Dishonesty Legal Test in MPTS/GMC Proceedings
Members of the public expect medical doctors to be honest in both their public and private life. The public still holds doctors in high regard, with the majority of doctors being given due respect for their contributions to the welfare of society.
The General Medical Council (GMC) – the regulator of doctors – will take action against those doctors who do not conduct themselves with the utmost probity, integrity, and honesty. Doctors who admit or are found guilty of dishonest conduct will almost certainly be found to have committed professional misconduct. Those doctors whose fitness to practise is also found to be impaired [at an Medical Practitioners Tribunal Service (MPTS) professional conduct hearing], as a consequence of their failing to uphold professional standards – because of their dishonest conduct – might also face the prospect of a long period of suspension, or even erasure from the register.
Indeed, a doctor who has been dishonest is at significant risk of erasure. In the case of Nicholas-Pillai v GMC  EWHC 1048 per Mitting J, it was stated (para 27), that:
“In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty.” (August 2017)
It is essential as a consequence of this risk that a doctor facing an allegation of dishonesty does not mislead the GMC, when making an oral or written response. A doctor must undertake appropriate remediation, show insight, and present good quality evidence, among other things, if they are to seek to reduce the risk of erasure.
Dishonesty can take many forms. Some examples might include: a doctor lying in their CV to give it greater weight in a job application round, by exaggerating claims or making them up altogether; a doctor taking monies from a patient without authority, for personal use; a doctor engaging in business arrangements that have benefitted them, through subterfuge and misdirection; theft of drugs from a ward for personal use or to sell on to others; a doctor telling lies when being investigated, by a Trust or the GMC, concerning allegations of professional or workplace misconduct.
A doctor who is convicted of a criminal offence (or has otherwise committed misconduct) will also face GMC / MPTS fitness to practise proceedings, and risk being suspended or struck off, as a consequence of their criminal conviction. There is additionally an obligation on doctors to promptly inform the GMC, and those doctors who fail to do so may also face a misconduct charge for such a failure.
What is Dishonesty in Regulatory Law?
See GMC v Krishnan  EWHC 2892 (Admin) which holds that Ivey judgment, below, is good law in professional conduct tribunals. The case did not provide any guidance as to how the case of Ivey should be applied in GMC regulatory cases.
**NEW JUDGMENT ON DISHONESTY Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)  UKSC 67, on appeal from  EWCA Civ 1093.
Lord Hughes adopted the test applied by Lord Hoffman in Barlow Clowse and held, [at para 74] that:
“…the second leg of the test propounded in Ghosh does not correctly represent the law and…directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffman in Barlow Clowse.
When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.“
In short, the legal test for dishonesty is “whether by ordinary standards the defendant’s mental state would be characterised as dishonest”, applying the above test.
The second limb in Ghosh, below, should no longer be given.
The more significant the acts of dishonesty the greater the risk of suspension or erasure will be. A twelve month suspension could cause considerable financial difficulties for a doctor but a suspension would be likely to be catastrophic.
Doctors do fall into error, with genuine reasons or mitigation for their dishonest conduct, which, if explained carefully to the GMC, can lead to a good outcome for the doctor. Explaining the history of events in a clear and well-evidenced manner, showing insight, and taking steps in remediation, can all potentially help a doctor to achieve an outcome that falls short of erasure.
In January 2018, the case examiners in a Rule 8 Decision Letter stated that the two part legal test that they were applying was as follows:-
“When considering dishonesty allegations, case law has suggested that we must consider:
(a) subjectively, the doctor’s knowledge or genuine belief as to the relevant facts and;
(b) in light of the doctor’s knowledge or belief, whether the doctor’s conduct was objectively dishonest by the standards or ordinary honest people.”
See also the case law towards the end of this article, but bear in mind that many of them were pre-Ivey and so applied the law as it stood at the time.
With the evolution of the case law on dishonesty in regulatory proceedings, it is clear that there is a distinction to be made (which could affect findings of fact, misconduct and impairment, and which may in turn affect sanction) between deliberate and unintentional dishonesty. The concept of ‘deliberate dishonesty’ is referred to obiter by the Court of Appeal in the case of Sanusi v The General Medical Council  EWCA Civ 1172 (July 2019) at paras 86 and 91. Therefore, doctors who have not been deliberately dishonest will need to challenge that implied element contained within the allegation.
The below guidance is due to be revised in in light of the decision in the above case, so it should be read with the Ivey judgment in mind.
Examples of Cases of Dishonesty – contained in High Court Appeals
(Other cases will be added in due course)
Doctors should take care when responding to allegations to ensure that their reply is not ambiguous, and has been properly thought through. Doctors are advised to take legal advice before responding to GMC allegations and, ideally, should be legally represented at any hearings, in order to protect their interests.
Pleading Guilty / Making Admissions of Dishonesty
Doctors who have been dishonest may fear the consequences of admitting to the GMC what they have done. However, it should be noted that those doctors who cover up their past dishonesty are more likely to be erased from the register in comparison to those who came clean at the first opportunity. The GMC's/MPTS's Indicative Sanctions Guidance makes it clear that doctors who lie over time are more likely to face erasure (be 'struck off') from the register. By way of example, paragraph 122 of the MPTS's Sanctions Guidance (July 2016) holds that:- 'Dishonesty, if persistent and or covered up, is likely to result in erasure'.
Admitting dishonesty obviously needs to be done with care an precision, and doctors are advised to take legal advise before making admissions to GMC charges.
In Conclusion:- Regrettably, there are a number of doctors in practice in UK who are dishonest, duplicitous, or disingenuous in much that they do, both in clinical practice and in their business transactions or personal dealings with others. Such doctors are out to make personal gains at considerable cost to their patients and colleagues. Thankfully the real rogues are few in number but the GMC has an imperative based on public policy considerations to identify them, discipline them, and throw them out of the profession.
In one example, a physician who was also an academic was found to have built much of his career on fraudulent studies that he wrote about in academic journals to further his career. The GMC brought almost 70 allegations of misconduct against him, many of them alleging dishonesty, which demonstrated that his whole career was based on deceit. He was struck off. Such an extreme case is rare indeed but such doctors are out their and the GMC will expend a lot of time and resources to justly deal with them. The GMC will also bring charges against doctors who have been dishonest in more modest ways. Even relatively 'low level' dishonesty, in comparison to the preceding illustration, can lead to GMC regulatory proceedings. Doctors who are dishonest risk being suspended, pending investigation, and a minimum of suspension at a fitness to practise hearing, if their cases reach that stage. There is a provision to issue a doctor with a warning for dishonest conduct in certain circumstances, but such occasions have been relatively rare. Though that may change in light of the case of PSA v GMC v Uppal (2015) EWHC 1304, in which it was held that a finding of impairment is not inevitable in cases of dishonesty.
Doctors Defence Service provides assistance to doctors who face allegations of dishonesty in GMC legal proceedings.
For legal advice or representation in GMC proceedings, contact Doctors Defence Service in strict confidence on: 0800 10 88 739
(Doctors Defence Service)
See also our GMC / MPTS Regulatory Case Law Digests
If you are a doctor who is facing GMC / MPTS proceedings that include allegations of dishonesty, call Doctors Defence Service in confidence on: 0800 10 88 739