Newsletters Professional Discipline 18th Mar 2016

PSA v GMC and Igwilo [2016] EWHC 524 (Admin)

The PSA’s latest case is a helpful reminder that dishonesty covers a broad range of conduct. A panel or tribunal must analyse the nature of the conduct in question with care in order to determine the issue of impairment and, if appropriate, sanction.

The facts

Dr Igwilo applied to join the Specialist Register of Forensic Psychiatrists. After his initial application was unsuccessful, he applied for it to be reviewed but again this was unsuccessful. Dr Igwilo re-applied the following year, submitting further evidence to address the recommendations previously by the GMC. Much of this supporting evidence had in fact been falsified by the doctor. When suspicions were first raise about the provenance of one particular report he compounded his dishonesty by attempting to mislead the GMC, claiming he was indeed the author of the report.

When he was referred to the MPTS, he admitted these dishonesty allegations. The panel found his actions amounted to misconduct but that his current fitness to practise was not impaired. It characterised his actions as an isolated period of dishonesty against a background of severe personal stress. It noted he had since undergone extensive reflection and remediation, and there was no risk of repetition. It considered public confidence in the profession would not be undermined by a finding of no impairment.

The appeal

The PSA appealed the decision on the basis that the panel (i) failed adequately to consider the serious nature and extent of the dishonesty at the misconduct stage, (ii) was wrong to find that there was no current impairment because it did not give due regard to the serious nature of the misconduct, and it placed undue weight on the doctor’s mitigation, (iii) in the alternative, a warning should have been given.

On appeal the court noted that the reasoning in relation to misconduct was sparse and “it would have been good practice to give a fuller determination at this stage, and if the Panel had done so, it might have assisted the members in their deliberations on impairment.” Nonetheless, this inadequacy did not warrant allowing the appeal in its own right. The court was satisfied the panel was aware of the aggravating features noted by the PSA (that this was a course of conduct, he was attempting to mislead a regulatory body etc) even though they were not explicitly referred to in the determination.

On the second ground, however, the court agreed that the panel had taken an unduly lenient approach to the issue of impairment. The panel was entitled to place weight on Dr Igwilo’s mitigation and to conclude that this was an isolated period of dishonesty during a particularly stressful time and – given his reflection – there was no risk of repetition. It was, however, overgenerous to say that he admitted his wrongdoing immediately when this deception came to light. The evidence indicated he had made admissions when he was about to be exposed and did not accept falsifying documents until disciplinary proceedings were started against him.

More significantly, however, the panel did not adequately weight this mitigation against the seriousness of his course of conduct in question. As the court re-iterated, dishonesty covers a broad spectrum of conduct. This lay at the higher end:

“He falsified a large number of documents: 24 documents described as reports in respect of different patients, 5 documents described as reports for Courts or Tribunals in respect of different patients, 7 sets of documents described as section 48 paperwork for different patients, 1 set of documents described as section 37 paperwork, 4 referral letters, 2 letters to patients’ general medical practitioners and correspondence confirming appointments and placements and other correspondence. The scale of the falsification indicated it was an elaborate deception which must have taken some considerable time to plan and implement. His dishonesty affected his professional colleagues, as he represented their work as his own, or claimed that they had approved of his work when they had not done so.”

Looking at the implications of this dishonesty, the court noted:

“The purpose of the Specialist Medical Lists and the GMC’s regulation of them is to protect the public interest, including the safety of patients, and in the case of forensic psychiatrists, to maintain the standards of expert evidence submitted in court cases. Dr Igwilo’s applications had not met the required standard for the Specialist Register of Forensic Psychiatrists on two previous occasions. He responded to the guidance given by the GMC as to how he might improve his prospects of success by using deception and deceit to try to obtain inclusion in the list when he was unable to do so by legitimate means. Such conduct jeopardised the integrity of the Specialist Medical List system, and the GMC’s ability to regulate it. In my judgment, the Panel did not sufficiently recognise the seriousness of these factors, and indeed, made no mention of them.”

The maintenance of public confidence required a finding of impairment in these circumstances. The panel was wrong to find that it could be maintained simply because the doctor had undergone Fitness to Practise proceedings. The matter was remitted to a new panel for it to consider sanction.

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