The threshold for raising allegations of dishonesty in fitness to practise proceedings is low. In many cases it is not terribly difficult to construct a possible analysis of events which would be consistent with dishonesty on the part of a registrant. Bearing in mind that determinations are made on the balance of probabilities such allegations are always a concern. As Foskett J once observed:
‘An allegation of dishonesty against a professional person is one of the allegations that he or she fears most. It is often easily made, sometimes not easily defended…’
Often an understanding of the particular context and pressures under which registrant’s were acting is crucial to addressing issue. That was a point of central importance in the recent Court of Appeal decision in Raychaudhuri v GMC and PSA.
Dr Raychaudhuri was working as a locum paediatric registrar in A&E at Berkshire Hospital on 13 December 2014 when he was told there was a 5 month old child (Patient A) coming in to be seen. Dr Raychaudhuri reviewed Patient A’s medical records and filled out a pro-forma in advance, completing not just the sections where information could be found in the child’s records, but also the parts in relation to the actual examination he was going to perform. Dr Raychaudhuri was then called away to see another patient.
The pro-forma was found by a junior doctor who thought Patient A had been seen, despite the parents confirming otherwise. When asked about the patient, Dr Raychaudhuri initially said a junior colleague must have seen the patient as he had no recollection. After seeing the pro-forma, Dr Raychaudhuri accepted the handwriting was his and he had not seen the patient.
The nurse that had asked him about the patient then raised the issue with the on-duty Emergency Department consultant who spoke to Dr Raychaudhuri over the telephone. During the call Dr Raychaudhuri denied writing examination findings on the pro-forma before seeing Patient A and explained to the consultant that he understood that the consultant’s real concern was that he had documented examination findings without ever intending to see the patient, which Dr Raychaudhuri denied.
Dr Raychaudhuri did eventually see Patient A on 13 December 2014 and finalised the pro-forma. However, Dr Raychaudhuri’s locum contract was terminated with the Royal Berkshire Hospital and a referral was made to the GMC.
The Medical Practitioners Tribunal (MPT) of the GMC found that he had written the complete pro-forma and had told the consultant he hadn’t done so. The Tribunal found that the statements were misleading, rather than dishonest, and that the fitness to practice of Dr Raychaudhuri was not impaired by reason of misconduct. The GMC imposed a warning.
The GMC appealed against the decision of the MPT, on the grounds that the decision was not sufficient to protect the public. In the High Court Sweeney J found that Dr Raychaudhuri failed to be  ‘as open as he should have been about what he had entered in a patient’s record’ and that a line had been crossed. He determined that a finding of impairment should be made and therefore remitted the case back to the MPT for further consideration as to sanction.
Dr Raychaudhuri appealed successfully. The Court of Appeal concluded that Sweeney J’s approach was too ‘cut and dried’ and that he had had been ‘wrong to substitute a finding of dishonesty’ when allowing the GMC’s appeal.
The importance of context
Sales LJ acknowledged the advantages which the MPT had in reaching its determination including their ‘practical expertise…in being able to understand the precise context in which and pressures under which a doctor is acting’. He also noted that the MPT was able to ‘weigh and evaluate the moral significance of the appellant’s conduct in the particular context of the case.’ The court accepted that Dr R’s conduct was not part of a deliberate and dishonest plan to cover up his actions but rather a ‘venial and comparatively trivial effort by him to deflect Dr de H’s ire that night.’
The Court was satisfied that the application of test set out in Ivey v Genting Casinos (UK) Ltd would not have altered the outcome which the MPT reached applying the Ghosh test, noting that the MPT’s findings regarding  ‘the subjective understanding of the appellant…remain highly germane to the assessment of dishonesty.’
The GMC’s power of appeal
In a short separate judgment, endorsed by Underhill LJ, Bean LJ made an observation in relation to the GMC’s decision to appeal in this case:
‘I wish to express my regret this was brought. It should require a very strong case for a court to overturn a finding of the MPT… the discretion given by section 40A(3). It is said that sentiments expressed in this case may act to deter bodies, such as the PSA appealing findings of fact which do not go their way.’
Noting the width of the GMC’s discretion to appeal he observed that ‘…it is a discretion to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour.’
It may be hoped that the Court of Appeal’s decision in this case will be helpful in highlighting the need consider criticised behaviour in its real world context. It will also serve to reinforce the need for nuance in dealing with allegations of dishonesty.
Although the Government made a commitment to revoke the GMC’s power of appeal in the aftermath of the Bawa Garba case, the relevant legislation has not been brought forward. Given the GMC’s recent indications that it would not be proper for them not to exercise their appeal powers unless and until formal legislative change is introduced, the profession is likely to welcome the Court’s emphasis of the need for restraint in the exercise of that power.