2022-02-17 14:32:44
In Sawati v General Medical Council [2022] EWHC 283 (Admin), Mrs Justice Collins Rice wrestled with an issue that has been the subject of a number of cases in recent years: to what extent should a fitness to practise tribunal take into account when deciding on sanction the fact that a registrant has disputed the allegations at the fitness to practise hearing.
Dr Sawati had faced allegations relating to six separate incidents over a period of four years between January 2014 and January 2018. She also faced an allegation of deficient professional performance. The allegations of misconduct were not necessarily the most serious. They included:
- retrospectively adding to medical records without making it clear that the addition was retrospective, with no practical consequence;
- swapping a hospital shift without ensuring the person she believed she swapped with knew he had to take her place, putting colleagues in a difficult position;
- absenting herself for two hours from a hospital shift and going to lie down because she was feeling unwell, meaning she was not properly available to patients and inconveniencing colleagues;
- failing to communicate accurately at an interview that she had not enrolled on a particular course which was not a mandatory course.
The GMC had accepted that workplace stress and panicked responses were the context for all the incidents.
The Medical Practitioner Tribunal found misconduct and that the registrant had acted dishonestly in relation to each of them. Dr Sawaiti had persistently denied misconduct up to and including the sanctions stage, and the Tribunal concluded that Dr Sawati’s insight was underdeveloped and incomplete. Amongst other things, the Tribunal held that her failure to tell the truth at the hearing was further evidence of her lack of insight.
Mrs Justice Collins Rice emphasised that all cases are fact-sensitive. She reviewed a number of recent cases. On the one hand, there is a duty to protect the public from practitioners who cannot accept or dealing with findings of fault. On the other hand, the Tribunal has to ensure the practitioner has a fair hearing and apply legal principles correctly when properly assessing the evidence. The judge gave guidance that tribunals should look at:
- whether the primary allegation involves dishonesty, such as deceit, fraud or dishonesty (or a deliberate or knowing state of mind). “A rejected defence of dishonesty may be more fairly relevant to an overall assessment of conduct” in such cases. The position may be different when the registrant has done something that is not itself dishonest, but does it in a dishonest way.
- what, if anything, the registrant is positively denying. There is a difference between denying primary facts and denying secondary facts – looking at what the registrant did or did not do, as distinct from denying secondary facts and making an evaluation of what the registrant knew or thought and the choices available to them.
“Resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective…If a [registrant] denies their state of mind with a defence at the unreal, unreasonable or ‘frankly ludicrous’ end of the spectrum, that may be more fairly relevant to sanction than one where the only thing being denied is that dishonesty rather than honest mistake gives the better account of things.”
- Whether there is evidence of lack of insight other than the rejected defence.
- The nature and quality of the rejected defence. Not telling the truth to the tribunal, must be more than a failure to admit an allegation, especially when the allegation is not one of primary dishonesty, but of something that was done dishonestly.
“It is likely to have to amount to more than offering an ‘honest’ alternative explanation of events alleged to be explicable as dishonesty.”
For example, was the defence a blatant and manufactured lie, a genuine act of dishonesty, deceit or misconduct in its own right? Did it wrongly implicate and blame others or brand witnesses as deluded or liars, or just a failed attempt to tell the story in a better light than eventually proved warranted.
Mrs Justice Collins Rice observed that before a tribunal can be making fair use of a rejected defence to aggravate sanctions, it needs to remind itself that registrants are properly and fairly entitled to defend themselves.
Dr Sawati had not done things that were of themselves dishonest, but she had been found guilty of doing things in a dishonest way. She had admitted the actions underlying the allegations but denied that her actions were dishonest.
The judge also found that the tribunal had not properly assessed the seriousness of each act of dishonesty they found.
“Dishonesty – of any sort whatever – is unquestionably at least a yellow card issue for a doctor. But whether it is a red card issue in any case is a matter for the Tribunal to evaluate. Erasure for dishonesty is not automatic, so it is not exempt from the general requirement to assess the seriousness of misconduct in every case before a sanction is imposed. The nature and extent of dishonesty may be variable, and must be evaluated on a case by case basis.”
The workplace stress and panicked responses by Dr Sawati did not excuse dishonesty, but was potentially relevant to its seriousness. The judge held that “The incidents all had the quality of improvised and unsophisticated fibs under pressure.”
The judge allowed the appeal against sanction and remitted the case to a differently constituted tribunal.