Personal Injury analysis: What is the difference between 'false' and 'dishonest' when used together in medical disciplinary hearings? Julie Norris, a partner in the regulation and professional discipline team at Kingsley Napley, discusses a recent case involving the General Medical Council (GMC), which provided guidance on the appropriate wording of the Ghosh test.

Original news

Hussain v General Medical Council [2014] EWCA Civ 2246, [2014] All ER (D) 76 (Nov)

A Fitness to Practise Panel (FTPP) of the respondent GMC had determined that the appellant doctor's fitness to practise had been impaired as a result of certain findings that had been made against him, and that his name should be removed from the medical register. The Administrative Court dismissed his appeal. The Court of Appeal, Civil Division, in dismissing the appeal, held that, in the circumstances, the FTPP had been entitled to find that the appellant's fitness to practise had been impaired by reason of the misconduct which they had found proved against him.

What is the background to this case?

The Court of Appeal was asked to consider an unsuccessful appeal to the Administrative Court from a trainee GP, Dr Hussain, against a finding of impairment based on dishonest misconduct and a subsequent erasure order, made against him by an FTPP of the Medical Practitioners Tribunal Service.

The allegations against Dr Hussain were founded on conduct said to have occurred during a placement at a GP's surgery while he was training. The FTPP heard evidence that Dr Hussain had:

  •  made false representations as to his qualifications in his CV
  • provided falsified information on the multi-source feedback form
  • plagiarised various materials in completing his online training portfolio

The GMC alleged this conduct was also dishonest.

The legal assessor had given advice to the FTPP as to the definition of a false declaration, describing it as 'deliberate and intentional' if made when 'known to be incorrect' and 'intending that it should, be relied upon by others'. He advised that an untoward error or sloppy mistake would not be sufficient. He also provided the 'standard' advice as to the two-stage test--objective and subjective--for dishonesty from Regina v Ghosh [1982] QB 1053, [1982] 2 All ER 689.

The appellant's grounds of appeal against the FTPP's findings included an argument that the FTPP had conflated falsity with dishonesty in reaching its decision on the CV allegations.

What is the significance of the Court of Appeal's decision?

Lord Justice Bean, in dismissing the appeal and giving judgment for the Court of Appeal, provides useful guidance as to when the word 'false' should be used in conjunction with an allegation of dishonesty. Guidance is also given by the court on the appropriate form of wording to be used by legal assessors when giving the objective limb of the Ghosh direction to panels.

Guidance on the use of 'false' and 'dishonest'
The court gave guidance on the use of the words 'false' and 'dishonest' together in fitness to practise allegations. Outside the context of quiz games, Lord Justice Bean considered the word 'false' usually had overtones of dishonesty and accordingly, in most cases, the 'sweeping up' allegation of dishonesty adds nothing and is undesirable.

In relation to the CV charge, 'false' could mean either deliberately or inadvertently when used together with dishonesty. The word 'inaccurate' would have been a clearer, less confusing, formulation of the allegation.

Per curium--the Ghosh test

Guidance was also given by the court on the appropriate wording of the Ghosh test in professional disciplinary proceedings. In advising on the objective limb of the Ghosh test, the legal assessor directed that the FTPP must 'first of all decide whether according to the standard of reasonable and honest people, what was done was dishonest'.

Noting that proceedings before the MPTS are not criminal in nature, Longmore LJ preferred an adapted version of the direction, 'whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest'.

That doctors might begin to be judged according to the standards of fellow practitioners, rather than members of the public, represents an important development in this field. The Ghosh test has never been a comfortable fit in professional disciplinary proceedings--requiring doctors to be judged against the standards of members of the public, fails to take into account the highly specialised and technical medical, legal, and financial facets of their work, about which members of the public often have little or no experience.

How does this decision fit in with the surrounding case law?
This is not the first judgment offering guidance on the issues surrounding the pleading of dishonesty in professional disciplinary schemes. That allegations of dishonesty should be 'unambiguously formulated and adequately particularised' has long been established. See:

  • Salha v General Medical Council; Abusheika v the General Medical Council (PC) [2003] UKPC 80, [2003] All ER (D) 331 (Nov)
  •  Singleton v Law Society, [2005] EWHC 2915 (Admin), [2005] All ER (D) 152 (Nov)
  •  R (on the application of the Council for the Regulation of Healthcare Professionals) v Nursing and Midwifery Council and another [2007] EWHC 1806 (Admin), 98 BMLR 60

The importance of specificity was further emphasised in Fabiyi v Nursing and Midwifery Council [2012] EWHC 1441 (Admin), [2012] All ER (D) 53 (Jul). The Administrative Court suggested that in drafting dishonesty allegations, details as to the precise acts said to be dishonest must be provided, as well as a clear explanation as to the specific state of mind of the registrant. The court has also looked at the question of alternate states of mind and has made plain that a registrant must be given sufficient opportunity to deal with these--Farag v General Medical Council [2009] EWHC 2667 (Admin), [2009] All ER (D) 28 (Nov).

The application of the Ghosh test in regulatory proceedings has received recent attention by the court, most particularly in Uddin v General Medical Council [2012] EWHC 2669 (Admin), [2012] All ER (D) 229 (Jul). Mr Justice Singh observed, per curium, that 'care needs to be taken about applying a test which was devised in the context of criminal law'. Caution was urged against the direction being given in cases in which there was no issue that the conduct was, if found to have been committed, dishonest.

The decision in Hussain is consistent with the direction of travel, offering registrants the reassurance of greater clarity in the pleading of allegations--particularly in cases concerning dishonesty where the stakes for a professional are necessarily high.

Is this decision likely to influence future disciplinary/fitness to practise cases?
The case underlines the need for precision in the drafting of allegations concerning probity. Regulators preparing draft allegations against registrants will doubtless be influenced by the guidance in this case and will give careful consideration to the wording of any allegation involving a dishonest state of mind. It would be sensible to avoid the use of the words 'false' and 'dishonest' together when describing any conduct alleged.

Parties and legal assessors alike will wish to consider not only if a Ghosh direction is actually required in the particular facts of the case, but what the appropriate wording of the objective limb ought properly to be.

Julie Norris heads up the regulatory and professional disciplinary defence team at Kingsley Napley. She has particular expertise in the fields of health, professional and legal services, dividing her practice between acting for individuals and for regulators.

Interviewed by Kate Beaumont.

This interview first appeared in Lexis PSL Personal Injury.