Legal Update- 'Pitfalls for Panels and Prosecutors in Dishonesty
Allegations of dishonesty feature commonly in professional disciplinary proceedings and can relate to many different types of conduct. The exact definition of dishonesty, and the way in which disciplinary panels should address the question of how they decide whether an allegation is made out, is something which appears to have taken up much judicial time. Whereas in the not too distant past so long as the Legal Advisor to the Panel had faithfully recited both limbs from R v Ghosh  QB 1053 the advice to the Panel was fairly unassailable, the question of what advice the Panel need to receive in order to ensure that its decision is not vulnerable to appeal is now somewhat less straightforward. This is not merely a challenge for the Legal Advisor; in turn it creates challenges for the regulatory lawyer who needs to draft the charges in such a way as to minimise the scope which the Panel may have for falling into error.
The current law is less than straightforward. There is currently not one, authoritative definition of dishonesty nor one authoritative approach which is required to be adopted by panels when considering these allegations. Recently misgivings have been expressed in the High Court about the apparent disconnect between the use of the two-limbed Ghosh test for dishonesty in regulatory proceedings but the use of a test which does not include the second, subjective, limb in other civil proceedings. In the latest case addressing this issue, Kiani v Solicitors Regulation Authority  EWHC 1981 (Admin) Laing J was of the view that, at least for now, the appropriate test to apply in regulatory proceedings required the application of both the objective and subjective limbs of the Ghosh test. However, what might appear on the face of it to be starting to become relatively straightforward is an area which still contains a few bear traps for the unwary.
An example of this is in Lavis v Nursing and Midwifery Council  EWHC 4083 (Admin) where it was alleged and found proved that L recorded in the clinical notes that she had done certain things when she had not done them, and recorded that a discussion took place which did not. Overturning the finding of dishonesty Cobb J found that that Panel had improperly incorporated into the first, objective, stage of the Ghosh test the concept of 'deliberately misleading'. This had the effect of distorting what should be an objective test by incorporating a mental state. The Panel, critically, had not explicitly considered different explanations for what they had found proved other than dishonesty, for example making the notes out of habit or whilst distracted. The judge also revisited the approach suggested by Singh J in Uddin v General Medical Council  EWHC 2669 (Admin) where it was said that the real issue in many cases may be whether the conduct took place with what state of mind, for example was a false representation made and was it done knowingly or as an innocent or negligent mistake?
In Fabiyi v Nursing and Midwifery Council  EWHC 1441 (Admin) it was suggested by the Administrative Court that allegations alleging misconduct required a greater degree of specificity than had previously been the case. In addition to the details of the acts which were said to be dishonest, the charges now needed to particularise the specific state of mind of the respondent. Whilst this authority seems to have faded into the background somewhat since 2012, what it illustrated very well was how greater particularisation in charging can avoid exactly the sort of difficulties the Panel encountered in Lavis.
What then can be done to minimise these sorts of difficulties? In my view, this can be achieved in two ways: firstly, by the regulator adopting the approach to charging advocated in Fabiyi; and, secondly, by the Legal Advisor following an appropriately detailed four-stage approach to his or her advice to the Panel.
I would suggest that the starting point for the legal advice given to panels considering allegations of dishonesty should, as a starting point, be as follows. Firstly, to carefully consider giving a full direction on the standard of proof as set out in Re B (Children)(Care Proceedings: Standard of Proof)(CAFCASS intervening)  1 AC 11. Secondly, to advise the Panel to first make their findings as to whether or not they are satisfied that the acts that are said to be dishonest took place. Thirdly, in respect of those acts, to determine what the mental state of the respondent was. This will usually surround whether or not there was an intent formed to do some or cause some effect at the material time, or whether act was done with knowledge of a particular matter. Finally, having made their findings on the acts in question and the mental state of the respondent at the material time, to apply the two stage Ghosh test, appropriately modified in accordance with Hussain v General Medical Council  EWCA Civ 2246 to be by reference to the reasonable and honest member of that particular profession.
I would suggest that if Panels follow this approach to their decision making then not only will they be less likely to fall into the sort of difficulties that the Panel in Lavis did, but, their written reasons should be of a higher quality. The process would be significantly helped if regulators plead dishonesty in the manner advocated in Fabiyi, i.e. by identifying the exact mental state which gives rise to the dishonesty, for example knowledge of a particular fact. Adopting this approach will focus the minds of the Panel on the issues of the case and will help them distinguish that part of the exercise which differs from the straightforward application of the two limbs of Ghosh.