Case Summary – PSA v (1) General Medical Council (2) Igwilo [2016] EWHC 524 (Admin)

Posted by Guy Micklewright on

Commentary

This case reaffirms the significance of the wider public interest in a finding of impairment being made, even where there is little likelihood of repetition, to mark serious misconduct.

Unlike in proceedings relating to solicitors, dishonesty in the healthcare regulatory sphere can span a wide range of seriousness, and need not always lead to a finding of impairment of fitness to practise, let alone erasure e.g. Professional Standards Authority for Health and Social Care v (1) General Medical Council (2) Parvan Kaur Uppal, [2015] EWHC 1304, a case which was also heard by Laing J, where the Court found that it was not unduly lenient for a Panel not to make a finding of impairment, but was unduly lenient for a warning not to be imposed. It is generally an exceptional case that justifies a finding of no impairment where there is a finding of dishonesty. The facts of Igwilo are demonstrably not one of those cases.

An appeal by the PSA against a decision of the Fitness to Practise Panel of the GMC that a doctor's fitness to practise was not impaired. The Court held that the decision of the Panel was "unduly lenient", substituted a finding of impairment and remitted the question of sanction to a differently constituted Panel.

Facts

Dr. Igwilo was a Nigerian qualified doctor who registered with the GMC in 2002. In 2010 he applied for inclusion in the Specialist Register of Forensic Psychiatrists but was unsuccessful. He exercised his right to apply for a review of that decision in June 2011 but was also unsuccessful. He made a further application in November 2012, submitting further evidence to address recommendations made in the letter refusing admission following the second application. One of the reports submitted by Dr Igwilo was in fact one which had been submitted by another applicant, but Dr Igwilo had falsely altered the report so that it bore his name.

Following further investigation, the GMC alleged falsification of a large number of other documents in proceedings before a Fitness to Practise Panel. A number of these allegations were found proved. The actions of Dr. Igwilo, in respect of six of the particulars of the allegations which were found proved, were found by the Panel to have been dishonest.

In its determination dated 16 September 2015, the Panel found the actions of Dr. Igwilo to amount to misconduct but did not consider his fitness to practise to be impaired. It stated:

"This was an isolated period of dishonesty that occurred against a background of severe personal stress. He had since undergone extensive reflection and remediation, and there was no risk of repetition. Public confidence in the profession would not be undermined by a find of no impairment."

The Panel also considered it disproportionate to issue a warning.

The Professional Standards Authority for Health and Social Care ("PSA") brought proceedings in the High Court under section 29 of the National Health Service Reform and Health Professions Act 2002 on the following grounds:

i) The Panel failed to make adequate findings of misconduct, in that it failed to have sufficient regard to the serious nature and extend of Dr. Igwilo's dishonesty and the public interest in the standards of the Specialist Medical Lists being regulated effectively by the GMC;

ii) The Panel was wrong to find that Dr. Igwilo's fitness to practise not to be impaired, in that it failed to give adequate regard to the matters in the first ground of appeal and gave undue regard to the mitigating factors, as well as giving insufficient regard to the public interest in maintaining public confidence in the profession; and

iii) In the alternative, the Panel was wrong not to issue a warning.

The GMC conceded that that the Panel was unduly lenient in not finding Dr. Igwilo's fitness to practise to be impaired. Dr. Igwilo did not participate in the High Court proceedings.

Judgment

Handed down by Mrs Justice Lang.

The Court conducted a review of the authorities. In considering the judgment of Silber J in R (on the application of Cohen) v GMC [2008] EWHC 581 (Admin) the Court noted that the question of impairment of fitness to practise is a prospective one. It stated:

"71. However it is essential, when deciding whether fitness to practise is impaired, not to lose sight of the fundamental considerations emphasised at the outset of this section of his judgment at paragraph 62, namely the need to protect the public and the need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession."

The Court also considered the judgment of Sales J in Yeong v GMC [2009] EWHC 1923 (Admin.) where it was said that where the misconduct in question consists of violating a fundamental rule of the professional relationship between the doctor and their patient, then efforts made by the practitioner to address their behaviour for the future may carry very less weight then where the misconduct relates to clinical matters or incompetence. In agreeing with that analysis, the Court added the following:

"74. … In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances."

The Court dismissed the first ground of appeal. Whilst, in the Court's judgment, it would have been "good practice" for the Panel to have given a fuller determination on the question of misconduct, its reasons were not so inadequate so as to necessitate its decision being quashed.

The Court allowed the appeal on the second ground (the third ground, accordingly, not falling for consideration). The Court considered that the Panel was entitled to place weight on Dr. Igwilo's mitigation and his evidence that his actions constituted an isolated period of dishonesty which occurred at a particularly stressful time, and in respect of which there was no risk of repetition. However, in the Court's judgment his actions amounted to a "…very serious and sustained deception of the regulator…purely to advance his career." In the Court's judgment there was a scale of dishonesty, and Dr Igwilo's actions were at the serious end of that scale.

"32. I consider that the Panel made an error of judgment in concluding that the need to maintain public confidence in the profession and the regulator, and to declare and uphold proper standards of conduct and behaviour, was met by the fact that Dr Igwilo had been subject to fitness to practise proceedings and that he had shown insight and remorse. I do not consider that a Panel, properly directed, could reasonably reach such a decision on the facts of this case."

Accordingly the Court found the decision of the Panel to be unduly lenient, substituted a decision that Dr Igwilo's fitness to practise was impaired, and remitted the question of sanction to be determined by a freshly-constituted Panel.

About the Author

Guy is a specialist advocate, with particular experience in fitness to practise cases and is cited as a 'leader in the field' in Chambers UK, A Client Guide to the Legal Profession 2013.

Guy Micklewright
Email Guy
020 7814 5457

View Profile