAIRMAN: Dr Foster, would you just confirm that you have received a copy
               of this bundle, and you have had time to consider it?

               DR FOSTER: I have.

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     A         THE CHAIRMAN: Thank you very much. Miss Bex, we will call this C1. (Bundle
               marked C1, distributed)

               MISS BEX: I will not, in opening, take you through all of the bundle. We will do
               that with witnesses and in due course, but by way of example perhaps I can show you
               an example of a medical certificate. Would you turn to page 60. This is the copy of a
               medical certificate for Driver 1. You will see the name of the doctor, Dr Foster, the
     B         address of his practice and the declaration that he is satisfied that Driver 1 –

                      …“ is medically fit to drive a Hackney Carriage/Private Hire Vehicle with
                      members of the public as fare paying passengers, having regard to the Medical
                      Commission on Accident Prevention’s Guide to the Medical Aspects of
                      Fitness to Drive.”
     C         That was dated 3 November 2009.

               THE CHAIRMAN: May I just interrupt you there? When you say “Driver 1” how
               does that accord with the charges that we have just read out?

               MISS BEX: MC, the first, is Driver 1. The second, Driver 2.
     D         THE CHAIRMAN: Thank you.

               MISS BEX: But you are absolutely right to make that point. I will try and refer to
               them, in fact, as they appear in the charges.

               In fact I have misled you already because in the case of Driver 1 in fact the
     E         application is dated 3 November and the charges, of course, were re-jigged to appear
               chronologically. Page 60 – that medical certificate dated 3 November – relates to
               head of charge 3 and Patient MA.

               Page 61: I am not sure if it is only my copy that is a poor photocopy. If it is, you will
               find a better copy of the same information at page 3 of the bundle. The Vale of
               Glamorgan Council’s medical certificate proforma starts with information to the
     F         applicant.

                      “This Certificate is the method by which the Licensing Authority is advised
                      that the Applicant is medically fit to drive hackney carriage and private hire
                      vehicles. Applicants must be examined and certified as being medically fit by
                      THEIR OWN GENERAL PRACTITIONER OR ANOTHER GENERAL
                      PRACTITIONER IN THE PRACTICE WITH WHICH THEY ARE
     G                REGISTERED AND MUST TAKE INTO ACCOUNT PREVIOUS
                      MEDICAL HISTORY. The Council may require a further examination or
                      referrals following this initial certification.

                      …

                      NOTICE TO THE GENERAL PRACTITIONER - NEW MEDICAL
     H                STANDARDS FOR TAXI DRIVERS
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     A
                      This certificate is for the confidential use of the Licensing Authority.

                      In completing this Certificate, Medical Practitioners are asked to have regard
                      to the booklet ‘At a Glance Guide to the current Medical Standards of Fitness
                      to Drive’ issued by the Drivers Medical Group, DVLA, Swansea. THE
                      LICENSING AUTHORITY REQUIRES APPLICANTS TO MEET
     B                GROUP 2 STANDARDS.”

               Turning back to the medical certificate at page 62 you will see completed by
               Dr Foster the full name of the applicant, their address, their date of birth.

                      “GENERAL QUESTIONS ONLY – PLEASE REFER TO THE AT A
                      GLANCE GUIDE TO THE CURRENT MEDICAL STANDARDS OF
     C                FITNESS TO DRIVE AND COMPLETE THE CERTIFICATION
                      SHOWN OVERLEAF IN ACCORDANCE WITH THE GROUP 2
                      STANDARDS”

               The first question:

                      “Did you have full access to the Applicant’s medical records and were they
     D                consulted when completing this examination?”

               The answer is, “Yes.”

               Second:

     E                “Do you consider that any further medical examination is necessary?”

               Answer, “No.”

               Question 3:

                      “Does the Applicant have a medical condition, which is aggravated by
     F                exposure to dogs?”

                      “No.”

               Question 4:

                      “Does the applicant have any of the disorders or illnesses listed in Chapters 1
     G                to 9 …”

                      “No.”

               Question 5 in those circumstances is not applicable. Over the page is the declaration:

                      “I certify that I have to day examined [the name of the applicant] who is
     H                registered with this practice and has signed this form in my presence.

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     A
                      …

                      Being a registered Medical Practitioner who has examined the Applicant
                      and with due regard to the advice and guidance appertaining to Group 2
                      drivers set out in the ‘At a glance guide to the current medical standards
                      of fitness to drive’, issued by the DVLA, I consider that the Applicant
     B
                      (a)     meets the medical requirement to hold a hackney carriage/private hire
                              driver’s licence.”

               Then it is signed and dated by Dr Foster.

               Comparing this medical certificate with the allegation that Dr Foster has admitted, the
     C         gravamen of the allegation is really in 3, 5 and 6. It relates back to question 1 on the
               medical certificate. It is the question:

                      “Did you have full access to the Applicant’s medical records…”

               That relates to allegation 3(v), and the second part of question 1 on page 62:
     D                “…were they consulted when completing this examination?”

               That relates to allegation 3(vi):

                      “You stated on the certificate that the records were consulted when you
                      completed your examination of [the patient].”
     E
               The allegations are identical for all four drivers. Thus (v) and (vi) of each of the four
               sets of allegations are identical, and the medical certificates are identical. They all
               relate back to question 1.

               THE CHAIRMAN: I am going to stop you there once again, and it is for clarity. One
               of the points that you raised in connection with the various patients was that the
     F         allegations were re-jigged, I think you said, to reflect the chronology of the conduct.
               If you look at allegation 5 or paragraph 5, it says:

                      “You signed a medical certificate for patient W dated 3 November 2009…”.

               That accords with charge 3, Patient MA, dated 3 November 2009. I am now
               wondering whether that should say, at paragraph 5, “2010”. I would be grateful if you
     G         could assist us with that. Obviously we have not had time to reflect on the bundle yet
               and, of course Miss Bex, you have.

               MISS BEX: Would you bear with me? (Pause) It should actually be 19 January
               2010 because there are two driver certificates dated the same date, but they are clearly
               different drivers because of the dates of birth.

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     A         THE CHAIRMAN: I think it is important for the record that we make reference to
               where in the bundle that is, and against which driver as well.

               MISS BEX: Page 68 is the first of the two medical certificates dated 19 January
               2008. The date of that driver is in 1944. Page 72 is the second of the two medical
               certificates dated 19 January 2010. The date of birth of that driver is 1948. You will
               understand, of course, that mine have all be anonymised before I received them.
     B         I will have to ascertain from those who instruct me the initials of the two drivers for
               19 January 2010, to confirm which is allegation 4 and which is allegation 5.

               THE CHAIRMAN: Dr Foster, I am just speaking with the Legal Assessor because
               clearly there are some points that have arisen which might require an amendment to
               be made to the charge that was read out, and also that you have admitted and we
               found proved. Clearly you are unrepresented and so we do not want you to feel in any
     C         way bamboozled by anything that is unfolding.

               Miss Bex, I think it may be that you will be assisted by having a short adjournment,
               just to take your instructions as you have indicated. Then, perhaps, we can reconvene
               and you can let the Panel know exactly what the position is.

               MISS BEX: I think actually it will become crystal clear when I call the witness, who
     D         will have the unanonymised documentation. It is simply a matter of confirming
               which page in the bundle relates to LW and which relates to W. The allegations are
               exactly the same, and the allegations on both are accepted. Perhaps that need not
               detain us. My first witness is here and is going to be dealing with it exactly.

               THE CHAIRMAN: I do understand that. I am also aware that we need to ensure that
     E         Dr Foster is following the proceedings accordingly. I do not know if our Legal
               Assessor wants to give us some assistance in that regard.

               THE LEGAL ASSESSOR: I think perhaps it would be a good idea just to have a
               brief pause whilst counsel clarifies whether charge 4 relates to page 68 or not, and
               ditto charge 5. In that period of time, I can explain to the doctor what has been going
               on, and explain to him that it would seem that charge 5 is in need of amendment
     F         which is a purely technical point. I do not think he need concern himself about it at
               all but I would rather he understood that before calling the first witness.

               THE CHAIRMAN: I think what we will do, Dr Foster, is err on the side of caution
               and have a short break to enable you to fully process what is going on. I am quite
               aware that this does not happen to you every day of the week. Therefore it will also
               assist Miss Bex to get her ducks in a row, and for the Legal Assessor to talk to you
     G         about the significance of what has just arisen. It may be that it is not, but it is
               important for clarity that we get this straightened out and I think sooner rather than
               later. I would rather have this sorted out, Miss Bex, prior to you calling your first
               witness. I do appreciate the fact that there may have been sitting around for some
               time. We will rise and reconvene in ten minutes. That will bring us up to five past
               eleven. Thank you.

     H                                          (Short adjournment)

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     A
               THE CHAIRMAN: Miss Bex, would you like to address the Panel?

               MISS BEX: Would you take the allegations, please, starting with allegation 2.
               Patient MC’s medical certificate is in your bundle at page 64. Allegation 3, Patient
               MA’s medical certificate, is in the bundle at page 60. Allegation 4, Patient LW’s
               medical certificate, is at page 68. Allegation 5, Patient W’s medical certificate is at
     B         page 72. “3 November 2009” is an error from when the charges have been cut and
               pasted, I am afraid, and so can I correct that error, please. It should read, “Patient W
               dated 19 January 2010,” as is reflected by page 72.

               THE CHAIRMAN: Dr Foster, just to confirm that you are aware that there has been
               an amendment that needs to be made to the charge as read out to you.
     C         DR FOSTER: Yes, I accept the amendment.

               THE CHAIRMAN: Thank you for that clarification, Miss Bex. Perhaps you would
               like to continue with your opening.

               MISS BEX: That concludes what I propose to say in opening. Could I call Amanda
               Ewington, then, who is the Council employee of the Vale of Glamorgan.
     D
               THE LEGAL ASSESSOR: Madam, it may be rather pedantic of me, but just before
               the witness is called it probably ought to be the case that the doctor is asked whether
               he admits the charge in its amended form. It probably ought to be formally asked.

