Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE SWEENEY
Between :
GENERAL MEDICAL COUNCIL | Appellant |
- and - | |
DR HEMMAY RAYCHAUDHURI | Respondent |
Ivan Hare QC (instructed by General Medical Council Legal) for the Appellant
Robert Kellar (instructed by the Medical Defence Union) for the Respondent
Hearing dates: 6 July 2017
Judgment Approved
Mr Justice Sweeney:
Introduction
This is an appeal by the General Medical Council (“the GMC”), under the provisions of s.40A(1)(d) of the Medical Act 1983 (“the 1983 Act”), against the decision of the Medical Practitioners Tribunal (“the MPT”), on 7 February 2017, that the fitness to practice of the Respondent, Dr Raychaudhuri, was not impaired by reason of misconduct, and against the decision by the MPT, on 9 February 2017, to impose a Warning upon his registration for five years – upon the ground that those decisions were not sufficient to protect the public in the circumstances of the Respondent’s case.
Background
The Respondent qualified as a Doctor in Calcutta in 2004. He underwent medical training in a range of hospitals in India, Finland and the UK. He developed an interest in paediatrics, and achieved membership of the Royal College of Paediatrics in Child Health in 2012. He had no previous regulatory history with the GMC.
The misconduct alleged against the Respondent arose out of his conduct when working as a Locum Paediatric Registrar in the Emergency Paediatric Department at the Royal Berkshire Hospital on 13 December 2014. At around 5.30pm, he was informed of the arrival of Patient A (a 5-month-old child who had been diagnosed with Dandy Walker Syndrome, which involves chronic brain malformation). Thereafter, and before seeing Patient A, he had reviewed Patient A’s previous medical records and had made a number of entries in a Pro-forma Paediatric Assessment Form, but was then called away to see another patient and had left the Pro-forma in the paediatric doctor’s office. Thereafter, Patient A’s parents had complained that he had not been seen by a doctor. That was looked into by a junior doctor, Dr B, who had found the partially completed Pro-forma in the office and had brought it to the attention of Nurse B (also referred to as Ms F), who had therefore assumed that Patient A had been seen by a doctor. However, when that was put to them, Patient A’s parents still maintained that he had not been seen.
Nurse B and Nurse C (also referred to as Ms A) had then spoken with the Respondent. They said that the Respondent had initially confirmed that he had not seen Patient A, and had initially said that it was a junior colleague, an SHO, who had seen, or must have seen, Patient A. The Respondent said that he had no recollection of mentioning the junior doctor, but that he may have done so prior to seeing the Pro-forma, after which he had immediately accepted that the handwriting on it was his and that he had not yet seen the patient.
Nurse B and Nurse C had then raised the issue with the on-duty Emergency Department Consultant, Dr E, after which there was a meeting which involved Dr E, the Respondent and the two nurses. Thereafter, Dr E had telephoned the on-call Paediatric Consultant, Dr D (also referred to as Dr C), to explain what had happened.
Dr D had then telephoned the Respondent. Dr D said that the Respondent had denied writing examination findings on the Pro-forma before seeing Patient A, and that the Respondent had stated that he had only written in background information based on a letter from Patient A’s General Practitioner. The Respondent asserted that he understood that Dr D’s real concern was that the Respondent had documented examination findings without ever intending to see the patient, and he had denied that.
At all events, the Respondent did eventually see Patient A on 13 December 2014, and finalised the Pro-forma after he had done so. There was no complaint by Patient A’s parents, no adverse outcome, and no suggestion that there was any deficiency in the Respondent’s management of the patient. However, the Respondent’s locum contract with the Royal Berkshire Hospital was terminated and a referral was made to the GMC.
The allegations subsequently made by the GMC were that before the Respondent had taken a history from Patient A or his parents, or had examined Patient A, he had completed the history, examination findings, summary/impression and management plan sections of the initial assessment Pro-forma in relation to Patient A with information that he had obtained from Patient A’s previous medical records, and that, at the time that he had entered it, he did not know the information to be correct, and knew it to be untrue, because he had not undertaken an examination of Patient A – which actions were misleading and dishonest; that he had initially advised Nurses B and C that Patient A had been assessed by a junior colleague – which statement was false and which he knew to be false, and his actions in that regard were misleading and dishonest; and, separately, in the later telephone conversation with the Consultant Paediatrician, Dr D, he had denied writing examination findings on the Pro-forma before seeing Patient A, and had stated that he had only written in the background information based on a letter from Patient A’s General Practitioner – which statements were false and which he knew to be false, and his actions in those regards were misleading and dishonest. It was asserted by the GMC that, by reason of the matters alleged, the Respondent’s fitness to practise was impaired because of his misconduct.
The MPT heard the case against the Respondent over a total of nine days in August 2016 and February 2017. The GMC called six witnesses, including Nurse B, Nurse C and Dr D. The Respondent gave evidence on the facts, then subsequently on impairment, and finally in relation to the Warning.
At the time of the hearings in the MPT the test for dishonesty, as provided by R v Ghosh [1982] QB 1053 and Uddin v GMC [2012] EWHC 2669 (Admin), involved consideration of two issues, namely 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.
At the outset of the proceedings in the MPT the Respondent accepted that he had completed the history section of the Pro-forma before seeing Patient A. The Respondent also made a detailed formal admission about the importance of contemporaneous record keeping and the potential harm if notes were not made contemporaneously.
As to the entries in the Pro-forma, whilst admitting (as indicated immediately above) that he had completed the history section of the Pro-forma before seeing Patient A, the Respondent denied having completed (i.e. finalised) the other sections in which he had made entries before seeing the patient
The MPT concluded that each of the witnesses who had given evidence for the GMC was credible and reliable, and had tried to assist the MPT by providing evidence to the best of their recollection; that each had fairly stated when they could not remember, or had no clear recollection, of any event; that they had not sought to exaggerate their evidence; and that there had been no detectable sign of underlying tensions between them and the Respondent.
The MPT also concluded that the Respondent was a credible and reliable witness, and that he had also stated when he was unable to remember what was asked of him – including when it would have been to his advantage to have remembered. However, the MPT did find some of his explanations to be implausible in the context of what had taken place – for example, his explanation that he had inserted findings in the examination part of the Pro-forma to save time.
Against that background, the critical findings of fact made by the MPT were that:
On 13 December 2014, the Respondent was working as a Locum Paediatric Registrar in the Emergency Paediatric Department at the Royal Berkshire Hospital.
