Professional Standards Authority v GMC & Uppal [2015] EWHC 1304 (Admin)

The High Court has found that a fitness to practise panel of the General Medical Council wasunduly lenient by not imposing a formal warning in circumstances where the doctor concerned had admitted to dishonest conduct.

However, the court upheld the panel's other findings, including that the doctor's fitness to practise was not impaired by virtue of dishonesty.

Factual background

U was a trainee GP registrar. It was alleged that she had lied to her GP trainer by saying that she had followed up a call made by the mother of a sick baby who had rung the surgery, by telephoning her back. In fact, U had not telephoned her back. U admitted to the panel that this conduct had been dishonest.

Notwithstanding U's admission of dishonesty, the panel found that her fitness to practise was not impaired as a result of misconduct. The PSA appealed against this finding on the basis that it was unduly lenient and wrong.

Grounds of appeal and the court's findings

The PSA appealed on various grounds, including:

Ground 3 - the panel's findings and analysis of the misconduct were inadequate

When assessing impairment, the panel made the following observations about the nature of U's misconduct:

  1. the misconduct related to an isolated incident over a short period of time more than two years previously;
  2. the dishonesty did not impact on patient care, was not for financial gain, and did not benefit U personally; and
  3. when confronted with her behaviour, U admitted lying and immediately apologised, since which time she had always accepted full responsibility for her actions.

The PSA argued that the panel had failed to identify the true extent and nature of the misconduct, and hence its seriousness, in a number of respects. It submitted that the panel had erred in categorising it as an isolated incident of dishonesty, when the lie had actually continued for a period of more than two weeks, and U had continued to lie in a meeting with colleagues until those colleagues threatened to check telephone records to verify her story. However, the court found it was reasonable to assume that the panel had been fully aware of the facts and that it had been making the legitimate point that the episode was an isolated incident in the course of U's career, as there was nothing to indicate other episodes of dishonesty before or since.

In relation to the panel's finding that U had not benefitted personally from her misconduct, the PSA submitted that there was benefit to U in that her management of the case was being assessed as part of her training, and her lie had helped to create a favourable impression of her performance. The court found that it was an obvious inference from the evidence that U was seeking to give a more favourable account of events to avoid criticism and, as the point had been made forcefully by counsel for the GMC, it was very unlikely that the panel had overlooked the point or failed to take it into account.

The PSA further submitted that U did not immediately admit to lying and apologise when confronted with her lie; rather, she had maintained the lie, even when initially confronted with it by colleagues. However, the court found that the point which the panel had been making was that U had admitted her wrongdoing at the meeting with colleagues, and thereafter accepted full responsibility.

Accordingly, this ground of appeal failed.

Ground 4 - the panel had erred by finding that U's fitness to practise was not impaired and it failed adequately to address her misconduct

The PSA submitted that the finding that U's fitness to practise was not impaired was unduly lenient and therefore wrong. It argued that the panel had given insufficient weight to the public interest, and excessive weight to U's apology, insight, remediation, the low risk of repetition and the favourable reports from senior doctors at U's current practice.

The PSA submitted that "the fitness to practise of a doctor who acts dishonestly is impaired by the dishonesty". However, the court found that this did not accurately reflect the authorities since, even in cases of dishonesty, a separate assessment of impairment is required. Applying principles derived from Cheatle v GMC [2009] EWHC 645 (Admin) andCHRE v NMC & Grant [2011] EWHC 927 (Admin), the court found that the panel had been correct to assess whether U's fitness to practise was currently impaired, having regard to her conduct since the misconduct had occurred, as well as the nature and extent of her misconduct. Thus her apology, insight and remediation were all relevant, as was the extremely low risk of recurrence. The court found that this was an exceptional case, in which the panel had been convinced by the evidence of U's colleagues that the misconduct had been a one-off lapse. It was also apparent on the facts that the panel had taken account of the public interest factors. The court accepted that the panel was in a better position to assess whether U's fitness to practise was impaired, and had been entitled to find that patients and the public were not at risk.

Ground 5 - in the alternative, the panel ought to have issued a warning in respect of U's conduct

The court reviewed the GMC's 'Guidance on Warnings', and noted that both the guidance and the Indicative Sanctions Guidance emphasised the gravity of dishonesty in the course of professional practice. U had lied to senior colleagues and had called into question an account given by the baby's mother (who had complained that U had not contacted her). Whilst the panel had been entitled to take account of mitigating factors, as identified in the guidance, the court could not agree that in the circumstances a warning was not necessary, appropriate or proportionate. The court found that the panel's decision was unduly lenient, and that a warning should be imposed.

Ground 6 - the panel failed to give adequate reasons for its decision

The court did not find the reasons of the panel to be inadequate, bearing in mind that it was a regulatory panel which is not expected to give reasons to the same standard as a court.

Whilst the PSA had embarked upon a forensic examination of the determination, seeking to identify ambiguities, omissions or "infelicities of expression", the panel consisted of lay members, not lawyers, and its decision was drafted under pressure of time during the hearing, so allowance should be made for imperfect drafting. Reasons will be adequate if they summarise the panel's findings on the principal issues, but the panel need not record every point made to it in evidence and submissions to show that it has been taken into account