Judgment date: 6 September 2012
Allegations of dishonesty must be put to registrants in cross examination in clear and unambiguous terms so that the panel can make a fair assessment of a registrant’s express state of mind on the issue
Dr Nwogbo appealed to the Administrative Court against the decision of the Fitness to Practise Committee to remove his name from the Register of the General Medical Council (GMC) following its determination that his fitness to practise was impaired by reason of his conviction for an offence of common assault against his wife, and by reason of his misconduct. The allegations of misconduct related to numerous failures to notify relevant parties of the fact of the criminal charge and thereafter, of the conviction.
The Court, after lengthy argument from both parties, and a helpful review of the authorities dealing with the approach to such appeals, dismissed all bar one limited ground of appeal, that the Panel’s finding of dishonesty in respect of the Appellant’s failing to notify the GMC of the criminal charge was flawed.
In assessing the fairness of the first instance proceedings to the appellant who had been self-represented throughout, HHJ Stephen Davies remarked that in cases where dishonesty was alleged as a distinct allegation, it was necessary for that allegation to be put in cross examination in unambiguous terms so that there was a fair opportunity of dealing with it in evidence. Neither the Presenting Officer nor the panel gave Dr Nwogbo sufficient opportunity to deal with the question of his dishonest state of mind in respect of failing to notify the GMC of the criminal charge. It was this failing, coupled with the want of reasoning in this crucial aspect of the case, which led HHJ Davies to conclude that the Panel “may not have given full and proper consideration to precisely what was required in order to find him dishonest in relation to this allegation.” He went on to re-iterate the importance of the provision of clear reasoning in such cases:
“…in order to find someone guilty of dishonesty the panel must demonstrate in its reasons that it has approached the issue on the correct basis and that they have addressed, if only shortly, the substance of the defences put forward and explained why they have nonetheless found him to be dishonest.”
Save to the extent set out above, the appeal was dismissed.
Success on such a limited ground meant a pyrrhic victory for Dr Nwogbo; the sanction was described as being entirely proportionate and was allowed to stand. An important decision for regulatory authorities nonetheless: such are the serious consequences of a finding of dishonesty that presenting officer’s cross examination will be subjected to close scrutiny on appeal to ensure that the registrant was given a fair opportunity to describe his state of mind. Just ‘putting your case’ it seems may not be sufficient in cases of dishonesty.