The risks of wrongly cumulating findings of misconduct


20th January 2022

We look at a recent case that serves as an important reminder for regulatory practitioners to be alert to a Committee wrongly cumulating findings of misconduct.

Dr Bashir Ahmedsowida v General Medical Council [2021] EWHC 3466 (admin)

In Ahmedsowida, Mr Justice Kerr made an order setting aside the findings of impairment and erasure, and remitting the matter back to the Medical Practitioners Tribunal Service (MPT) to reconsider the impairment and sanction stages. The appeal was bought on six grounds, and the administrative court found three errors in the MPT’s determinations.

Firstly, His Honour found that the MPT misapplied Schodlok v GMC [2015] EWCA Civ 769. Kerr J agreed with the Appellant, that the MPT had “failed to consider whether there was a large number of non-serious misconduct findings making up a series” [110]. He stated that:

The cumulation exercise, if permissible at all, is supposed to involve the cumulation of non-serious with other non-serious misconduct findings; not of one non-serious misconduct finding with two findings of misconduct that is serious in its own right. In the latter context, there is no good reason to cumulate; the quality of the conduct is already correctly expressed, without the need for any cumulation. [111]

Secondly, His Honour considered the question of whether the MPT had wrongly diluted the test of dishonesty. His Honour was “troubled” by the proposition, repeated at three points in the reasoning of the determination, that the Appellant was “reckless…and therefore dishonest” [123]. His Honour said he was “left with the possibility that the true reasoning” in the factual determination may have been that the Appellant was dishonest because, as the MPT stated at the impairment stage, he was not “careful enough about ensuring the accuracy” of his two CVs and the form for his application to the Birmingham Trust [124].

Thirdly, Justice Kerr accepted that, at the sanction stage, the MPT had wrongly approached the issue of the Appellant’s insight into dishonesty.  His Honour agreed with Mostyn J’s formulation of the principle in Towuaghantse v GMC [2021] EWHC 681 (admin) at [63], that:

it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.

Kerr J found that it was clear from the MPT’s determination that the MPT had held against the Appellant for his refusal to admit to dishonesty.

Comment

The case reminds regulatory practitioners to be alive to the risks of a conduct committee wrongly cumulating findings of misconduct, and of equating a robust defence of charges to a lack of insight, and thereby facing a more serious outcome.

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