                                          AMANDA EWINGTON, Sworn
     E
               (Following introductions by the Chairman)

                                              Examined by MISS BEX


               Q      May I ask that you be provided with the bundle, please. (Same handed) Do
     F         you have with you, Mrs Ewington, a copy of your witness statement?
               A      Not in here, no.

               Q      Do you have it in your own documents that you have brought with you?
               A      Yes.

               Q      You are able to refer to that as well, if you would like. Have you left that in
     G         the room outside?
               A      Yes.

               Q       I am so sorry. That is my fault – I should have made it clear that you should
               bring it in with you. Someone will fetch it for you. Is it in a bag?
               A       Yes, it is in a case.

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     A         Q      While that is being fetched, let me ask you about the background. What is
               your employment, please?
               A      My current employment is Licensing Manager for the Vale of Glamorgan
               Council in South Wales.

               Q      At the time that you made a witness statement, were you Licensing
               Enforcement Officer?
     B         A      That is correct.

               Q      So you have now been promoted, is that right?
               A      That is correct. (Witness statement handed to the witness)

               Q      Your duties at the time that you made a witness statement last year involved
               authorising the grant of hackney carriage and private hire drivers’ licences. Is that
     C         right?
               A      That is correct.

               Q      And also enforcing any conditions attached to the licences?
               A      That is correct.

               Q      In the course of making your witness statement were you able to provide a
     D         number of medical certificates, four in total that we are going to deal with initially,
               and then one extra, relating to four separate drivers who have been anonymised and so
               are only referred to by their initials?
               A      That is correct.

               Q      Can I ask you to open the lever arch file that you were given. Would you turn
     E         then sequentially to your exhibit. Page 1 is simply a document that you have
               produced called “Authorisation of a Licensing Officer”. Is that right?
               A      That is correct, yes.

               Q      That outlines your functions and power, none of which, I think, are in dispute
               so perhaps we can take that quite quickly.
               A      Thank you.
     F
               Q     Over the page to page 3 is another exhibit of yours, which is a blank proforma
               medical certificate – is that right?
               A     This is the new medical certificate, yes. That is correct.

               Q      And the new medical certificate came into force when?
               A      In February 2010 as a direct result of the matter we are here to discuss today.
     G
               Q       Is it right that the discussion on page 3 of our bundle is exactly the same as
               that on the front page of the old medical forms?
               A       That is correct.

               Q        What has changed is the insertion – if we look at page 4 – of a new question 2.
               Is that right?
     H         A        That is correct, yes.

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     A
               Q       The easiest way of doing it, perhaps, is to compare the two pages. If we keep
               a finger in page 4, and also turn to page 62, we will see there that on the old medical
               form in 2009 there were five separate questions, and the new medical form was
               introduced in 2010 which post-dates the majority of Dr Foster’s involvement.
               Question 2:

     B                “How long has the Applicant been registered at your practice?”

               was inserted.
               A      That is correct, yes.

               Q      Was the form amended and was that question inserted as a result of the sort of
               problems that arose in this case?
     C         A      Very much so, yes.

               Q        That deals with the proforma at pages 3-5. At pages 6-59 of the bundle is a
               single document, the “At a glance Guide” – perhaps not particularly accurately titled
               ‘at a glance’ for the number of pages that it is, but there we are – which is referred to
               on the medical certificate, and the guidance issued to both applicants and the doctor.
               Is that right?
     D         A        Yes, in relation to group 2 medicals.

               Q      This is the document they mean when they say “At a glance”. There are two
               copies of it in the bundle, one at page 6 and the second appears later in the bundle
               behind tab 8 at page 84. There are two copies because it was amended in
               August 2010, is that right?
     E         A      That is correct.

               Q      Page 84 is the version current to February 2009; page 6 is the version current
               to August 2010. Is that right?
               A      That is correct, yes.

               Q       In light of the very limited aspect of the allegations that are in dispute I am not
     F         going to take you through any of the particular pages of that document. We then
               move to page 60. It would perhaps help you, Mrs Ewington, to know that which you
               did not know before, which is that the factual aspects of the allegations have all been
               accepted, so there are no factual disputes. Turning to page 60, this is the medical
               certificate in respect of Driver MA, so our allegation 3. These are documents that you
               provided to the GMC. Is that right?
               A       That is correct, yes.
     G
               Q       Had they been submitted to the Council on behalf of a driver wanting to be
               registered or re-registered?
               A       That is correct.

               Q      At page 62 did you understand this to be completed by Dr Foster?
               A      I did, yes.
     H
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     A         Q        Is perhaps the most important question and the question that has really resulted
               in this hearing today, question 1:

                      “Did you have full access to the Applicant’s medical record and were they
                      consulted when completing this examination?”

               A      That is correct.
     B
               Q      Do you understand Dr Foster’s response, as he indeed accepts it to have been
               “Yes” in that form?
               A      Yes.

               Q      Page 64, the form that you produced in respect of Driver MC – is that correct?
               A      That is correct.
     C
               Q      Exactly the same form, completed in exactly the same way. Is that correct?
               A      That is correct.

               Q      Page 68, then: is that the form in respect of Driver LW? Exactly the same
               form, completed in exactly the same way. Is that right?
               A      That is correct.
     D
               Q       Finally the fourth driver, referred to as Driver W, at page 72, is a medical
               certificate for that person. It is the same certificate and completed in the same way.
               In other words, question 1 is answered in the affirmative “Yes”?
               A       That is correct.

     E         Q      All contain a signature and declaration by Dr Foster. Is that right?
               A      That is correct.

               Q      The declaration, if we look at page 75, on all four of the certificates is the
               same. It reads:

                      “I certify that I have today examined [the person applying] who is registered
     F                with this practice and who has signed this form in my presence.”

               The doctor

                      “… has had due regard to the advice and guidance … set out in the ‘At a
                      glance guide…”

     G         and that they meet the medical requirements to hold a hackney carriage/private hire
               driver’s licence. Is that right?
               A       That is correct.

               Q       Page 76: is this a letter from you? We see your name in the top left-hand
               corner?
               A       That is right, yes.
     H
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     A         Q      It is dated 29 January 2010. It is to Dr Foster concerning his signatures on
               four medical certificates and asking him to confirm:

                      “1.      That you are every applicant’s General Practitioner or that you
                               practise in the same surgery as the applicant’s General Practitioner.

                      2.      How long each applicant has been registered with your practice.
     B
                      3.      That you have full access to each applicant’s medical records and that
                              they were consulted when you completed the examinations.”

               Did those questions arise from not simply the contents of the medical certificates but
               also the information provided to the applicant and the doctor which is contained with
               the certificates? For example, page 73 – I am trying to choose the most legible
     C         photocopy of it. Help us first of all with how this document appears when it goes to
               the applicant and the doctor. We have it photocopied on individual pages, so four
               sheets and four pages. Is it photocopied on double-sided ---
               A       I will just check. I have a copy with me. (The witness did so)

               Q      In its original form is it two sheets of paper, double-sided?
               A      Yes, it is.
     D
               Q      So its original form is two sheets, double-sided, but we have had it paginated
               on individual sheets. We can see, taking Driver W’s medical certificate, that it is a
               form that consists of four pages. Do we see that at the bottom of page 72? It is “1 of
               4 pages”?
               A      Yes.
     E
               Q      At the bottom of page 73 it says, “2 of 4 pages”, page 74, “3 of 4 pages” and
               page 75, “4 of 4 pages”. It is a four-page medical certificate. Looking at page 2, then,
               which would be printed on the back of page 1?
               A      That is correct.

               Q      And page 1, which for Driver W is our page 72, is signed by Dr Foster, is it
     F         not?
               A      That is correct.

               Q      Clearly Dr Foster had this page and our page 73 was the back of it. So the
               back of this page says to the applicant:

                      “Applicants must be examined and certified as being medically fit by THEIR
     G                OWN GENERAL PRACTITIONER OR ANOTHER GENERAL
                      PRACTITIONER IN THE PRACTICE WITH WHICH THEY ARE
                      REGISTERED AND MUST TAKE INTO ACCOUNT PREVIOUS
                      MEDICAL HISTORY.”

               And to the general practitioner it indicates that:

     H
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     A                 “Medical Practitioners are asked to have regard to the booklet ‘At a glance
                       Guide…’.”

               Is that right?
               A        That is correct, yes.

               Q       Returning to the letter that you wrote to Dr Foster, you asked for confirmation
     B         of those three things; that he either was the general practitioner or practised in the
               same surgery; how long the applicant had been registered and that he had full access
               to and consulted the medical records?
               A       That is correct.

               Q      What response did you receive from Dr Foster?
               A      I received a response dated 2 February 2010 where he clarifies that he was not
     C         the general practitioner.

               Q       It is our page 77, I think, in the bundle. Perhaps the simplest thing to do is
               read the letter. It is dated, as you quite correctly said, 2 February.

                       “Further to our telephone conversation of Tuesday 2nd February 2010-I would
                       confirm the following.”
     D
               I will pause there just a moment. Does it make it self-evident that you had also
               spoken to Dr Foster on the telephone?
               A       That is correct.

               Q        Was the telephone conversation that Dr Foster referred to on 2 February the
     E         first time that you had spoken to him, or had you in fact spoken to him before?
               A        No. I believe that was the first time I had spoken to him.

               Q       Returning to Dr Foster’s letter, he writes:

                       “I am in private medical practice in Penarth and Cardiff.

     F                 All four applicants contacted my practice and requested I act as their private
                       doctor in providing medical examinations.

                       I completed medical examinations as per medical form including eyesight test
                       and blood pressure reading.

                       I accept that I was not their NHS doctor but was acting as their private doctor.
     G
                       I will ensure that my practice does not carry out medical examinations for the
                       Vale of Glamorgan in the future.

                       I would of course wish to reimburse the four applicants for the cost of their
                       medical examination. Please ask them to contact me on my mobile number as
                       overleaf.
     H
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     A                Please accept my apologies for recent events.”

