Professional Standards Authority for Health and Social Care v General Medical Council [2022] CSIH 37: a rare success for the PSA in Scotland
Dr Austin qualified as a doctor in 2007. She was highly regarded by NHS Tayside. In 2016, she was employed as a Public Health Trainee on attachment with Health Protection Scotland. In 2017 Dr Austin was referred to the GMC following an internal investigation into allegations of dishonesty that took place in 2016. The allegations of dishonesty included misrepresentations to supervisors regarding the volume of work that she carried out on projects while on attachment. There were also allegations of her having misled colleagues and supervisors as to the status of a journal article.
In May 2019, the Medical Practitioner’s Tribunal (“MPT”) found that Dr Austin’s fitness to practise was impaired due to:
“repeated, persistent and sustained [dishonesty] over a 6 month period. [That] took place in both her email correspondence and during face-to-face meetings with colleagues and was directly related to her professional practice. The last act of dishonesty took place during a formal investigatory hearing at her employing Trust… a further feature of her dishonesty is that in relation to the Mumps Paper it had the potential to have adverse consequences for her co-authors.”
The MPT suspended Dr Austin for six months and informed her that, without an appeal, her suspension would begin from 2 July 2019.
On 2 July 2019 at 13.08, Dr Austin telephoned the MPTS informing them she had appealed, that court staff at the Court of Session had confirmed that she would receive a reference by the end of the week and that she would pass on these details as soon as she received it. On 2 July 2019 at 08:35, however, Dr Austin had received an email from court staff advising her that her appeal had not been accepted. On 12 July 2019 at 09:17, Dr Austin sent a further email to the MPTS stating “my apologies for the delay, I will chase this up with my legal representative today and get back to you as quickly as possible.” As a result, in December 2020, Dr Austin was referred to a further MPT for allegations of dishonesty.
At the MPT’s determination in December 2021, the MPT accepted that on 1 July Dr Austin “genuinely believed that she had lodged an appeal with the Court of Session.” However, upon receiving the email from court staff on 2 July 2019, and not having taken any further action to lodge an appeal, her subsequent statements to the MPT were dishonest.
The MPT imposed a twelve-month suspension. The PSA appealed the decision. It described Dr Austin’s dishonesty as “repeated and sustained”. The PSA also emphasised:
“there was no evidence that she had shown insight into or remediated her 2019 dishonesty. The 2019 dishonesty was similar to that in 2016… Dr. Austin resorts to untruths to “buy time” and to delay the inevitable when she is stressed… [there was] a real risk of repetition of the conduct.”
The Court of Session agreed. Allowing the appeal it stated:
“[Due to the] repeated nature of Dr. Austin’s dishonesty… she could [not] be said to show any real capacity for insight or remediation… her history of dishonesty, propensity to resort to dishonesty when under stress, and her failure to have learned from the previous disciplinary proceedings made it impossible to hold that there were grounds for optimism about her ability to comply with proper professional standards in the future.”
Emphasising the seriousness of dishonesty, the Court of Session identified how “in Good Medical Practice persistent dishonesty is expressly stated to be one of the grounds justifying erasure.” The Court of Session emphasised how “public confidence depended on doctors being honest and trustworthy” and that “honesty lies at the very heart of the profession of doctor.”
On the face of it, this is not a particularly surprising decision. It is, however, worth noting that the Court of Session has historically been somewhat reluctant to allow appeals by the PSA. It rejected an appeal against a finding of no impairment in respect of a nurse’s admitted dishonesty in Professional Standards Authority v Nursing and Midwifery Council [2017] CSIH 29, and an appeal against a dentist’s order of conditions in Professional Standards Authority v General Dental Council [2016] CSIH 58. This instant decision may well be the first time the PSA has in fact succeeded in challenging a tribunal’s decision at sanction.
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