I wrote last year about developments in the guidance given by the High Court in cases of professional regulation on the effect on sanctions of unsuccessful denials of dishonesty (link here). The issue continues to be a live one, to which further judicial gloss has been applied in two further cases – Ahmedsowida v General Medical Council  EWHC 3466 and Sawati v General Medical Council  EWHC 283.
The Rejected Defence Issue
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? In essence, the issue is one of fairness, namely:
“[H]ow a professional can have a fair chance before a Tribunal to resist allegations, particularly of dishonesty, without finding the resistance itself unfairly counting against them if they are unsuccessful.” (per Collins-Rice J at  of Sawati, emphasis in original).
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?
The position taken in the cases considered in the previous article (Towuaghantse v GMC  EWHC 681 (Admin) and Al Nageim v General Medical Council  EWHC 877 (Admin)) was that:
“[I]t 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.” per Mostyn J in Towuaghanstse
But where there was blatant dishonesty in the registrant’s denial of primary concrete facts alleged before the Tribunal then that would impact on a consideration of impairment and fitness to practise in the future.
Further, while it may be unfair to expect a “Damascene conversion” from a registrant who had unsuccessfully defended the fact-finding stage it was not unreasonable to expect a developing understanding of the wrongdoing found if there was a significant gap between the fact-finding and the impairment/sanctions stages.
The Recent Cases
I do not propose to summarise the facts of Sawati and Ahmedsowida, which are complex in their own ways. The rejected defence issue arose in both cases and was dealt with as an individual point. In each case the GMC sought to argue that it was open to the Tribunal to consider the rejected defences as further evidence of dishonesty which could be taken into account when assessing the registrant’s level of insight and the sanction to be imposed. The Court declined to do so on each occasion.
In Ahmedsowida Kerr J agreed with the approach in Towuaghantse and held that:
“I do not think that the principle is sophisticated or complicated. It is just ordinary due process. Contesting the charges, even robustly, should not be treated of itself as evidence of lack of insight; something more must be shown. A finding that blatant lies were told to the tribunal is one possibility. A long hiatus between the fact finding and impairment and sanction stages may be a contributing feature.” .
The appeal against the Tribunal’s determination was allowed, in part, on the basis that it had impermissibly held against the registrant his refusal to admit dishonesty without anything additional being shown. The matter was remitted to a differently constituted Tribunal.
In Sawati, Collins-Rice J carried out a thorough review of the caselaw, from which she extracted the following relevant factors – a lengthy extract from the judgment is set out below given its centrality to the subject matter of this article:
“103. The principle of due process may not be sophisticated or complicated. The principle of protecting the public from practitioners who cannot accept or deal with findings of fault, and are at risk of repeating their failings, is not complicated either. Reconciling the two may however be difficult in an individual case, and is undoubtedly fact-sensitive. So the question is how best to approach the facts of a given case. I have recounted the caselaw at some length, to identify not just guidance of principle, but also the pattern of relevant factors to which the appellate courts have consistently attached importance. The following stand out.
104. First: the primary allegations against the doctor. The proper place of dishonesty (or other states of mind such as ‘deliberate’ and ‘knowing’) in the scheme of the allegations matters. A rejected defence of honesty may be more fairly relevant to an overall assessment of conduct where dishonesty (the noun) is the primary allegation – deceit, fraud, forgery or similar – than where ‘dishonestly’ (the adverb) is a secondary allegation, aggravating a primary allegation of other misconduct which may or may not be done honestly – or not a formal allegation at all. As Lord Hoffmann emphasised, particular alertness is needed to the ‘charging trap’: adding ‘dishonestly’ to a primary allegation to aggravate it disproportionately, colour any denial of the primary allegation with dishonesty, or characterise denial of the dishonesty as itself dishonest or lacking insight. But even short of oppressive charging, the fair relevance to sanction of a doctor’s rejected honesty defence depends on its relationship to what they were primarily defending.
105. Second: what if anything the doctor is positively denying. There is a difference between denying ‘primary facts’ – what happened and what the doctor did or did not do – and denying ‘secondary facts’ – the evaluation of the primary facts through the lens of what the doctor knew or thought and the choices available to them. Resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective. This is not of course an exclusive binary classification: what a doctor thinks or knows will often have to be deduced evidentially from objective circumstances. A secondary fact such as dishonesty may be inferred in some defended cases from an overwhelming accumulation of primary facts. If a doctor denies their alleged state of mind with a defence at the unreal, unreasonable or ‘frankly ludicrous’ end of the spectrum, that may be more fairly relevant to sanction than one where the only thing being denied is that dishonesty rather than honest mistake gives the better account of things.
