Hussain v GMC [2014] EWCA Civ 2246 (Bean LJ, Longmore LJ. Ouseley J)The Court of Appeal has provided useful guidance on (1) drafting allegations of dishonesty, (2) the application of the Ghosh test in
Hussain v GMC [2014] EWCA Civ 2246 (Bean LJ, Longmore LJ. Ouseley J)
The Court of Appeal has provided useful guidance on (1) drafting allegations of dishonesty, (2) the application of the Ghosh test in disciplinary proceedings, and (3) how the conduct of a defence may be relevant to insight and therefore impairment. On the first point, regulators and their representatives should be aware of the need for specificity and to clearly state whether false information in documents is dishonest, rather than merely inaccurate. On the second point, the Court gave implicit support for the use of the criminal Ghosh test (in contrast to a recent of High Court authority) but suggested that the test should be modified to take into account the standards of the ordinary, honest practitioners of the profession in question (rather than asking whether the conduct was dishonest by the ordinary standards of reasonable, honest people). On the third point, an aggressively run defence may make it difficult for a practitioner to argue that his fitness to practise is not impaired once misconduct has been established.
H undertook a placement at a GP surgery. He was alleged (1) to have made false statements about his qualifications in his CV, (2) to have completed a multi-source feedback form himself when it was supposed to be provided by colleagues, and (3) to have plagiarised various online materials in his e-portfolio. The matter was referred to a fitness to practise panel. The panel concluded that H's conduct in relation to the CV, feedback form and plagiarism was dishonest, and that his fitness to practise was impaired. On appeal to the High Court, the judge found that the panel had erred in finding that H's conduct in relation to the CV was dishonest, because it had wrongly conflated dishonesty with falsity (since the allegation accused H of presenting false information in his CV). However, he accepted that H's conduct in relation to the feedback form and plagiarism was dishonest, and that his erasure from the register was a proportionate sanction.
H appealed to the Court of Appeal on the basis that (1) since the panel had conflated falsity with dishonesty when dealing with the CV allegation, it was inconceivable that it had not made the same error in respect of the other charges, (2) when assessing whether he had appreciated that what he was doing was dishonest by the ordinary standards of reasonable, honest people, the panel had failed to give proper weight to his troubled state of mind arising from the death of his father shortly after his arrival at the surgery, and (3) in directing his erasure from the register, the panel had given inadequate weight to the fact that all of the allegations related to a short, aberrant period in his life, during which he had been under great strain.
The Court of Appeal dismissed H's appeal. It held that, in relation to the CV issue, the word ;false' was ambiguous when used as a description of the inaccurate entries on the CV, because it could have meant that the entries were either deliberately or inadvertently inaccurate, but that the panel had not been faced with any such ambiguity when considering the facts of the allegations relating to the feedback form and the portfolio. Once it had reached its factual conclusions on those allegations, a finding of dishonesty was inevitable. In relation to H's second ground of appeal, H's case was not about an allegation of failing to concentrate properly because his mind had been elsewhere. Grief caused by bereavement was not a defence to a charge of dishonesty. Finally, while an aggressively-run defence was not 'misconduct', the presence or absence of insight into one's failings was often relevant to whether a doctor's fitness to practise remained impaired. If H had immediately admitted his wrongdoing, his case might have been presented on the basis that it was a long time ago, that he had learned the error of his ways, and that his fitness to practise was no longer impaired. This had not happened. H's case had been presented on the basis that he had not committed misconduct, that his colleagues were racists, and that a key witness was lying. This demonstrated a complete and total lack of insight into his conduct, and in those circumstances, the panel had been entitled to find that his fitness to practise remained impaired by reason of the misconduct. Accordingly, the panel's conclusion that erasure was a proportionate response could not be criticised.
In relation to the test the panel was to apply when deciding whether H's conduct was dishonest, Longmore LJ observed:
'I would only add that I am a little troubled about the Ghosh direction given by the legal assessor in this case. It would have been standard in a criminal case. But this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide "whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest". There may be a not unimportant difference between the two as shown by the decision of the judge in this very case.'
The case is something of a bonanza as far as legal issues are concerned. First, it provides a useful illustration of the difficulties that can arise when dealing with allegations of dishonesty. While information contained in documents may be false, regulators will need to make a decision about whether that falsity is a result of inaccuracy or stems from dishonesty. A failure to do so may lead panels into error and provide a ground of appeal for practitioners. Second, this appears to be the first time that the Court of Appeal has considered the use of the Ghosh test in professional disciplinary proceedings. The judgment could be said, to some extent at least, to provide an implicit rebuke to Singh J's observations in Uddin [2012] EWHC 2669 (namely that 'care needs to be taken about applying a test which was devised in the context of criminal law.') We have previously commented on Uddin here and here. Notwithstanding this, we note that the court did not explicitly tackles the appropriateness of using Ghosh, so the matter may not rest there. In the circumstances, it appears likely that the Ghosh test will continue to hold good in disciplinary cases where the registrant's state of mind is in issue but that legal assessors will need to be mindful that the direction should be modified as per Longmore LJ's observation above. It remains to be seen whether panels that have lay representation will be comfortable applying what could potentially be said to be a higher standard to professionals when considering allegations of dishonesty. Finally, the case highlights that registrants should always be aware that an aggressively run defence can be something of a high-wire act and that if the allegations are found proven, such a defence may make it difficult, if not impossible, to display the degree of insight necessary to establish that the registrant's fitness to practise is not impaired.
