Court of Appeal quashes finding that doctor was dishonest — Sapan Maini-Thompson
27 September 2018
On 14th September 2018 the Court of Appeal allowed an appeal by a doctor against a finding that his fitness to practice was impaired by reason of dishonesty.
This case concerned professional disciplinary proceedings against the appellant, Dr Hemmay Raychaudhuri. A complaint had been made in relation to how the appellant had filled in a form to record the medical examination of a child patient. This complaint was referred to a Medical Practitioners Tribunal (MPT). Assessing the scope for misunderstanding between the appellant and other medical staff, the MPT upheld the charge of ‘misleading actions’ rather than ‘dishonest actions’. As such there was no impairment of his ability to practice as a doctor.
The General Medical Council (GMC), however, alleged dishonesty on the part of the appellant. The GMC appealed to the High Court in reliance on section 40A Medical Act 1983. This stipulates the conditions under which the General Council may challenge a decision of an MPT if it believes a disciplinary decision made under section 35D does not sufficiently protect the public.
In the High Court, Sweeney J followed the decision of the Divisional Court in General Medical Council v Jagjivan  EWHC, which held that the High Court had jurisdiction to hear an appeal by the GMC against a ruling by an MPT. He substituted the MPT’s finding to declare that the appellant had in fact behaved dishonestly and that therefore his fitness to practice was impaired.
There were three grounds of appeal before the Court of Appeal.
- The High Court has no jurisdiction under Section 40 to hear an appeal by the GMC against a finding by an MPT that a doctor’s fitness to practice is not impaired. This was an invitation to overrule Jagjivan;
- The High Court was wrong to substitute a finding that he had behaved dishonestly, where the MPT had acquitted him of dishonesty;
- Even if the conduct was dishonest, the High Court was wrong to find his fitness to practice was impaired and was wrong to remit the case to the MPT.
Ground (1): the jurisdiction of the High Court under section 40A
Counsel for the appellant (Robert Kellar and Michael Deacon of One Crown Office Row) argued that on its proper construction, section 40A does not create jurisdiction in the High Court to entertain such an appeal by the GMC against a finding by an MPT.
Rather, it must be construed to apply only to those limited cases in which a MPT finds pursuant to section 35D(2) that a person’s fitness to practise is impaired but in exercise of its discretion under that provision nonetheless decides not to make a direction for erasure, suspension or otherwise.
It was moreover argued that the construction of section 40A by the Divisional Court in Jagjivan is incompatible with Article 6 of the ECHR insofar as relevant case-law (Berger v France, ECtHR; Ben Naceur v France, ECtHR; Ghirea v Moldova, ECtHR) implies the right to equality of treatment between the parties to civil litigation (including litigation involving professional disciplinary charges).
Therefore, to allow the GMC a right to appeal where the MPT finds that there is no impairment of fitness to practice would create an imbalance between the rights of the parties in respect of their ability to appeal. This could only be remedied by reading the primary legislation in line with the interpretive obligation in section 3(1) of the HRA.
Lord Justice Sales rejected these two arguments.
First, section 40A gives the GMC a right to appeal as a matter of the natural and ordinary meaning of the language used in sub-section 40A(1)(d), which is supported further by sub-section 3: that the GMC ‘may appeal against a relevant decision’ if it considers that the decision is not sufficient ‘whether as to a finding or a penalty or both’ for the protection of the public’.
The statutory objective of section 1 of the 1983 Act that the GMC should exercise their functions for the protection of the public (and the statutory power in sub-sections 3 and 4 to enable them to do this) would be undermined by an excessively narrow interpretation of sub-section 40A(1)(d).
A similar point was made by the Court of Appeal in Council for the Regulation of Healthcare Professionals v General Medical Council and Ruscillo  EWCA Civ in the context of construing the extent of the power of reference of the Professional Standards Authority for Health and Social Care’s (PSA) under section 29 of the 2002 Act. This analysis is complemented by a consultation paper published by the Department of Health in August 2014 which explains the purpose of the legislation to create a right of appeal in the GMC which would replicate the existing right of reference/appeal of the PSA.
Secondly, Sales LJ held that there is no incompatibility between the appellant’s right of appeal under section 40 of the 1983 Act and the GMC’s right of appeal under section 40A. As such, there is no need in the present case to utilise section 3(1) to construe a different meaning to section 40A. Moreover, it is a ‘fundamental feature’ of the 1983 Act that the GMC should exercise its functions in order to protect the public and a ‘fundamental feature’ of section 40A that it should have a right of appeal to the High Court to secure that objective in a case where an MPT has failed to find impairment when it ought to have done so: Ghaidan v Godin Mendoza  UKHL 30.
The appeal was dismissed on this ground.
Ground (2): the judge’s substitution of a finding of dishonesty
The dishonesty issue concerned an allegation that the appellant had filled in a medical form without ever intending to see a patient, and most importantly, had misled a colleague when questioned about this. However, the appellant had already given a full and truthful account to a different colleague, and nurses who gave evidence had made it clear that it was not part of a truly dishonest effort to cover up what he had done.
During the adjudications of the MPT, the approach to dishonesty was set out in R v Ghosh  QB 1053 which identifies both objective and subjective test conditions. However, following the hearing before Sweeney J, the Supreme Court amended the test in Ivey v Genting Casinos (UK) Ltd  UKSC 67. Applying this new test, and even by the standard in Ghosh, Sweeney J held that it was necessary to substitute a finding of dishonesty.
Sales LJ stated that this had not been an easy issue to resolve. He considered the moral distinctions drawn by the MPT to be ‘finely balanced’ in respect of dishonest conduct. The MPT, moreover, was well-placed on a factual basis to make a nuanced, evaluative judgement in the professional context. In contrast, Sweeney J was held by the court to have adopted a ‘cut and dried’ approach to assessing the difference between ‘knowingly misleading’ conduct which was partaken for reasons of expediency and a ‘truly dishonest effort’. This had been the wrong approach.
The appeal was upheld on this ground and Sales LJ quashed the finding of dishonesty.
By virtue of the appeal being allowed on Ground (2), the question under Ground (3) did not arise.
Lord Justice Bean agreed with the judgement of Sales LJ in respect of Grounds (1) and (2). He also expressed regret that the GMC had brought the appeal in any case considering the ‘anxious consideration’ given by the MPT to matters of this kind. The discretion afforded by section 40A(3) ought to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour.
Sapan Maini-Thompson is an LLM Candidate at University College London.