The steady stream of appeals to the High Court from the Medical Practitioners Tribunal (“MPT”) against findings of dishonesty shows no sign of abating. Two recent cases have produced and illustrated guidance suggesting a more nuanced approach to unsuccessful denials of dishonesty than had hitherto been the case.
The test for dishonesty in professional regulatory tribunals is now settled as that laid down in Ivey v Genting Casinos  UKSC 17. This requires the fact-finding tribunal to ascertain (subjectively) the actual state of knowledge or belief on the part of the accused registrant and then to ask the question whether their conduct was honest or dishonest. The latter question is assessed according to the objective standards of ordinary decent people. The view of the person accused of dishonesty as to whether their conduct was dishonest is irrelevant (which had not previously been the case prior to Ivey under the prevailing test in R v Ghosh (Deb Baran)  QB 1053). Thus, the standard to be applied when assessing dishonesty is not subjective and should be the same in every case.
This might also mean that the accused person might genuinely not have understood that what they did would be considered dishonest by the standards of ordinary decent people, but that rarely reflects well on them.
A question that frequently arises in regulatory tribunals is what the consequence should be for a registrant who denies the charge, but whose evidence is rejected. Should the fact that the charge was denied, and the version of events which was disbelieved persisted with, count against the registrant when considering whether their fitness to practice is impaired and, if so, what the appropriate sanction should be?
This is a question of particular importance given the weight that regulators tend to place on the registrant’s insight into what brought them before the Tribunal. If they have denied a central and fundamental aspect of the case against them then must this lack of insight into their wrongdoing be held against them over and above the wrongdoing itself?
It is essential to bear in mind when considering this question that regulatory proceedings are not a binary process of establishing guilt or its lack, and going on to sentence in the former case. A regulatory tribunal such as the MPT will make findings of fact, before going on to consider whether those findings amount to serious fault on the part of the registrant and whether that in turn translates to a current impairment of fitness to practice. There are shades of grey within a finding of impairment, depending on the gravity of the wrongdoing, and the record of the registrant. These shades of grey find their expression within the tribunal’s determination on sanction, which will also consider any remediation undertaken, and which might encompass erasure from the register, suspension or practising under conditions.
Findings of dishonesty are always serious and will usually result in a finding of impairment, but the variety of factual scenarios underpinning such findings mean that tribunals will not find themselves obliged to order erasure in every case. There is a recognition that some dishonesty is worse than others.
What has been less clear is when or if the tribunal should ever show any degree of understanding for a registrant who has unsuccessfully maintained a denial of the facts charged. This is especially so when, e.g. in the MPT, the tribunal are enjoined by their Sanctions Guidance to see failures to accept their mistakes, or tell the truth during the hearing, as aggravating features.
The recent case law suggests the approach in the Sanctions Guidance is not of universal application and should not be taken at face value.
The recent cases
In Towuaghantse v GMC  EWHC 681 (Admin), the registrant Consultant Paediatric Surgeon was accused of serious errors in the delivery of a baby suffering an exomphalos, resulting in death. He was an experienced surgeon with an otherwise blemish-free career. He disputed findings made at the inquest, he disputed the opinion of the GMC expert and disputed the witness evidence of colleagues present at the time of the underlying events. The MPT rejected his evidence and found that Mr Towuaghantse’s care for the baby fell seriously below the standard required.
When considering whether this failing impaired Mr Towuaghantse’s fitness to practice, the MPT noted the following as relevant features:
“In particular, Mr Towuaghantse failed to accept any of the Coroner’s findings” 
“[The MPT] could not ignore the fact that, particularly at the first stage of the hearing when the Tribunal was considering the facts, Mr Towuaghantse had tried to attribute to others at least some of the responsibility for what had happened to Patient A. In the judgment of the Tribunal, that was a particularly regrettable feature of the case.” 
The MPT did not find that Mr Towuaghantse had been dishonest but did reject his evidence on the central facts of the case. In this regard, Mostyn J said at  and :
“It is clear to me that a significant component in the decision-making process, both as to determination of impairment of fitness to practise, and in the imposition of the sanction of erasure, was the conclusion that the appellant was to be seriously faulted for (a) having contested the allegations against him at the inquest, and not having accepted the Coroner’s findings, and (b) having contested the allegations against him at the MPT. The pleas of not guilty (in effect) in both courts were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty.
In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.”
This built on the approach that the same judge took to the case of General Medical Council v Awan  EWHC 1553 (Admin), where he said at :
“I think it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined.”
Mostyn J went on, in Awan, to say that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.
In Towuaghantse, Mostyn J acknowledged that paragraph 52 of the Sanctions Guidance provides that “a doctor is likely to lack insight if they … failed to tell the truth during the hearing (this includes being dishonest or misleading)”, that this had been approved in previous cases before the High Court (e.g. by Yip J in Yussuff v GMC  EWHC 13 (Admin)) and conceded that this was hard to square with his analysis. This brought His Lordship to the following conclusion at  to :
“I can see, were a defence to be rejected as blatantly dishonest, then that would say something about impairment and fitness to practise in the future. But there would surely need to be a clear finding of blatant dishonesty for that to be allowed. Absent such a finding it would, in my judgment, be a clear encroachment of the right to a fair trial for the forensic stance of a registrant in the first phase to be used against him in later phases.