He had completed (i.e. filled in) the history, examination findings and management plan sections of the paediatric initial assessment Pro-forma (but not the summary / impression section) for Patient A before he had taken a history from Patient A or his parents, or had examined Patient A. His action in completing the history section was not misleading. His action in completing the examination findings and management plan sections were misleading, but not dishonest.
He had completed the Pro-forma with information that he had obtained from Patient A’s previous medical records, which information he did not know to be correct (rather than knew to be untrue) at the time that he entered it – which action was misleading, but was not dishonest.
The Pro-forma had been taken from the office without the Respondent’s knowledge and he had had every intention of examining the patient and of amending the Pro-forma accordingly.
He had initially advised his colleagues, Nurse B and Nurse C, that Patient A had been assessed by a junior colleague – which statement and actions were false and misleading, but were not known by him to be false and were not dishonest.
During the telephone conversation with Dr D (who was a senior colleague) he had denied writing examination findings on the Pro-forma before seeing Patient A, and had stated that he had only written in the background information based on a letter from Patient A’s General Practitioner – which statements were false, and the first of which was known by him to be false, and which actions were misleading but not dishonest.
His actions had amounted to misconduct, and to serious misconduct in relation to Dr D, but were not such that public confidence in the profession would be undermined if no finding of current impairment was made. However, given that his misconduct had fallen just short of a finding of impairment, the imposition of a Warning on his registration for a period of five years was both necessary and proportionate to underline to him, and to other members of the profession, that probity and integrity must be at the forefront of every doctor’s practice.
In relation to the Respondent’s insight into his misconduct, and by reference to his appraisal input in a document prepared for the Barts Health NHS Trust in which he had stated that the MPT proceedings were into “a documentation and communication issue”, and that that MPT had “ruled out any probity issues but mentions some aspects of my documentation can be misleading”, the MPT stated that:
“It was concerned that whilst you have demonstrated insight into the issues about note taking and communication, you did not appear to fully understand the issues surrounding your probity in that your acts and omissions caused colleagues to be misled. The Tribunal has already commented that there might be a misunderstanding on your part as to what the probity issues actually are, given that English is not your first language. When this was raised in cross examination, you indicated that the Tribunal had not found you to be dishonest and took this as confirmation of your probity. There is further evidence in your appraisal input form where you make a distinction between lack of probity and misleading behaviour.”
The Warning imposed was in the following terms:
“An MPTS Tribunal sitting in August 2016 and reconvened in January 2017 found that, in December 2014 you completed a paediatric assessment form (‘the Pro-forma’) detailing the history, examination findings, summary and management plan sections of that form for Patient A, whom you had not yet seen; completed the Pro-forma with information which you obtained from Patient A’s medical records and did not know to be correct at the time you entered it; and provided misleading information to colleagues in respect of the entries you made on that form by not being open and frank about the circumstances. The Tribunal determined that your actions in this regard amounted to serious misconduct. The Tribunal had concern regarding the level of your insight, which in its view, whilst not fully developed, was sufficient to enable it to conclude that your fitness to practise was not currently impaired. The Tribunal heard evidence from you on three separate occasions and determined that the insight you have demonstrated is underdeveloped. Furthermore, the Tribunal balanced the impact a warning would have on your career against the public interest and the confidence it had in the profession. Given the seriousness of the misconduct, falling just short of a finding of current impairment, the Tribunal has determined that in the particular circumstances of this case, the public interest outweighs your own interest.”
Outline of the rival cases on appeal
As already touched on above, the GMC’s overall ground of appeal is that the MPT’s decisions were not sufficient for the protection of the public. In the terms of CPR 52.21, the GMC submits that the MPT was wrong:
In not finding that the Respondent knew that his initial statement to the two nurses (that Patient A had been assessed by a junior colleague) was false, and in not finding that the statement was dishonest.
In not finding that the Respondent’s knowing false statement to Dr D (denying that he had written the examination findings into the Pro-forma before seeing Patient A) was dishonest.
By reason of (1) and/or (2), or otherwise, in not finding the Respondent’s fitness to practise to be impaired.
In so submitting, the GMC underlined that it was not inviting me to upset any conclusions of primary fact made by the MPT, but rather to conclude that the inferences drawn from those facts by the MPT were wrong. The fundamental nature of the need for honesty in the conduct of medical practice was stressed. It was accepted that it did not necessarily follow that a finding of dishonesty led to a finding of impairment, but it was said to be unusual if it did not, and that (in that regard) the Respondent’s case did not come within the same category as cases such as SM [2017] CSIH 29 and Uppal [2015] EWHC 1304 (Admin). The normal consequences of a finding of dishonesty was severe sanction (often erasure, even in the case of a one-off instance) – see Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin). Ultimately, at the hearing, the GMC invited me to allow the appeal; to quash the findings made in relation to the statements to the nurses and to Dr D; to substitute findings of dishonesty in both instances; to quash the Warning; to substitute a finding of impairment; and finally, to remit the case to the MPT for further consideration as to sanction.
On behalf of the Respondent, it was asserted, at the hearing, that the appeal was without merit because:
There was no appeal by the GMC against the central finding of the MPT that the Respondent’s note keeping was misleading but not dishonest.
Having had the advantage of hearing live evidence from the relevant witnesses, the MPT had given sufficient reasons for its finding that his communication with the nurses was not dishonest – which was a decision that was plainly available to the MPT on the evidence before it.
However, the MPT had erred in finding that the Respondent had made a statement to Dr D that he “knew to be false” – which finding I should correct.
In any event, the MPT had given sufficient reasons for its finding that the Respondent’s communication with Dr D was not dishonest – which was also a decision that was plainly available to the MPT on the evidence before it.
The overall value judgment on impairment was a matter for the specialist MPT. Its determination was in accordance with the relevant case law, was properly reasoned, and was available to the MPT on the evidence before it.
The 1983 Act / GMC v Jagjivan
Section 40A of the 1983 Act provides in relevant part that:
“(1) This section applies to any of the following decisions by the Medical Practitioners Tribunal–
……
(d) a decision not to give a direction under s.35D
(2) A decision to which this section applies is referred to below as a ‘relevant decision’.
