The High Court dismissed an appeal against sanction in respect of a doctor who had been suspended for nine months with a review following two separate findings of dishonest conduct.
Last week’s ruling in Simawi v General Medical Council  EWHC 2168 (Admin) highlights that the need to maintain confidence in the profession will generally lead to severe sanctions in respect of findings of dishonesty made against medical practitioners. It also provides a summary of the authorities on the principles to apply in relation to dishonesty and sanction.
The General Medical Council’s (GMC’s) case was that the Appellant, had made a study leave application for a conference that did not exist and that he later submitted various false documents in support of his attendance. It was also alleged that the Appellant had submitted false documents to an Interim Orders Tribunal. It was further alleged that the Appellant failed to disclose the fact of the investigation and the interim conditions of practice order imposed in an application for a post of senior clinical fellow.
The allegations arising from the conduct alleged were lengthy and comprised of thirty eight allegations each with separate sub particulars including fourteen acts alleged to have been dishonest.
Although there had been some admissions, none of these were to the dishonesty allegations and a significant number of the allegations which were in dispute were not proved.
In summary, the Tribunal found that:
- a) The Appellant had submitted a false conference programme which was a copy of another conference programme and in doing so had acted dishonestly;
- b) The Appellant had failed to declare the interim conditions he was subject to in his application for the post of clinical fellow but there was no dishonesty found in respect of this omission;
- c) The Appellant amended his revalidation dates in order to secure a more convenient start date as a clinical fellow. This was considered to have been dishonest;
- d) The Appellant commenced his post as a clinical fellow in breach of the interim condition that he notify the GMC of a post before starting it.
The panel made findings of misconduct in respect of a – d above in relation.
In its consideration of the issue of current impairment the Tribunal found impairment in respect of the dishonesty matters only. In its reasoning it noted that:
- a) The Appellant had been remorseful and apologised for his actions and given evidence on the importance of honesty, trust and integrity in doctors;
- b) The Appellant had demonstrated that he had learnt some lessons from his conduct and his admissions and evidence showed some insight but that it could not be satisfied that the risk of repetition had been eliminated;
- c) The Appellant had shown some insight into his dishonest conduct but that this was limited in that he characterised his actions as ‘a mistake which looks dishonest, rather than fully acknowledging his dishonesty’;
- d) Public confidence would be undermined if no finding of current impairment were made.
On the issue of sanction it was submitted by counsel for the GMC that erasure was appropriate. It was submitted by counsel for the Appellant that a conditions of practise order was appropriate.
The Tribunal ordered that the Appellant be suspended for nine months with a review and set out within the decision that this was required to protect the patients, public confidence in the profession and to maintain proper professional standards within it. It was also stated that the period would allow the Appellant time and opportunity to reflect and to demonstrate a full appreciation of the gravity of his conduct. In relation to the review hearing the Tribunal set out the sort of evidence that might assist a reviewing Tribunal including: evidence of further insight; evidence of courses and learning on the issue of probity and evidence of having kept his knowledge up to date.
Grounds of appeal
It was submitted on behalf of the Appellant that:
- a) The majority of the most serious allegations had not been proved and the majority of the remaining matters either did not meet the threshold for a finding of misconduct or did not result in a finding of current impairment;
- b) The Appellant had made no financial gain, the dishonesty was not persistent and was not covered up and there was no significant risk of repetition;
- c) As there was some insight the issue for sanction was public confidence only and not patient safety;
- d) Nine months with a review would have been proportionate if all the allegations had been proved but as they had not, was excessive;
- e) Nine months might have been appropriate had there been no insight or remediation but there had and so it was wrong a disproportionate;
- f) Inadequate reasons had been provided both for the suspension and the review;
- g) It was submitted that an appropriate sanction was a suspension of no more than three months.
It was submitted on behalf of the Respondent that:
- a) Any finding of dishonesty is serious and represents a significant departure from Good Medical Practice;
- b) The Court should defer to the Tribunal’s decision and that a nine month suspension with a review was not in any way unreasonable or outside the range which could have properly being imposed;
- c) The imposition of a review was in accordance with the Sanctions Guidance.
