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Do you need a motive for dishonesty?

A review of Alam v General Medical Council in which a doctor faced allegations of dishonestly providing false documentation.

Alam v General Medical Council [2015] EWHC 854 (QB)

The facts

Dr Alam faced allegations of dishonesty. In 2008, she was referred to the GMC by the Medical Board of Queensland as she had been refused registration due to knowingly using false documentation to seek registration.  In 2009 the GMC investigated the allegation and decided to take no further action, save for advising her to adhere to her obligations under Good Medical Practice.  Thereafter, the registrant made limited admissions that during the period 2009-2011, five other documents relating to her (which were application forms and CVs), were not correct. The GMC’s case was that she knowingly provided false information in these documents and that this was misleading and dishonest. 

The panel received advice from the legal assessor that they were entitled to draw inferences based on the evidence but should not engage in speculation as to motive. The legal assessor also referred to Webb v SRA [2013]EWHC 2078 (Admin)as authority for the proposition that an absence of motive for acting in a particular way did not preclude a finding of dishonesty.

The panel assessed the evidence of the registrant and did not find her to be a credible witness because: 1) she gave unbelievable explanations; 2) she did not call corroborative evidence; and 3) she had previously been refused registration in Australia due to providing ‘fraudulent information’.   The panel concluded that the registrant was dishonest when she provided knowingly false information.  They did not however identify a motive for the registrant’s actions and said they were not prepared to speculate as to why she acted in the way she did. 

Having made its finding of facts, the panel could not immediately deal with impairment and an interim suspension order was imposed on the registrant’s registration.  At a subsequent hearing, the panel first concluded the registrant’s actions amounted to serious misconduct.   The panel noted that the registrant had denied the allegations, had not initially offered an apology and she continued to blame others rather than accept responsibility.  The panel were not satisfied that the registrant would not repeat her conduct.  In light of the impact dishonesty has on public confidence and the necessity to uphold the wider public interest, the panel found the registrant’s fitness to practise to be impaired. 

With regard to sanction, the panel considered the evidence, including the registrant’s testimonials and recognised the mitigating factors present in this case: that the registrant was an excellent doctor held in high regard by her colleagues and there would be a loss if she were not allowed to practise.  However, the panel identified the following aggravating factors: 1) repetition of misconduct over a considerable period; 2) the misconduct occurred after  being given advice by the GMC; 3) the misconduct was repeated and prolonged; 4) there was a repetition of ‘lies’ at the hearing; 5) the registrant maintained she had not been dishonest even at impairment and sanction stage.    The panel also considered that the registrant lacked insight and that there was evidence of harmful, deep-seated personality or attitudinal problems.   The panel concluded the misconduct was fundamentally incompatible with continued registration.  Erasure was considered to be the appropriate sanction.  

The appeal

The registrant appealed the GMC’s decision on sanction, accepting the decision on misconduct and impairment and thereby dishonesty.   However, it was submitted that the sanction of erasure was disproportionate and wrong and would end the registrant’s career.    It was submitted that the panel failed to pay any or sufficient regard to a number of matters, including:

  • The registrant’s good character
  • The testimonial evidence that she was a good doctor
  • Absence of any patient complaint/harm
  • There was no advantage or gain in the misconduct to the registrant
  • The misleading information had no influence or impact on those it was provided to
  • The public interest in allowing competent doctors to practise
  • The registrant had been subjected to internal disciplinary proceedings
  • The conduct was remediable and had been remedied. 

It was stressed on behalf of the registrant that she had not provided the information with a view to gaining an advantage and that the dishonesty was markedly less serious than other forms of dishonesty due to the absence of fraudulent motive.    It was also submitted that the panel should not have formed a view about the registrant’s ‘personality or attitudinal problems’ as they did not have the necessary expertise to form such an assessment or have any relevant expert evidence about this.   Furthermore, counsel for the registrant submitted that there had been no issue as to the protection of the public as it had never been suggested there was any question as to patient safety. 

Counsel for the GMC, amongst other matters, highlighted the panel’s findings that the registrant had lied throughout her evidence, referring to Nicholas-Pillai v GMC [2009] EWHC 1048which decided that when a FTP panel comes to consider sanction, it is entitled, when considering insight, to take account of the doctor’s conduct at the hearing.

The decision

Morgan J considered that the panel’s comments as to motive had to be read in the context of the decision as a whole: it was held that the registrant made knowingly false statements and that she was dishonest when she did so.  The panel’s comments on motive appear to have been influenced by the legal advice it received on Webb, that an absence of motive did not preclude a finding of dishonesty and the legal assessor’s warning that, whilst the panel could draw inferences, it should not speculate as to matters on which there was no evidence.

Morgan J commented that the panel were cautious in declining to make a finding as to the registrant’s motive; whilst he considered the motive for making false statements to be obvious, he proceeded for the purposes of the appeal on the basis that the registrant’s motive has not been established.  The panel had not gone so far as to make a positive finding that the registrant had no motive when she knowingly made the statements. They had made clear findings that she was dishonest which it regarded as serious.  

The panel had also held that the registrant did not gain by reason of her knowingly false statement.  Morgan J did not give much weight to this, in view of their findings that the registrant was found guilty of serious dishonesty.  In addition, Morgan J did not accept the criticism of the panel with regard to the finding as to the registrant’s personality or attitudinal problems.   Morgan J considered, pursuant to the indicative sanctions guidance, that the panel were entitled and able to assess the registrant’s attitude and lack of insight. 

The panel also made reference to ‘the protection of the public’ and it was submitted that there was no evidence that the registrant exposed patients to risk.   Morgan J however considered that the panel’s statement that it had ‘grave concerns about a doctor who is capable of persistently lying to the extent and over a period’ that the registrant had done so, was a justified and proper explanation for the reference to ‘the protection of the public’. 

In relation to the matters to which it was said the panel failed to give proper weight, Morgan J commented that the panel did consider those matters, they decided what weight to afford to them and did take them into account.  In deciding what should be the appropriate sanction, Morgan J made the important point that the assessment is not an assessment of how the registrant should be ‘punished’ but rather to the level of response to the proven impairment which is appropriate in the public interest and public confidence in the profession.

Conclusion

Upon considering the Indicative Sanctions Guidance (paragraphs 82 and 111) and noting the remarks in Nicholas-Pillai v GMC [2009] EWHC 1048(where in cases of proven dishonesty, the balance can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner, which will often be erasure),  Morgan J held that the panel’s decision to impose the sanction of erasure in this case was well within its margin of judgment, it was not ‘wrong’ and it was not an assessment with which the court should interfere.

Accordingly, the appeal was dismissed.

Comment

This case shows that the lack of a motive or gain does not preclude a finding of dishonesty.   Once again, it emphasises that dishonesty in itself is regarded as serious and goes to the very heart of maintaining public confidence in the profession.  The decision reiterates that the panel does not need expert evidence to assess the registrant’s attitude, level of insight, and risk of repetition, even to the point of finding that there is evidence of a ‘deep-seated personality or attitudinal problem’. The panel is entitled to assess and come to its own conclusions on these matters, to which deference should be afforded.   The courts will not interfere with panels’ decisions unless they are found to be ‘wrong’, where for example the evidence is wholly insufficient, or there was a procedural irregularity.   Dissatisfaction with a decision will be no grounds for an appeal.