2 Hare Court Professional Discipline Newsletter
Welcome to the latest edition of the Professional Discipline Newsletter.
I have set out a brief analysis of Sawati v GMC – a decision which should be required reading for any case where an allegation of contested dishonesty is found proved. It seeks to synthesis the flurry of recent decisions touching on whether a rejected defence can aggravate sanction. Ben Rich has summarised Ahmedsowida v GMC, which warns against adding minor instances of misconduct together to justify a finding of serious misconduct. Chris Gillespie examines the interaction between regulation and freedom of speech in White v GMC. The court considered an interim order restricting freedom of speech – in this case that the covid vaccine was unsafe – requires the Tribunal to consider the merits of the underlying case itself and not merely perform a risk assessment. Alexandra Tampakopoulos provides helpful an update on the fraught issue of Article 2, insofar as it concerns care proceedings, in R (Boyce). Finally, Nikita McNeill looks at the need for appropriate guidance to assist a jury in reaching an Article 2 compliant conclusion in R (Ginn).
The rejected defence: a comprehensive overview
Sawati v General Medical Council  EWHC 283 (Admin)
Dr Sawati faced allegations of deficient professional performance and misconduct. Of these, the decisive feature of the case, as proved, related to three instances of dishonesty:
- An unacknowledged retrospective amendment of a patient record in 2015 to indicate she had discussed a particular case with her supervisor. Her defence was she believed she had discussed those symptoms and she was unsure of the system for making late entries.
- She told a hospital rota manager she had agreed with another doctor to swap shifts. She claimed she had formed a genuine impression that her colleague had agreed to the swap. She accepted there could have been a misunderstanding.
- In interview she claimed she was booked onto an Advanced Trauma Life Support (“ATLS”) course. She said she had been flustered and in a muddle when questioned.
The Tribunal rejected her defences and considered her failure to tell the truth aggravated her misconduct. It ultimately found that only erasure could meet the public interest.
Her appeal against these factual findings failed. However, the court was concerned by the approach adopted by the Tribunal to the issue of sanction. In a comprehensive, seminal judgment Collins J drew together the leading authorities on this issue – Misra, Nicholas-Pillai, Motala, Khetyar, Awan, Sayer, Towuaghantse, Al Nageim and Ahmedsowida.
As she observed, the issue was “how a professional can have a fair chance before a Tribunal to resist allegations, particularly of dishonesty, without finding the resistance itself unfairly counting against them if they are unsuccessful”. She went on to add,
“Two important and fundamental public policy interests are in tension here. The first is the right to a fair trial for doctors facing charges involving dishonesty, with a proper opportunity to resist potentially career-ending allegations. The second is the necessity for protecting patients and the public, who place a huge amount of trust in doctors (as indeed they must), from practitioners on whose honesty and integrity they cannot rely. These principles may be simply stated. How the tension between them is resolved on the facts of individual cases may be difficult.”
How the courts choose to reconcile these competing public interests is highly fact sensitive. Looking at the caselaw, she identified the starting point – “doctors are properly and fairly entitled to defend themselves.” The following factors may then be of assistance….
How many misconduct charges does it take to make serious misconduct?
Ahmedsowida v GMC  EWHC 3466 (Admin)
You might have thought that the issue of whether it is legitimate to add up multiple instances of minor misconduct to make a finding of serious misconduct would have been well-rehearsed in the High Court, but surprisingly this is not so.
The best-known dicta on his issue is that in Schodlok v GMC  EWCA Civ 769, although in fact there were two formulations in that case. In the lead judgment, Vos LJ with whom Moore-Bick LJ agreed, declined to rule it out “in a very unusual case on very unusual facts” but went on, “In the normal case, I do not think that a few allegations of misconduct that are held individually not to be serious can or should be regarded collectively as serious misconduct.”
Beatson LJ added his own gloss on the issue in a short separate judgement:
“My tentative and very preliminary view is that, provided it is clear from either the charge brought by the GMC or the way the case against the doctor is presented at the hearing, that any adverse findings by the panel on matters identified in the charges might be cumulated in this way, so that the doctor is aware this is a possibility, such an approach should in principle be open to the panel. I recognise that a small number of allegations of misconduct that individually are held not to be serious misconduct should normally not be regarded collectively as serious misconduct. Where, however, there are a large number of findings of non-serious misconduct, particularly where they are of the same or similar misconduct, I consider the position is different.”
Both of these comments were obiter and it was clear that the issue was being left for a more suitable case. So how much attention should be paid to them?….
Freedom of expression and the IOT
White v GMC  EWHC 3286 (Admin)
Dr Samuel White has strong views on the management of the Covid pandemic, and on the appropriate treatment of those with Covid. Among the views he expressed on a video uploaded to social media were that the vaccine is a form of genetic manipulation that can cause serious illness and death, and that masks should not be worn. He also signposted viewers to other articles and comments on the internet in which similar views were expressed.