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient–
(a) to protect the health safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for the members of that profession
……
(6) On an appeal under this section, the court may –
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the Tribunal;
(d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court…’
Section 35D provides, in relevant part, that:
“……
(2) Where the Medical Practitioners Tribunal find that the person’s fitness to practice is impaired they may, if they think fit–
(a) …direct that the person’s name shall be erased from the register;
(b) direct that his registration shall be suspended…:or
(c) direct that his registration shall be conditional on his compliance… with… requirements… for the protection of members of the public…
(3) Where the Tribunal finds that the person’s fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance……”
These provisions were recently considered by the Divisional Court in General Medical Council v Jagjivan & Anor [2017] EWHC 1247 (Admin) which decided that section 40A is sufficiently broad to permit the GMC, as here, to appeal a decision by the MPT that a practitioner’s fitness to practise is not impaired. Recognising that I am bound by Jagjivan, the Respondent reserves his position to the contrary.
At [39] and [40] of the judgment in Jagjivan the Divisional Court authoritatively summarised the correct approach on such appeals.For the purposes of this appeal, it suffices to record that:
Proceedings under s.40A are governed by CPR Part 52, and thus a court will allow an appeal under CPR Part 52.21(3) if the relevant decision is ‘wrong’, and it is not appropriate to add any qualification to that test.
The court will correct material errors of fact and of law. However, an appeal court must be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing.
Where the question is what inferences are to be drawn from specific facts, an appellate court is under less disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence – see CPR Part 52.11(4).
As the appellate court does not have the expertise of the MPT, the appellate court will approach MPT determinations about whether conduct is serious misconduct, or impairs a person’s fitness to practise, and what is necessary to maintain public confidence, and proper standards in the profession, and sanctions, with diffidence.
However, there may be matters, such as dishonesty, where the court, albeit affording an appropriate measure of respect to the MPT’s judgment, “is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal”.
Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
A failure to provide adequate reasons may constitute a serious procedural irregularity, which renders the MPT’s decision unjust.
As before the MPT, the burden is on the GMC to prove its case on the balance of probabilities – in accordance with the guidance given by the House of Lords in Re D [2008] UKHL 33.
The GMC did not dispute that I have the power, if I think it right to exercise it, to accede to the Respondent’s invitation to correct the MPT’s finding that he knew that his statement to Dr D was false.
The hearing of the appeal was conducted upon the basis that the MPT had been correct, when considering dishonesty, to apply the well-known objective and subjective tests in R v Ghosh (above). However, subsequently, in Ivey v Genting Casinos UK Limited [2017] UKSC 67, the Supreme Court decided that the second (subjective) test in Ghosh did not correctly represent the law. In the result, both parties made further submissions in writing.
In paragraphs 29-31 below I summarise the respective submissions made during the hearing. The written submissions made following Ivey are summarised in paragraphs 34 & 35.
The GMC’s submissions
On behalf of the GMC, Mr Ivan Hare QC underlined that the majority of the allegations had been found proved, and submitted that it was irrelevant that the Respondent had not been found to be dishonest in making the entries in the Pro-forma in the first place, because his actions in that regard had been found to be misleading. The critical evidence for the purposes of the appeal, he submitted, was that of Nurse B and Dr D (who had both been found to be credible and reliable, whereas the Respondent had been found also to be implausible in some respects). In chronological order, Mr Hare variously submitted that:
As to the MPT not finding that the Respondent knew that his statement to Nurses B & C was false and not finding that it was dishonest, Nurse B was the crucial witness (as Nurse C could not recall the detail). Attention was drawn to various passages in Nurse B’s statement and evidence, to various passages in the Respondent’s statements and evidence, and to [4], [33] - [36], [45] - [46] & [50] - [52] of the MPT’s findings, and that:
In finding that the Respondent had initially advised Nurses B & C that Patient A had been assessed by a junior colleague, the MPT had preferred, in particular, the evidence of Nurse B to that of the Respondent. It was plainly not a case of a mistaken identification of the patient involved, which was confirmed by the subsequent conversation with Dr E
Nevertheless, whilst finding that statement to be false, the MPT had relied on two reasons for not finding that the Respondent knew that it was false, namely:
It could not be satisfied that the Respondent knew that the Nurses were talking about Patient A when he had referred to his junior colleague.
The Respondent’s good character.
The first reason was inconsistent with other findings made by the MPT as, if there could have been a mistake by the Respondent as to the identity of the patient concerned, the allegation that the Respondent had initially advised the nurses that Patient A had been seen by a junior colleague should not have been found proved, but was – amounting to an inconsistency on the face of the MPT’s findings.
In addition, as to the first reason, the MPT must have preferred the Respondent’s evidence to that of Nurse B – but her evidence had been absolutely clear. She had told the Respondent that she and Nurse C had found the filled-out paperwork for Patient A; he had said that the patient had been examined by a junior colleague, who he named; but when Nurse B had said that she had bleeped that doctor to check, the Respondent had immediately said that that doctor had not seen Patient A – which evidence was supported by the content of Nurse B’s email timed at 08.06 on 14 December 2014. Thus, for the Respondent’s explanation of mistaken identity to be accepted, the MPT would have had to have doubted Nurse B’s account, and yet they found her to be entirely credible and reliable. So that amounted to a further inconsistency in the MPT’s findings.
The MPT’s reliance on the Respondent’s good character had to be seen in the light of the fact that the MPT had found that the Respondent had known that his statement to Dr D that he had not written examination findings on the Pro-forma before seeing Patient A was false. Therefore, the Respondent’s good character had not been intact when the MPT had made its findings of fact, and it had therefore placed undue weight on it in its reasoning.
If the finding that the Respondent did not know that his initial assertion to Nurses B & C that Patient A had been assessed by a junior colleague was false fell, then the MPT’s conclusion that the Respondent’s actions in that regard were not dishonest was also vulnerable.
As to the MPT not finding that the Respondent’s denial to Dr D that he had written examination findings on the Pro-forma before seeing Patient A was dishonest (albeit finding that his actions in relation to Dr D were misleading and that he knew that the denial was false) the relevant paragraphs of the MPT’s findings were [37]-[40], [47], [53]-[56], [83]-[85] & [98]-[99]:
The allegation was that the Respondent “denied writing examination findings on the Pro-forma before seeing Patient A” – therefore if the MPT were not satisfied that the Respondent knew that the issue was about writing in such findings before seeing (as opposed to never intending to see) the patient, the MPT should not have found the false statement to be made out.
The evidential basis for the finding (Dr D’s emails dated 15 December 2014 at 09.40 and 19 December 2014 at 13.13, together with his witness statement and evidence) was strong – as, in relation to the Respondent’s denial to him, the MPT found that Dr D’s evidence on this point had been “consistent”. In contrast, the scope not to find dishonesty was non-existent, and the reasons given by the MPT did not hold water.