               In the telephone conversation that you had with Dr Foster did he also frankly accept
               that he had not had access to their medical records when carrying out the medical
               examinations?
               A       That is correct, yes.

     B         Q      But did he state that he had, in his view, obtained a full medical history by
               questioning the applicants themselves?
               A      I believe he said that, yes.

               Q       Can I ask you to turn to our page 79 now, please. Can you confirm that this
               medical certificate is in respect of the same driver whom we have as MA, and so the
               driver in respect of allegation 3?
     C         A       Yes.

               Q       The same driver who had submitted a form signed by Dr Foster dated
               3 November 2009, were they then requested to resubmit medical certificates as a
               result of the perceived problems with Dr Foster’s?
               A       All four drivers were immediately suspended from driving until they obtained
               a satisfactory medical, so they lost work.
     D
               Q      This is a copy of MC’s second medical certificate?
               A      That is correct, yes.

               Q     At page 80 we can see that by this stage the medical certificates had been
               amended to include a new question 2. Is that right?
     E         A     That is correct, yes.

               Q       On this occasion, this medical certificate, of course, is not completed by
               Dr Foster. This is completed by a general practitioner to whom the applicant was
               registered. Is that right?
               A       That is correct, yes.

     F         Q       He states on this page that he has had full access to medical records and that
               they were consulted. He completes the new question 2, confirming registration in his
               practice for seven years. He then provides, as we can see for ourselves in question 5,
               information about a disorder or illness listed in chapters 1-9 of the At a Glance Guide,
               namely diabetes. Is that right?
               A       That is correct.

     G         Q      In respect of question 6 he confirms on a separate sheet whether or not the
               applicant has satisfied all the qualifying conditions?
               A      That is correct, yes.

               Q      I will pause for just a moment.


     H
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     A         THE LEGAL ASSESSOR: I am sorry to interrupt. Can I just ask whether this is MC
               or MA? I think you mentioned MA at one point and MC at another, but I might have
               misheard.

               MISS BEX: This is MC.

               THE LEGAL ASSESSOR: Thank you.
     B
               THE WITNESS: No, it is MA.

               MISS BEX: It is MA? Forgive me. I was misinformed. This is MA.

               THE LEGAL ASSESSOR: Thank you.
     C         MISS BEX: If we turn to page 62, please, which is MA’s original medical certificate
               signed by Dr Foster, and compare page 62 and page 80, clearly there is a new
               question 2, but question 1 is the same question and is answered in the same way. Is
               that right?
               A       That is correct, yes.

               Q      Question 2 on page 62 becomes question 3 on page 80. Is that right??
     D         A      That is correct.

               Q     Dr Foster has answered it “No,” and the new general practitioner also answers
               “No.” Is that correct?
               A     That is correct.

     E         Q      Question 3 on page 62, compared with question 4 on page 80, is answered in
               the same way by both doctors. Is that right?
               A      I am sorry. Could you say that again?

               Q      Question 3 on page 62:

                      “Does the Applicant have a medical condition, which is aggravated by
     F                exposure to dogs?”

               is the same as question 4 on page 80?
               A       That is correct, yes.

               Q      And is answered in the negative, in the same way by both doctors?
               A      That is correct, yes.
     G
               Q      Question 4 on page 62 is the same as question 5 on page 80. Is that right?
               A      That is correct.

               Q      Dr Foster has answered with a simple “No.” Is that correct?
               A      Yes.

     H
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     A         Q       Whereas the registered general practitioner inserted the word “Diabetes”. Is
               that correct?
               A       That is correct, yes.

               Q       Then question 5 on page 62, which is the same as question 6 on page 80, the
               registered general practitioner referred to a separate sheet in which he enclosed more
               information about diabetes. Is that right?
     B         A       That is correct, yes.

               Q      Over the page, at page 81, the general practitioner stated that the applicant –

                      “Meets the medical requirements to hold a hackney carriage and private hire
                      vehicle driver’s licences.”
     C         But at page 82, supplied the separate sheet as requested. Is it right that he confirmed
               that the applicant has a diagnosis of type 2 diabetes?
               A       That is correct.

               Q
                      “He is on oral therapy as per enclosed list and his Diabetes remains fairly
                      poorly controlled.”
     D
               A      That is correct.

               Q
                      “He is not on insulin at the present time, and has had no significant episodes of
                      hypoglycaemia.”
     E
               A      That is correct.

               Q
                      “I have advised him to

                              1.      take [heed] of information in relation to symptoms of
     F                                hypoglycaemia
                              2.      inform DVLA should be commence insulin or develop any
                                      chronic complication of his diabetes
                              3.      Advised in relation to BM monitoring relevant to his driving.”

               A      That is correct.

     G         Q       Were any of those issues flagged by Dr Foster when he completed his medical
               certificate in respect of this applicant?
               A       No.

               Q       Looking at the time scales, to see whether that would provide any mitigation,
               there is a short time scale difference between the two certificates, is there not?
               Dr Foster signed one dated 3 November 2009?
     H         A       Yes.

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     A
               Q      And the registered general practitioner signed one dated 10 February 2010?
               A      That is correct.

               Q       Finally, then, page 83. (Pause) Forgive me, sir; we are having a short
               discussion about the next witness. There is no secret about it at all. She is no longer
               required, clearly, in light of the admissions and in any event is stuck on a train in
     B         Reading. I have just suggested that instead of trying to fight her way through from
               Reading, if she is stuck on a train she should simply go back to Wales on the train.
               Returning to the bundle, page 83 is the list of medication which the general
               practitioner had enclosed with the letter. The remainder of the bundle: the “At a
               glance” 2009 guide that we have already referred to, and also then finally September
               2009 – that is pages 137-190 in the bundle. Is that right?
               A       That is correct, yes.
     C
               Q      The purpose of including the replacement medical certificate in respect of
               Applicant MC, is that to illustrate what in the Council’s view ought to have been
               drawn to the Council’s attention?
               A      That is correct. It is “MA”, incidentally.

               Q      Sorry.
     D         A      Yes, that is correct. Could I just add, at that stage it would be the Licensing
               Committee, the Vale of Glamorgan Council, who would then decide if the gentleman
               could have had a badge, and should he have been given a badge would there be any
               conditions imposed upon that licence in respect of medicals in the future.

               Q      Were there any conditions imposed on that applicant’s licence?
     E         A      Yes. He has a yearly medical condition on his licence.

               Q       Is that as a result of his diabetes and the information provided by the general
               practitioner?
               A       That is correct, yes.

               Q       Finally this. Is it right that all four drivers for whom Dr Foster provided
     F         inadequate medical certificates were in fact then re-assessed and were passed fit to
               drive, and so were issued with licences with the caveat that you have given us in
               respect of MA?
               A       That is correct. They all re-submitted the medical from their own GP.

               MISS BEX: Thank you very much, Mrs Ewington. That is all that I am going to ask
               you.
     G
               THE CHAIRMAN: Thank you very much. Dr Foster, this is now your opportunity
               to ask questions of the witness.




     H
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     A                                    Cross-examined by DR FOSTER

               DR FOSTER: I would just like to ask one question for clarification regarding this
               latter MA patient, whom I saw on 3 November. The medical notes regarding diabetes
               are dated 14 January 2010.

               THE CHAIRMAN: Can we just check which page you are looking at? Sorry.
     B
               DR FOSTER: I am on page 83. I think it is likely that this particular prospective taxi
               driver did not disclose the information to me at the time. I certainly asked him to
               bring his medication with him, but I wonder whether he definitely had diabetes in
               November 2009, since the medications dated from 14 January 2010.

               THE CHAIRMAN: I am not sure if the witness is able to answer that question.
     C
               DR FOSTER: No. I would just like to make that point. That is the only point I wish
               to raise on things. I just wish to add that I wish again to apologise to the Vale of
               Glamorgan Council for the confusion caused by myself in carrying out medical
               reports on two prospective taxi drivers in August and November 2009, and two
               prospective taxi drivers in January 2010, as I previously put on paper to you.
               I sincerely regret my actions and I apologise again.
     D
               THE WITNESS: Thank you.

               THE CHAIRMAN: Mrs Ewington, it is now the opportunity for the Panel to ask
               questions. I am going to look to see. Dr Sim, do you have any questions that you
               would like to ask of the witness?
     E
                                            Questioned by THE PANEL

               DR SIM: Good morning.
               A     Good morning.

               Q       Can I just take you back to the letter that you wrote to Dr Foster at page 76.
     F         The letter is dated 29 January.
               A       Yes.

               Q       You refer in that letter to a telephone conversation that you had with Dr Foster
               a few days earlier. Can you explain to us why you were in touch with him at all?
               What was that about?
               A       We were trying to clarify at the time whether or not Dr Foster was the
     G         applicant’s general practitioner. This letter was sent to Dr Foster to clarify in writing
               the points listed as the Vale of Glamorgan were about to take the decision to suspend
               the drivers’ licences – that was preventing them from driving a taxi – until such time
               as a satisfactory medical certificate had been submitted to the licensing section.
               Basically, this was just to clarify those matters before we took that decision?

               Q      What made you think that the certificates were not satisfactory?
     H
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     A         A       The fact that Dr Foster would not have had access to the applicant’s medical
               history or records.

               Q       How did you know?
               A       I believe I asked Dr Foster, and also it was established that it was a private
               practice and not an NHS general practice.

     B         Q       What made you look to find out that it was a private practice, or something
               other than an ordinary general practice?
               A       Originally the information ---

               MISS BEX: I am sorry. I could just foresee the answer that is about to be given. Of
               course I know how initially this came to light. I just wonder whether in fact the
               answer might be irrelevant and potentially prejudicial to Dr Foster.
     C
               THE LEGAL ASSESSOR: If that is the case, then perhaps it would be best to leave
               that particular question.

               DR SIM: Can I just ask you – when you spoke with Dr Foster on the phone on
               26 January you presumably put those issues to him. Was he forthcoming, that he was
               in private practice and that he was not the patient’s registered general practitioner?
     D         A       Yes, he was.

