Intentionally Misleading but not Dishonest
Raychaudhuri v GMC and PSA [2018] EWCA Civ 2027
The law often finds itself dabbling in moral grey areas, and being asked to come up with black and white answers. Prominent among those difficult areas is the concept of honesty or, more pertinently, dishonesty. In this case the Court of Appeal found itself having to grapple with the issue once again, and in doing so it took a solid swipe at the GMC for seeking to challenge the finding of a tribunal that a doctor had not been dishonest.
Dr Raychaudhuri was working as a locum paediatric registrar in the A&E Department of the Royal Berkshire Hospital. He was told that a five-month old child had come in and needed to be seen. He filled in part of the standard assessment form in advance. The problem was, he wrote not only in sections where the information was available from the child’s records, but he pre-filled parts relating to the actual examination he was to undertake. He was sent to see another patient and left the form on a desk where it was found by a junior doctor.
When initially challenged about the pre-filled examination sections of the form, he was completely honest. He admitted doing it, and said he would have corrected any bits that were inaccurate during the actual examination. He accepted that was not good practice. The key dishonesty charge related to a conversation he had with the paediatric consultant on call later in the evening. The GMC alleged that Dr Raychadhuri was dishonest in that he had effectively denied making the entries in the examination parts of the form. Dr Raychadhuri did not exactly deny this but said that he had been concerned more with rebutting an apparent suggestion from the consultant that Dr Raychaudhuri had finalised the examination section without intending to see the child at all.
The MPT found that Dr Raychaudhuri had deliberately misled the consultant but, in reasoning that was not always easy to follow, decided that he had not been dishonest in so doing. It found that he was not currently impaired.
The GMC appealed under Section 40A of the Medical Act 1983 and in the High Court Sweeney J substituted a finding of dishonesty in relation to the conversation with the consultant. In the light of that finding he held that the MPT should have found the doctor’s fitness to practise impaired. He remitted the case to the MPT for a decision on sanction.
Dr Raychaudhuri appealed to the Court of Appeal, which found in his favour. Giving the main judgment Sales LJ said [at 56] that he found Sweeney J’s approach too “cut and dried”. The MPT itself had undertaken a much more nuanced and detailed consideration, and had “plainly regarded [the case] as finely balanced, involving circumstances which required subtle and morally significant distinctions to be drawn”.
Although the MPT had used the test in R v Ghosh [1982] QB 1053, by the time the Court of Appeal considered the case Ghosh had been superseded by Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. Sales LJ held that this made no difference to his view of the Tribunal’s findings. At paragraph 63 he set out his understanding of the MPT’s view:
“[Dr Raychaudhuri] was deliberately and knowingly evasive with [the consultant] about precisely what entries he had made and in which sections of the form. However, it was clear … that this was not part of a deliberate and dishonest plan … to cover up what he had done. Rather it was a venial and comparatively trivial effort by him to deflect [the consultant’s] ire that night”.
Many practitioners will find this support for a more subtle approach to dishonesty very refreshing. The rather crude approach of “any deliberate falsity is dishonest” and then “any dishonesty (pretty much) is incompatible with registration” can seem at odds with common sense notions of moral blameworthiness. Indeed, to adopt Sales LJ’s language, it is all a bit too “cut and dried”.
However a greater practical effect may flow from what was said about the decision of the GMC to mount the challenge in the High Court in the first place. Sales LJ stated [at 57] “In my view the evaluative judgment made by the MPT in this regard should be given great weight”. This, he added, was not only because it had seen the witnesses, but because of its practical expertise in understanding the precise context and the pressures under which a doctor might be acting. Bean LJ went so far as to say he regretted the decision of the GMC to appeal against the findings at all. It should require a “very strong case” for a court to overturn a finding that a doctor had not acted dishonestly, and while Section 40A gave the GMC a wide discretion to mount such appeals “it is a discretion to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour” [at 74].
The short but controversial life of Section 40A is due to come to an end soon anyway, undermined as it was by the erasure and then reinstatement of Dr Bawa-Garba. However, it is to be hoped that the sentiments expressed in this case may act as a brake on the enthusiasm of the bodies such as the PSA to appeal findings of fact which do not go their way.
Ben Rich
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