The principal findings were in [53] - [56]. In finding that the Respondent knew that his denial to Dr D was false, the MPT had rejected the possibility that there was scope for misunderstanding in the conversation with Dr D as to whether the issue was “before” or “without” seeing the patient. Yet in its finding that the Respondent was not dishonest in relation to the denial, the MPT had accepted (in relation to precisely the same exchange) that there may have been some confusion on the Respondent’s behalf regarding the subject matter – which was self-contradictory, as there did not appear to be scope for “confusion” in the absence of any “scope for misunderstanding”.
The MPT’s finding that the Respondent did not meet the second limb of the Ghosh test (i.e. that he was not aware that ordinary and honest people would regard his denial to Dr D as dishonest) was very difficult to reconcile with the finding that the Respondent knew that the denial was false, and the MPT’s explanation for the different findings was entirely unclear and contradictory – with the MPT apparently asserting that it only found his statement to be knowingly false in not painting a full picture of the entries made, whereas that related to the allegation that the Respondent had stated that he had only written in the background information in the Pro-forma based on a letter from Patient A’s GP.
The only matter mentioned by the Respondent was that he was always intending to examine Patient A and to amend the Pro-forma depending on his findings – which was, as in R (Professional Standards Authority for Health and Social Care) v General Dental Council, Endicott [2014] EWHC 2280 (Admin) irrelevant to the allegation as charged. It had never been suggested that the Respondent had not intended to see Patient A.
The correct answer was that not only did the Respondent know that his denial to Dr D was false, but that he was also dishonest in making it. The MPT’s decision to the contrary was plainly wrong.
The MPT’s above-mentioned findings of fact were therefore wrong and should be quashed. In that event, the MPT’s finding of no impairment and to impose no sanction must also be wrong. In any event, dishonesty was fundamental and difficult to remediate. Against the background of the MPT’s finding in relation to the Respondent’s limited insight, it should have found that by reason of (1) and/or (2) immediately above, or even on the basis of the facts that it did find to be made out (though that was only faintly pursued), that his fitness to practise was impaired and, therefore, ought to have imposed a sanction under s.35D(2) of the 1983 Act.
The Respondent’s submissions
On behalf of the Respondent, Mr Kellar variously submitted at the hearing that:
The MPT, which had had the great advantage of hearing the witnesses, had found (which was not challenged) that the Respondent had not been dishonest in making entries in Patient A’s notes. It was entitled to find that the evidence was not sufficiently cogent to prove that the Respondent had been dishonest in his dealings with his colleagues, and had given clear and comprehensible reasons for finding that the Respondent’s communication with the nurses was not dishonest – namely, in summary, that:
Although it accepted that the Respondent had said words that led the nurses to believe that the patient had been assessed by a junior colleague, it was not satisfied that the Respondent knew exactly which patient the nurses were referring to when he first stated that the patient had been seen by a junior colleague.
Although the relevant charge asserted that the Respondent had misinformed both nurses, Nurse C had no recollection whatsoever, and her contemporary account (written 7 days later) indicated that he had accepted authorship of the Pro-forma entries straight away, and thus contradicted Nurse B’s account. In any event, in cross-examination Nurse B had made a number of significant concessions (see below) including that the Pro-forma had remained in her hand when she had first spoken to the Respondent, that the Respondent had responded before being shown the Pro-forma and that it was not clear at what point during the conversation that it had been handed to him to enable him to identify which doctor had seen the patient.
The Respondent’s initial statement that the SHO must have seen the patient was consistent with evidence that the usual procedure at the Hospital was for SHOs to see patients before the Registrar.
The MPT had accepted that the Respondent had immediately identified the handwriting on the Pro-forma as his own as soon as he was shown a copy of the records.
The MPT considered that it was inherently unlikely that a doctor of good character would say something to colleagues knowing that it was false, given the potential seriousness of the consequences and the likelihood of the falsehood being discovered; and that there was scope for misunderstanding and the Respondent and the nurses may have been talking at cross purposes
The MPT concluded that the Respondent’s actions would be categorised by the ordinary and honest person as being ill-judged and careless as he had appeared not to have seen the Pro-forma at the time he stated that the patient had been seen by his colleague, but that it was satisfied that that did not amount to dishonesty.
The findings of the MPT were plainly open to it on the evidence, in that:
It was the Respondent’s evidence that the nurses had been unduly confrontational, and that there appeared to have been a misunderstanding in that it was possible that he may have been unclear, before the notes were shown to him, about which notes and which patient the nurses were referring to, and thus stated that the SHO may have seen them. However, once it was clear that they were referring to the Pro-forma in relation to Patient A, he had made it entirely clear that he had made the entries but had not seen the patient.
Having heard the Respondent being cross-examined, the MPT had concluded that he was a credible and reliable witness.
On the other hand, given concessions that were made by the nurses during their evidence, the MPT was entitled to find that their evidence, whilst credible, was not sufficient to discharge the burden of proving to the required standard that the Respondent had been dishonest.
Nurse C had conceded in cross-examination that she had no first-hand recollection of being told by the Respondent that Patient A had been seen by an SHO, and had also conceded that, when confronted about Patient A, the Respondent had immediately accepted responsibility for filling in the Pro-forma.
Nurse B had also conceded that because of the lapse of time her memory had degraded and she could not remember all the details of the conversation with the Respondent; that when the Respondent had been asked about who had seen the patient he had initially responded before being given the opportunity to refer to the Pro-forma; that in responding what he had said was not necessarily that the other doctor had seen Patient A but that she must have done so; and that the Pro-forma had initially remained in her hands when the issue had been raised with the Respondent and when he had given his initial response.
As to the conflict of evidence between Nurse B and the Respondent, having heard them both the MPT was entitled either to prefer the Respondent’s account or, as a minimum, to conclude that the GMC had not discharged the burden of proof
The MPT’s conclusion as to the dishonesty not being proved in relation to the Respondent’s initial advice to the nurses (the critical aspect of which was at [94]-[97], and was re-iterated at [13] of the impairment findings) was adequately reasoned and properly open to it on the evidence, given that:
The basis upon which it was found proved that the Respondent had initially advised the nurses that Patient A had been assessed by a junior colleague was that he had said words which had led them to believe that that was the case, which action was misleading. There was no inconsistency between those findings. The MPT made no finding whatsoever, at that stage, about the Respondent’s level of understanding as to which patient or which notes were being referred to when he was initially speaking with the nurses.
