GMC v Krishnan  EWHC 2892 (Admin)
On 20 November 2017, the Administrative Court handed down judgment in GMC v Krishnan  EWHC 2892 (Admin). This was an appeal by the GMC against the Medical Practitioners Tribunal's (MPT) decision that the Registrant was not dishonest in having worked as a locum GP for an agency whilst on sick leave from his main employment and a cross appeal (an application for Judicial Review) by Dr Krishnan that the MPT were wrong in finding that the first (objective) part of the Ghosh test for dishonesty was met.
The first instance finding of dishonesty was made in the world where the 2 stage objective and subjective tests for dishonesty pursuant to R v Ghosh  QB 1053 was the correct test to apply.
His Honour Judge Sycamore's judgment follows the decision in Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club)  UKSC 67, which has of course changed the approach that tribunals should take when considering dishonesty. It should be noted that the submissions made by both parties on appeal were made when Ghosh was still applicable and that following HHJ Sycamore reserving judgment, the decision of Ivey was published and HHJ Sycamore then invited written submissions given the change in approach to dishonesty before preparing his judgment.
The appeal was allowed so that the decision of the MPT that the Respondent was not dishonest, and that the Respondent's fitness to practice was not impaired, was quashed and the matters were remitted to the MPT to re-consider.
The Respondent had admitted that to have worked for another agency whilst on sick leave from his substantive employment was misleading but disputed dishonesty. The MPT considered that the first (objective) limb of the Ghosh test was met but it was not so satisfied in respect of the second limb.
Ivey has subsequently established that the second limb of the Ghosh test should not be applied and so in this case were the MPT to have been acting in a post-Ivey world, the approach should have been to first determine the Respondent's state of mind as to the facts and then to have gone on to consider whether his conduct was dishonest by the standards of ordinary decent people. There would be no need, and indeed the Tribunal should not have, considered whether the Respondent must have realised that his conduct was dishonest by the standards of ordinary decent people.
Given that this case straddled the Ghosh – Ivey changeover HHJ Sycamore concluded that it was inappropriate for him to determine whether the Tribunal erred in their application of the second (subjective) limb of the Ghosh test because Ivey had superseded this ground of appeal.
As to the Respondent's cross-appeal, HHJ agreed with the submission made on behalf of the Respondent that the first stage (objective) Ghosh test is not the same as the second stage (objective) Ivey test. The objective test in Ghosh was to be applied without reference to the actual state of mind as to knowledge or belief as to facts of the individual concerned, whereas in Ivey the foundation of the objective test is on the actual state of mind of the individual objectively judged. In line with his decision on the GMC's appeal, HHJ Sycamore considered that as Ivey had superseded the appeal and cross appeal, it was therefore inappropriate for him to determine the issue of the cross appeal quite apart from the fact that it had become academic given the change in approach to dishonesty post-Ivey.
The remaining issue between the parties was the impact of Ivey in terms of the approach to be adopted for disposal of this case. The Respondent invited the Court to draw on the findings of the Tribunal and uphold the finding that he was not dishonest. The Appellant invited the Court to conclude that in the light of its findings the Tribunal had in fact answered the relevant questions as identified in Ivey and as a consequence the Registrant should have been found to have been dishonest. Unsurprisingly, HHJ Sycamore held that given the change in law, it was inappropriate for the Court to substitute its own decision drawing on the findings of the Tribunal and that the matter should be reconsidered by the Tribunal itself and applying the correct Ivey approach.
This decision of the Queen's Bench Division, supports Ivey as good law and as the correct approach to be applied in regulatory proceedings:-
"It follows that the advice proffered by the legal assessor and its acceptance by the Tribunal Panel was in error. Had the approach been in accordance with Ivey the Panel should have first determined the Respondent's state of mind as to the facts and then gone on to consider whether his conduct was dishonest by the standards of ordinary decent people. Ivey is clear authority for the proposition that in a case such as this the Tribunal should not have considered whether the Respondent must have realised that his conduct was dishonest by the standards of ordinary decent people."
The decision confirms that Ivey does not simply invert the objective and subjective limbs of the Ghosh test but rather that the objective element of Ivey flows on from the individual's actual state of mind not what he or she should have realised was dishonest by the standards of ordinary decent people:
“… the first stage (objective) Ghosh test is not the same as the second stage (objective) Ivey test. The objective test in Ghosh had to be applied without reference to the actual state of mind as to knowledge or belief as to facts of the individual concerned”.
Beyond that we will have to wait for an appeal on the interpretation of Ivey rather than merely its application to certain facts. The focus is now on the first tier tribunals who will have the task of applying the new Ivey approach as it stands.
The interesting and perhaps instructive thing to have had a determination on would have been the application of Ivey to the case at hand. We will have to wait for the MPT's reconsideration of this case; will they find dishonesty proven or not according to the Ivey test?