Dishonesty and the GMC: the first case after Ivey v Genting Casinos
On 20 November 2017, the Administrative Court handed down judgment in GMC v Krishnan  EWHC 2892 (Admin).
It is the first attempt by the High Court to interpret dishonesty, in the context of professional conduct, since publication of the Supreme Court judgment in Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club)  UKSC 67.
The brief facts are as follows:
- Dr Krishnan was alleged to have been dishonest by working for another employer while on sick leave.
- the legal assessor to the Medical Practitioners Tribunal Panel (‘the Panel’), understandably, advised the Panel as to the approach it should adopt in determining dishonesty relying on the tests set out in Ghosh:
“In the light of this guidance you need to consider carefully what Dr Krishnan’s state of mind was when in March and April 2013 he continued with his locum work while he was on sick leave from his main employment with Care UK. You should take account of the fact that not everyone has a sound working knowledge or understanding of employment law and of the meaning and effect of contractual terms. You need to consider whether Dr Krishnan may have had – and still has – a flawed, but innocently flawed, understanding of his contractual entitlements and obligations, and of the significance and effect of taking sick leave. You must remember that it is for the GMC to satisfy you that it is more likely than not that when Dr Krishnan was doing his locum work while on Care UK sick leave he knew, or must have known, that this was dishonest, applying the standards of reasonable and honest people.”
- the Panel found that Dr Krishnan was not dishonest.
- in applying the Ghosh test, in reliance on the advice of the legal assessor, the Panel found that the first (objective) limb of the test was fulfilled but was not so satisfied in respect of the second (subjective) limb.
- the GMC appealed, maintaining that the MPT erred in not finding dishonesty.
Dr Krishnan’s cross appeal, treated as an application for judicial review, was against the Panel’s determination that the first (objective) limb of the two stage Ghosh test for dishonesty was met. The Administrative Court found that:
“… the advice proffered by the legal assessor and its acceptance by the Tribunal Panel was in error. Had the approach been in accordance with Ivey the Panel should have first determined the Respondent’s state of mind as to the facts and then gone on to consider whether his conduct was dishonest by the standards of ordinary decent people”. [paragraph 24]
“Ivey is clear authority for the proposition that in a case such as this the Tribunal should not have considered whether the Respondent must have realised that his conduct was dishonest by the standards of ordinary decent people”. [paragraph 24]
“… the first stage (objective) Ghosh test is not the same as the second stage (objective) Ivey test. The objective test in Ghosh had to be applied without reference to the actual state of mind as to knowledge or belief as to facts of the individual concerned”. [paragraph 25]
“[The Panel] mistakenly proceeded by applying the objective Ghosh test and in those circumstances … it is inappropriate … to determine whether the MPT wrongly applied the first limb of the Ghosh test as the “cross appeal”/judicial review has also been superseded by Ivey and is therefore academic …” [paragraph 26]
“… the Respondent invites the Court to draw on the findings of the Tribunal and uphold the finding that he was not dishonest. Conversely, the Appellant invites the Court to conclude that, in the light of its findings, the Tribunal has in fact answered the relevant questions as identified in Ivey and, as a consequence the Respondent was dishonest … it is inappropriate for the Court to substitute its own decision drawing on the findings of the Tribunal. That is a determination which should be made on reconsideration by the Tribunal, which has heard all of the evidence, applying the correct legal and factual approach in accordance with Ivey …
[applying] GDC v Endicott  EWHC 2280 (Admin)”. [paragraphs 27 and 28]
A note of caution should be struck. Whilst the judgment in Krishnan provides some, limited guidance for the development on the law relating dishonesty, and of the procedure to be adopted where Ivey issues are at play, it should be noted that:
- it is not the judgment of a full Divisional Court;
- His Honour Judge Sycamore, sitting as a judge of the High Court, did not hear oral argument on Ivey (rather, in light of the judgment, he requested further written submissions after the hearing);
- such disagreement as there was between the parties was limited to the determination of the application of Ivey on the facts, not its interpretation.
However, until all live appeals or JR’s involving a challenge to dishonesty are heard, it seems likely that there will be a raft of referrals back to the MPT from the High Court.