2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
Christopher Geering
Editor
Foreword
Welcome to the latest 2 Hare Court newsletter. Michael Rawlinson reviews his recent High Court success in Chief Constable Nottinghamshire Police v Police Appeals Tribunal which made significant criticism of the confusing allegations the officer faced, and the initial misconduct panel’s reasons. Ben Rich comprehensively analyses the development of the courts’ approach to insight and the impact of denying proven factual allegations, from Misra to the recent decision of Haydar Al Nageim v GMC. This is a point of critical importance in healthcare cases. Despite repeated judicial criticism of tribunals relying on demeanour as a barometer of truth, the issue continues to arise. Chris Gillespie summarises the latest case of Khan v GMC. The Court of Appeal in Sastry v GMC looked again at the distinction between a GMC appeal under s. 40A Medical Act 1983 and a registrant’s appeal under s. 40. The court felt there was an important difference of approach between a review on the one hand, and a rehearing on the other. Certainly this distinction has not been felt to date and Rob Dacre sets out this analysis. Sarah Przybylska considers the implications of Achina v GPhC, and the proper approach to conviction cases. How far is a panel bound by the sentencing findings made by the judge, even when they go beyond the bare facts of the commission of an offence? Finally, I touch on the judgment in Bux v GMC, which will no doubt lead to further procedural rules governing the admission of expert evidence.
Deceptively simple – or simply deceptive? The dangers of over-complicating misconduct allegations – and over-simplifying reasons
Chief Constable Nottinghamshire Police v Police Appeals Tribunal (Police Sergeant Jonathan Flint Interested Party) [2021] EWHC 1248 (Admin)
Introduction
On 12 May the Administrative Court handed down judgment in The Chief Constable of Nottinghamshire Police v Police Appeals Tribunal. As I had done below at the Police Appeals Tribunal (“PAT”), and throughout the original police misconduct proceedings, I represented PS Flint in the Administrative Court, led by Jason Pitter QC of New Park Court Chambers.
Facts
The original incident arose in April 2017 when PS Flint and a fellow officer attended the home address of Ms B in response to a request from a bailiff. Ultimately, the entry of the bailiff was secured and Ms B physically detained. She brought a complaint two days later.
Despite the whole incident lasting just six minutes, the Notice against PS Flint alleged multiple, nuanced breaches of different standards relating to his intention and state of mind during different parts of the incident. PS Flint’s response contended that the Notice was deficient, repetitious, duplicitous and confusing, and invited the Appropriate Authority to reflect and “to draft fewer, succinct allegations”. That invitation was ignored.
Following a hearing in November 2019, the Panel found 12 out of 13 allegations of misconduct proven against PS Flint and that his conduct cumulatively amounted to gross misconduct. They imposed a sanction of dismissal upon him.
On appeal, the PAT concluded the Panel’s decision was flawed. It noted, inter alia:
Denials, insight and sanction – the effect of denials on sanction
In Haydar Al Nageim v GMC [2021] EWHC 877 (Admin) the High Court visited, for the fourth time in under a year, what the effect should be on sanction if a registrant denies the facts of the charges and is disbelieved. It seems that the position may now have stabilised, and that the debate in future will revolve around whether or not the tribunal has made, either explicitly or implicitly, a finding of “blatant dishonesty” against the registrant. This article will try to chart the development of the main principles in this area, from Misra v GMC [2003] UKPC 7 to Haydar Al Nageim just over a month ago.
In Misra the GMC charged a doctor with additional allegations of dishonesty relating to his denial of the clinical allegations he faced. The court thought this “unnecessary and oppressive”. It pointed out that if his denial was disbelieved then “the Committee would have to consider his conduct … on the footing also that he had lied on oath”. This passage has been interpreted as allowing a substantive panel to factor in denials in the hearing as an aggravating factor at impairment and sanction, although it is not clear it really goes quite that far.
The issue was dealt with in more detail in Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin). The heart of the appeal lay against the substantive panel’s comment at the impairment stage that “moreover, it considers that this dishonest conduct is compounded by the fact that you have given inconsistent and unreliable evidence at this hearing”, and at the sanction stage it added that he had also given misleading instructions to his solicitors….
Assessing credibility and the limits of demeanour –
Khan v GMC [2021] EWHC 374 (Admin)
Last year in Dutta v GMC [2020] EWHC 1974 (Admin), Warby J found the Tribunal’s reasoning contained at least three fundamental errors. First, the Tribunal had approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness’s uncorroborated evidence about events ten years earlier, and only then went on to consider the significance of unchallenged contemporaneous documentation. Secondly, the Tribunal’s assessment of the witness’s credibility had been based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal had tested the witness evidence against the documents involved a mistaken approach to the burden and standard of proof. In a case that involved a conflict between a witness’s recollection and unchallenged documentation, Warby J held that it was an error of principle to ask “do we believe [the witness]?” before considering the documents, and stressed that reliance on a witness’s confident demeanour was a discredited method of judicial decision-making.
