Case Summary – Jenyo v General Medical Council  EWHC 1708 (Admin)
High Level Summary
An appeal by the Registrant against a panel's finding of the subjective element of dishonesty was dismissed. Mrs Justice Andrews rejected the suggestion that, where changes to records had been made retrospectively, the ease with which the changes could be discovered should have been given further weight by the panel. The panel's view that such an explanation provided no defence to the charges was not surprising because it tells the panel nothing about a Registrant's intention when making those changes. Further, when considering the duty incumbent upon a panel to give reasons for its decision, where a case hinges on the credibility of a Registrant, all the Registrant needs to be told is why the panel did not believe him.
Dr Robert Jenyo ("the Registrant" / "the Appellant") was erased from the medical register in July 2015 following a 19 day hearing before a Fitness to Practise Panel who concluded that he had acted dishonestly in retrospectively amending the medical records of Mr A.
Mr A had died of cancer in July 2007, having first seen the Registrant in December 2006 complaining of back pain. He attended again on 26 February 2007 with the same complaint and was referred, by the Registrant, for physiotherapy. On 01 May 2007 the physiotherapist noted recent weight loss and pain which appeared not to be mechanical. On 14 May 2007 it was discovered that Mr A had a tumour which was later diagnosed as an undifferentiated large cell carcinoma. He died on 15 July 2007.
The Registrant accepted having made the following alterations to Mr A's medical records:
a) On 09 May 2007 he amended the 27 December 2006 entry to include "no chest or abdomen pain, no hx (history) of wt (weight) loss."
b) On the same date he amended the 26 February 2007 entry to include "no red flag sxs (symptoms)" and "Review sos".
This first set of additions were made after the Registrant had seen Mr A's abnormal x-rays and knew that the back pain and weight loss were related to a suspected tumour. These amendments were also made following a telephone conversation with Mr A's wife where she criticised the Registrant's management of the condition.
c) On 11 May 2007 he amended the 10 January 2007 entry to include "no cervical spine tenderness".
d) On the same date he amended the 13 February 2007 entry to include reference to low mood, the inability to experience pleasure, and the inability to eat and sleep properly.
This second set of additions occurred following a further telephone conversation, this time with Mr A's son (a medical doctor) who was also critical of the Registrant's care of his father.
e) On 27 May 2010 he amended the 27 December 2006 entry for a second time to add that pain was "in lumbar region only".
f) On the same date he also amended the 26 February 2007 entry for a second time, by deleting a reference to "still c/o (complaining of) back pain, no red flag sxs will refer for physio" and replaced wiwth "still low no red flag sxs of his back pain but would like to try physio as well".
g) Also on that date, he amended the 17 January 2007 record by removing references to "cold/cough" and a chest examination, and replacing it with references to a "sore throat" and an examination of Mr A's throat and ears.
h) He amended the 30 January 2007 which originally stated "depressive episode still feeling low" and replaced it with "depressive episode back and muscle pain much better now, but still feeling low."
i) The 01 May 2007 entry was amended to include "pain now in mid back" and the 11 May 2007 record of the telephone conversation with Mr A's family was amended to include that the Registrant explained to the family that "he did not c/o pain whilst being on analgesics, pain mid-back only occurred recently and there was no bony tenderness when I examined him…" (This was factually incorrect).
This third set of extensive amendments was made after Mr A's family had commenced a medical negligence claim against the Registrant.
Whilst the Registrant accepted having made the amendments, he denied that he had been dishonest by so doing; he explained that he had recalled further information and sought to add it to the records in an attempt to clarify the patient's presenting condition and the advice/treatment received. He said he had thought that his amendments would assist the investigation.
The Registrant's grounds of appeal were that:
- The panel failed to lend any, or any sufficient, weight to the factors which were more consistent with his innocence than with a finding of subjective dishonesty. The panel had failed to address this issue in its reasoning which meant that the decision was fundamentally flawed.
- The panel failed to provide any, or any sufficient, reasons for the rejection of the innocent explanation given by the Registrant for making the alterations.
Mrs Justice Andrews first looked at the legal framework and set out the accepted principles that the court will not conclude that a finding of fact was against the evidence unless it exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible. Mrs Justice Andrews considered the decision in Subesh v Secretary of state for the Home Department  EWCA Civ 56 (at para 44) as support for this proposition:
"The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category."
The Registrant argued that the panel had failed to give sufficient weight to the innocent explanation put forward by the Registrant. Mrs Justice Andrews considered and rejected the Registrant's argument that GMC v Soni  EWHC 364 was applicable here and distinguished that case on the basis that (para 30): "In my judgment Holyrode J was not purporting to lay down any principle to that effect [that a panel must always consider and eliminate alternative explanations before it can conclude, or infer, that a doctor had behaved dishonestly]; he was simply explaining why it would be unfair to the doctor in that case … without at least considering other viable explanations. … That was not a case in which the doctor had admitted that he had deliberately failed to keep the patient records but provided some alternative explanation for that failure, which the panel disbelieved. If it had been, it is highly unlikely that the appeal would have succeeded."
Mrs Justice Andrews considered the Registrant's argument that, given that it was impossible to permanently cover up the amendments made (because the records were electronic and the software was set up to reveal any subsequent amendments to original records, any audit would always reveal them), this pointed away from the Registrant having a dishonest intention – i.e. because his behaviour was bound to be discovered. The argument was rejected on the basis that (para 36) "Stupidity and dishonesty are not mutually exclusive. A dishonest person in the Appellant's position might simply take a gamble on the possibility that there might never be an audit; or believe that he could bluff his way out of trouble by giving the 'innocent' explanation if an audit did take place. … If it was impossible for him to cover the changes up permanently and he knew that, the fact that he did not try to do so takes the argument no further."
Mrs Justice Andrews concluded that the panel's finding that the Registrant was subjectively dishonest was a long way from being contrary to the weight of the evidence. She said that (para 40) "The Panel's conclusions in respect of each of the alterations, and in respect of the overall picture, were well within the generous ambit afforded to a tribunal of fact with the advantage of having seen and heard the Appellant. The first ground of appeal therefore fails."
Mrs Justice Andrews then went on to consider the second ground of appeal, adequacy of reasons, and looked at the description given by Sir Mark Potter P in Phipps v GMC  EWCA Civ 397 (para 106):
"…[a duty on tribunals] to state their decisions in a form which is sufficient to make clear to the losing party why it is he that has lost. … It is not a necessary ingredient of the requisite clarity that the reasons should be expressly stated when they are otherwise plain or obvious."
She also reminded herself of the endorsement of those remarks, provided by Leveson LJ in Southall v GMC  EWCA Civ 407, where he observed that, in straightforward cases, setting out the facts to be proved and finding them proved or not will be sufficient both to demonstrate to parties why they won or lost and to explain to any appellate tribunal, the facts found. However, where the case can properly be described as 'exceptional' the position is and will be different, and will require something more. Mrs Justice Andrews concluded that (para 44): "It is clear from the case law that the duty to give reasons does not oblige a tribunal to make express reference to every matter relied on by the doctor as supporting his version of events and to explain why it has decided that those factors are outweighed by other factors. … Anyone reading the decision would know why it was that the Appellant's explanation for what he did was not believed, and why the Panel decided that he behaved dishonestly in respect of each of the alterations. This ground of criticism is also rejected."