2021-05-20 15:21:11
If a healthcare professional contests allegations that are found proved, should the fact that the allegations have been contested be held against them in Fitness to Practise proceedings? That is a question that Mr Justice Mostyn grappled with in
Towuaghantse v General Medical Council [2021] EWHC 681 (Admin).
In another case recently decided by Mr Justice Mostyn – Bux v General Medical Council [2021] EWHC 762 (Admin) – the judge considered the reliance in Fitness to Practise proceeding on expert evidence.
In Towuaghantse v General Medical Council a doctor was accused of mishandling the treatment of a baby born with a rare and complicated medical condition, and of contributing to the baby’s death. There were no other complaints concerning the doctor. The Medical Practitioner Tribunal found that his fitness to practise was impaired and directed his removal from the medical register.
When determining whether the registrant’s fitness to practise was impaired, the Tribunal had taken into account that he had failed to accept findings made by the coroner at the inquest into the baby’s death and had sought to blame others for what had gone wrong in the baby’s treatment.
Mr Justice Mostyn noted that the doctor’s pleas of not guilty (in effect) were clearly regarded by the MPT as evidence of an incapacity to remediate and therefore of a risk to the public, as well as an aggravating feature contributing to the award of the ultimate penalty. The judge was not impressed with the Tribunal’s reasoning. He said:
“In my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court…
…where a registrant has doughtily defended allegations against him in the fact-finding phase. It surely leads to say that it is…oppressive for that defence by the registrant to be used against him in the impairment and sanctions phases.
…an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.
Mr Justice Mostyn had to reconcile his views with those of Mrs Justice Yip in Yusuff v GMC [2018] EWHC 13 (Admin), That case concerned a review hearing which was held some time after the initial sanction was imposed. Referring to the GMC’s Sanctions Guidance, Mrs Justice Yip had observed that “refusal to accept the misconduct and failure to tell the truth during the hearing will be very relevant to the initial sanction.” She further observed that a want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment.
Mr Justice Mostyn endeavoured to square his ruling with that or Mrs Justice Yip by saying:
“In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision-maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future.
Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque … if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired because you have disputed that your fitness to practise is currently impaired.
In my opinion the capacity of the registrant to remediate sincerely should be judged by reference to evidence unconnected to his forensic stance in the fact-finding phase (unless the fact-finding decision included findings of blatant dishonesty by the registrant).”
In Bux v General Medical Council a doctor who had been writing medical reports on an industrial scale to support personal injury claimants. Amongst other things, the doctor was accused of dishonesty and of acting in disregard of a conflict of interest.
Mr Justice Mostyn held:
“It was difficult to see how medical practitioners tribunals would be assisted by opinions from medically qualified professionals in understanding the legal test for conflict of interest and the concomitant duty of disclosure, and whether that legal test was satisfied on the facts. The questions were legal and factual, not medical or technical. Judges and those acting in a judicial capacity should be capable of answering them without expert assistance. The tribunal should have ruled that the reports were inadmissible or should have refused to read them on the ground that they were irrelevant. There was an urgent need for an equivalent to [the Civil Procedure Rules that govern court proceedings] to be inserted into the procedural rules governing regulatory proceedings”