Dishonesty & Fitness to Practise

The General Medical Council’s (GMC) fitness to practise data shows that the highest number of allegations received by it relates to doctors not acting with honesty and integrity.  This has consistently been the highest category of GMC complaints for several years. Dishonesty is particularly problematic for the GMC because it points to character flaws that are difficult to remediate and doctors are at high risk of erasure or facing a lengthy suspension.

We look at the issue of dishonesty in fitness to practise, remediation and advice for doctors who are facing allegations of dishonesty.

Dishonesty – The Legal Test

Alleged dishonesty can take many forms and could relate to clinical and/or private circumstances.

In common law, dishonesty is defined as:

“… a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest … If it was dishonest … then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.”

The test for dishonesty therefore is subjective and objective:

• Was the act one that an ordinary, decent person would consider to be dishonest (the objective test)? If so:
• Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?

It is important that doctors do not seek to mislead the GMC or a medical practitioner’s tribunal when making representations, either verbally or in writing.  This is where legal advice and representation is important to advise doctors on the correct approach, strategy and engagement with the GMC. 

Doctors should avoid hasty replies and responses to GMC correspondence.  Although there will be response deadlines, doctor’s should carefully consider their responses and when to reply.  Seeking legal advice at an early stage will greatly benefit doctors in the longer term. 

It is also worth saying that not all doctors facing allegations of dishonesty are dishonest.  The evidence must show that the doctor realised that what they were doing was dishonest (i.e. intentional dishonesty).  A robust defence under these circumstances will require clear evidence, but also challenging the GMC’s evidence.

Clinical and personal – does it matter?

Dishonesty in a clinical context is would appear to be the most relevant, but doctors should be aware that dishonest conduct in non-clinical contexts can be equally serious and complex.

Dishonesty in non-clinical contexts can take many forms including “dishonesty towards employers, colleagues, regulators or the state as, for example, when registrants lie about qualifications, plagiarise academic work, do not disclose criminal convictions or cheat on their tax return.” (A Typology of Dishonesty – Illustrations from the PSA Section 29 Database)

Dishonesty in non-clinical contexts carries much weight with the public and stands accused of bringing the profession into disrepute.  The PSA gives an example of a dentist charged with tax evasion. Even if no direct harm to patients or the public follows from dishonesty in private life, it can be argued that dishonesty or deception may cause harm to the reputation of, and trust in, the profession overall. [Ditto]

Dishonesty & Remediation

Dishonesty is particularly problematic for the GMC because it points to character flaws that are difficult to remediate and doctors are at high risk of erasure or facing a lengthy suspension.

Fitness to practise defence barrister, Catherine Stock, said:

“In cases of dishonesty before any healthcare regulator, a sanction of erasure is nearly always an option for the GMC or a tribunal. This case highlights that for any fitness to practise hearing whether it be a substantive hearing, a review or restoration, being able to demonstrate insight and remediation is tantamount and something that is not easy to achieve without specialist advice.”

The lack of clear and robust evidence of insight and remorse will be seen as a lack of understanding of the significance of a doctor’s behaviour that will almost certainly lead to the GMC or a tribunal concluding that there is a real risk of repetition.

That said, remediation, and evidence thereof, is not impossible, but it will most likely be a very long process that forms part of a clear defence strategy.  Legal advice and a clear working strategy are both key to good outcomes for doctors facing allegations of dishonesty. 

Sanctions

The question relating to what extent a finding of dishonesty in professional regulatory proceedings go hand-in-hand with a finding of impaired fitness to practise was considered in the case before the High Court after the GMC appealed the decision of a Medical Practitioners Tribunal in GMC v Chaudhary (2017).

The outcome of this case found that a finding of impairment does not inevitably flow from a finding of dishonesty.

Where dishonesty leads to a finding of impairment, however, the full range of sanctions is potentially available to the tribunal considering the case.

Kings View Barristers

With over 30 years combined experience, Kings View Chambers have established itself as one of the best when it comes to fitness to practise defence.  We fully understand that fitness to practise defence is not merely about processes and procedures.  We also understand that we are working with people who are anxious and worried about what investigations might mean for them, their professions and the reputations.

We are proud to be rated ‘excellent’ by our clients.  Our commitment to client care is genuine in both seeking the very best outcomes for our clients, but also ensuring we do what we can to support them through the process.

Contact us today for a no obligation and free telephone consultation about your case in the knowledge that you are speaking to one of the best in the business.

In upholding the appeal, Alan Bates, sitting as a Deputy Judge of the High Court, said:

1. Failure to assess witness credibility and reliability The panel did not sufficiently evaluate the general credibility and reliability of key witnesses, whose evidence was essential to the charges. It failed to consider factors such as contradictions between witnesses' accounts and whether their testimonies should be approached with caution. This omission undermined the panel's ability to justify its conclusions.
2. Lack of explanation for preferred evidence The panel failed to provide adequate reasons for preferring the complainants' evidence over the appellant nurse's and the paramedic's. Simply stating a preference for certain witnesses' accounts without detailed justification left the appellant without a clear understanding of why her evidence was rejected.
3. Errors in evidence evaluation The panel assessed each charge in isolation without considering broader patterns or contextual evidence. It failed to recognize that inaccuracies in one allegation (contradicted by CCTV) could cast doubt on the reliability of witnesses' accounts in other allegations, leading to flawed conclusions.
4. Improper handling of contextual evidence The panel neglected to evaluate the behaviour of the complainant nurses during the investigation, which was relevant to determining their credibility. Additionally, it overlooked the appellant nurse's claims that the allegations were fabricated to remove her from her managerial position.
5. Insufficient reasoning for findings The panel provided inadequate reasoning for its findings of misconduct. It did not fully explain how the evidence supported its conclusions, including why the NMC had met the burden of proof for each disputed allegation. This failure left the appellant with unsubstantiated conclusions, undermining the credibility of the process.

Lessons

This case highlights several critical considerations for fitness to practise tribunals. One key lesson is the importance of thoroughly evaluating the credibility and reliability of witnesses, particularly when their testimony is central to the charges. Without such assessments, the accuracy and fairness of the tribunal’s findings can be compromised. Witness accounts must be examined not only in isolation but also in a broader context, taking into account patterns and inconsistencies to achieve a holistic evaluation.

Additionally, tribunals must provide clear and rational reasoning for their decisions. Merely preferring one witness’s account over another without detailed explanations can lead to procedural unfairness. Ensuring transparency in decision-making fosters trust in the process and supports robust outcomes. Tribunals must also maintain procedural fairness by upholding the burden of proof on the prosecuting body. Accused parties should never feel pressured to disprove allegations, as fairness is crucial to preserving the system’s integrity.

Disclaimer: This article is for guidance purposes only. Kings View Chambers accepts no responsibility or liability whatsoever for any action taken, or not taken, in relation to this article. You should seek the appropriate legal advice having regard to your own particular circumstances.