               Q      My other question is this. You mentioned that the applicant who was found to
               have diabetes was given a one year requirement to have a medical annually. What is
               the normal requirement?
               A      The normal requirement would be, on grant of a licence – that is anything
     E         from 21, again at 45, and then five years thereafter until 65, and then it would be
               every year.

               DR SIM: Thank you very much.

               THE CHAIRMAN: Thank you. Mrs Dean, do you have any questions?

     F         MRS DEAN: I only have one very brief question. I think we were taken to two
               copies of the so-called “Brief Guide,” one behind tab 3 in the bundle and another one
               behind tab 8. You explained that was because the conditions changed.
               A      They are dated differently.

               Q      I believe I am right, that there is another behind tab 9?
               A      That is correct.
     G
               Q      Again, it is just reflecting a change?
               A      Yes.

               MRS DEAN: Thank you very much.

               THE CHAIRMAN: Perhaps you can assist then? I have a question to ask for
     H         clarification in connection with those “At a glance guides” that you have been taken

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     A         to by my fellow panellist. We have not had an opportunity to read through that
               documentation. I was wondering if perhaps you could indicate whereabouts in the
               guidance in connection with the updates that were made there had been changes, if
               that makes sense.
               A      It is not a document that we would use. This is for the GPs to determine
               whether or not a person is fit under the standards of the group 2. It is not something
               that we would use personally as licensing officers, so I am afraid I would not be able
     B         to answer that question.

               Q      Are you familiar with the contents of the “At a glance” documentation?
               A      Not that familiar. We may use it as guidance, but it is not really for us to
               determine whether a person is fit.

               Q      So you are not aware, then, why the changes were made? Why updates were
     C         made to it?
               A      No. We usually look at these documents online. That way, we know that we
               have the latest update. We do not use them as a hard copy.

               Q      I have just been told it is updated twice a year automatically, is it?
               A      Quite frequently, I believe. I am not sure whether it is updated as necessary,
               or whether it is updated bi-annually or annually.
     D
               Q      I suppose the point I am trying to get at, and I think it is probably rather badly,
               was this updated as a consequence of any conduct on the part of Dr Foster?
               A      No.

               Q      Thank you.
     E         A      Not that I believe. Not as a result of anything ---

               Q      Not within your knowledge?
               A      No.

               MRS DEAN: Thank you.

     F         THE CHAIRMAN: Miss Bex, Dr Foster, are there any questions that you would like
               to ask as a consequence of the questions asked by the Panel?

               DR FOSTER: No thanks.

               MISS BEX: No.

     G         THE CHAIRMAN: Thank you. That means that you have finished giving evidence,
               Mrs Ewington. It just remains for me to say thank you very much for attending today.
               Have a safe journey home.

               THE WITNESS: Thank you.

                                               (The witness withdrew)
     H
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     A         THE LEGAL ASSESSOR: Could I just mention two points. The first is that it may
               be being pedantic, but I wonder if we could put charge 5 formally again to Dr Foster.
               I note that he has not disagreed with the amendment being made but I wonder if we
               could just clarify that his admissions stand in relation to charge 5 in its amended form.

               DR FOSTER: Yes, I accept the amended charge.

     B         THE CHAIRMAN: Would you like us to find it admitted and found proved by the
               Panel on that basis, on the admissions made by Dr Foster in the record? Do you
               accept that?

               DR FOSTER: Yes, I accept that.

               THE CHAIRMAN: Just for clarity, the amendment that has been made to charge 5,
     C         Dr Foster – I know it is laborious but I think it needs to be clarified for the record – in
               that you signed a medical certificate for Patient W which is dated 19 January 2010, as
               opposed to the original drafting, which is 3 November 2009. When you did so, we
               have from (i) through to (vi) as stated and it remains the same. Do you admit that?

               DR FOSTER: I admit that.
     D         THE CHAIRMAN: As a Panel, we find that proved.

               THE LEGAL ASSESSOR: Thank you very much, madam.

               THE CHAIRMAN: Miss Bex?

     E         MISS BEX: The Legal Assessor referred to two things. I do not know whether ---

               THE LEGAL ASSESSOR: Yes. The only other point was this. The second witness
               is not to attend. I just wondered whether the doctor wanted to discuss that.

               MISS BEX: That is what I was just going to raise. Could I find out whether in fact
               she is still coming? Let me explain why she was warned in the first place, and why
     F         you have copies of the “At a glance guide”. As you know, Dr Foster has been
               unrepresented throughout. Therefore, out of an abundance of caution, particularly
               when we do not receive a response to questions, witnesses have to be warned in any
               event, and documents are included because they might at some point become relevant.
               It is easier to include them and then not refer to them, in fact, rather than try to make
               an application which might be perceived to be late in the day to then rely on
               something later. That is why it has arisen in this case.
     G
               It is not because we particularly perceive any relevance to the “At a glance” guides; it
               is just if they had not been included, one can always bet that something would have
               cropped up about them. That is why.

               In respect of Judith Morgan, she is a witness from the DVLA who simply produced
               those guides. Unfortunately, as I understand it – and this is no criticism of Dr Foster
     H         at all as I do understand how difficult it is not being represented – we did not receive a

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     A         response to whether she was required or not. Therefore she had to be asked to attend.
               In light of the admissions, it would seem unlikely that there would be any questions,
               but perhaps we can just clarify (a) whether she is coming and (b) whether in fact she
               is needed at all.

               THE CHAIRMAN: Perhaps to assist also, Dr Foster, is there anything that you would
               like to say in connection with the necessity of calling this witness, and whether you
     B         would like her to come to give evidence so that you could perhaps put questions to
               her.

               DR FOSTER: I do not think I would probably have wanted to ask any questions of
               her. Her evidence, presumably, would be factual, which we already have.

               THE CHAIRMAN: I am somewhat in the dark on that. Obviously the Panel has not
     C         received any of the evidence or any of the witness statements in this particular case.
               Miss Bex, perhaps you could seek some clarity. It probably will not take you too
               long, but we are getting to that stage where it might be a natural break. I am going to
               pause there and speak to the other panellists in terms of house-keeping. (The
               Chairman conferred with members of the Panel) I think what we shall do is press on.
               We will give you, say, ten minutes to seek some clarity on where the witness is, in
               terms of Reading and London, and the necessity of her coming to give evidence. We
     D         shall re-convene at twelve. Is that all right for you, Dr Foster?

               DR FOSTER: Yes.

               THE CHAIRMAN: Thank you.

     E                                          (Short adjournment)

               THE CHAIRMAN: Miss Bex?

               MISS BEX: Judith Morgan is not required and therefore that completes the evidence
               for the GMC.

     F         THE CHAIRMAN: Dr Foster, just to confirm, are you content with that as a course
               of action?

               DR FOSTER: Yes, I am happy with that.

               THE CHAIRMAN: Have you had an opportunity to look at the witness statement
               that this witness was going to give?
     G
               DR FOSTER: Yes, I have read the initial statement.

               THE CHAIRMAN: Thank you very much. It is now your opportunity to address this
               Panel with regards to any evidence that you would like to give. Is it your intention to
               give evidence?

     H
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     A         DR FOSTER: I did have a personal statement to comment about what happened and
               myself in general. I do not know if this is the appropriate time for me to do that?

               THE CHAIRMAN: I think it must be. I think the question is whether you want to
               actually give evidence under oath or affirmation, or whether you would want to give
               submissions instead. I think either option may have been explained to you by the
               Legal Assessor at the beginning of the day. I will just pause there to see if you have
     B         formed any view on that?

               DR FOSTER: I have a five point statement to make. Can I ask whether it is
               appropriate for me to do that now? Can I ask the Legal Assessor?

               THE LEGAL ASSESSOR: Madam, the position is I have not actually seen
               Dr Foster’s five points as yet. It may be that he would wish to have a brief
     C         conversation with me before we move on to the next stage.

               DR FOSTER: That would be helpful.

               THE CHAIRMAN: Dr Foster, I think I need to make it clear for the record that the
               Legal Assessor is here to assist the Panel on matters of law and matters of mixed law
               and fact; she is not actually here to assist you necessarily, although we do recognise
     D         the fact that as you are unrepresented you do need to have a little bit more of
               assistance. However, we need to put it on the record that she is here to facilitate both
               parties rather than you in particular.

               DR FOSTER: I certainly accept that. My statement relates to the references I have
               had from my medical director and other correspondence supporting my fitness to
     E         practise. I do not know whether you want me to include going through all that at this
               present time.

               THE CHAIRMAN: I think what we will do is to enable you to talk with both
               Miss Bex and the Legal Assessor as to the best way for you to put your evidence to
               this Panel. We bear in mind that, underlying all of this, it is a matter for you
               ultimately as to how you present your case. What I am going to do, then, is this. We
     F         are doing a lot of convening and rising, et cetera. To enable you to put together how
               you want to present your case, I think what we will do is to break for a short lunch.
               Then we will reconvene. We will give you at least 40 minutes so that all the parties
               have an opportunity to get some refreshment. I say “at least 40 minutes”. Are you
               content to reconvene at one o’clock? That will enable you to actually speak with
               Miss Bex and our Legal Assessor, and also to get some lunch yourself.

     G         DR FOSTER: I am happy to do that. I was informed earlier that my extensive
               statement would not be required today, but obviously the circumstances have changed
               slightly.

               THE CHAIRMAN: More opportunity, then, for you to be able to reassess how to put
               your case forward, I think.

     H         Miss Bex, are you happy with that as a course of action?

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               MISS BEX: Certainly.

               THE CHAIRMAN: In which case we will reconvene at one o’clock.

                                                 (Short adjournment)

     B                                        (Luncheon adjournment)

               THE CHAIRMAN: Dr Foster, I see that you are planning to give evidence.

               DR FOSTER: Is that acceptable?