106. Third: whether there is evidence of lack of insight other than the rejected defence. Before a rejected defence is held to be relevant evidence of ‘lack of insight’, it is necessary to consider what other evidence of insight or lack of insight is present. There are cases, including some of the sexual impropriety cases, where being ‘in denial’ up to and including sanction proceedings is a richly evidenced course of conduct, in which a range of supportive and restrictive interventions have demonstrably failed to bring a doctor to a proper, fair and reasonable acknowledgment of the reality of their established problems and failings. At the other end of the spectrum, there are cases in which the only evidence of failure of insight seems to be robust defence at the fact-finding stage. Damascene conversions aside, a rejected defence which on a fair analysis adds to an evidenced history of faulty understanding is more likely to be relevant fairly to sanction than one said to constitute such faulty understanding in and of itself.
107. (I am not myself assisted by analogy with criminal proceedings in this respect. A plea of guilty can secure a mitigation of sentence because it spares the victim and the public purse the human and financial cost of a trial. The risk the offender may or may not pose to the public is dealt with in other ways. Insight is a genuine and proper issue in professional regulatory proceedings in and of itself. But as such it needs to be properly considered on a substantive and not just a procedural basis.)
108. Fourth: the nature and quality of the rejected defence. ‘Not telling the truth to the Tribunal’, when not freshly charged in separate proceedings as akin to perjury, has to amount to something more than a failure to admit to an allegation (especially a secondary allegation of dishonesty) or a putting to proof, before it can properly count against a doctor. It is likely to have to amount to more than offering an ‘honest’ alternative explanation of events alleged to be explicable as dishonesty, or it is hard to see how a dishonesty charge is to be effectively defended. It is going to require some thought to be given to the nature of the rejected defence. Was it a blatant and manufactured lie, a genuine act of dishonesty, deceit or misconduct in its own right? Did it wrongly implicate and blame others, or brand witnesses giving a different account as deluded or liars? Or was it just a failed attempt to tell the story in a better light than eventually proved warranted?
109. In short, before a Tribunal can be sure of making fair use of a rejected defence to aggravate sanctions imposed on a doctor, it needs to remind itself of Lord Hoffmann’s starting place that doctors are properly and fairly entitled to defend themselves, and may then find it helpful to think about four things: (i) how far state of mind or dishonesty was a primary rather than second-order allegation to begin with (noting the dangers of charging traps) – or not an allegation at all, (ii) what if anything the doctor was positively denying other than their own dishonesty or state of knowledge; (iii) how far ‘lack of insight’ is evidenced by anything other than the rejected defence and (iv) the nature and quality of the defence, identifying clearly any respect in which it was itself a deception, a lie or a counter-allegation of others’ dishonesty.
110. These are all evaluative matters. Tribunals need to make up their own minds about them, and their relevance and weight, on the facts they have found. But they do need to direct their minds to the tension of principles which is engaged, and check they are being fair to both the doctor and the public. They need to think about what they are doing before they use a doctor’s defence against them, to bring the analysis back down to its simplest essence.” [emphasis added].
The appeal was allowed, in part, due to the Tribunal’s failure to consider these sorts of issue at all, simply finding that the registrant’s dishonesty and her failure to admit it were matters of sufficient seriousness to justify erasure. The Judge remitted the matter to a differently constituted Tribunal.
Collins-Rice J’s four relevant factors in rejected defence cases merit some further reflection. The Judge had clearly in mind that this was a recurring issue in appeals to the High Court and has provided a careful analysis of the caselaw in an attempt to provide clarity and assistance to regulatory tribunals. I speculated in the previous article whether the GMC would amend its Sanctions Guidance to reflect Towuaghantse, given the absence of it advocating a different approach in Al Nageim. That was premature given the line taken in the cases discussed above, where the argument that rejection of the registrant’s evidence was enough to rule out insight and aggravate the sanction imposed. It may be optimistic to think that the Sawati approach will be adopted given the factors now held to be relevant go further than those expressed in Towuaghanstse.
The first factor draws a new distinction between allegations of dishonesty and allegations of carrying out an action dishonestly. The distinction is between things which are necessarily dishonest (deceit, fraud, forgery etc) and things which might have an honest explanation. The latter should not impact on insight. Allegations of carrying out an action dishonestly are much more common than allegations of dishonesty per se, at least among clinical professional regulation. Thus, this factor will draw special attention to the relatively rare cases of fraud or forgery, understandably elevating them to a position from which it is harder to demonstrate insight.
The second factor considers whether the defence to the allegation goes to secondary facts (such as knowledge and understanding) rather than the primary facts of what was done or not done. Again, if the defence is honest mistake rather than a wholesale denial of the events alleged, or a “frankly ludicrous” explanation (such as Dr Al Nageim’s belief that he was entitled to a salary from a hospital where he no longer worked), then that should not impact on insight.
The third factor is a reminder to consider matters in the round and, if there is evidence that the registrant lacks insight generally, then the rejected defence might be further evidence of this.
The fourth factor broadly reflects the first two, but would catch any relevant matters which had not arisen in consideration of those features in a given case.
These factors could provide a useful aide memoir to Tribunals considering how to approach a rejected defence and prevent unjustifiably harsh treatment for those who were simply standing their ground in their defence.
Martin Forde QC appeared as counsel for the appellant in both of these cases. He has had no input into the writing of this article.