Appeal Case Law: Fish v GMC (2012) Appeal
Case Law
Appeal Case Legal Directions Digest:
Dr Michael Jonathan Fish v The General Medical Council (GMC) (2012) EWHC 1269 (Admin) (May 2012)
The doctor successfully appealed a determination of a GMC Fitness to Practise Panel. The factual findings, misconduct, impairment and sanction decisions were quashed entirely, on appeal.
The judgment contains a useful commentary on legal directions to be given in cases of alleged dishonesty.
At para 67, the appeal judge opined:
67. What, however, seems to be a proposition of common sense and common fairness is this: an allegation of dishonesty should not be found to be established against anyone, particularly someone who has not been shown to have acted dishonestly previously, except on solid grounds. Given the consequences of such a finding for an otherwise responsible and competent medical practitioner, any Panel will almost certainly (without express reminder) approach such an allegation in that way.
“Solid grounds” being found to the civil standard, in appropriate cases, as per the judge’s remarks at para 66:
66. …. The GMC has decided that the appropriate standard for determining an issue of fact is whether it is, more probably than not, established. It is not for the court to raise or lower that threshold.
Also (at para 70):
70. At the end of the day, no-one should be found to have been dishonest on a side wind or by some kind of default setting in the mechanism of the inquiry. It is an issue that must be articulated, addressed and adjudged head-on.
Held: The “motive”, “or lack of one”, for the alleged dishonesty was a matter that should have been considered by the panel; for the lack of established motive undermined the case brought by the GMC against the doctor. The allegation brought against the doctor was one of deliberately and dishonestly removing a declaration of truth from a completed timesheet of claimed hours. He had no reason to do so, the appeal court held. He had successfully submitted that forms he had completed had not each contained a declaration of truth as standard wording.
The judge stated (at paras 73-74):
73. In its finding that the “declaration allegation”, as I have characterised it, was proved, the FTP did not in its reasons ascribe a motive to the Appellant for having deliberately excised the declaration from the time sheet. They concluded that it was “deceitful” and “led JCJ Locums to assume that the content of the forms [he] had submitted was as required by JCJ Locums”, but that is all that was said.
74. With great respect, and with some diffidence, I simply do not understand the logic of that proposition. I do not understand how removing a statement of truth, as it has been called, can possibly lead the recipient of the form to believe that its content was “as required” by the maker of the form. If this statement of truth was standard and was in every other form submitted by a doctor placed as a locum by JCJ, the forms returned by the Appellant must have contained a gaping and obvious hole which must have been obvious to anyone receiving it. How was it that no-one noticed it until issues were raised by Dr Myint? One fairly obvious answer is that such a declaration did not appear in every time sheet required to be completed by a locum supplied by JCJ. If that is so, then far greater credence to the Appellant’s evidence that he was never supplied with a form that contained this declaration would need to have been given. If, on the other hand, it was a standard provision which had been deleted, the fact that no one noticed it suggests that little, if any, attention was ever paid by JCJ to the declaration.
Dr Fish was entirely cleared of the alleged wrongdoing.
Other Legal Principle: The appeal judge also remarked that respective counsel for the parties should be shown the legal advice to be given to a panel, so that they can comment on it or suggest revisions.
On Other Pages
See our other article on case law relating to alleged dishonesty.
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