In Khan the Registrant faced allegations of sexual misconduct made by three complainants A, C and D. His defence was that the allegations had been fabricated or exaggerated.
Notwithstanding Warby J’s trenchant comments and ruling in Dutta, in Khan the Tribunal declared witness D, who had been the first witness to complain, to be “credible and consistent” before it considered any of the evidence she had given. Unsurprisingly, given this finding, the Tribunal preferred her account to that of the Registrant. However, the Tribunal had heard evidence from two other witnesses who had flatly contradicted witness D’s evidence that one or other of them had….
Review or rehearing?
Sastry & Okpara v GMC and the difference between s. 40 and s. 40A
What – if anything – is the difference between an appeal brought by the GMC under s. 40A of the Medical Act 1983, and those brought by doctors under s. 40)? Of course, the simple answer is that appeals under s. 40A are by way of review, and appeals under s. 40 by way of rehearing. But what is the practical effect?
In Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, the Court of Appeal dealt with the High Court’s jurisdiction to interfere with a sanction imposed by the MPT. This followed an appeal under s. 40A. The Court of Appeal held that the decision of the MPT to suspend rather than erase was
“…an evaluative decision based on many factors… This type of decision, a mixture of fact and law, has been described as a ‘kind of jury question’ about which reasonable people may reasonably disagree… It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision”
It followed that the High Court should only interfere with a tribunal decision if there was an error of principle, or if it was wrong in the sense of being outside the bounds of what the adjudicative body could properly and reasonably decide.
Whilst the Court in Bawa-Garba recognised the statutory distinction between s. 40 and s. 40A the distinction was given little practical weight:
“That technical difference may not be significant. Whether the appeal from the MPT is pursuant to section 40 or section 40A, the task of the High Court is to determine whether the decision of the MPT is ‘wrong’. In either case, the appeal court should, as a matter of practice, accord the MPT the same respect”.
Doctors, and those representing doctors, might be forgiven then for having concluded that this was a distinction without much of a difference….
Factual findings made by the criminal court:
Achina v General Pharmaceutical Council [2021] EWHC 415 (Admin)
Cases involving a criminal conviction are superficially straightforward, but the process of admitting the fact of the conviction and skipping blithely on to misconduct/impairment can result in uncertainty as to the factual matrix.
In Achina v General Pharmaceutical Council [2021] EWHC 415 (Admin), Lane J considered a case where the registrant had been convicted of theft from his employer and subsequently came before the FTP Committee of the GPhC. The facts are unimportant but the case provides a helpful analysis of the philosophical basis for the approach to conviction cases, and to some extent resolves the position as to the basis on which an FTP committee should approach stage 1.
The matter was dealt with as a conviction case under rule 24(4)(5) of the GPhC’s FTP Rules. The certificate of conviction was therefore admissible “as conclusive proof of that conviction and the findings of fact on which it was based”. A registrant may only rebut the conviction by adducing evidence proving that he or she is not the person referred to in the certificate.
The Administrative Court considered what “the findings of fact” meant in this context. Lane J referred to Wray v General Osteopathic Council [2020] EWHC 3409 (QB), in which Collins Rice J made the following obiter observations about the principles applicable to conviction cases:
“The authorities have consistently held that where statutory provision is made for disciplinary bodies to attach professional consequences to a criminal conviction, the effect of the statute has been to preclude the practitioner from deny the truth of any facts necessarily implied in the conviction. In such cases, the decision of the disciplinary body is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted…
An expert free for all:
Bux v GMC [2021] EWHC 762 (Admin)
Dr Bux produced expert medical reports on “an industrial scale” to support insurance claims. These reports “invariably” supported the claim. Between 2016-2017 he churned out a total of 684 reports and earned £123,120 for his pains. The court found no evidence he ever produced a negative expert opinion.
In doing so Dr Bux did not declare any conflict of interest despite the fact all these reports were in fact commissioned by the same firm where his wife worked as a salaried partner. His fees, moreover, were paid into a company in which his wife held a 45% share.
Ultimately, his report factory came to the attention of the GMC and perhaps unsurprisingly this ended in his erasure from the Medical Register on the basis – amongst other failings – that he had failed to declare this conflict of interest.
In rejecting his appeal, Mostyn J produced a useful review of the authorities relating to the duties of expert witnesses. He also analysed where a conflict of interest may arise. An expert “will be conflicted not only when a personal influence actually influences his testimony, but [also] when a personal interest is capable of influencing his evidence”. The first scenario “involves considerable moral turpitude”, the second type involves no wrongdoing but must be declared. In Dr Bux’s case a judge in County Court litigation had found – perhaps surprisingly – that this connection with his wife had not actually influenced the production of a report. This judgment wad admissible but it did not bind the Tribunal. In any event this ruling did not address the second question – whether the personal interest was capable of influencing his report…..
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