High Court gives guidance on advice to be given to panels where dishonesty is alleged.

Judgement date: 22 May 2014

Background

The appellant Doctor (D) appealed against a decision of a Fitness to Practise Panel (the Panel) of the General Medical Council (GMC) to suspend his registration for a period of 12 months following a finding of impairment by reason of misconduct.

D was a General Practitioner (GP) and had a practice in Stockport from which he provided medical services on behalf of the Primary Care Trust (PCT). Additionally, he was employed as a clinical assistant in Dermatology at Stockport NHS Foundation Trust and East Cheshire NHS Trust. D had not worked with East Cheshire NHS Trust for some years prior to the allegations against him and his work with Stockport NHS Foundation Trust was confined to a single weekly session.

In 2007, D was issued with a Warning by the GMC.

Whilst D principally practised as a sole practitioner, from January 2008 until November 2009 he practised in partnership with Dr Bani. The relationship between D and Dr Bani broke down acrimoniously in 2009. D’s feeling that Dr Bani was the source of the GMC’s concerns in respect of a patient, Patient A, meant he was reluctant to accommodate the GMC’s request that the PCT be allowed to carry out an audit of his cases.

In 2010, D was asked to complete an Employer Details Form by the GMC and it was alleged that D failed to disclose his work with Stockport NHS Foundation Trust.

Also in 2010, D was made subject an interim conditions order (the Order), one of the conditions of which was that he confine his medical practise to general practice posts.

The Panel’s decision was based on it finding proved the following allegations:

  1. Dishonestly failing to inform his hospital employers of a Warning given to him by the GMC in 2007;
  2. Failing to provide good clinical care to Patient A;
  3. Failing to cooperate with a PCT audit;
  4. Dishonestly failing to accurately complete an Employer Details Form (EDF) in 2010 by omitting details of his hospital employers;
  5. Dishonestly failing to inform his hospital employers that he had been subject to a Conditions Order imposed by an Interim Orders Panel (IOP);
  6. Breaching the conditions imposed by the IOP which required D to be employed only as a GP.

Appeal

D appealed the findings 1., 4. and 5 as listed above that that his fitness to practise was impaired by reason of misconduct. Specifically, D argued that his non-cooperation with the PCT and GMC investigation, upon which the finding of impairment was partially based, was the result of the acrimonious dispute he was having with Dr Bani and did not represent his wider practice.

Decision

The Court held that the Panel’s conclusion in respect of the 2007 Warning was ‘wrong’ [21] and that the Appellant had not dishonestly failed to inform Stockport NHS Foundation Trust. It was held that the Warning letter’s wording indicated that the GMC would inform all current and future employers and that the responsibility on D was to inform future employers.

The Court was prepared to accept that D may have owed a contractual duty to inform Stockport NHS Foundation Trust of the Warning letter but noted that, ‘not every breach of duty is dishonest’ [25]. The Court also noted that there was evidence before it, in the form of contemporaneous letters, that indicated D had in fact informed senior staff at Stockport NHS Foundation Trust of the Warning, albeit perhaps later than was reasonable.

Moreover, on this point, the Court was keen to take a ‘step back’ [28] and stated that, ‘no one could reasonably have thought that the hospital would terminate [D’s] sessional work on the basis of the warning, not could it reasonably be thought that someone would endanger their livelihood for the fee paid by the hospital of £70 per session’ [28].

In view of the above the Court was critical of the legal assessor for not reminding the Panel of the observations of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996]  AC 596, which are as follows:

In assessing the probabilities the court will have in mind as a factor … that the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probabilities [586].’

Indeed, the Court held that ‘all fact-finding tribunals applying the civil standard of proof are bound to have regard to [the above case] when considering an allegation of dishonesty’ [19] and suggested that had the Panel been reminded of the above it was, ‘possible that [the Panel] would have decided this issue differently’ [30].

In respect of the failure to accurately complete an Employer Details Form (EDF) in 2010 by omitting details of his hospital employers and failure to inform his hospital employers of the Order the Court held the Panel was entitled to reach the conclusions they did.

Finally, with regard to D’s submissions as to the reasons for his non-cooperation with the GMC’s investigation the Court noted that, ‘the public are entitled to expect that the regulator will investigate any allegation of misconduct … and that the practitioner will cooperate in the timely completion of such investigations, whatever the practitioner might subjectively think of the substance of the allegations or the source’ [46] and that the Panel was entitled to conclude that no insight had been demonstrated by D on this point.

Ultimately, the Court concluded that the Panel’s reasons remained sound notwithstanding the Court’s conclusion in the respect 2007 Warning and as such the appeal was dismissed.

This cases suggests that in dishonesty cases legal assessors ought routinely to direct panels to Lord Nicholls comments in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996]  AC 596.