High Court holds that legal assessor was not obliged to give a good character direction in hearing before the General Medical Council

Judgement date: 21 October 2014

Background

The appellant doctor (X) had been the subject of a sting operation by investigative journalists who had arranged for actors with secret cameras to pose as patients and present themselves at X’s practice complaining of various symptoms. The General Medical Council (GMC) brought charges against X on the basis of various clinical failings alleged in respect of the two false patients.  In addition, it was alleged that X had inaccurately and dishonestly recorded in the medical notes that he had conducted a medical examination on one of the patients when the video footage clearly showed that he had not.  The Fitness to Practice Panel (FTPP) heard evidence on behalf of both X and the GMC, and then received direction from the Legal Assessor on the standard of proof and the balance of probabilities test before they retired.  The Legal Assessor directed that the more serious the allegation, the less likely it was that the relevant event had occurred, and therefore the stronger the evidence required in order to find it proved.  She directed that dishonesty was particularly serious and that the charge would call for heightened scrutiny and examination of the evidence.   No good character direction was given.

The FTPP found the charges proved, finding that X had acted dishonestly when he had noted that he had carried out an examination when he had not.  They found that X’s actions amounted to misconduct and that his fitness to practise was impaired.  They decided to remove him from the medical register.

There appear to have been four grounds of appeal, one of which was that a good character direction had been essential, by analogy with criminal law.

All grounds were dismissed; the Legal Assessor’s Standard of Proof direction was appropriate, and she did not need to make a cross-reference to the specific dishonesty allegation.  It was held that whilst it might not have been inappropriate for a good character direction to be given, the real question was whether fairness had required the giving of such a direction.  It was said that the analogy with criminal proceedings was not close-fitting there being a distinction between experienced panel members and a jury, such that the guidance required might differ.  Whilst it was not right to say that good character would not be an issue in all cases before the GMC it was fair to say that in far more cases than might be the case in a criminal context, those who appeared before the GMC would have a good and unblemished character. The fact that X had presented at the hearing as a recognised medical practitioner was clearly part of the background, such that his good character would have been obvious to the Panel without a direction.  It followed that the legal assessor was not obliged to give such a direction, and its absence was not a legal error.

An interesting case which will hopefully provide some guidance about when good character directions are required, alleviating the often divergent practise in relation to this.  We await the full judgement.