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Dishonesty does not mean impairment is inevitable

Carina May
PSA v (1) GMC (2) Uppal [2015] EWHC 1304, Lang JThis appeal was brought by the PSA to challenge a GMC Panel's decision not to impose any sanction upon a trainee GP who had admitted dishonesty and was PSA v (1) GMC (2) Uppal [2015] EWHC 1304, Lang J

This appeal was brought by the PSA to challenge a GMC Panel's decision not to impose any sanction upon a trainee GP who had admitted dishonesty and was guilty of misconduct. The High Court upheld the appeal in part, agreeing that in view of the nature of the misconduct it was unduly lenient not to have imposed a warning, but it rejected an argument that a finding of dishonesty necessarily required a finding of impairment.

The GMC charged Dr Uppal with misleadingly and dishonestly informing her GP trainer that she had spoken to a patient's mother following the patient's discharge from hospital when she had not in fact done so. Dr Uppal admitted to the charges. Nearly three years after the events in question, a Fitness to Practise Panel ('the Panel') concluded that Dr Uppal's dishonesty amounted to misconduct. However it concluded that her fitness to practise was not impaired as this was an isolated incident, as she had demonstrated insight, and because she had taken steps to avoid any repetition. The Panel had also been shown evidence of her exemplary personal and professional conduct from senior colleagues and trainers.

The PSA sought to argue that dishonest conduct by a doctor automatically amounted to impairment. This was not accepted by the court, which cited the cases of Grant [2011] EWHC 927 and Cheatle [2009] EWHC 645, holding that even in cases of dishonesty, a separate assessment of current impairment must be undertaken, and that not every act of dishonesty will necessarily result in a finding of impairment. The court affirmed the Panel's approach of taking into account Dr Uppal's conduct since the misconduct occurred, including her apology and insight, as well as the extremely low risk of reoccurrence and the remediation that had been evidenced. Weight was also given to the fact that the Panel had had the benefit of hearing Dr Uppal under vigorous cross examination. The court considered that although dishonesty would often result in a finding of impairment, these factors rendered the case "exceptional". On this basis, and because the Panel had shown due regard to the safety of the public, the reputation of the profession and the public interest, the court held that it had been open to the Panel to conclude that Dr Uppal's conduct was not impaired.

Even though it concluded that Dr. Uppal's fitness to practise is not impaired, the Panel had still been left with the option of issuing a warning for misconduct; however, it decided to impose no sanction. The court considered that this was contrary to the GMC's own Guidance on Warnings and Indicative Sanctions Guidance. It held that the decision was unduly lenient, given the serious nature of the misconduct. The failure to impose any sanction did not uphold standards in the profession and was capable of undermining public confidence in the profession. It "was a decision which, having regard to the public interest in maintaining the reputation of the profession and declaring appropriate standards of conduct, no Panel could reasonably have made." The court considered that a warning should have been issued and upheld the appeal on this one ground.

In reaching its decision, the court rejected the PSA's argument that Dr Uppal's conduct was not an "isolated incident" because she had repeated her dishonest account of events on more than one occasion. The court accepted that it was legitimate for the Panel to consider this to be an "isolated incident" in Dr Uppal's professional career. This raises the interesting question of when repetitions of dishonest behaviour relating only to one event amounts to more than an "isolated incident". It is a point that requires consideration on a case by case basis, and it is difficult to second guess the view that the court might take in a given case given the subjective nature of the point.

The court also rejected the PSA's argument that inadequate reasons had been given in the Panel's decision, confirming that "its reasons will be adequate if they summarise the Panel's findings on the principal important issues. The Panel need not record every point made to it in evidence and submissions in order to show that it has taken it into account." This is a useful reminder of the level of detail required in Panel decisions, which is a frequent ground of challenge.

This case is also helpful in highlighting that whilst a finding of dishonesty will be a strong argument in support of impairment, it cannot be assumed that impairment will follow and full consideration should be given to whether practice is impaired, as it would in cases without any dishonesty element.

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