Raychaudhuri v GMC: Ivey rules?
The recent case of Raychaudhuri v GMC,  EWCA Civ 2027 will be of interest to practitioners in a range of fields not least those working in the area of professional discipline for whom the decision of the regulator in appealing the finding of the tribunal at first instance was met with the following rebuke from Bean LJ:
“Although I agree that the High Court had jurisdiction to hear this appeal by the GMC, I wish to express my regret that it was brought. It should require a very strong case for a court to overturn a finding of the MPT (or any comparable tribunal) that a doctor has not acted dishonestly……The discretion given by section 40A(3) to appeal against any decision which the GMC consider not sufficient for the protection of the public is a wide one, but in my view it is a discretion to be exercised with restraint where it involves a challenge to a finding of fact in the practitioner’s favour.”
Our focus in this article will be upon the Court’s consideration of the test for dishonesty and the relationship between the tests set out in R v Ghosh  QB 1053 (‘Ghosh’) and Ivey v Genting Casinos (UK) Ltd  UKSC 67;  AC 391 (‘Ivey’). The outcome is a blueprint for a highly nuanced, context specific approach to dishonesty in legal proceedings.
The case arose out of a decision by the Medical Practitioners’ Tribunal (‘the MPT’).
Dr. Raychaudhuri had filled in parts of a child patient’s examination form using medical records, before having seen the patient. The charges related to a telephone conversation Dr. Raychaudhuri had had subsequently with another doctor regarding the incident. In essence Dr. Raychaudhuri:
- Denied writing examination findings on the form prior to seeing the patient (charge 5a)
- Stated that he had only made entries in the history section of the form, not in the examination section (charge 5b)
The MPT found that both statements were false, and that Dr. Raychaudhuri knew that charge 5a was false. The MPT found both were misleading statements, but acquitted Dr. Raychaudhuri of dishonesty in relation to both charges.
The relationship, or “tension” within this finding was at the heart of the case on appeal. A particular focus was the finding that Dr. Raychaudhuri had made a knowingly false and misleading statement in charge 5a, but that he had not been dishonest.
Upon the GMC’s appeal, the High Court (Sweeney J) substituted a finding of dishonesty. However, upon Dr. Raychaudhuri’s appeal, the Court of Appeal confirmed the decision of the MPT that the statements had been knowingly misleading but not dishonest.
1. Ghosh and Ivey
The decision is significant both in its conclusion and reasoning.
At the time of the decision of the MPT, the approach to dishonesty was the longstanding test as set out in Ghosh according to which it is necessary to consider whether the person in question had acted dishonestly by the standards of ordinary and honest people and, if so, whether he himself realised that what he was doing was dishonest by those standards.
However, by the time of the hearing before Sweeney J that approach to dishonesty had been disapproved of by the Supreme Court in its judgment in Ivey and replaced with a different approach. Before the High Court and the Court of Appeal, therefore, it was agreed that the approach to dishonesty in relation to findings made by a MPT should be that set out in Ivey. Under the approach in Ivey , when dishonesty is in question the fact-finding tribunal must first ascertain the actual state of the person’s knowledge or belief as to the facts, and then should determine the question of dishonesty by applying the standards of ordinary decent people. There is no requirement that he should appreciate that what he has done is, by those standards, dishonest.
In the High Court Sweeney J held that even on the test in Ghosh he considered that it was necessary to substitute a finding of dishonesty in relation to charge 5a, and that this conclusion was even clearer on application of the test in Ivey.
In finding that Sweeney J had adopted a too ‘cut and dried’ approach and preferring the findings of the MPT “because it had the advantage of seeing the appellant and the witnesses”; notwithstanding that “the reasoning of the MPT is not easy to understand in all respects and that there are points of tension between different parts of its reasoning” the Court of Appeal gave new life to the MPT’s findings which had been made (and correctly so at the time) applying the Ghosh test, by “recasting” those findings in light of Ivey.
The Court of course had the difficult task of evaluating a finding correctly approached under one legal framework in the context of another. However, the decision does seem to notably soften the differences between the two tests, gently framing Ivey as a “[clarification]” rather than a “replacement” of Ghosh .
The Court noted that the MPT’s findings regarding “the subjective understanding of the appellant…remain highly germane to the assessment of dishonesty” .
2. The Relevance Of Context To Dishonesty
A second notable feature of this decision is the weight given to context; hence its description of the approach of the High Court as “too cut and dried”. In preferring the tribunal’s more holistic approach to the question of dishonesty the Court of Appeal found favour with “the practical expertise of a MPT in being able to understand the precise context in which and pressures under which a doctor is acting in a case such as this.”
For example, the Court noted that Dr. Raychaudhuri was working in A&E at the relevant times. This was taken into account in their evaluation of the doctor’s mindset and whether the threshold of “dishonesty” was crossed. The Court also noted that “although [completing the form in advance] was wrong… it is difficult to believe that [Dr. Raychaudhuri] was the first or will be the last doctor working in an A & E department who tries to save time in this way” .
And the Court considered the nature of the phone call in which the doctor had made the relevant statements observing that he had not been warned of the call and that his focus was on neutralising the suggestion that he hadn’t intended to perform the examination at all.
3. A Nuanced Approach To Dishonesty
The third significant feature of the decision in Raychaudhuri v GMC is the nuanced and careful nature of the Court’s approach.
The Court of Appeal reflected approvingly on the “anxious consideration” that the MPT had given to their assessment of dishonesty . Lord Justice Sales said as follows:
“As I read [the MPT’s] decision, the tensions in its reasoning reflect the anxious care with which it sought to weigh and evaluate the moral significance of the appellant’s conduct in the particular context of this case .
The same could be said of the Court of Appeal’s own approach to dishonesty in this case.
The Court undertook a detailed evaluation of the statements, including taking into account Dr. Raychaudhuri’s earlier frankness to other colleagues.
Despite describing Dr. Raychaudhuri as having been “deliberately evasive” and having “knowing misled” the other doctor, the Court concluded that that was “in context a venial and obviously short term expedient” and not dishonest .
The careful and detailed approach favoured by the Court in evaluating the statements may explain how these findings, which at first blush may well appear inconsistent, can be reconciled.
In summary, the decision in Raychaudhuri v GMC suggests that what may have been lost in deference to subjectivity in the move away from Ghosh, may be rediscovered in deference to context and nuance in the application of Ivey.
Brian O’Neill QC
 Raychaudhuri v. GMC, para. 74
 Raychaudhuri v. GMC, para. 58
 Raychaudhuri v. GMC, para. 57
 Raychaudhuri v. GMC, para. 58
 Raychaudhuri v GMC, para. 66
 Raychaudhuri v GMC, para. 63
 Raychaudhuri v GMC, PARA. 66
 Raychaudhuri v GMC, para. 56
 Raychaudhuri v. GMC, para. 57
 Raychaudhuri v. GMC, para. 61
Raychaudhuri v GMC para. 56
 Raychaudhuri v GMC para. 60
 Raychaudhuri v GMC para. 66