Misapplying Ghosh: when Uddin may be preferable | Fieldfisher
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Misapplying Ghosh: when Uddin may be preferable

Laura Taylor
Lavis v NMC [2014] EWH 4083A Conduct and Competence Committee of the NMC erroneously applied the Ghosh test in considering allegations of dishonesty against a registrant. In the subsequent appeal, the Lavis v NMC [2014] EWH 4083

A Conduct and Competence Committee of the NMC erroneously applied the Ghosh test in considering allegations of dishonesty against a registrant. In the subsequent appeal, the High Court provided a useful discussion on the correct application of Ghosh and reflected further on the High Court's decision in the case of Uddin.

The Appellant brought an appeal following the imposition of a period of suspension by the Conduct and Competence Committee (the "Panel"). The Panel made a number of factual findings relating to the accuracy of Miss A's case notes, finding that the Appellant had recorded that:

(a)          She had discussed the risks and benefits of the Artificial Rupture of Membranes procedure ("ARM"), when she had not;

(b)         Miss A had requested the ARM when in fact she had not;

(c)          She had changed Miss A's pad when in fact she had not; and

(d)         She noticed the umbilical cord when in fact she had been informed of this by Miss A's husband.

The Panel also concluded that the Appellant's conduct in relation to the records was dishonest. While on appeal Cobb J concluded that the panel was entitled to reach the factual findings it did, the appeal was allowed in part due to how the panel tackled the issue of dishonesty.

Cobb J noted that the Panel was advised to follow the two-stage Ghosh test in deciding whether the conduct was dishonest (in other words, (i) whether the Appellant's conduct was dishonest by the ordinary standards of reasonable, honest people (the objective limb), and if so, (ii) whether the Appellant realised this (the subjective limb)). The judge noted that in considering the first, objective limb of the test, the panel said "The reasonable and honest person would consider that making inaccurate entries in relation to the care given to Miss A and/or her unborn baby is deliberately misleading and dishonest." As his lordship rightly pointed out, finding that the conduct was 'deliberately' misleading and dishonest imported a subjective element into the objective limb of the test and was therefore a misapplication of the test.

Cobb J was concerned at the Panel's apparent failure to consider any potential explanation for the entries (once found proved) which did not involve dishonesty. Cobb J gave consideration to the approach of Singh J in Uddin v GMC [2012] EWHC 2669 (Admin). In Uddin, Singh J noted that in criminal cases, Ghosh directions are only given where there is an issue as to whether the Defendant realised that what he was doing was dishonest and that in many cases, the operative question will be whether a statement or a document is false and what the defendant's intention was in making it. In the present case, the Panel had failed to consider whether the erroneous entries could have been the product of an innocent or negligent mistake.

The judge drew a parallel with the well-known decision in the criminal case of Lucas [1981] QB 720 which is authority for the proposition that the fact that a person may lie for reasons other than that they are guilty of the index offence. Applying that to the present case, the Judge concluded that, had the Panel considered whether each factually incorrect entry was made dishonestly, it may have concluded that the Appellant was in fact not acting dishonestly, since there could be a number of reasons why the entries were false also than by virtue of dishonesty. On that basis, the Judge allowed the appeal, but only in relation to the finding on the dishonesty charge, and remitted the case for reconsideration on this issue.

The case is the latest in a line of recent authorities on the approach that regulators should take in cases of dishonesty and we have previously commented on the issue here, here and here. Anecdotally, it appears that notwithstanding Singh J's observations in Uddin, the majority of disciplinary tribunals continue to apply the Ghosh test in all cases involving allegations of dishonesty, even where, if the conduct complained of took place, it is self-evident that it would be dishonest. It may simply be that this is because panels are familiar with Ghosh and that a panel, properly directed, should not fall into error applying the Ghosh formula. Notwithstanding that, the case provides a useful illustration of the difficulties into which a panel may fall if it fails to apply the test with sufficient precision. Had the panel adopted the approach suggested in Uddin in the present case, it is at least arguable that it may not have fallen into error and focused instead on the possibility that the records were false for some reason other than that they were created with a dishonest state of mind.