Newsletters Professional Discipline 27th Feb 2018

Remorse, Insight and Continued Denial – the Difficulty of Moving on after Sanction. Yusuff v General Medical Council [2018] EWHC 13 (Admin)

It is commonly said about expressions of remorse from criminals who plead guilty is that they are only really sorry that they got caught. The problem of sincerity is, of course, further multiplied when the person does not admit they did anything wrong in the first place.

That was the position Dr Yusuff found himself in after his suspension for dishonesty and inappropriate behaviour. In the first review, Dr Yusuff had said he accepted the findings of the original Tribunal but it found that he did not appreciate the seriousness of what he had done, and that there was inadequate evidence of regret and insight. It extended the suspension for a further four months and suggested the next reviewing tribunal would be assisted by a statement reflecting on the Tribunal’s findings and “a full demonstration of meaningful insight into the misconduct”.

In the second review he put in a statement claiming to have genuine remorse and shame for his conduct but it emerged during questioning that he did not really accept that he had done it. Unsurprisingly, the Tribunal then came to the conclusion that he had failed to demonstrate insight and extended the period of suspension for a further six months. He appealed.

In her judgment, Yip J, set out the principles she said could be derived from authority about review hearings. They were:

  • The findings of fact are not to be reopened;
  • The registrant is entitled not to accept the findings of the Tribunal;
  • In the alternative, the registrant is entitled to say that he accepts the findings in the sense that he does not seek to go behind them while still maintaining a denial of the conduct underpinning the findings;
  • … it is relevant for the Tribunal to know whether or not the registrant now admits the misconduct;
  • 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;
  • If it is made apparent that the registrant does not accept the truth of the findings, questioning should not focus on the denials and the previous findings;
  • A want of candour and/or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment.

The difficulty with these principles is that, when they are considered in context, the word “entitled” in the second, and particularly the third bullet points is pretty much drained of any real content. After all, the principles include that the Tribunal should know if the registrant “now admits the misconduct” and if he does not, then he may be showing “continued dishonesty” at the hearing. Moreover, the Sanctions Guidance notes a doctor is likely to lack insight if they “refuse to apologise or accept their mistakes” and if they “fail to tell the truth during the hearing”. How can a doctor exercise his entitlement, and still come close to be able to “apologise [for] or accept” his or her mistakes?

Yip J distinguished Amao v NMC [2014] EWHC 147 in which there was heavy criticism of the “Kafka-esque” process of asking a registrant, repeatedly, at sanction whether she accepted the panel’s findings which had just been handed down. The problem in Amao was that the registrant was not represented, and did not understand that the case at impairment looked to the future as well as the past. Yip J might have added that in Amao it was pointed out that the registrant had not yet exercised her right of appeal against the factual findings, whereas at a review that opportunity would already have passed.

This case leaves those advising registrants to walk a tightrope. Representatives want to encourage the registrant to express their appreciation of the seriousness of the conduct. That can be done without admitting it, but then when it strays into remorse, or the issue of “candour” is raised, registrants like Dr Yusuff are likely to struggle. Registrants can sometimes be brought to a point close to admitting their conduct in written statements, only for it to unravel under questioning. In truth this “entitlement” to continue maintaining your innocence whilst seeking to return to practice may prove increasingly illusory.

Ben Rich  

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