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Professional Standards Authority v Health and Care Professions Council and Mohammed Sajead Ghaffar 2 July 2014 QBD (Admin)

A recent appeal on a lenient sentence from a regulator has produced interesting comments on impairment in cases of dishonesty.G was a biomedical scientist convicted of making false representations for A recent appeal on a lenient sentence from a regulator has produced interesting comments on impairment in cases of dishonesty.

G was a biomedical scientist convicted of making false representations for personal gain in order to support his dishonest claims that he had a Masters' degree while applying for a more senior role. After claiming to have the Masters' degree, G copied a colleague's degree certificate, attempted to obtain a new certificate in his own name and told his employer and the Police that he had paid for and completed a course but had not received the certificate. After the truth was discovered and he was given a suspended sentence with community service, G reported the matter to the HCPC. At a subsequent hearing, a Conduct and Competence Committee found that G's fitness to practise was not impaired due to the conviction. Public confidence in the profession did not require him to be found impaired and he had already been punished and he was an excellent biomedical scientist.

The PSA appealed the decision as being unduly lenient. On appeal Mrs Justice Carr noted that, as the HCPC had no ability to provide advice or caution, the finding of no impairment amounted to an acquittal. Interestingly, the judge commented that, while significant weight will usually be given to a committee having heard evidence in person, in matters such as dishonesty a court can depart from the committee's findings more easily.

The test for undue leniency included considering whether the decision had considered both the need for public safety and the reputation of the profession. The Committee's finding that G's fitness to practise was not impaired was manifestly inappropriate since G's dishonesty had breached a fundamental tenet of honesty which may undermine public confidence in the profession. Breaches of such tenets were harder to remedy than issues such as clinical conduct and, while each case turned on its facts, it was unusual that a finding of dishonesty would not impair fitness to practise. The repeated acts of dishonesty required a finding of impaired fitness to practise in the present case. The decision of the Committee was therefore manifestly inappropriate. The Committee had erred in finding that G's conviction of itself satisfied the public interest in the reputation of the profession, as the criminal and professional regulatory regimes were very different.

G requested that the Court substitute its own decision rather than remit the matter. His fitness to practise was found impaired by the Court and G was suspended from practice for six months with a review required before he returned to practice. The judge had considered a striking off order given the seriousness of the matter, but was persuaded by the powerful testimonials of G's colleagues and was satisfied that he had taken active steps to remedy his errors and had shown remorse.

The judgment is a useful reminder to regulators and practitioners that the circumstances in which repeated dishonesty will not lead to a finding of impairment are likely to be highly limited. However, before assuming that dishonesty will invariably lead to erasure/strike off, practitioners should remember Hassan v GOC (in which the GOC's council's disciplinary committee was misdirected by its legal adviser that, in line with the solicitors' profession, there was a presumption in favour of striking off those found to be dishonest unless there were exceptional circumstances).

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