Nor was there any merit in the submission that it was impermissible for the MPT to rely upon the Respondent’s good character. None of the allegations of dishonesty was found proven, and accordingly the Respondent’s good character remained intact throughout. In any event, the MPT was entitled to have regard to the inherent improbability, given the potential seriousness of the consequences and the likelihood of the falsehood being discovered, of the Respondent lying to the nurses.
The Respondent’s subsequent telephone conversation with Dr D had to be seen in the light of the chronology of the intervening events, and of the evidence in relation to them – in particular as to the meeting with Dr E and the MPT’s acceptance (at [99]) that the Respondent had given a full account to Dr E. The GMC’s contention that the MPT had erred in not finding that the Respondent had been dishonest with Dr D was without merit, given that:
The MPT gave sufficient reasons for finding that the Respondent had not been dishonest, in that:
It found that there was some doubt as to the breadth of the questions asked by Dr D during the telephone conversation, and could not be satisfied that the Respondent had been asked about the full extent to which he had actually completed the Pro-forma.
There was also potential for things to be misunderstood in a telephone conversation without actually being able to see the paperwork, in contrast to a face-to-face discussion.
It accepted that there may have been some confusion on the Respondent’s part regarding the subject matter under discussion – with the Respondent understanding that the concern of others, including Dr D, was that he had written in examination findings without ever intending to see the patient, and he had stated to Dr D that he would “never do that”.
It was not satisfied, having heard the Respondent’s evidence, that he was aware that his action would have been considered dishonest by the standards of an ordinary and honest person.
The findings were available to the MPT on the evidence, given that:
The Respondent’s account and evidence was that he had understood that Dr D’s concerns were that he had completed the examination findings before seeing the patient, and with no intention of actually seeing the patient. In responding to those concerns he had said that he would not dream of doing that, and that he had told Dr D that he had pre-filled sections of the Pro-forma using the medical records for background information. However, he accepted that, in hindsight, he had not made clear that he had completed some of the information in the examinations section, but asserted that he was not intending to be untruthful.
Having heard the Respondent being cross-examined at length the MPT was entitled to find, as it did, that the Respondent was a credible and reliable witness.
On the other hand, the MPT was entitled to find that the evidence of Dr D, although credible, was not sufficient to prove dishonesty to the required standard. Dr D had conceded in evidence that his recollection of the terms of his conversation with the Respondent was “somewhat hazy”. Significantly, he had conceded in cross-examination that when the allegation had first been made to him by Dr E it had been to the effect that the examination findings had been entered “without actually seeing the patient”, and that he may have mirrored that language when putting the allegation to the Respondent over the telephone for him to respond – which was in line with the Respondent’s account of the conversation.
The GMC’s submission was misconceived in its assertion that the MPT’s finding that the Respondent knew that his denial to Dr D of writing examination findings on the Pro-forma before seeing Patient A was false was very difficult to reconcile with the finding that dishonesty was not proved. The reasoning on this part of the allegation did not involve any finding as to the Respondent’s subjective state of mind or whether his conduct, objectively viewed, was dishonest. Accordingly, no inconsistency arose. Alternatively, and in so far as it was necessary, I was invited to hold that the MPT should have found the allegation that the Respondent had denied to Dr D writing examination findings on the Pro-forma before seeing Patient A had not been proved – given that the allegation that the Respondent had thought that he was denying was one that he had entered examination findings without intending to see the patient.
Nor did the MPT take into account irrelevant considerations by having regard to the fact that the Respondent was always intending to examine Patient A and to amend the Pro-forma depending upon his findings. That was what the Respondent had intended to communicate to Dr D by denying the allegation, as he understood it to be, that he was finalising examination findings without intending to see the patient. Moreover, the Respondent’s probity before his conversation with Dr D was relevant to the inherent likelihood that he would subsequently lie to Dr D.
In any event, the MPT had fallen into error in making the finding at [53]-[56] that the Respondent had known that what he had said to Dr D was false, given that:
The finding was difficult to reconcile with the MPT’s overall conclusion that the Respondent’s evidence was credible and reliable.
The evidence of Dr D was insufficiently cogent to prove the matter to the requisite standard, applying the approach in Re D (above).
The finding was inconsistent with the MPT’s overall findings of lack of dishonesty in writing the notes and whilst dealing with the nurses.
The GMC’s assertion that, if the Respondent was dishonest, the MPT’s finding on impairment must be wrong, was misconceived in law. Rather, in view of the decisions, properly read, in Uppal (above) at [26]-[30] & [34] and SM (above) at [8] & [30]:
It is not necessarily the case that a doctor’s fitness to practice is impaired if he acts dishonestly and that would not accurately reflect the statutory scheme.
Even in cases of dishonesty, a separate assessment is required and not every act of dishonesty will result in impairment.
Applying the relevant case law and principles, as summarised by Cox J in CHRE v NMC & Grant [2011] EWHC 927 (Admin), the Tribunal must assess whether the doctor’s fitness to practice is currently impaired, having regard to the doctor’s conduct since the misconduct occurred as well as the extent of the misconduct. Apology, insight and remediation are relevant to that assessment as is the risk of recurrence.
It is open to the MPT to conclude that patients and the public are not at risk and the and that professional standards / public confidence has been maintained by the fact that the doctor has undergone a rigorous disciplinary assessment of their practice resulting in a finding of misconduct on their record, with the option of a warning by way of sanction.
Contrary to the GMC’s submissions, the MPT’s finding on impairment was adequately reasoned and properly open to it on the evidence. The MPT heard evidence from the Respondent on three occasions and variously had before it his Stage 2 witness statement; numerous testimonials (which I was taken through); CPD certificates in relation to various topics, including ethics, the law, communication skills and record keeping; “360-degree feedback” documents from patients and colleagues; Case observation sheets; and appraisal documents.
The specialist MPT clearly had well in mind all the relevant issues in relation to impairment (including the fact that it was more difficult to remediate probity issues, and of the need to consider public confidence); it had heard the Respondent being cross-examined by Leading Counsel for the GMC; it was entitled to take into account that there had been no concerns in the intervening two years; it was clear that the GMC’s Guidance at [43] onwards had been properly been taken on board; as had the fact that the Respondent’s remediation was an ongoing process; and the MPT’s reasoning was all good – including accepting that the Respondent was now checking with colleagues that they understood what he was doing. Against the background that (by reference to Jagjivan above, and Meadow v GMC [2006] EWCA Civ 1390)the overall value judgement on what was required to maintain public confidence was a matter for the MPT, its determination (the key starting points of which were at [32] & [90]-[93] of its original determination) was, in summary, that:
The findings of fact amounted, cumulatively, to serious professional misconduct.
