Are there lessons to be learned from three recent High Court decisions concerning allegations of dishonesty? It is instructive that the cases involved the three types of appeal that can bring a disciplinary/regulatory case before the High Court.
- GMC v Armstrong  EWHC 1658 (Admin) – A s.40A Medical Act 1983 appeal by the GMC against a finding Dr Armstrong’s fitness to practise was not impaired.
- Bakare v GMC  EWHC 3278 (Admin) – A s.40 Medical Act 1983 appeal by Dr Bakare against a direction for erasure.
- The Professional Standards Authority v (1) GDC & (2) Amir  EWHC 3230 (Admin) – A s.29 National Health Service Reform and Health Care Professions Act 2002 appeal by the Professional Standards Authority (‘PSA’) against a direction for suspension of Mr Amir’s registration for 3 months.
Dr Armstrong made admissions that she had worked as a GP whilst not on a Medical Performers List (‘MPL’), that she had falsely stated that she was on a MPL, and had failed to disclose an order for interim suspension when applying for two jobs in the UK and when applying for a GP post in Australia. She gave evidence before the Medical Practitioners Tribunal (‘MPT’) at the impairment stage accepting full responsibility for her actions, showing remorse, a “high level of insight” and acknowledging that fellow practitioners would be “disgusted” by her conduct. The MPT determined that there were exceptional circumstances that permitted it to find that her fitness to practise was not impaired. The GMC appealed.
The High Court recognised that “it is very rare indeed for a person who has committed serious professional misconduct by reason of dishonesty to escape a finding of impairment” and reviewed three appeal cases in which a finding of dishonesty did not lead to impairment. The common features from that review were that the cases were ones of isolated lapses in otherwise unblemished careers where the risk of repetition was extremely low and there was good insight.
The High Court concluded that Dr Armstrong’s case was not exceptional as the dishonesty was not isolated, it was repeated and there was financial gain. Moreover, the MPT had placed wholly excessive weight on personal mitigation; rather, it should have recognised that personal mitigation has only a limited role in cases of dishonesty. The impairment decision was quashed and replaced with a decision that Dr Armstrong’s fitness to practise is currently impaired. The case was remitted to the MPT for a decision on sanction.
Dr Bakare’s case concerned clinical allegations and allegations of dishonesty. The clinical allegations can be disregarded as the MPT found that they did not amount to current impairment and had no relevance to the direction for erasure and therefore the issue to be addressed by the High Court.
The dishonesty allegations ranged from more minor dishonesty concerning scheduling leave from a tutorial with her educational supervisor to CV or application fraud (failing to declare ongoing fitness to practise investigations on two application forms and one declaration) and prescription fraud (failing to return a prescription pad and writing a prescription in the name of a family friend and signing the prescription in another doctor’s name). The prescription fraud allegations were investigated by the Police which resulted in Dr Bakare wrongly being commended by the Police for her cooperation in their investigation. Six years after writing the prescription and on the fourth day of the MPT hearing faced with the evidence of the GMC handwriting expert, Dr Bakare admitted the prescription fraud. Her name was erased.
Dr Bakare appealed against the direction for erasure on the grounds of disproportionality, adequacy of reasons for rejecting suspension as an alternative disposal, and the failure to attach appropriate weight to mitigating factors. The High Court rejected the appeal.
After a helpful review of the authorities on dishonesty [36-42] Calver J concluded that the direction for erasure “cannot be said to be wrong and indeed was undoubtedly correct” for the following reasons:
- Dishonestly concealing an ongoing investigation on three occasions over a five-month period is conduct that lies “at the top end of the spectrum of gravity of misconduct” as it undermines “something fundamental to the system of medicine” [60-61].
- The prescription fraud was particularly serious because it involved a breach of trust, potentially endangered patient safety, and demonstrated a complete lack of candour towards fellow professionals .
- This serious dishonesty was covered up for many years, involved misleading the Police and the fact that it was only admitted very late in the day suggested a complete lack of insight [64-66].
- Personal mitigation should be given limited weight, as “the reputation of the profession in such a serious case of dishonesty is more important than the fortunes of an individual member”  – see Bolton v Law Society  1 WLR 512.
Mr Amir was charged with making claims that various medical conditions (including ataxia, depression & anxiety, learning difficulties, MS & heart palpitations) could be attributable to a dysfunctional jaw joint which as a registered dentist he could treat. He was consulted by a patient who suffered from spinocerebellar ataxia. The case against him was that the only appliance which he offered to his patient was not clinically justified and that his claims were dishonest in that he knew that there was no reasonable body of evidence to support them.
In the High Court the PSA challenged, inter alia, the decision of the Professional Conduct Committee (‘PCC’) that Mr Amir’s claims were not dishonest and the determination to suspend his registration for 3 months. The High Court concluded that the PCC had fallen into error when answering the second limb of the Ivey v Genting  UKSC 67 test when it found that Mr Amir’s conduct “would not be considered dishonest by reference to the standards of ordinary and decent people, as they would consider that you genuinely believed that a reasonable body of opinion existed to support your statements.” The effect of the PCC’s decision was to allow Mr Amir to set his own standards and would permit him to flout the GDC’s standards because he had concluded that he knew better. The High Court replaced the PCC’s finding that he had not been dishonest with a finding that he had and the direction for three months’ suspension with a direction for erasure. It did not remit sanction as it was satisfied that there was no possibility that Mr Amir would achieve insight. Rather, his position was fixed.
- Do these cases demonstrate a hardening of the line taken by the High Court in dishonesty cases? Probably not. They affirm the approach that the High Court has taken to dishonesty by professional people from Bolton (supra) through cases such as NMC v Parkinson  EWHC 1898 (Admin). What these cases illustrate is the importance of obtaining the right result at first instance. This may not always be the best result. The superficially “good” results in Armstrong and Amir were inevitably going to be challenged. Indeed, the direction for three months’ suspension in Amir may have been challenged even if the PCC had made a finding of dishonesty given the absence of insight. As these cases and the review of the exceptional circumstances cases in Armstrong demonstrate, central to achieving the right result is showing insight.
- The review of the second limb of the Ivey test for dishonesty in Amir is helpful. As Bakare demonstrates a late admission of dishonest conduct can be fatal to demonstrating insight. Practitioners understandably struggle with the proposition that they may be thought to have acted dishonestly but leaving this issue for the disciplinary tribunal to resolve can be to leave it too late.