General Medical Council v Raychaudhuri [2017] EWHC 3216 (Admin)

Posted by Antonia Dowgray on
The Respondent had appeared before the Medical Practitioners Tribunal ("the MPT") for dishonesty charges arising out of his conduct as a Locum Paediatric Registrar on 13 December 2014, when he was dealing with Patient A.

The Appellant appealed the MPT's decision on three main grounds, submitting overall that the decision was not sufficient for the protection of the public. The Court determined that the Respondent had acted dishonestly in relation to his telephone communication to Dr D (during which he had denied writing examination findings on a pro-forma before he had seen Patient A), and that the MPT's decision to the contrary about this communication was wrong. The Court further quashed the MPT's decision that the Respondent was not impaired, and remitted the case back to the MPT for further consideration on sanction.

Facts

On 13 December 2014, the Respondent was working in the Emergency Paediatric Department at the Royal Berkshire Hospital. At about 5:30pm, the Respondent was advised that Patient A (a 5-month old baby with Dandy Walker Syndrome) had arrived and, before seeing Patient A, the Respondent reviewed Patient A's previous medical records and made a number of entries in a Pro-forma Paediatric Assessment Form ("the Pro-forma"). The Respondent was subsequently called away to see another patient and left the Pro-forma in the paediatric doctor's office. Patient A was seen by the Respondent later on 13 December 2014.

The case for the GMC at the MPT was that:

  • The Respondent had completed the history, examination findings and summary/impression and management plan sections of the Pro-forma in relation to Patient A from Patient A's previous medical records and, that at the time he entered the information, he did not know the information to be correct, and he knew it to be untrue, as he had not examined Patient A. This conduct was alleged to be misleading and dishonest;
  • The Respondent had initially advised Nurses B and C that Patient A had been assessed by a junior colleague. The statement was false and misleading;
  • The Respondent had, in a later conversation with Dr D, denied writing examination findings on the Pro-forma before seeing Patient A, and stated he had only written in the background information based on a letter from Patient A's General Practitioner. These were false statements.    

At the time of the MPT hearing, the test for dishonesty was that provided in R v Ghosh [1982] QB 1053 and Uddin v GMC [2012] EWHC 2669 (admin), namely the consideration of two issues, firstly, whether by the standards of reasonable and honest people, what the Respondent did was dishonest; and, secondly, whether the Respondent had realised at the time that what he did was dishonest by those standards.  The Respondent accepted at the outset of the MPT hearing that he had completed the history section of the Pro-forma before seeing Patient A. He denied having completed the other sections in which he had made entries before seeing Patient A.  

The MPT's critical findings of fact included that:

  • The Respondent's action in completing the history section on the Pro-forma was not misleading. His action in completing the examination findings and management plan sections was misleading but not dishonest. The Pro-forma had been taken from the office without the Respondent's knowledge and he had had every intention of examining Patient A and amending the Pro-forma accordingly;
  • The Respondent's initial advice to his colleagues, Nurses B and C, that Patient A had been assessed by a junior colleague was false and misleading, but was not known by him to be false and was not dishonest;
  • The statement made to Dr D during the telephone conversation that he had not written examination findings on the Pro-forma before seeing Patient A was false (and known by him to be false). The statement that he had only written in the background information was false. Both statements were found to be misleading but not dishonest. 

The MPT did not find current impairment and determined to impose a Warning for 5 years on the Respondent's registration.

Appeal

The GMC appealed, submitting the MPT was wrong in not imposing a sanction and in not finding:

  • that the Respondent knew his initial statement to Nurses B and C was false and dishonest;
  • that the Respondent's knowingly false statement to Dr D (denying that he had written the examination findings into the Pro-Forma before seeing Patient A) was dishonest;
  • the Respondent's fitness to practise to be impaired.

Judgment

The decision in Ivey v Genting Casinos UK limited [2017] UKSC 67 had been issued after the MPT hearing. The Court therefore received submissions from the parties on dishonesty following Ivey.  Mr Justice Sweeney found, on appeal, that the MPT had reached "nuanced, and in some instances, delicately nuanced, findings", some of which were, in his view, "wrong" [38].

Mr Justice Sweeney stated that the MPT's finding that it was not proved that the Respondent was dishonest when he denied to Dr D that he had written examination findings before seeing Patient A, was "not an appropriately nuanced finding that was properly open to the MPT", and was inconsistent with the MPT's other findings and was wrong [47]. Mr Justice Sweeney said that he was persuaded of this view even applying Ghosh. Mr Justice Sweeney said the position was "even clearer when Ivey rather than Ghosh" was applied as the test for dishonesty. Mr Justice Sweeney stated that he could "see no basis upon which the Respondent's state of knowledge or belief as to the essential facts could lead to any conclusion other than that, by the standards of ordinary decent people, the Respondent's denial was dishonest" [50]. 

The Court determined that, as there was now an additional dishonesty finding in relation to the Respondent's dealings with Dr D, the "relevant line had been crossed" and accordingly substituted a finding of impairment. The Court quashed the Warning and remitted the case back to the MPT for further consideration as to sanction.    

Commentary

Interestingly, in this case, the Court found that, whether applying the previous approach in Ghosh or the current approach in Ivey, the MPT had erred in not finding that the Respondent was dishonest when he denied to Dr D having written examination findings on the pro-forma before seeing Patient A. The decision reinforces the need for committees hearing professional regulatory cases involving dishonesty, to make cogent findings and set out full reasons for their decision.

About the Author

Antonia is a Senior Associate in our Professional Regulatory team based in London.

Antonia Dowgray
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