               THE CHAIRMAN: Of course it is. It is a matter for you as to how you put your
     C         case, as we said before the lunch break. Can I just state for the record that we have
               reconvened after the lunch break and we welcome back the parties. Hopefully you
               have had sufficient time to make a decision as to how you want to proceed. You can
               sit there to give your evidence. I would be quite happy for you to sit where you are
               sitting because of the nature of the room and who is present, as long as you give your
               evidence under oath or affirmation, so it is a matter for you as to whether you want to
               sit there or whether you want to sit where you were sitting before the lunch break.
     D         You are there now, so you may as well stay there.

                                        RICHARD DAVID FOSTER, Sworn

               DR FOSTER: Thank you. My name is Dr David Foster. I prepared a personal
               statement to cover this case and my fitness to practise, which I believe remains.
     E
               Firstly, I would like to repeat that I have again apologised to the Vale of Glamorgan
               Council for misleading information provided by myself in carrying out medical
               reports on two prospective taxi drivers in August and November 2009, and on two
               prospective tax drivers in January 2010.

               All four taxi drivers contacted me to request that I act as their private doctor in
     F         carrying out medical reports on themselves. They had been quoted waiting times of
               up to four weeks by their NHS GPs in addition to a cost of £90 to £150 for a taxi
               medical report. I carried out all four medical reports in a professional manner,
               including asking all four individuals to bring details of their medical history and any
               medication they were taking at the time of consultation. I charged each individual
               £25 for a completed report.

     G         As we have heard earlier, on receipt of a letter from the Vale of Glamorgan Council
               dated 29 January 2010, I replied on 2 February 2010 stating that I had seen all four
               individuals, acting as their private doctor at their request. I apologise for confusion
               caused, and gave an immediate written undertaking that I would not see any further
               prospective Vale of Glamorgan taxi drivers. I asked the Vale of Glamorgan Council
               to give all four individuals my mobile phone number so that I could immediately
               reimburse them the £25 fee charged.
     H
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     A         I included with my letter to the Council information illustrating that two large medical
               practices in Cardiff – and I think you have the relevant information – were advertising
               and presumably carrying out taxi medical reports on individuals not registered with
               their practices. I would comment that there is a wide variation in the performance of
               taxi medical reports throughout the UK, with different Councils having different
               policies. Locally in South Wales, I am aware that the Rhondda Cynon Taf Council,
               which is adjacent to the Vale of Glamorgan Council, does not insist on their
     B         prospective taxi drivers being seen by their own general practitioner.

               With regard to myself, you will have received a letter from my medical director,
               Dr Bruce Ferguson, dated 25 January 2011.

               MISS BEX: I am sorry to interrupt. It is just that I had copied the documentation for
               Dr Foster but, of course, I have not handed it out yet. I am sorry, Dr Foster, perhaps
     C         I should have made that clear to you, that although I have copied it, I have not handed
               it out. You are referring to documentation that they will have in just a moment, but
               they have not actually seen or read it. Please bear with me while I hand it out. What
               I have copied is the information that Dr Foster sent to the General Medical Council.
               Those are the personal testimonials that he is about to refer to and also some other
               information about other practices in Wales in respect of obtaining medical certificates.
               I have made four copies. The Legal Assessor already has one.
     D
               THE CHAIRMAN: Thank you. Dr Foster, Miss Bex, we are going to call this D1.
               (Document marked D1, circulated)

               DR FOSTER: Shall I carry on?

     E         THE CHAIRMAN: Yes, please.

               DR FOSTER: With regard to myself, you will have received a letter from my
               medical director, Dr Bruce Ferguson, dated 25 January 2011, supporting my fitness to
               practise.

               I have worked for the NHS both in hospital and general practitioner for 38 years since
     F         qualifying in Cardiff in 1972. I have no previous problems regarding questioning my
               integrity or honesty. I undergo regular appraisals of my work, as well as my integrity
               and honesty. I have always aimed to help my patients to the best of my ability.

               In the literature, if you received it, I have included details of my endoscopy practice
               which I also carry out in the hospital, and a patient satisfaction survey from patients
               who compliment me on my endoscopy practice. I have also included a letter from
     G         British Airways thanking me for my professional care of a passenger who experienced
               an in-flight medical emergency on a BA flight in January 2011, and made a successful
               recovery.

               In summary, I acknowledge that I made a serious error of judgment in agreeing to see
               and complete medical reports on these four individuals. I agreed to carry out medical
               reports in good faith, acting as their private doctor. I sincerely regret my actions and
     H         I have already apologised in person and by letter to the Vale of Glamorgan Council.

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     A
               I would note that I have experienced 15 months of daily anxiety prior to this hearing,
               but have continued to work normally. I would also like to record that I was having
               eye problems in the latter part of 2009, and underwent eye surgery on 26 January
               2010.

               Thank you for your patience in listening to me.
     B
               THE CHAIRMAN: Thank you very much, Dr Foster. I am sure it has been
               explained to you that Miss Bex now has an opportunity to ask you questions on behalf
               of the GMC. Miss Bex, are there any questions that you would like to ask?

               MISS BEX: Yes, please.
     C                                     Cross-examined by MISS BEX

               Q       Dr Foster, could you just help us with how it was that the first of these patients
               came to contact you? I think that would be Patient MC in August 2009. How did he
               know to get in touch with you as somebody who might be prepared to do a medical
               certificate?
               A       I work in the hospital in Bridgend, but Penarth outside Cardiff is my home
     D         town. I played rugby for Penarth years ago, and I play tennis actively in Penarth.
               I know a large number of people there. A large number of people know that I am a
               doctor, and it would have been via sporting connections that somebody would have
               phoned me and asked me to carry out a medical on a taxi driver. Of course, the other
               three were probably associated with the first one.

     E         Q      Was your medical certificate for MF the first that you had done?
               A      I have carried out taxi medicals in years gone by when the rules were different,
               and they were allowed to see any doctor, which is the case in some councils to this
               day.

               Q       Was MC’s the first that you had done using the form that we see, for example
               if you turn to page 64 of the bundle? This is the first?
     F         A       Yes, that would have been the first one I had done.

               Q      On this form?
               A      On this particular new standard form.

               Q       All right. Thank you. Just stay with page 64 please for a moment. We know
               that you had all four pages because it was two sheets of paper, double sided, and your
     G         signature appears on both separate sheets. Do you agree that you saw all four pages
               of the medical certificate?
               A       Yes.

               Q      Can I ask you to turn to page 65 then? Can you recall whether you read page
               65?
               A      I would have read page 65, yes.
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     A         Q      Can you recall what you thought then, when you read the sentence:

                      “Applicants must be examined and certified as being medically fit by THEIR
                      OWN GENERAL PRACTITIONER OR ANOTHER GENERAL
                      PRACTITIONER IN THE PRACTICE WITH WHICH THEY ARE
                      REGISTERED…”.

     B         A      I was acting in my opinion and at the request of the patient as their private
               general practitioner.

               Q     So you ---
               A     As previously stated, they were dissatisfied with the service offered by their
               NHS general practitioner, so I was acting as their private general practitioner.
     C         Q       So you believed you had complied with the first part of this. You were
               effectively their own general practitioner?
               A       Yes.

               Q      I see. The second part of the important sentence is:

                      “…AND MUST TAKE INTO ACCOUNT PREVIOUS MEDICAL
     D                HISTORY.”

               You have accepted that you, of course, did not have access to the computerised
               records that a GP would, sitting in his surgery. How did you feel that you had
               complied with the requirement to take into account previous medical history?
               A       When they contacted me, I asked them to bring all relevant literature regarding
     E         their medical history, together with all current medication they were taking.
               I accepted I did not have their NHS general practitioner records but of course the two
               large practices in Cardiff who were carrying out taxi medicals in the same way would
               also not have had their own medical records.

               Q      You, of course, would not know whether anybody else had in fact been given
               permission by the applicant to contact their registered medical practitioner in order to
     F         go through their records. You could not possibly know that, could you?
               A      No.

               Q       All that you can say in fact about other companies’ practice in the local area is
               that other people advertised the service of providing medical certificates?
               A       To patients who were not registered with their practice.

     G         Q       To people who are not registered but you are not able to actually say, because
               you have not been there during those consultations, “I can state that they have not had
               access to medical records.” You are not able to say that, are you?
               A       No.

               Q       For all you know, in fact on those occasions an applicant might have either
               taken in their medical records, being entitled to a copy of them.
     H         A       Right.

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               Q      Or might have given a disclaimer or a waiver of permission for the person
               completing the medical certificate to contact their own registered GP in order to
               discuss their health? Either of those two things could happen?
               A      That is possible, but I would think that is highly unlikely.

               Q      You may think it is unlikely, but you cannot rule that out, can you?
     B         A      No.

               Q        So you had in your view complied with the second part of the sentence on
               page 65: “… must take into account previous medical history” by asking the
               applicant to bring in their current medications and all documentation that was relevant
               to their medical history. Is that right?
               A        As a private medical practitioner that is what I was in a position to do.
     C
               Q       Had you considered the possibility that one reason for an applicant to want to
               come to you, rather than their registered medical practitioner, might be because they
               knew that you would be entirely dependent on what they told you, whereas their own
               GP would, for example in the case of the man with diabetes, be able to say, even if he
               did not volunteer it, “Hold on a minute; you have this illness that I need to consider
               when deciding whether you are fit or not”?
     D         A       The point I make there is, as I pointed out earlier on, there is a three month gap
               in that particular patient, so it is impossible for me to say whether the patient had
               diabetes or was on that medication when he came to see me.

               Q        Hold on just a moment, because that was not actually my question. I will
               repeat the question. When you saw any of these four applicants had you considered
     E         that they might in fact want to come and see you because then the information you
               had would come entirely from them, and you would be dependent on what they chose
               to tell you?
               A        I questioned them in detail about their medical history and medication. As a
               private doctor that is all I could do at that time.

               Q       I am going to ask the question again. Did you consider the possibility that
     F         they might be coming to you because then you would be entirely dependent on what
               they told you and you would not have access to records to contradict that?
               A       I had to rely on them at the time, yes.

               Q      Did you consider ---?
               A      Yes, I did consider.