In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of a discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practice in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment or sanctions phases. Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque … if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired because you have disputed that your fitness to practise is currently impaired.” [emphasis added].
Thus, the judge constructed a spectrum between defending a case on the basis of a blatant lie at one end and putting the GMC to proof at the other; there are clearly myriad positions in between, but the judgment could be read as saying that the defence should only be held against the registrant if their evidence was blatantly dishonest. Had the judge intended that any dishonesty could be held against the registrant then (a) he would not have needed to use the adjective ‘blatant’ to qualify it (several times) and (b) he would have said so in terms. Does this require the MPT to ignore the line taken in response to the facts when they consider impairment and sanction in cases where the dishonesty is not ‘blatant’? If so, the boundaries of this concept will need to be tested.
A more extreme argument might be that the approach allows different positions for different sorts of dishonesty. As noted above, the test for dishonesty involves applying objective standards to the registrant’s subjective state of knowledge; the judge here appears to be advocating a further subjective consideration as long as the dishonesty does not relate to a primary concrete fact (however that is defined). For instance, a dishonest explanation of an uncontested primary fact. This would be surprising, but the approach in the judgment would arguably allow for it.
Mostyn J’s application of his approach to the facts of the case before him lead to the conclusion that Mr Towuaghantse’s denial of the charge should not have been used as a basis for a finding that he lacked insight or was incapable of remediation because there was no finding of blatant dishonesty on his part, only that the evidence of the other witnesses was preferred. This is, as the judge emphasised, perfectly normal in a forensic process and does not require a condemnation as a liar of the witness whose evidence has been rejected.
Nevertheless, this conclusion is directly contrary to the MPT’s standard approach as set out in paragraph 52 of the Sanctions Guidance.
As he had in Awan, Mostyn J said that the position was most acute where the decisions on impairment and sanction had followed on directly from the fact-finding stage :
“it is unrealistic to expect a registrant who has unsuccessfully defended the fact-finding phase then almost immediately in the impairment phase to demonstrate full remediation by fully accepting in a genuinely sincere manner everything found against him. In my opinion the capacity of the registrant to remediate sincerely should be judged by reference to evidence unconnected to his forensic stance in the fact-finding stage (unless the fact-finding decision included findings of blatant dishonesty by the registrant).”
In practical terms, this approach is likely to be problematic since insight is integral to remediation. The demonstration of insight in the eyes of the MPT involves a registrant accepting that they should have behaved differently, showing empathy and understanding (Sanctions Guidance para 46). In the absence of this, the MPT will rarely if ever find that a registrant has adequately remedied, or be capable of remedying, the issues which led to the charges (which would be unsurprising if there is no recognition of a problem).
Al Nageim v General Medical Council  EWHC 877 (Admin)
The opportunity for consideration of the approach adumbrated by Mostyn J arose very soon in Al Nageim v General Medical Council  EWHC 877 (Admin). In that case the doctor was found to have been dishonest (i) in continuing to use staff accommodation at Wrexham Maelor Hospital after ceasing to work there as a locum and (more strikingly) (ii) continuing to receive payments from the Liverpool Victoria Hospital for over 27 months after ceasing work there (obtaining in excess of £41,000 in the process). Dr Al Nageim admitted the facts but denied that he had been dishonest. This was rejected by the MPT in strong terms.
On appeal, it was argued that the MPT should not have taken into account Dr Al Nageim’s stance at the fact-finding stage when concluding that he lacked insight into his wrongdoing and would be incapable of remedying it. The judgment in Towuaghantse was handed down after the hearing in this case and both parties made written supplemental submissions, with Dr Al Nageim’s representatives contending that it bolstered their case. The GMC, by contrast, argued that the MPT is entitled to take into account dishonest evidence given on oath when considering impairment and sanction on the basis of the law before and after Towuaghantse. Interestingly, the GMC did not seek to argue for the wider point made in paragraph 52 of the Sanctions Guidance (that any contradicted evidence can be seen as indicating a lack of insight), but in this case they did not need to.
After a detailed consideration of the judgment in Towuaghantse, Julian Knowles J applied the approach set out in that case, concluding that, even though the MPT did not use the phrase ‘blatantly dishonest’, that was an apt description for Dr Al Nageim’s evidence. Fitting the facts to the terms of Mostyn J’s test, he had dishonestly denied primary concrete facts as the MPT found that he did not genuinely believe either that he was entitled to use staff accommodation or to continue to receive payments after he had ceased his employment (which the judge described as egregious dishonesty).
The judge’s ultimate conclusion is not surprising. The interesting point in this case is that Julian Knowles J could have doubted Mostyn J’s approach in Towuaghantse and reverted to the approach taken in earlier cases such as Yusuff, endorsing the Sanctions Guidance. He did not do so, albeit it does not appear that the GMC argued strongly that he should. That argument may yet be made on another day – alternatively, the GMC may decide (yet again) to amend the Sanctions Guidance and incorporate the Towuaghantse approach.
As matters stand, there would seem to be a good basis to deploy this approach in the MPT and in any regulatory tribunals operating in a comparable way to the MPT.