However, the Respondent’s discussion with the nurses did not, in itself, amount to such misconduct – in consequence of which it could be inferred that the MPT concluded that, whilst misleading, the Respondent’s discussion with the nurses would not have been sufficient by itself to support a finding of impairment.
The Respondent had demonstrated adequate evidence of remediation in his communication and note keeping skills.
Whilst it was more difficult to remediate probity issues, there were various sources of evidence attesting to the fact that there had been no subsequent concerns regarding his probity and integrity. The MPT was satisfied that the misconduct had been isolated to a “single day” and that there had been no evidence of repetition. The MPT had accepted the Respondent’s evidence that his current practice was to check with colleagues that he had given them enough information and that they understood the information that he had provided.
Whilst, even taking into account when evaluating his evidence that English was not the Respondent’s first language, his insight was not yet “fully developed”, it was sufficient to mitigate the risk of repetition. He had accepted that remediation was an “ongoing process”, and that he should have been “more open” with Dr D.
There was explicit recognition of the public interest in maintaining public confidence. However, the MPT concluded that “in the circumstances of the particular case”, the impact on public confidence alone would not be of sufficient magnitude to justify a finding of impairment.
The MPT then went on to consider the issue of maintaining standards and upholding public confidence by giving a Warning (above) to be published in the List of Registered Medical Practitioners for five years – indicating that a Warning was “both necessary and proportionate to underline to you and other members of the profession that probity and integrity must be at the forefront of every doctor’s practice”. In the event, a strong Warning had been given.
There was no challenge by the GMC to the central finding of the MPT that the Respondent’s note keeping in relation to Patient A was misleading but not dishonest. Whether the ancillary allegations of dishonesty were found proved was quintessentially a matter for the MPT – which had had the considerable advantage of hearing the witnesses on both sides give evidence. Its reasoning was readily intelligible from its Stage 1 & 2 determinations read as a whole. As a specialist Tribunal, it had expressly considered whether the public interest required a finding of impairment, and its conclusion that the public interest was adequately served by a five-year Warning was plainly within the range of determinations open to it.
Taking a step back from the detail, and whilst the degree of deference to a specialist Tribunal will vary according to the circumstances, there were three good reasons here for according substantial deference, namely:
The MPT was best able to judge the Respondent’s insight and risk of repetition.
The MPT was best able to assess the degree by which the Respondent had fallen short, and therefore what was required for the protection of the public.
The ultimate determination was one about which there might reasonably be different views.
The MPT’s judgment was consistent with the evidence, rational, and in line with the approach in Uppal. It followed that the GMC’s appeal was without merit and should be dismissed.
In reply, Mr Hare submitted that:
The most recent case in relation to the standard of proof was Re B [2008] UKHL 35 – in particular the speech of Lord Hoffman at [12]-[15].
It was not suggested that it could only be in an exceptional case that a finding of dishonesty would not lead to a finding of impairment. However, there was no case of this type where dishonesty had been found yet there had been no finding of impairment.
Despite all the material, the MPT had said that the Respondent’s conduct was only just short of impairment. If dishonesty was found, impairment should clearly follow – especially as (18 months after the event) the Respondent had said that there were no probity issues involved, when there clearly were.
What the GMC was challenging was the classification of the cover-up by the Respondent of his initial errors in making misleading entries in the Pro-forma. Whilst those entries were connected to the cover-up, they could be honest (and hence there was no challenge to the findings in relation to them) whilst the cover-up was dishonest. The GMC’s case in the appeal was fundamentally about the MPT’s inconsistencies in relation to the cover-up.
In that regard, the Respondent had accepted that there were inconsistencies, which was a proper concession to make. In particular, as to the nurses, what was missing was the Respondent ever asking what patient was being talked about. In addition, Nurse B’s evidence had been accepted, but there was no explanation for the consequent finding which appeared to ignore what she had clearly said.
As to the cross-appeal it was accepted that the finding at [53]-[56] of the MPT’s determination was inconsistent, but not in the way suggested by the Respondent. Rather, when considered with [57]-[60], there should, via the operation of logic and reasonable inference, have been a finding of dishonesty in relation to the conversation with Dr D.
Ivey v Genting Casinos UK Limited
In this case which, as indicated above, was decided after the hearing before me, the Supreme Court, at [74], decided that:
“These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghoshdoes not correctly represent the law and that directions based upon it ought no longer be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes : see para 62 above. When dishonesty is in question, the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
Against that background both parties made further submissions in writing.
On behalf of the Appellant, Mr Hare submitted that:
There could be no doubt, in view of [63] of the determination, that Ivey applies to disciplinary proceedings such as those before the MPT.
Therefore, the advice of the Legal Assessor as to the test for dishonesty to be applied in relation to the Respondent’s telephone conversation with Dr D, and the application of that advice by the MPT, were in error.
In the result, the MPT’s finding that “while an ordinary member of the public might consider your action to have been dishonest, it was not satisfied that you were aware that your conduct would be considered dishonest by those standards” was wrong.
In accordance with Ivey what the MPT should have done was to determine the Respondent’s state of mind as to the relevant facts – which it had done (see the transcripts AB/413 at [53] - [56] and AB/420 at [98]. The MPT should then have simply considered whether that aspect was dishonest by the standards of ordinary decent people, and had it so considered there could only have been one possible outcome – namely a finding that the Respondent had been dishonest in his telephone conversation with Dr D.
Accordingly, the finding of no dishonesty in that regard had to be quashed and a finding of dishonesty substituted.
The GMC’s other submissions remained unaffected by Ivey, save that it applied to the consideration of whether the Respondent’s actions in relation to the nurses were dishonest.
The GMC therefore invited the court to also address its other grounds of appeal, and then to substitute a finding of impairment and remit the question of sanction to the MPT.
On behalf of the Respondent, Mr Kellar submitted that:
The MPT could not be faulted for applying the well-established Ghosh principles at the time of the hearing. In any event Ivey was not material to the outcome of the appeal. Whilst the ratio in Ivey was summarised at [74] (above), the underlying principles, as explained and amplified elsewhere in the Court’s judgment had also to be taken into account, namely that:
The issue of dishonesty is ultimately a “jury question” which is “characterised by recognition rather than by definition” [48/53].
“In order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging” [60].
Dishonesty is “intended to characterise what the defendant did, but in characterising it one must ascertain his actual state of mind as to the facts in which he did it” [60].
