How many misconduct charges does it take to make serious misconduct? Ahmedsowida v GMC [2021] 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 [2015] 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?
Quite a lot, if the comments of Kerr J in Ahmedsowida are to be believed. He criticised the Tribunal saying that they “might have shown greater respect than they did” to those observations from the Court of Appeal and that they had not properly understood the case.
The problem in Ahmedsowida was that there were only three (proven) allegations which the tribunal were considering “cumulating”. They related to instances where the doctor had defied instructions from his superiors. What was odd about their decision to “cumulate” the three incidents was that they had already found that two of them were serious misconduct. In fact they were not cumulating at all, but elevating one charge found to be misconduct, but not serious, to serious status on the basis there were two other similar charges.
The importance of Ahmedsowida lies in the tone of the comments by Kerr J. He laid into the tribunal because they had made no comparison with the facts in Schodlok, or considered whether the facts were “exceptional” here, or whether the GMC had put its case on a cumulative basis (it had not) or whether there was a large number of incidents making up a series. There was no mention of Beatson J’s view being “tentative and very preliminary”, and the tribunal appeared to consider his remarks provided them with “carte blanche to cumulate charges considered in clusters”.
Obiter or not, this case suggests that Schodlok has set a high bar for cumulation; it will be a brave prosecutor or tribunal which decides it has been surmounted, unless the numbers are large and the case exceptional.
Post script on the effect of denials on sanction
I have written a number of times on the series of recent cases dealing with what effect denials of the charges should have on sanction, starting with GMC v Awan [2020] EWHC 1553 (Admin), and going through Towuaghantse v GMC [2021] EWHC 681 (Admin) and onto Al Nageim v GMC [2021] EWHC 877 (Admin).
In Ahmedsowida, Kerr J endorsed the exposition in Al Nageim and reiterated the principle that “contesting the charges … should not be treated as evidence of lack of insight” without more, a finding of “blatant lies” being one possibility. Part of the reason for this is to protect the registrant’s “unqualified’ right of appeal. The issue is dealt with at some length in paragraphs 126-156 and will repay reading next time you are making this submission.
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