The GMC referred him to an IOT, which imposed conditions on his registration. These included that he should not use social media to put forward or share any views about the Covid pandemic and its associated aspects, and he should seek to remove any social media posts he had been responsible for, or had already shared, relating to those views.
At the IOT hearing the GMC stated that the issue was whether the Registrant’s comments fell within the bounds of legitimate free speech protected by Article 10 or whether they had passed beyond those bounds to conspiracy theory, which therefore undermined public confidence in the medical profession. When the Chair set out the approach the Tribunal was going to take at the conclusion of submissions, she did so in the manner familiar to all practitioners, setting out how the Tribunal would assess the risk to the public and reputation of the profession if the Registrant were to be allowed to practise unrestricted, guided at all times by the principle of proportionality.
In coming to its decision to impose conditions, the Tribunal stated that it had taken into account the Registrant’s arguments on freedom of expression but that it considered the manner he had expressed his views to the public may have had a real impact on patient safety. It went on to state that any doctor had a responsibility to provide sufficient and balanced information to allow potential patients and members of the public to make their own accurate assessment of risk. By imparting the information he did, in the manner he did and in his capacity as a registered doctor, Dr White did not give “the opportunity for a holistic consideration of Covid- 19, its implications and possible treatments and potential for reducing risk to health in individual circumstances.” Given the strength of his views, there was a real prospect of….
Article 2 and children in care:
R (Boyce) v HM Senior Coroner for Teesside and Hartlepool  EWHC 107 (Admin) (21 January 2022)
The facts of the case can be summarised as follows: Grace Ann Peers was 15 years old when she committed suicide in the care of a private children’s home (Farm House) where she had been placed by Middlesbrough Borough Council. In the course of the Inquest proceedings, the Coroner ruled that Article 2 was not engaged and it was this decision that was the primary focus of the subsequent judicial review. The grounds of review included: (1) that Article 2 should have applied automatically as it does to those in custody or detained under the Mental Health Act, as Grace was in state detention being under the care of the local authority; (2) that Article 2 was engaged as there had been an arguable breach of the systemic duty resulting from failures in care; and (3) the Coroner was wrong to hold that, where Article 2 does not apply, the only material effect is on the conclusions which may be returned rather than on the scope.
In respect of ground (1) the court held that a children’s home did not amount to state detention. As the recent case of Morahan carefully sets out, informal patients do not fall under the category of cases where Article 2 automatically arises. The Court found that the private children’s home Grace was placed in had no powers of compulsion or detention. Neither was there was a care order in favour of the home. There was a very real and obvious difference between a child in secure accommodation, who has been deprived of their liberty, and a child in care who is free to come and go. Indeed, the court also noted that for the purposes of the Human Rights Act 1998 (YL v Birmingham City Council  1 AC 95 applied) a private children’s home is not a public authority.
In respect of ground (2), the court found that whilst there were systemic failures (as demonstrated by expert evidence and an Ofsted report), on the facts of the case the required threshold for causation was not met, namely that Grace had lost a substantial chance of surviving because of….
Directing the jury:
R (Ginn) v HM Senior Coroner for Inner London  EWHC 28 (Admin)
Mr Robert Ginn took his own life at HMP Pentonville on 5 November 2018. HM Senior Coroner for Inner London determined that Article 2 was engaged and conducted the inquest with a jury. The inquest lasted six days and heard from 27 witnesses, 14 of whom gave evidence orally. At the conclusion of the inquest the Coroner ruled that only a narrative conclusion was available to the jury.
The Coroner was invited by counsel for Mr Ginn’s family to provide assistance to the jury about the type of issues they should be commenting on in their narrative conclusion in order to fulfil their role and satisfy Article 2. A list of 10 possible issues was provided by the family. The Ministry of Justice, representing HMP Pentonville, did not object to a list of issues nor to the majority of the issues identified.
The Coroner declined to give the jury any written directions, a list of issues to consider or a questionnaire posing questions on the relevant issues. In due course, the jury’s narrative determination made no mention of any of the issues raised during the inquest, or highlighted by the family.
On review, the court focused on precisely what matters should be left to/ determined by a jury in order to comply with Section 5(1) and (2) of the Coroners and Justice Act 2009, namely “how…the deceased came by his or her death” and, in an Article 2 inquest, “in what circumstances the deceased came by his or her death”.
The court concluded that the case law and the Chief Coroner’s guidance No 17 – Conclusions: Short-Form and Narrative” all strongly encourage Coroners to give jurors some form of written directions, at least if the inquest “is not wholly straightforward or of any complexity.” It accepted that each of the 10 issues highlighted by the family’s submissions were “central issues” which fell to be considered by the jury. Further, the legal concepts which they jury were asked to apply were complex, namely….