“It was not correct to postulate that the conventional objective test of dishonesty involved judging only the action and not the state of knowledge or belief as to the fact in which they were performed. What is objectively judged is the standard of behaviour, given any known actual state of mind of the actor as to the facts” [60].
Given the findings of fact made by the MPT, it was clear that it would (or should) have concluded that the Respondent was not dishonest by reference to the Ivey test. In particular, the MPT made the following findings relevant to the Respondent’s “actual state of mind” at the time of his telephone discussion with Dr D:
“The Tribunal accepted that you were always intending to examine Patient A and to amend the Pro-forma depending on your findings” [AB/420/99] – which reflected the earlier (unchallenged) finding that the Respondent’s actions in filling in the Pro-forma in advance of seeing the patient were not dishonest. Therefore, “the Tribunal was not satisfied that your actions were covering up what you did or lying to colleagues to minimise your actions” [AB/419/91-93].
The MPT accepted that there “may have been some confusion on your part” regarding the subject matter of the telephone conversation with Dr D [AB/419/99,101] and that there “may have been a misunderstanding” [AB/419/101].
The MPT accepted that the Respondent’s concern “was that others thought that you had written the notes without ever intending to see Patient A”, and that the Respondent thought that that was Dr D’s real concern, and that he had told Dr D that he would “never do that” [AB/419/101].
The above-mentioned findings as to the potential for confusion during the telephone conversation with Dr D were consistent with its earlier (unchallenged) factual findings – namely that “There was some doubt as to the breadth of the questions that (Dr D) asked you regarding the areas on the Pro-forma, so it cannot be satisfied that you were directly asked about the extent you completed the Pro-forma” [AB/414/58], and that “…there was potential for things to be misunderstood in a telephone conversation without being able to see the paperwork, in contrast with a face to face discussion” [AB/414/59].
The MPT’s ultimate finding was that there was “insufficient evidence to prove, on the balance of probabilities” that the Respondent’s actions were dishonest, which finding was consistent with the (unchallenged) guidance of the Legal Assessor that, in accordance with Re D (above), the MPT was required to scrutinise carefully the quality of the evidence when applying the civil standard to serious allegations such as dishonesty [AB/269-270]. Nothing in Ivey cast doubt on the continued application of the guidance in Re D.
The MPT’s reasoning on dishonesty was re-iterated and summarised in [13] & [14] of its determination on impairment [AB/423], and in considering the jury question of dishonesty and the issue of impairment the specialist MPT had the considerable advantage of hearing the relevant witnesses.
The GMC’s submissions in relation to Ivey relied exclusively on the MPT’s findings at AB/413/53-56. However, when asking the relevant jury question, it was not appropriate to focus narrowly upon some relevant aspects of the Respondent’s state of mind to the exclusion of others. Ivey envisaged a holistic assessment of “what [the defendant] knew or believed about the facts affecting the area of activity in which he was engaging” [60]. Moreover, at AB/413/53-56 the MPT was not yet considering the issue of dishonesty under the Ghosh test or at all. The MPT’s findings on dishonesty came later at [65]-[102]. However, in so far as it was necessary to do so, the Court was invited to conclude that the MPT had fallen into error at [53]-[56] as its reasoning in those paragraphs was difficult to reconcile with its other relevant findings (as summarised above).
Similarly, nothing in Ivey undermined the validity of the MPT’s reasoning in relation to the Respondent’s state of mind at the time of his discussion with the two nurses – see [AB413/50-52] & [AB/419/94-97], and the GMC did not contend otherwise in its written submissions.
Ultimately, the decision under appeal was the MPT’s overarching determination on impairment. The MPT had plainly been entitled to conclude that the Respondent’s fitness to practise was not impaired, for the reasons that it gave [420-425]. Nothing in Ivey undermined those findings. The Court should therefore dismiss the appeal under s.40A (6) (a) of the 1983 Act, and uphold the finding on impairment for the reasons given by the MPT – which had been entitled to conclude, in all the circumstances, that a Warning was sufficient to protect the public interest.
Discussion
Whilst I have set out the opposing arguments at some length, discussion of them can be dealt with more succinctly.
I have applied the principles derived from the various cases cited in [19], [23]-[27], [29(2)], [30(3)], [30(5)] & [31(1)] above. Equally, as to the consideration of dishonesty, and given that the common law always was what it is now recognised to be, I have applied the judgment of the Supreme Court in Ivey v Genting Casinos UK Limited (see [27], [32] & [35(1)] above).
The MPT considered the Respondent’s case with great care, and with the benefit of considerable expertise to which I have given appropriate deference. I have summarised MPT’s critical findings of fact at [15] above. It reached nuanced, and in some instances delicately nuanced, findings – but, as will become clear, some of them, in my view, were wrong. I have also quoted from the MPT’s conclusions as to the Respondent’s insight in [16] above, and in [17] have set out, in full, the Warning that was imposed.
Equally, whilst part of the background to the consideration of the appeal is the fact that the Respondent’s actions in completing the history, examination findings and management plan sections of the Pro-forma before seeing Patient A were not dishonest, and the fact that finding is not challenged, is not decisive. An attempt to cover up, even after initial honesty, can sometimes be worse than the original misconduct.
As to the first ground of appeal, namely that the MPT was wrong not to find that the Respondent knew that his initial statement to the two nurses (that Patient A had been assessed by a junior colleague) was false, and also wrong not to find that the statement was dishonest, I have set out the rival arguments above – principally at [29 (1)] and [30(1)] and [31].
Whilst I do not think that the unchallenged absence of dishonesty in relation to the original completion of the Pro-forma carries the weight argued for by the Respondent, I am persuaded by his other arguments that the Appellant has failed to prove that the MPT was wrong in making its impugned findings in connection with the Respondent’s conversation with the nurses. In particular, I am wholly unpersuaded by the Appellant’s argument that there was inconsistency in the MPT’s findings in these regards. In my view, there was not. Rather, in that regard, there was appropriate nuance. Nor am I persuaded that the Respondent’s character was given too much weight.
Accordingly, the first ground fails.
As to the second ground, namely that the MPT was wrong not to find that the Respondent’s denial to Dr D that he had written examination findings on the Pro-forma was dishonest (after finding that his actions in relation to Dr D were misleading and that he knew that the denial was false), I have summarised the rival arguments in [29(2)], [30(2)], [31], [34] & [35] above.