At paragraphs 46 – 48 within the judgment at Knowles J referred to a number of authorities on the question of dishonesty and sanction:
- a) Professional Standards Authority v Health Care Professions Council and another  EWHC 2723 (Admin), :
- There are numerous authorities emphasising the public interest in maintaining the standards and reputations in the professions. The importance of honesty to the health and care professions is underlined by the fact that striking off may be an appropriate sanction under the indicative sanctions guidance. It will often be proper, even in cases of one-off dishonestly (see Nicholas-Pillai v GMC  EWHC 1048 (Admin) at paragraph 27);
- It has been said that where dishonest conduct is combined with a lack of insight, is persistent, or is covered up, nothing short of striking off is likely to be appropriate (see Naheed v GMC  EWHC 702 (Admin)).
- b) Khan v General Medical Council  EWHC 301 (Admin):
- This court and its predecessor, the Privy Council, has repeatedly recognised that for all professional men and women, a finding of dishonesty lies at the top end of the spectrum of gravity of misconduct (see Tait v Royal College of Veterinary Surgeons  UKPC 34 at paragraph 13);
- Dishonesty will be particularly serious where it occurs in the performance by a doctor of his or her duties and/or involves a breach of trust placed in the doctor by the community;
- In cases of proven dishonesty, the balance can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the doctor concerned. See Nicholas-Pillai v GMC  EWHC 1048 (Admin) per Mitting J at  where he stated: That sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty”;
- Where proven dishonesty is combined with a lack of insight (or is covered up) the authorities show that nothing short of erasure is likely to be appropriate.
- c) Nkomo v General Medical Council  EWHC 2625 (Admin), :
- The starting point is that dishonesty by a doctor is almost always extremely serious. There are numerous cases which emphasise the importance of honesty and integrity in the medical profession, and they establish a number of general principles:
- Findings of dishonesty lie at the top end of the spectrum of gravity of misconduct;
- Where dishonest conduct is combined with a lack of insight, is persistent, or is covered up, nothing short of erasure is likely to be appropriate: Naheed v General Medical Council  EWHC 702 (Admin), ;
- The sanction of erasure will often be proper even in cases of one-off dishonesty: Nicholas-Pillai, ;
- The misconduct does not have to occur in a clinical setting before it renders erasure, rather than suspension, the appropriate sanction;
- Misconduct involving personal integrity that impacts on the reputation of the profession is harder to remediate than poor clinical performance: (Yeong v General Medical Council  EWHC 1923, ; General Medical Councilv Patel  EWHC 171 (Admin) at );
- In such cases, personal mitigation should be given limited weight, as the reputation of the profession is more important than the fortunes of an individual member: (Bolton v Law Society  1 WLR 512 at 519; General Medical Council v Stone  EWHC 2534 (Admin) at , supra, ).
Knowles J also acknowledged that an appellate court does not have the professional expertise of a professional tribunal. Consequently deference is to be given in relation whether conduct is serious misconduct or impairs a person’s fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions. However, in cases of sexual misconduct and dishonesty it may be able to pay less deference than in cases involving medical care. (General Medical Council v Jagiivan and another  EWHC 1247 (Admin).
Knowles J stated that he had initially had concern that the suspension was disproportionate taking into account the limited findings in the case and the mitigation advanced. However, it was held that it was not appropriate to interfere with the finding on sanction:
- a) It was apparent that the Tribunal considered that the Appellant’s insight was limited and that there was further work to do before he had remediated his conduct;
- b) It was clear from the decision that an important factor in imposing a suspension of nine months was to allow the Appellant time to fully develop insight and to remediate it;
- c) He was unable to say that nine months was wrong and had to afford deference to the Tribunal knowing what sort of timescales were required to allow all necessary work to be completed and to ensure the public and the profession were fully protected;
- d) It was accepted that the sanction may well impact seriously on the Appellant’s career but the intention of regulatory proceedings is not punitive although it may well have that effect.
Knowles J also considered the issue of whether a direction for a review under section 35D (4A) of the Medical Act 1983 that a person’s registration is suspended is in itself an appealable decision under section 40 (1) of the Medical Act 1983 and determined that it was not.
Dishonest conduct commentary
This case provides a useful run through the authorities on how the issue of dishonesty should be approached with regard to sanction. These authorities make plain that for a medical professional a finding of dishonesty will always be considered to be serious and to risk serious consequences. However, whilst such findings will often result in erasure or suspension, it is important to note that there are authorities which suggest that dishonesty does not inevitably result in a finding of current impairment (PSA v General Medical Council & Uppal  EWHC 1304) and that a more nuanced approach should be taken to dishonesty and that not all cases of proven dishonesty will lead to a erasure. (Lusinga v Nursing and Midwifery Council  EWHC 1458 (Admin).
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