     G         Q      --- the possibility?
               A      Yes.

               Q      You did?
               A      Yes.

               Q       Right. So having considered the possibility that someone might be trying – to
     H         use the colloquial term – to beat the system by going to a private GP who does not

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     A         have access to the safeguards of the computerised records, what steps did you then
               take to ensure that you were not being misled?
               A       Apart from interviewing the patients, as I previously stated, and insisting that
               they bring their medication with them, that is all I was in a position to do as a private
               general practitioner.

               Q       Right. As a private general practitioner that was all you could do and so can
     B         I ask you, Dr Foster, do you see exactly there illustrated in that question and answer
               why it was so important that in fact the certificate is completed by somebody who
               does have access to the full medical records?
               A       Yes. I accept that. The only thing I would point out is that I also do a small
               number of medical insurance examinations in which I see patients where I am not
               their general practitioner, and I have to rely on their integrity in informing me of their
               medical history and medication.
     C
               Q       That would be for insurance purposes, is that right?
               A       Correct, yes.

               Q       Rather different, I think, to the point that is made in this case; that taxi drivers,
               of course, have fare paying passengers for whom they are responsible and if, for
               example, an epileptic were to have a fit while driving that could have catastrophic
     D         consequences, not just for the driver but, more importantly, for his passengers. Thus
               there are public safety issues there, are there not?
               A       Yes. If I can draw another analogy, there are, I think, patients who have to
               have medicals for heavy good vehicle licences, and they do not have to go and see
               their own general practitioner. The situation would be similar with them.

     E         Q      They would do in this situation, would they not, with the Vale of Glamorgan?
               Or are you suggesting that ---
               A      No. Heavy goods vehicle drivers who are requesting licences do not have to
               go and see their own general practitioner.

               Q      There is some guidance about diabetes and HGV drivers, is there not, in the
               “At a glance” documentation?
     F         A      Oh yes, there is, but the information you would obtain from them is what they
               would provide you with at the time.

               Q       It would therefore be dependent, as you said, on the integrity of the narrator?
               A       Correct.

               Q      The historian. We were on page 65. I wonder if you could keep that page
     G         open and turn to page 66. This is in respect of the first applicant in time, MC. At
               page 66 you have accepted completing the form so that it reads:

                       “Did you have full access to the Applicant’s medical records and were they
                       consulted when completing this examination?”

                       “Yes.”
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     A         How did you consider that you had had full access to the applicant’s medical records?
               A       In the same way I have stated earlier. I asked them to bring all their medical
               records and any medication they were taking at the time of consultation, as
               I previously stated. I accept in retrospect that I did not have their NHS medical
               records.

               Q      For example, with this applicant, what did he bring with him?
     B         A      I cannot recall that in detail. I would presume he did not bring any relevant
               medical information; to the contrary. He did not bring any medication. He was not
               on any medication when I saw him. I cannot recall the individual case in detail.

               Q       How in your view is it accurate for you to say that you had had full access to
               his medical records?
               A       As a private medical practitioner he was bringing all the records available to
     C         him and any medication he was on. That is all I could do, as I previously stated, as a
               private medical practitioner.

               Q      Can we go to page 60. This is an applicant whose date of birth is 1960. By
               the time you were seeing him he was 49. We have page 62 open, and also pages 80
               and 82. May I take you to page 82? You have fairly made the point that there is an
               almost two month ---
     D         A      Three months, I think.

               Q      --- three month gap between you signing your medical certificate for this
               gentleman on 3 November and the general practitioner signing on 10 February – so a
               three month gap. Do you see the letter at page 82? There is the sentence:

     E                “He is on oral therapy as per enclosed list and his Diabetes remains fairly
                      poorly controlled.”

               Do you accept it is a fair inference from that, that his diabetes was a pre-existing
               condition?
               A      It may well have been. The only comment I would make is that the details of
               the medication on page 83 dated 14 January. I do not know whether it commenced as
     F         medication at that time. I would accept that the patient in question may well have not
               told me that he was a diabetic at the time, or he may not have understood my
               questions. He did not bring the medication I requested at the time of consultation.

               Q        Do you accept if, as I suggest is a reasonable inference, this applicant did have
               diabetes and chose not to tell you, that is a perfect example of why it is important that
               not just the letter but the spirit of the requirements are complied with and that the
     G         person signing the form has full and unfettered access to the applicant’s medical
               records so that it does not depend on either someone understanding your question or
               their integrity in choosing not to withhold information that might be contrary to their
               interests in securing a licence?
               A        In retrospect I will accept that. I would point out that once again the private
               medical practices in Cardiff would have been in exactly the same situation.

     H
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     A         Q       Again, you see, perhaps you are not doing yourself a great service to keep
               stating that because you are unable to say, are you, what in fact those other practices
               do. For example, whether they insist on an applicant bringing their full computer-
               printed records, as they would be entitled to possession of, or a signed authority for
               that person to contact their GP and discuss any conditions?
               A       Yes.

     B         Q      You cannot say that that did not happen, can you?
               A      That is possible.

               Q       After all, it would not be difficult, would it, for somebody to obtain the
               necessary authority? It is simply one sentence: “I authorise Dr Foster to speak to my
               registered general practitioner about any matters relating to my health.” And for you
               then to call that general practitioner and have a conversation with them: “Do they
     C         have any existing health problems that I should be aware about?” That would not be
               particularly onerous, would it?
               A       That would have been possible in retrospect.

               Q       The point I make, of course, is you understandably rely on the perceived
               practice by you of other people in the same general area. My point is unless you have
               actually approached them yourself as an applicant and seen the procedure that they
     D         undertake, you are not actually in a position to say whether they do insist on seeing
               computer-printed records or make the phone call, as I have just illustrated?
               A       I do not think it would be acceptable for me to phone one of these practices
               and say that I want to be a taxi driver.

               Q       I am not suggesting it would be, but equally is that not exactly why it is not
     E         particularly appropriate for you to maintain your insistence that this must be the same
               situation abused by any number of other people when you cannot, in fact, speak for
               how they conduct themselves, can you?
               A       Not exactly, no.

               MISS BEX: No. Thank you very much, Dr Foster.

     F         THE CHAIRMAN: Dr Foster, you may be more familiar with the process that comes
               next, which is it is an opportunity for the Panel to ask you some questions. Mrs Dean
               will ask you some questions.

                                            Questioned by THE PANEL

               MRS DEAN: Good afternoon, Dr Foster. I wanted to clarify what you told us about
     G         how these four people came to see you, or how you came to examine them. I think
               you told the licensing authority you had a private practice in Cardiff and in Penarth.
               That is in your letter?
               A       Yes. I do some private medical insurance work there.

               Q      Are we to understand from that that you had regular consulting hours or did
               these people come to you some other way?
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     A         A      They would either contact me by phone, or I do some work for a company
               called Medicals Direct in Lincoln, where they would phone me and arrange a
               consultation for one of their clients.

               Q      As it were, you were not opening shop for two hours a day, or something?
               A      No.

     B         Q      Contact was by telephone in the first instance?
               A      Telephone or post for some other types of patients.

               Q      The other question I wanted to ask you was this. When you saw these patients
               did you have a set form of questions that you were going to ask them, or how did you
               conduct your examination?
               A      I conduct an examination at a desk, with them sitting next to me. I went
     C         through the relevant parts of the form with them.

               Q     Did you ask all of them specifically if they were on medication at the current
               time?
               A     Yes.

               Q      You did?
     D         A      Yes.

               Q       And you can recall asking Mr MA if that was the case?
               A       Yes. I routinely ask all patients I am seeing for that type of thing, for the four
               taxi medicals in question, just the same as medical insurance examinations. All of
               those require details of medication and I would routinely ask all patients that.
     E
               Q     Okay, thank you.
               A     In my endoscopy practice I have to go and see patients before they undergo
               endoscopy and I have to question them about their medication as well.

               MRS DEAN: Thank you very much, Doctor.

     F         DR SIM: Could you just explain the taxi medical procedure because the form is quite
               thin in terms of what has to be put on it. Were you expected to conduct a medical
               examination of the ---
               A        Yes, yes. I was expected to carry out their blood pressure, test their urine; a
               basic medical examination.

               Q      Were you told what that should comprise? I think I am picking it up from my
     G         colleague. Is there a proforma to tell you what you should do?
               A      Yes. You have a proforma to tell you what to do with the taxi medical.

               Q      But you do not submit the results to the Council?
               A      All I submitted is the ---

               Q      Just the form?
     H         A      Yes.

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     A
               Q      So there is other information that you would have collected?
               A      The basic stuff, yes.

               Q      Just out of interest, then, the driver MA ---
               A      Yes.

     B         Q      He provided a urine test to you?
               A      Yes. And it was negative.

               Q      And it was negative?
               A      Yes.

               DR SIM: Thank you.
     C
               THE CHAIRMAN: I just have a few questions to explore some of those answers that
               you gave in a little bit more detail, if we are able to do so. The medical examination
               or assessment of each of the taxi drivers: you said that you asked them to provide you
               with information about the medical notes that they were on?
               A       Yes.
     D         Q      And any pre-existing ---
               A      I asked them to bring their medication with them.

               Q      And any pre-existing medical conditions that they were aware of, that they
               may have been suffering from. Did you ask this via the telephone or was this in a
               more structured way in terms of sending them a letter in advance of any meeting that
     E         you had with them, or any consultation that you had?
               A      I told them on the telephone that they would need to bring their medication
               with them, but I specifically one-to-one asked them about their medication when they
               were undergoing their consultation.

               Q     This was not in any kind of letter that you sent out in advance of the meeting?
               A     No. There were only four patients involved and I told them on the telephone
     F         what was required.

               Q     Following on from that, you say that you conducted quite a detailed medical
               examination including blood pressure and urine, et cetera?
               A     Basic, yes.

               Q      How long approximately did the consultation last for?
     G         A      It probably lasted about 30 minutes, 30 to 40 minutes.