The Court of Appeal has provided useful guidance on (1) drafting allegations of dishonesty, (2) the application of the Ghosh test in disciplinary proceedings, and (3) how the conduct of a defence may be relevant to insight and therefore impairment. On the first point, regulators and their representatives should be aware of the need for specificity and to clearly state whether false information in documents is dishonest, rather than merely inaccurate. On the second point, the Court gave implicit support for the use of the criminal Ghosh test (in contrast to a recent of High Court authority) but suggested that the test should be modified to take into account the standards of the ordinary, honest practitioners of the profession in question (rather than asking whether the conduct was dishonest by the ordinary standards of reasonable, honest people). On the third point, an aggressively run defence may make it difficult for a practitioner to argue that his fitness to practise is not impaired once misconduct has been established.
H undertook a placement at a GP surgery. He was alleged (1) to have made false statements about his qualifications in his CV, (2) to have completed a multi-source feedback form himself when it was supposed to be provided by colleagues, and (3) to have plagiarised various online materials in his e-portfolio. The matter was referred to a fitness to practise panel. The panel concluded that H's conduct in relation to the CV, feedback form and plagiarism was dishonest, and that his fitness to practise was impaired. On appeal to the High Court, the judge found that the panel had erred in finding that H's conduct in relation to the CV was dishonest, because it had wrongly conflated dishonesty with falsity (since the allegation accused H of presenting false information in his CV). However, he accepted that H's conduct in relation to the feedback form and plagiarism was dishonest, and that his erasure from the register was a proportionate sanction.
H appealed to the Court of Appeal on the basis that (1) since the panel had conflated falsity with dishonesty when dealing with the CV allegation, it was inconceivable that it had not made the same error in respect of the other charges, (2) when assessing whether he had appreciated that what he was doing was dishonest by the ordinary standards of reasonable, honest people, the panel had failed to give proper weight to his troubled state of mind arising from the death of his father shortly after his arrival at the surgery, and (3) in directing his erasure from the register, the panel had given inadequate weight to the fact that all of the allegations related to a short, aberrant period in his life, during which he had been under great strain.
The Court of Appeal dismissed H's appeal. It held that, in relation to the CV issue, the word ;false' was ambiguous when used as a description of the inaccurate entries on the CV, because it could have meant that the entries were either deliberately or inadvertently inaccurate, but that the panel had not been faced with any such ambiguity when considering the facts of the allegations relating to the feedback form and the portfolio. Once it had reached its factual conclusions on those allegations, a finding of dishonesty was inevitable. In relation to H's second ground of appeal, H's case was not about an allegation of failing to concentrate properly because his mind had been elsewhere. Grief caused by bereavement was not a defence to a charge of dishonesty. Finally, while an aggressively-run defence was not 'misconduct', the presence or absence of insight into one's failings was often relevant to whether a doctor's fitness to practise remained impaired. If H had immediately admitted his wrongdoing, his case might have been presented on the basis that it was a long time ago, that he had learned the error of his ways, and that his fitness to practise was no longer impaired. This had not happened. H's case had been presented on the basis that he had not committed misconduct, that his colleagues were racists, and that a key witness was lying. This demonstrated a complete and total lack of insight into his conduct, and in those circumstances, the panel had been entitled to find that his fitness to practise remained impaired by reason of the misconduct. Accordingly, the panel's conclusion that erasure was a proportionate response could not be criticised.
In relation to the test the panel was to apply when deciding whether H's conduct was dishonest, Longmore LJ observed:
'I would only add that I am a little troubled about the Ghosh direction given by the legal assessor in this case. It would have been standard in a criminal case. But this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide "whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest". There may be a not unimportant difference between the two as shown by the decision of the judge in this very case.'
The case is something of a bonanza as far as legal issues are concerned. First, it provides a useful illustration of the difficulties that can arise when dealing with allegations of dishonesty. While information contained in documents may be false, regulators will need to make a decision about whether that falsity is a result of inaccuracy or stems from dishonesty. A failure to do so may lead panels into error and provide a ground of appeal for practitioners. Second, this appears to be the first time that the Court of Appeal has considered the use of the Ghosh test in professional disciplinary proceedings. The judgment could be said, to some extent at least, to provide an implicit rebuke to Singh J's observations in Uddin [2012] EWHC 2669 (namely that 'care needs to be taken about applying a test which was devised in the context of criminal law.') We have previously commented on Uddin here and here. Notwithstanding this, we note that the court did not explicitly tackles the appropriateness of using Ghosh, so the matter may not rest there. In the circumstances, it appears likely that the Ghosh test will continue to hold good in disciplinary cases where the registrant's state of mind is in issue but that legal assessors will need to be mindful that the direction should be modified as per Longmore LJ's observation above. It remains to be seen whether panels that have lay representation will be comfortable applying what could potentially be said to be a higher standard to professionals when considering allegations of dishonesty. Finally, the case highlights that registrants should always be aware that an aggressively run defence can be something of a high-wire act and that if the allegations are found proven, such a defence may make it difficult, if not impossible, to display the degree of insight necessary to establish that the registrant's fitness to practise is not impaired.