Hussain v General Medical Council [2014] EWCA CIV 2246

The Court of Appeal has upheld the decisions of a fitness to practise panel and the High Court that a trainee doctor had acted dishonestly and confirmed that strike off was appropriate. The court also suggested that the Ghosh direction be amended when given in professional disciplinary hearings.

Background

Dr H was a trainee GP who, after a 16 day hearing before a fitness to practise panel of the GMC, was found to have been dishonest in relation to six allegations. These related to his CV and his completion of a feedback form, a learning log and e-portfolio which all formed part of his training. The order of the panel was that Dr H be erased from the register.

Dr H appealed to the High Court. The judge confirmed the findings of fact that had been made by the panel but overturned one finding of dishonesty. The judge upheld the sanction of erasure.

The finding of dishonesty which was overturned related to an allegation that Dr H had “falsely stated” in his CV that he held certain degrees from two universities. The judge, after considering the first limb of the Ghosh direction that had been given by the legal assessor to the panel (as to whether reasonable and honest people would regard what Dr H did as dishonest), found that they would regard it as wrong, careless and misleading but not dishonest. The judge found that it was regrettable that “the Panel may have dealt with ‘dishonesty’ under the rubric of ‘falsity’… This possible confusion… would justify the conclusion that the Panel’s attribution of dishonesty was unsustainable”.

The judge noted an ambiguity in the wording of the allegation, noting that the word “falsely” could refer either to a statement that was deliberately inaccurate or one that was inadvertently inaccurate. The judge also highlighted the confusion caused by the formulation of the allegations. There were separate allegations concerning the CV and each of the training materials, as well as a stand-alone allegation that, in relation to those separate allegations, Dr H had acted dishonestly. The judge noted that it was difficult to see how “making an untrue statement intending that it should be relied upon could be anything other than dishonest”.

Appeal to the Court of Appeal - Dishonesty

In relation to the findings of dishonesty, Dr H appealed on the following grounds:

  • that the judgment of the High Court that the conflation by the panel of ‘”false” with “dishonest” in relation to the allegation about the CV, and the consequent setting aside of the dishonesty finding, meant that the panel must have fallen into the same error in relation to the other allegations meaning that all other findings of dishonesty fell in a “domino effect”;

  • that a judge, who had allowed an earlier appeal by Dr H against a finding of an interim order panel of the GMC, had adopted the phrase “quite low level probity complaints” to describe some allegations then facing Dr H;

  • that the panel failed to give proper weight to Dr H’s state of mind (caused by the death of his father) at the time of the events which formed the basis of the allegations against him.

The Court of Appeal rejected all the above grounds of appeal:

  • although the word “falsely” was ambiguous in relation to the charge where the High Court had overturned the finding of dishonesty, there was no such ambiguity in relation to the other allegations;

  • the phrase in question had been used to describe other matters which did not come before the FTP panel and, in any case, the test to be applied when making an interim order was different from that applied by an FTP panel;

  • the grief of bereavement does not form a defence to dishonesty, although it may be mitigation.

Impairment and sanction

Dr H submitted that, in relation to impairment and sanction, inadequate weight had been given to the short period during which all the events forming the subject of the allegations had occurred, the stress Dr H had been under at that time, his previous good character and the positive testimonials presented.

The Court of Appeal held that, given the finding of misconduct, the question for the panel had been whether Dr H’s fitness to practise was impaired at the time of the hearing. The court said that “while an aggressively run defence is not ‘misconduct’”, the fact was that Dr H had presented his case on the basis that he had done nothing wrong and was the victim of the evidence of a liar and a racist. Dr H had shown no insight at all into his failings and the court upheld the finding of impairment.

In relation to sanction, the court found that the findings of dishonesty and the lack of insight meant that erasure was appropriate.

An amended Ghosh test?

It was added, obiter, that in relation to professional disciplinary hearings, the Ghosh direction might properly be amended so that the first part of the direction would, in a case such as this, read “…whether according to the standard of reasonable and honest doctors what was done was dishonest” rather than “…the standard of reasonable and honest people…”.