Denials, insight and sanction – the effect of denials on sanction
In Haydar Al Nageim v GMC  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  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  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.
Mitting J explicitly rejected the idea that regulatory proceedings should follow the practice of the criminal courts in not treating denials as an aggravating factor at sentence. The panel, at the sanction stage, was considering how to protect the public and the profession, not imposing a punishment. He stated that the panel was entitled, at impairment and sanction stages, to consider material other than that which was relevant to the allegations pursued.
“In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.”
Yusuff v GMC  EWHC 13 (Admin)] dealt with the continued denial of proven allegations at review hearings. The court considered that while it would be wrong to equate a continued denial with lack of insight, it is nonetheless a relevant factor on review. The judgment then endorses the GMC’s Sanctions Guidance which suggests [it remains in the current guidance] that a doctor is likely to lack insight if they “fail to tell the truth during the hearing”.
After Misra, Nicholas-Pillai and Yusuff any practitioner could be forgiven for thinking that the authorities established that being disbelieved at the hearing was a significant factor going to impairment and sanction. Whether that was achieved by the effect it has on the assessment of insight, or by treating it as aggravating in its own right (effectively as a free-standing piece of dishonesty) might be thought to make little difference.
In June last year in GMC v Awan  EWHC 1553 (Admin) Mostyn J threw a spanner in the works. The GMC appealed against the Tribunal’s decision to impose a suspension order on a doctor who had a sexually-motivated online conversation with a purported 13-year old (actually a police officer). One of the key grounds of the appeal was that the Tribunal had not factored in at the sanction stage its finding that the doctor’s explanations for the conversation were totally lacking in any credibility.
Mostyn J agreed with the assessment of the doctor’s defence, describing it as “ludicrous” and “dogged, yet ridiculous”. However, he stated that:
“It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions”.
He cited Misra, with its deprecation of bringing additional charges based on denials, as support for the limited role denials should play at sanction. Misra might equally be read as authority for the proposition that additional charges are not necessary because the Tribunal would have to take the lying on oath into account anyway. As I argued at the time [Article on Awan Summer 2020] Awan could be regarded as consistent with Misra and Nicholas-Pillai in having put lying on oath back where it belonged, as just one factor in the assessment on insight.
That brings us then to the three 2021 cases – Sayer v GOsC  EWHC 370 (Admin) in February, Towuaghantse v GMC  EWHC 681 (Admin) in March, and Haydar Al Nageim v GMC  EWHC 877 (Admin) in April.
Sayer can be briefly dealt with. Among the many issues raised, the Appellant contended that the Committee had, contrary to the principle in Awan, treated his denials as in themselves aggravating at the sanction stage. Morris J rejected this [at 147] holding that the Committee had legitimately factored them in when making its assessment of insight.
In Towuaghantse Mostyn J considered his own judgment in Awan. The events had taken place in 2013. Dr Towuaghantse was found to have made a series of errors relating to the care of a new born child who died as a result.
At the substantive hearing in November 2020, Dr Towuaghantse’s insight was described as “limited at best”. The impairment and sanction determinations were substantially based on the fact that he had contested both the findings of the inquest, and the allegations at the MPT. He was ultimately erased.
In allowing the appeal, Mostyn J stated “in my judgment it is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court”. This was a repetition of what he had said in Awan. He acknowledged that a strict interpretation of Misra might suggest this only related to additional charges being brought for denying the facts in advance of the hearing (see analysis above). However he concluded that it must be equally oppressive for a registrant’s defence to be used against him at the impairment or sanction stages.
He then went on to analyse his own judgment in Awan. He also examined Paragraph 52 of the Sanctions Guidance (which says a doctor is likely to lack insight if they fail to tell the truth in the hearing) and concluded that it was hard to square it with Lord Scott’s comments in Misra. In a direct contradiction of Mitting J in Nicholas-Pillai Mostyn J states that the axiom in criminal cases that denial carries no aggravation should apply equally in regulatory proceedings.
However he then qualified his principle in Awan. He drew a distinction between cases where the doctor is denying a plain fact, and the situation where they are denying an evaluative judgment (for example, perhaps, “failed to” and the existence of a duty). Denial of a plain fact by giving dishonest evidence would say something about impairment. But contesting an evaluative judgment would not.
If the tribunal were to fix a registrant with “blatant dishonesty or the deliberate misleading of the tribunal” that could be held against them, although it would require a “clear finding” to that effect. However frequently the rejection of a registrant’s evidence on the balance or probability would not imply this, and judicial humility towards its own fallibility dictates that rejecting a witnesses account is a long way from condemning the witness as a liar [citing Re B (Children) (Care Proceedings: Standard of Proof)  UKHL 35 per Baroness Hale].
In Dr Towuaghantse’s case, the MPT had not found he had been blatant dishonest, and so should not have used against the registrant his refusal to accept the critical findings of the coroner, or his denial of the factual allegations at the substantive hearing. The case was remitted for reconsideration of impairment and sanction.
Finally we get some sense of how these principles might play out from Haydar Al Nageim v GMC  EWHC 877 (Admin). The case was argued on 17 March 2021, shortly before the judgment in Towuaghantse, but that case was brought to the attention of Knowles J before he issued his judgment in Al Nageim on 20 April.
Dr Al Nageim pocketed tens of thousands of pounds in salary overpayments, and freely admitted that, if the payments had continued, he would have continued to keep them. He faced various other dishonesty allegations for using hospital on-call facilities when he was no longer entitled to. He admitted some of the underlying facts, but denied dishonesty. He gave various explanations for his conduct which were rejected by the Tribunal and it directed that he be erased from the register.
Among the grounds on which he appealed was, relying on Awan, that “undue weight was given to the fact that the Appellant’s evidence was disbelieved”. Knowles J concluded that while the Tribunal had not used the phrase “blatantly dishonest” their findings amounted to this. The doctor had advanced a positive case about his state of mind at various points, which the tribunal had decided he had never had. Taking into account his lies to the Tribunal was consistent with Mostyn J’s separation of the denial of the primary facts, and the denial of more evaluative judgments on them. The appeal was dismissed.
Where does this leave practitioners where the registrant had denied allegations which are then proved against them? It cannot be said that the picture is entirely clear and there remains some tension between the approach taken in the different cases. It will crucially depend on what exactly has been denied (primary fact or evaluative judgment), and the terms in which a tribunal rejects the registrant’s evidence (“blatant dishonesty” or equivalent). The trenchant defence of the right to deny the charges that Mostyn J delivered in Awan has now been significantly weakened by him in Towuaghantse but it is far from extinguished. Practitioners whichever side of the fence they are on will have to engage with both these authorities.