The rejected defence: a comprehensive overview Sawati v General Medical Council [2022] 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:

1. The nature of the allegations: the court drew a distinction between dishonesty as a primary or a secondary allegation. A primary allegation refers to conduct which is intrinsically dishonest, like fraud or forgery. A secondary allegation, by contrast, means conduct (record keeping, for example) which is capable be performed honestly or dishonestly. Collins J considered a rejected defence of honesty is more relevant as a potential aggravating feature where the case concerns a primary allegation of dishonesty.

2. What did the doctor positively deny? There is a difference between denying primary facts – meaning what happened or what (s)he did – as opposed to denying the secondary facts based on an evaluation of primary facts. This latter category may include evaluating what a doctor thought or knew at any given moment. In other words, “Resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective.” This distinction is not absolute, however. If a doctor denies a alleged state of mind with a defence at the unreasonable end of the spectrum, that may be relevant to sanction.

3. What other evidence of a lack of insight is there other than the rejected defence? The court noted, “a rejected defence which on a fair analysis adds to an evidenced history of faulty understanding is more likely to be relevant fairly to sanction than one said to constitute such faulty understanding in and of itself.”

4. The nature and quality of the rejected defence: to say someone has not told the truth to the Tribunal requires more than simply a failure to admit an allegation. The Tribunal must consider, 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 or blame others, or brand witnesses giving a different account as deluded or liars?”

In the instant case, Tribunal had simply failed to analyse the extent to which it could fairly use the doctor’s rejected defence as an aggravating feature. The allegations concerned instances of secondary dishonesty. They attached to underlying conduct which was not particularly serious. In defending herself, her positive denials were not to primary facts but “of secondary or evaluative / inferential facts relating to her state of mind”. There was no evidence of a lack of insight identified by the tribunal other than the rejected defence to dishonesty. The tribunal criticised her for not telling the truth, but it did not specify what it was referring to, other than simply disbelieving her account.

The Tribunal, moreover, failed to analyse the gravity of the dishonesty in this case. As the court observed,

“Failure properly to consider the objective features of a case, to demonstrate that their gravity had been fully assessed in context, and then to address and explain how aggravations and mitigations operate to justify sanction, is capable of amounting to a serious procedural irregularity rendering a sanctions decision unjust (GMC v Stone [2017] 4 WLR 207, [2017] WLR(D) 681, [2017] EWHC 2534 (Admin), at paragraph 53). The most secure route to a proportionate sanction is the ‘authoritative steer’ provided by the Sanctions Guidance.”

Whilst dishonesty of any sort is likely to be serious, erasure is not automatic and the same requirement of evaluation is required before a sanction is imposed. The sanctions guidance acknowledges this – the examples it gives of serious dishonesty concern criminal conduct, acquisitive conduct, or conduct for some form of personal gain. With one exception they all entail a degree of deliberation. The exception – failure to take reasonable steps to make sure a formal statement is accurate – does not appear to be an example of dishonesty at all. In this case, the conduct was nowhere near criminal. The records amendment could be characterised as “a weak attempt by Dr Sawati to make her performance look a bit better than it had been”. The shift swap may be “towards the bottom of the scale of seriousness”. The lie in interview could be seen as something less egregious than falsifying qualifications. All the incidents had “a quality of improvised and unsophisticated fibs under pressure”. The Tribunal simply did not conduct such an analysis. The case was remitted back so this could be done.

Collins J has come closer to setting out a structured approach to the issue of the rejected defence than any of her colleagues. This case should be the starting point for any submissions on the issue. Her analysis of dishonesty is also welcome. Regulators are apt to forget that dishonesty is not a single, unvarying form of misconduct but rather encompasses a range of seriousness.

Christopher Geering