               Q      One of my final questions: you have been questioned in quite a lot of detail by
               Miss Bex in relation to your knowledge of these other existing practices within
               Cardiff that offered the same kind of facility. How are you aware of the fact that they
               were offering this kind of examinations to taxi drivers?
               A      They advertise extensively on the internet.
     H
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     A         Q      Is that the sum total of your awareness of what goes on within those practices
               in terms of these medical assessments?
               A      Yes. I have not discussed it personally with any of their medical practitioners
               but obviously when this issue came up I researched what was happening generally in
               the UK and what was happening locally in the Cardiff area.

               Q      Also, for my own mind, could we go to page 62 in the C1 bundle that you
     B         have been taken to earlier, and in particular the general question 1:

                      “Did you have full access to the Applicant’s medical records and were they
                      consulted when completing this examination?”

               You have responded “Yes”. Dr Foster, do you have that at page 62?
               A     Yes.
     C
               Q      Question 1. We will just read it out:

                      “Did you have full access to the Applicant’s medical records and were they
                      consulted when completing this examination?”

               Just so that I am clear in my own mind, how did you interpret that question to enable
     D         you to respond “Yes” to it?
               A        As I previously stated, I asked them to bring any details of their medical
               treatment or medical problems with them, together with any medication they were
               taking at the time of consultation. I accept in retrospect that I have admitted earlier
               that I did not have their full NHS records, but I had the records which would be
               available to a private medical practitioner in those circumstances.
     E
               Q       Is it fair to say, then, that you knew at the time when you wrote, “Yes” against
               that question that you did not have access to their medical records?
               A       I had access to the medical records which were available to a private medical
               practitioner at that time.

               THE CHAIRMAN: Thank you. I do not have any further questions. Miss Bex, are
     F         there any questions in re-examination that you may have?

               MISS BEX: There is just one question.

                                            Re-examined by MISS BEX

               Q      Where physically did the examinations take place? Which venue?
     G         A      2 Ty Charlotte, Marconi Avenue, Penarth.

               Q     What is that address?
               A     It is a flat which I use on Penarth Marina which has an office, a consulting
               room with all the medical equipment, and a toilet next door to it.

               Q      Is it your home address?
     H         A      It was my home address at that time, yes.

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     A
               Q      At your home address what equipment do you have, for example, for testing
               urine?
               A      I use Labstix, urine specimen pots, where I insert a stick and observe to see
               whether there is any abnormality, plus I have a sphygmomanometer, peak flow rate
               when required, stethoscope, et cetera.

     B         Q       As well as it being your home address do you use that address for private
               practice work?
               A       For medical insurance examinations, yes.

               Q       Anything else other than medical insurance examinations and these taxi
               drivers?
               A       That would be the main things, yes.
     C
               Q     But you say even for that limited work you have a designated consulting
               room?
               A     It is multipurpose, if you like, as a study/consulting room.

               MISS BEX: Thank you very much.
     D         THE CHAIRMAN: Thank you. Dr Foster, I think that finishes your giving evidence.
               Please turn off that microphone and return to your former seat. (The witness resumed
               his seat)

               Dr Foster, just to be clear, that completes the evidence that you will call on behalf of
               your case. There are no more witnesses?
     E
               DR FOSTER: No. You will see the references from my medical director and other
               medical information which I believe justifies my fitness to practise.

               THE CHAIRMAN: At this point what the Panel is concerned with are the remaining
               points or charges within the notice of the allegation which you have not admitted. We
               therefore need to make a decision that we find that proved or not. We are not looking
     F         at impairment to fitness to practise at this stage.

               Miss Bex, I know that there is not any specific provision for closing submissions at
               the fact-finding stage of the process. Nevertheless, I am conscious of the fact that
               dishonesty has been alleged. It is a matter for you to prove. On that basis would you
               like to address the Panel?

     G         Dr Foster, I am very conscious of the fact you are not represented. It will be your
               opportunity after Miss Bex addresses this Panel for you to make submissions. If you
               can – and I know it is difficult – confine those submissions just to the facts of the
               allegation, so the remaining ones that you do not accept, which is in relation to
               dishonesty.

               At that point we will then hear legal advice from our Legal Assessor to assist us also.
     H         Miss Bex?

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     A
               MISS BEX: Thank you. The sole area of contention, which is dishonesty, refers to
               the (v) and (vi) of each of the medical certificates for the four applicants. It refers to
               question 1 on the medical certificates:

                      “Did you have full access to the Applicant’s medical records and were they
                      consulted when completing this examination?”
     B
               Dr Foster is a consultant radiologist who also conducts endoscopies, not a general
               practitioner, of course. In our submission it must have been apparent to Dr Foster
               when reading the front sheet to the medical certificate, for example that set out at page
               73. The reference is:

                      “Applicants must be examined and certified as being medically fit by THEIR
     C                OWN GENERAL PRACTITIONER OR ANOTHER GENERAL
                      PRACTITIONER IN THE PRACTICE WITH WHICH THEY ARE
                      REGISTERED AND MUST TAKE INTO ACCOUNT PREVIOUS
                      MEDICAL HISTORY.”

               That in bold must, in my submission, have drawn to the reader’s attention that it was
               intended that the medical practitioner be their registered medical practitioner who
     D         would have access to their full records, specifically so that it did not depend on either
               the integrity of the applicant or the applicant understanding specific questions that are
               put to them. There would be that objective safeguard. The four pages of the medical
               certificate have to be read in conjunction.

               It is therefore having read that guidance on page 2, for example, as set out on page 73,
     E         that Dr Foster then completes page 3 of the certificate, for example as set out on page
               74. It is thus not in a vacuum, but it is against the background of having read the
               guidance that Dr Foster is then faced with the question, “Did you have full access to
               the applicant’s medical records”. In my submission it must have been apparent to
               Dr Foster that he did not have what could fairly and reasonably be described as full
               access to the applicant’s medical records. Therefore he did not consult them when
               completing the examination because Dr Foster was entirely dependent on that which
     F         the applicant chose to produce. It is not suggested that any of the four applicants
               arrived with a complete set of their printed general practitioner’s records.

               It is on that basis that in my submission there is regrettably only one interpretation.
               That is by answering “Yes” on all four occasions to question 1 it was not only
               misleading, as Dr Foster accepts; it was, regrettably, dishonest by standards of the
               reasonable objective bystander, and also that that would have been apparent to
     G         Dr Foster when he signed that medical certificate.

               Thank you.

               THE CHAIRMAN: Thank you very much. Dr Foster, this is your opportunity to
               address the Panel on that point which remains in contention at this fact-finding stage.
               That is the dishonesty aspect of the allegation.
     H
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     A         DR FOSTER: All I would counter is that I saw all four individuals in good faith,
               acting as their private medical practitioner. I asked them all details of their medical
               history and to bring all their medication at the time. As a private medical practitioner
               I had the information available to me that a private medical practitioner would have.

               I acknowledge that I provided misleading information, but at no time did I set out to
               be dishonest.
     B
               THE CHAIRMAN: Thank you very much. It is now that time for us to turn to our
               Legal Assessor to give legal advice to the Panel that she considers to be appropriate.

               THE LEGAL ASSESSOR: Madam, as you know, my duty is to tender advice rather
               than direct you as to the law. The position is you are both the judges of law and fact.
               It is in no way my intention to express any view as to the evidence in this case and
     C         I do not do so.

               The facts are alleged by the GMC, and it is for the GMC to prove them. The burden
               of proof rests throughout upon the GMC. The doctor does not have to prove anything.
               In particular he does not have to disprove what is alleged. The GMC must prove the
               facts alleged on the balance of probabilities. The facts will be established on the
               balance of probabilities; if it is more likely than not to have happened. You must
     D         consider each of the facts alleged separately. The decisions need not be the same on
               each. However, if the Panel were to make an adverse finding in regard to one
               allegation, it would not be precluded from taking that into account when considering
               others. Indeed, in this case, the arguments put forward by both sides are the same in
               relation to each of the contested allegations.

     E         You are entitled to draw inferences but you must not speculate. If you feel that it is
               proper, you may draw an inference provided that there is an evidential basis for it. On
               the other hand, it would be wrong to speculate.

               “Dishonest” has been defined by Lord Lane in the case of Ghosh. He concluded that
               there are two aspects to dishonest and therefore you have to decide two questions.
               Firstly: was what the practitioner did dishonest by the ordinary standard of a
     F         reasonable and honest person? In that regard you must form your own judgment as to
               what those standards are. Secondly, if you determine that the answer to that first
               question is “Yes,” and only if you so determine, then you must go on to ask whether
               the practitioner realised that his actions would be regarded as dishonest by those
               standards. In deciding that, of course, you must consider the practitioner’s own state
               of mind at the time of the conduct complained of.

     G         You have heard positive evidence both from the practitioner and in the form of
               documentation of the practitioner’s good character and you may use that in two ways.
               Firstly, the doctor has given evidence. The fact that he is of good character supports
               his credibility. This means it is a fact you should take into account when deciding
               whether you believe his evidence.

               In the second place, the fact that he is of good character may mean that he is less
     H         likely than otherwise might be the case to have acted in the way alleged. These are

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     A         matters to which you should have regard in the doctor’s favour. It is for you to decide
               what weight you should give them.

               Unless I can be of further assistance to you, or there are observations from either party
               that I should comment on, that is the advice I give you in this case.

               THE CHAIRMAN: Thank you very much. Would either party like to comment on
     B         the legal advice that has been given to the Panel? (No response) In that case,
               Dr Foster, it falls on us to make our decision on the facts. I would suspect it is not
               going to be before three o’clock at the earliest, and that is me being very optimistic –
               perhaps a little later than that. We can certainly release you until three. We will
               provide you with an update as to whereabouts we are in terms of our decision-making
               at that point. We are going to go in camera and make a decision on that. We will
               keep you up to date. Miss Bex, we will keep you up to date as well. I do not want
     C         you to think you are out of the loop. We will therefore rise and go into camera.