As to the MPT’s findings, at [37]-[40] of its determination it reached the clear conclusion that, during the telephone call with Dr D, the Respondent had denied writing examination findings on the Pro-forma before seeing Patient A (rather than with no intention of seeing Patient A as the Respondent had claimed). At [41]-[43] the MPT reached a similarly clear conclusion that the Respondent had also stated that he had written in the background information based on a letter from Patient A’s GP. At [47]-[49] the MPT made clear findings that both the denial and the statement to Dr D were false. At [53]-[56] the MPT made an equally clear finding that the Respondent knew that the denial was false – underlining that it did not accept that there was scope for misunderstanding. Even after taking into account the Respondent’s good character, the MPT nevertheless concluded that it was more likely than not that he knew that his statement to Dr D was false as it did not reflect the full extent of the entries that he had made. At [57]-[60] the MPT explained why, for what seem to me to be good reasons, it was not persuaded that the Respondent knew that his statement to Dr D that he had only written in the background information based on a letter from Patient A’s GP was false. At [83]-[85], the MPT found that the Respondent’s denial to Dr D was misleading – i.e. he had misled Dr D into believing that nothing had been written in the examination findings section of the Pro-forma prior to any examination of Patient A. Indeed, that the Respondent had maintained that denial despite Dr D reminding him that, had anything been written there before assessing the patient, it could be a serious probity issue. At [86]-[88] the MPT found that the Respondent’s statement to Dr D that he had only written in the background information based on a letter from Patient A’s GP was misleading.
Having thus already found that the Respondent had denied to Dr D writing examination findings on the Pro-forma before seeing Patient A (and had maintained the denial when pressed); that the denial was false and misleading; and that he knew that it was false; the MPT went on at [98]-[100] of its determination to consider whether the Respondent had been dishonest in that regard. Against the background that it accepted that the Respondent was always intending to see Patient A; that the telephone call with Dr D represented a snapshot in time; that there may have been some confusion on the Respondent’s part regarding the subject matter; and that the finding that he knew the denial to be false was limited to not providing a full account to Dr D (albeit, I would add, that what Dr D was not told was the critical piece of information in relation to the Respondent’s probity) whereas he had (previously) given a full account to Dr E; the MPT found that while an ordinary and honest member of the public might consider the Respondent’s actions to have been dishonest, it was not satisfied that the Respondent was aware that his actions would have been considered to be dishonest by those standards.
At [101]-[102] the MPT found that the Respondent had not been dishonest in his statement to Dr D that he had only written in the background information based on a letter from Patient A’s GP (having previously found that the statement was false and misleading, but that the Respondent did not know that it was false).
Against that background, applying the Re D approach, notwithstanding the submissions made on behalf of the Respondent, and essentially for the reasons advanced on behalf of the Appellant, I am persuaded to the relevant standard that, even applying Ghosh, the finding that it was not proved that the Respondent had been dishonest when he had 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, rather it was one that was inconsistent with the MPT’s other findings and wrong.
In addition to the findings that the Respondent had made the denial, that it was false and misleading, and that he knew that it was false, the MPT had (as already touched on above) found at [37] that he had made the denial in the face of clearly and repeatedly expressed concerns from Dr D (a Consultant) about his probity. At [55] the MPT had made clear that it did not accept that there was any scope for misunderstanding, and accepted that Dr D had said more than once that it would be “bloody stupid” to have filled in examination findings before seeing the patient, and that it would potentially be a probity issue, and that the Respondent had assured him that that was not the case. At [84] the MPT repeated that it had accepted that the Respondent had denied having written in the examination findings section of the Pro-forma despite Dr D reminding him that, had he written anything there before assessing the patient, it could be a serious probity issue, and that it was after that the Respondent had reassured Dr D that he had not written examination findings before examining Patient A.
Contrary to the submissions made on behalf of the Respondent, I do not regard the fact that he had given a full account to Dr E before he spoke with Dr D raises any doubt as to the content of the latter conversation. Nor, in my view, do any of the other submissions advanced on the Respondent’s behalf cast any doubt on the position. In particular, I can see no tenable basis at all upon which to find that the MPT was wrong to find that the Respondent had denied to Dr D that he had written examination findings on the Pro-forma before seeing Patient A. Equally there was, in my view, no error of inconsistency by the MPT in the finding that the Respondent had known that his denial to Dr D was false.
The position is, in my view, even clearer when Ivey rather than Ghosh is applied as the test for dishonesty. I have carefully considered the various matters said, on behalf of the Respondent, to be relevant to his “actual state of mind”. Some are inconsistent with the clear findings that I have outlined above, others were concerned with the statement about writing in background information. The reference to the MPT not being “satisfied that your actions were covering up what you did or lying to colleagues to minimise your actions” (see [91]) was clearly in relation to the nurses and Dr E, rather than Dr D whose subsequent intervention was the result of probity concerns. In the result, applying the requisite standard of proof and the Re D approach, I can 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.
Therefore, whether applying Ghosh or Ivey, I find that, when he denied to Dr D having written examination findings on the Pro-forma before seeing Patient A, the Respondent was acting dishonestly, and that the MPT’s determination to the contrary was wrong. Therefore, Ground 2 succeeds.
As to impairment, I accept the Respondent’s submission that not every dishonest action requires a finding of impairment, and that the authorities cited provide helpful examples of cases which illustrate that position.
However, each case turns on its own facts, and the need to have in mind not only fitness to practisfe looking forward, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.
As the MPT emphasised, probity and integrity are at the heart of the medical profession, and the Respondent failed to be as open as he should have been about what he had entered in a patient’s record. Even without a finding of dishonesty, the MPT’s view was that the Respondent’s misconduct fell just short of a finding of impairment. Albeit that the Respondent was not dishonest in his earlier dealings with three other colleagues, there is now an additional finding that he was dishonest in his later dealings with Dr D, a Consultant who was concerned about the Respondent’s probity. In those circumstances, and notwithstanding the Respondent’s submissions to the contrary, I have no doubt that the relevant line has been crossed, and that a finding of impairment must be made. Accordingly, the third ground also succeeds.
That said, I must not be taken to be expressing any particular view as to the nature or level of sanction – that will be a matter for the MPT.
Conclusion
For the reasons set out above, Ground 1 fails, but Grounds 2 & 3 succeed, and to that extent this appeal is allowed.
In the result, I quash the finding that the Respondent’s denial to Dr D of writing examination findings on the Pro-forma before seeing Patient A was not dishonest, and substitute for it a finding that that denial was dishonest. I quash the finding that the Respondent was not impaired and substitute for it a finding that he is impaired. I quash the Warning and, finally, I remit the case to the MPT for further consideration as to sanction.