Court of Appeal confirms the Medical Practitioners Tribunal findings that a doctor had not acted dishonestly.
1. Why is this case important?
Despite the Medical Practitioners Tribunal (MPT) concluding that a doctor had provided false and misleading statements, it determined that his conduct had not been dishonest (in accordance with the then “Ghosh Test”). The MPT did not find the doctor’s fitness to practise to be currently impaired and a warning was imposed.
The GMC appealed the MPT’s decisions to the High Court under the provisions of s40A of the Medical At 1983. The GMC’s overall stance was that the MPT’s decision was not sufficient for the protection of the public.
Sweeney J allowed the GMC’s appeal [GMC v Raychaudhuri  EWHC 3216 (Admin)] and substituted findings of dishonesty (in accordance with the “Ivey Test”) and current impairment. Sweeney J then remitted the case back to the MPT for further consideration on sanction in light of the changes made.
The doctor appealed the decision of Sweeney J and his overall stance was that the MPT were best placed to make a determination on the issue of dishonesty and impairment as they had benefitted from hearing and analysing the evidence which was heard during the course of the substantive hearing.
Sales LJ, on behalf of the Court of Appeal, allowed the doctor’s appeal thereby re-setting the position back to its original format. Sales LJ concluded that the MPT was best placed to determine whether the doctor had acted dishonestly or not and that Sweeney J was “wrong to substitute a finding of dishonesty” when allowing the GMC’s initial appeal.
Bean LJ and Underhill LJ were both in agreement with Sales LJ. Bean LJ expressed his regret that the GMC had brought the initial appeal in the first place as such an appeal under s40 of the Act required “a very strong case for a court to overturn a finding of the MPT (or any comparable tribunal) that a doctor has not acted dishonestly”. He went on to say that “…In the present case, as Sales LJ has observed, the MPT gave anxious consideration to whether the [doctor’s] conduct could be regarded as dishonest … They were well placed to make an evaluative judgment of the nuances of how the various individuals had interacted and that judgment should have been accorded great weight, not only by the court but by the GMC in deciding whether to bring an appeal at all.”
2. The facts
On 13 December 2014, a doctor was working as a locum registrar paediatrician in the Paediatric Accident and Emergency (A&E) at the Royal Berkshire Hospital, when Patient A was brought into A&E. Patient A was a 5 month old child diagnosed with Dandy Walker Syndrome. Prior to seeing Patient A, the doctor reviewed Patient A’s medical records and a letter from the referring GP, which he used to commence completing the history and examination section of the Emergency Department Paediatric Initial Assessment Form (the form).
The doctor was then called to attend on another patient, leaving the partially completed form in the paediatric doctor’s office. Patient A’s parents complained to the nursing staff that Patient A was yet to be seen, and after further enquiries, a junior doctor found the partially completed form which led to confusion about whether Patient A had been attended to. The doctor was approached by two nurses who queried whether he had seen Patient A.
Subsequently, a meeting was called with the doctor, the two nurses and the Emergency Department Consultant, Dr Nafousi. The doctor provided a full account of his conduct to Dr Nafousi and explained that he had the intention to see Patient A and he wanted to use the partially completed form as a prompt during the examination of Patient A. Later that evening, during a telephone conversation with Dr De Halpert, the on-call Paediatric Consultant, the doctor denied completing the examination section of the form.
The General Medical Council (GMC) alleged that the doctor had dishonestly denied making entries in the examination section of the form before seeing Patient A. However, the doctor claimed that he believed that “Dr De Halpert’s real or principal concern was that he had finalised the examination section without ever intending to see Patient A at all.” The doctor submitted evidence to the MPT that he explained to Dr De Halpert that he would “never do this”.
Following his evidence on this point, the MPT found that the doctor had misled Dr De Halpert by providing false statements. In their determination on impairment dated 6 February 2017, the MPT explained that, “The tribunal accepts that you thought [Dr De Halpert] was questioning the probity of someone making an examination note without ever seeing the patient, when your position was that you were simply preparing for seeing the patient. The tribunal however determined that [Dr De Halpert] was left with a false impression which was misleading and amounts to serious misconduct.”
The MPT expressed that the incident had been a “one-off matter occurring on a single day; the doctor had a sufficient level of insight as to what he had done wrong to mitigate”. The MPT found that the conduct “fell just short of a finding of impairment”, and issued the doctor with a written warning.
Initial Appeal (High Court – Sweeney J)
On appeal by the GMC to the High Court, Sweeney J substituted the MPT decision with a finding of dishonesty on the basis that the doctor’s conduct “could not lead to any conclusion other than that, by the standards of ordinary decent people, the [doctor’s] denial was dishonest.” He further substituted the MPT decision with a finding of current impairment on the basis that “probity and integrity are at the heart of the medical profession, and the [doctor] failed to be as open as he should have been about what he had entered in a patient’s record… [as such]…I have no doubt that the relevant line has been crossed, and that a finding of impairment must be made.” Following these substitutions, Sweeney J sent the case back to the MPT to decide an appropriate sanction in light of the new findings.
3. The Court of Appeal decision (Sales LJ, Bean LJ and Underhill LJ)
The doctor appealed against Sweeney J’s ruling, taking the matter to the Court of Appeal where it was considered by Sales LJ, Underhill LJ and Bean LJ. Sales LJ ruled that Sweeney J had been “wrong to substitute a finding of dishonesty”. The Court held that the MPT had given anxious consideration to whether the doctor’s conduct could be regarded as dishonest and was well placed to make a finding. The discretion under s40A (3) was, in the Court’s view, was one to be “exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour”.
Underhill LJ added further criticism to the GMC for even bringing the initial appeal in the first place by expressing his “regret” that the appeal was brought and that the GMC ought to have shown greater restraint when considering the parameters of the power afforded to it under s40A of the Act to appeal when seeking to overturn a finding of dishonesty made by the MPT (or any comparable tribunal).
Sales LJ had approached the question of dishonesty using the Ivey Test which required the Court to “first ascertain the actual state of the person’s knowledge or belief as to the facts, and then should determine the question of dishonesty by applying the standards of ordinary decent people”. Following this, Sales LJ considered that Sweeney J’s approach to analysing the allegation of dishonesty was “too cut and dried” whilst the MPT regarded the facts as “finely balanced” and “thought there was an important moral distinction to be drawn in the particular circumstances of the case”.
In reaching his conclusion to allow the appeal, Sales LJ agreed with the MPT’s assessment of the doctor’s conduct because “it was clear from his conduct … that this was not part of a deliberate and dishonest plan by the [doctor] to cover up what he had done.” Sales LJ acknowledged that the doctor’s misleading statements in his conversation with Dr De Halpert, “was a venial and comparatively trivial effort by him to deflect Dr De Halpert’s ire that night” and he consequently agreed with the MPT’s finding that the doctor had not acted dishonestly. He further agreed with the MPT’s finding that the doctor’s fitness to practise was not currently impaired.
The GMC (and any comparable regulator) must ensure caution is exercised when using its power of appeal in order to challenge a finding of fact which fell in a registrant’s favour. The Courts will not entertain an appeal in instances where a regulator seeks to overturn a decision made by a well-informed Committee simply on the basis that it disagrees with it.
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