Newsletters Professional Discipline 30th May 2019

Blakely v GMC [2019] EWHC 905: Deny, Deny, Deny (But Try to Show Insight)

Everyone who practises in professional discipline faces the problem of how a registrant can demonstrate insight, when he or she has denied the charges. This is difficult enough at a substantive hearing; on a review, when the registrant has had time to reflect and remediate, it can seem impossible.

The High Court has tried to avoid encouraging the view that if the registrant does not in the end change their denial into a confession, then he or she lacks insight and may remain impaired. For defence advocates this principle was most strikingly expressed in Amao v NMC [2014] EWHC 147 (Admin) where cross-examination of a registrant at impairment stage on whether, having denied the charges, she now accepted the findings of her regulator was described as “thoroughly inappropriate, almost Kafkaesque”. However Amao, as the court pointed out in that judgment, was an unrepresented registrant who had not even had a chance to exercise her right of appeal.

The principles from the authorities in this area were set out last year in Yusuff v GMC [2018] EWHC 13 (Admin) at paragraph 20. At a review a registrant was entitled not to accept the findings of the Tribunal. It was, however, relevant whether or not the registrant now admitted the misconduct. If they did not, the questioning should not concentrate on that.

It was on that basis that Dr Blakely appealed a further nine-month suspension on review. Dr Blakely ran a private aesthetic procedures clinic. She admitted secretly recording patient consultations with a colleague doctor because she feared he was costing the clinic money by undercharging. When some patients discovered this and complained, she told them that she had asked the GMC and the CQC what she should do and had done as they “instructed”. In reality she had made anonymous phone calls to those bodies, had given them very few details, and told them what she was going to do rather than asking for advice. She denied dishonesty at the hearing and it was duly found proved. She was handed a nine-month suspension.

At the review she produced a reflection in which she stated “I accept the tribunal’s findings and have done my best to learn from them”. Unfortunately, as often happens, this concession unravelled in her oral evidence and she made it clear that she continued to believe that what she had done was not dishonest and said “she did not know what alternative course of action she could have taken”. The Tribunal found that she lacked insight into the seriousness of what she had done, and suspended her for a further nine months. She complained that she should not have been questioned in the way she was about whether she now agreed with the factual findings.

The High Court rejected her appeal. Lewis J said the options for a registrant who wished to demonstrate insight in this situation were either to accept at the review that she had been dishonest, or at least accept that the public would view the conduct as dishonest even if the doctor herself did not accept that it was dishonest. This reflects the principle repeated in Yusuff that “admitting the misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it”.

The experience of Dr Blakely shows that Registrants continue to have to navigate a narrow course between repudiating their previous denials, or clinging to them at the risk of lacking insight. While many individual tribunals take a practical approach of not trying to insist on pinning the registrant doctor down, any refusal to make some gesture towards accepting blame may be met with a finding of continuing impairment.

Ben Rich for the Professional Discipline Summer Newsletter

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