                 STRANGERS, ON DIRECTION FROM THE CHAIR, WITHDREW, AND THE
                               PANEL DELIBERATED IN CAMERA

                                   STRANGERS HAVING BEEN READMITTED
     D         THE CHAIRMAN: Can I just say at the outset thank you to both parties for your
               patience.

               Dr Foster, we have now made a decision with regards to the one remaining fact in
               dispute. I do not intend to read through the entirety of the charge in relation to those
               parts that you admitted and found proved. I am going to read out, just to be absolutely
     E         clear for the record, our decision in connection with paragraph 6(b) of the allegation.

                                             DETERMINATION (Extract)

               The Panel has had regard to the two-stage test set out in the case of R v Ghosh [1982]
               Q.B 1053. Namely, the Panel has considered:
     F
               (i) whether what you did was dishonest by the ordinary standards of a reasonable and
               honest person and if so; (ii) whether you realised that your actions would be regarded
               as dishonest by those standards.

     G         In relation to the first stage of the test the Panel has had regard to a form entitled
               “Vale of Glamorgan Council Hackney Carriage/Private Hire Drivers Medical
               Certificate” which formed the basis of charges 2, 3 4 and 5 and which in all material
               respects was identical in each charge. This certificate consisted of four pages and you

     H
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     A         accept that you saw all of these pages. In each case you signed page one and page
               four.


               On page two it was made explicit to applicants that they “must be examined and
               certified as being medically fit by THEIR OWN GENERAL PRACTITIONER
     B
               OR ANOTHER GENERAL PRACTITIONER IN THE PRACTICE WITH
               WHICH THEY ARE REGISTERED AND MUST TAKE INTO ACCOUNT
               PREVIOUS MEDICAL HISTORY.” The Panel notes that part of this was
               prominently presented in bold and upper case as set out in this determination.
     C
               General question one on page three of the certificate asked:


                       “Did you have full access to the Applicant’s medical records and were they
                       consulted when completing this examination?”
     D
               You accept that you answered “yes” to this question.


               The Panel has also had regard to the declaration by the Medical Practitioner signed by

     E         you on page four.


               Taking all of these matters cumulatively the Panel has determined that your actions
               were dishonest by the standards of reasonable and honest people.


     F         The Panel then went on to consider whether you realised at the time that what you
               were doing was dishonest by those standards.


               The Panel noted your evidence that you did not have full access to the patient’s
               medical records and that you relied upon the medical information provided by the
     G
               patient at each of the four consultations. The Panel considers that as an experienced
               doctor you would have understood what the Vale of Glamorgan Council had in mind
               in asking whether you had full access to the patient records and whether you had
               consulted those records when completing the examination. The Panel has found that
     H         you must have realised that simply relying upon the information given to you by the
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     A         patient could not meet this requirement. In all the circumstances the Panel has
               determined that you realised at the time that what you were doing was dishonest. The
               Panel finds charge 6 (b) in its entirety proved.



     B         Dr Foster, what we would normally do at this point is receive submissions from both Miss Bex
               and yourself with regard to whether your fitness to practise is impaired by reason of your
               misconduct. However, we have reached ten past five in the evening. In addition, the Panel is
               minded to give overnight to consider any submissions that you would like to make because
               clearly this is something that you would need to consider before you would like to make
               submissions. Miss Bex, this presumably applies equally to you. Unless there are any specific
               representations that you would like to make, we would plan to retire for tonight and reconvene
     C         tomorrow at half past nine.

                 (The extract of the determination having been read, the full determination was handed down)

                                                       DETERMINATION

               The Panel has considered the totality of the evidence, both oral and documentary,
     D         including your own evidence. In addition, the Panel has considered your submissions
               together with the submissions made by Miss Bex on behalf of the GMC.


               The Panel has borne in mind that the burden of proof rests with the GMC and that the

     E         standard of proof required is that applicable to civil proceedings, namely on the
               balance of probabilities.


               The Panel has considered each paragraph and sub paragraph of the allegation
               separately.
     F
               The Panel has made the following findings on the facts.


                      1.      Between August 2009 and February 2010 you were employed as a
                      Consultant Radiologist at the Princess of Wales Hospital, Abertawe Bro
     G
                      Morgannwg University Health Board;
                      Admitted and found proved


                      2.      You signed a medical certificate for patient MC dated 25 August 2009
     H                and when you did so,
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     A
                     i.      You were not the medical practitioner with whom MC was
                     registered,
                     Admitted and found proved

     B
                     ii.     You were not a medical practitioner within the practice where
                     MC was registered,
                     Admitted and found proved


     C               iii.    You did not have access to MC’s medical records,
                     Admitted and found proved


                     iv.     You did not consult MC’s records before signing the medical
                     certificate,
     D               Admitted and found proved


                     v.      You stated on the certificate that you had full access to MC’s
                     medical records and

     E               Admitted and found proved


                     vi.     You stated on the certificate that the records were consulted
                     when you completed your examination of MC.
                     Admitted and found proved
     F
               3.    You signed a medical certificate for patient MA dated 3 November
               2009 and when you did so,


                     i.      You were not the medical practitioner with whom MA was
     G
                     registered,
                     Admitted and found proved


                     ii.     You were not a medical practitioner within the practice where
     H               MA was registered,
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     A                Admitted and found proved


                      iii.    You did not have access to MA’s medical records,
                      Admitted and found proved

     B
                      iv.     You did not consult MA’s records before signing the medical
                      certificate,
                      Admitted and found proved


     C                v.      You stated on the certificate that you had full access to MA’s
                      medical records and
                      Admitted and found proved


                      vi.     You stated on the certificate that the records were consulted
     D                when you completed your examination of MA.
                      Admitted and found proved


               4.     You signed a medical certificate for patient LW dated 19 January 2010

     E         and when you did so,


                      i.      You were not the medical practitioner with whom LW was
                      registered,
                      Admitted and found proved
     F
                      ii.     You were not a medical practitioner within the practice where
                      LW was registered,
                      Admitted and found proved

     G
                      iii.    You did not have access to LW’s medical records,
                      Admitted and found proved


                      iv.     You did not consult LW’s records before signing the medical
     H                certificate,
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     A                Admitted and found proved


                      v.      You stated on the certificate that you had full access to LW’s
                      medical records and
                      Admitted and found proved
     B
                      vi.     You stated on the certificate that the records were consulted
                      when you completed your examination of LW.
                      Admitted and found proved
     C
               5.     You signed a medical certificate for patient W dated 19 January 2010
               and when you did so,


                      i.      You were not the medical practitioner with whom W was
     D                registered,
                      Admitted and found proved


                      ii.     You were not a medical practitioner within the practice where

     E                W was registered,
                      Admitted and found proved


                      iii.    You did not have access to W’s medical records,
                      Admitted and found proved
     F
                      iv.     You did not consult W’s records before signing the medical
                      certificate,
                      Admitted and found proved

     G
                      v.      You stated on the certificate that you had full access to W’s
                      medical records and
                      Admitted and found proved


     H
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     A                         vi.     You stated on the certificate that the records were consulted
                               when you completed your examination of W.
                               Admitted and found proved


                       6.      Your conduct as set out in paragraphs 2.v. and vi., 3.v and vi., 4.v. and
     B
                       vi. and 5.v. and vi. was,


                               a. Misleading,
                               Admitted and found proved
     C
                               b.      Dishonest;
                               Found Proved


               The Panel has had regard to the two-stage test set out in the case of R v Ghosh [1982]
     D         Q.B 1053. Namely, the Panel has considered:


               (i) whether what you did was dishonest by the ordinary standards of a reasonable and
               honest person and if so; (ii) whether you realised that your actions would be regarded

     E         as dishonest by those standards.


               In relation to the first stage of the test the Panel has had regard to a form entitled
               “Vale of Glamorgan Council Hackney Carriage/Private Hire Drivers Medical
               Certificate” which formed the basis of charges 2, 3 4 and 5 and which in all material
     F         respects was identical in each charge. This certificate consisted of four pages and you
               accept that you saw all of these pages. In each case you signed page one and page
               four.


               On page two it was made explicit to applicants that they “must be examined and
     G
               certified as being medically fit by THEIR OWN GENERAL PRACTITIONER
               OR ANOTHER GENERAL PRACTITIONER IN THE PRACTICE WITH
               WHICH THEY ARE REGISTERED AND MUST TAKE INTO ACCOUNT
               PREVIOUS MEDICAL HISTORY.” The Panel notes that part of this was
     H         prominently presented in bold and upper case as set out in this determination.
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     A
               General question one on page three of the certificate asked:


                      “Did you have full access to the Applicant’s medical records and were they
                      consulted when completing this examination?”
     B
               You accept that you answered “yes” to this question.


               The Panel has also had regard to the declaration by the Medical Practitioner signed by
     C         you on page four.


               Taking all of these matters cumulatively the Panel has determined that your actions
               were dishonest by the standards of reasonable and honest people.

     D         The Panel then went on to consider whether you realised at the time that what you
               were doing was dishonest by those standards.


               The Panel noted your evidence that you did not have full access to the patient’s

     E         medical records and that you relied upon the medical information provided by the
               patient at each of the four consultations. The Panel considers that as an experienced
               doctor you would have understood what the Vale of Glamorgan Council had in mind
               in asking whether you had full access to the patient records and whether you had
               consulted those records when completing the examination. The Panel has found that
     F         you must have realised that simply relying upon the information given to you by the
               patient could not meet this requirement. In all the circumstances the Panel has
               determined that you realised at the time that what you were doing was dishonest. The
               Panel finds charge 6 (b) in its entirety proved.

     G
               The Panel will now hear submissions on whether your fitness to practise is impaired by reason of
               your misconduct.

               Dr Foster?

     H         DR FOSTER: Thank you. It is a lot to take in in a few minutes. I would be happy to do that.

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     A         THE CHAIRMAN: You have received a copy of the determination in its entirety. We will
               reconvene at half past nine tomorrow morning. Thank you very much.

                               (The Panel adjourned until Thursday 5 May 2011 at 9.30 am)



     B




     C




     D




     E




     F




     G




     H
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