Acting to stop harm: the FCA and Appointed Representatives
Jenyo v General Medical Council  EWHC 1708 (Admin)
Dr Jenyo (the Appellant) worked as a General Practitioner (GP). It was alleged that he acted dishonestly in retrospectively altering the electronic surgery records of his patient, Mr A, who was found to have a tumour in May 2007 and died of cancer in July 2007.
The Appellant accepted that he had made the alterations, and that he had done so at times in response to concerns raised by Mr A's family that Mr A's symptoms of back pain had not been properly investigated. However, he denied that the alterations were made with the intention of deceiving anyone; he claimed that they were made to clarify his past treatment of the patient.
The key issue for the Panel to determine, therefore, was whether the Appellant acted dishonestly in making the retrospective amendments to the records. There was no dispute that if he did so to strengthen his position in the face of criticism, he was acting dishonestly.
The Panel found that the Appellant’s amendments indicated that the patient's complaint of back pain was something recent, which was factually incorrect when contrasted with his own evidence that Mr A had been complaining of back pain since December 2006.
Regarding the 2010 amendments, the Appellant’s evidence had been that his memory was jogged by the action the patient's family was taking against him. This evidence was expressly rejected by the Panel, which considered it more likely that the passage of time would have had the usual diminishing effect on memory.
The Panel therefore found that the amendments created a significantly different clinical picture of Mr A's health from that originally recorded, and that that picture would have improved the Appellant’s position in response to criticism or a claim for medical negligence. The Appellant did not clearly date the amendments or put any reason for making them. His failure to do so would lead any person reading them to assume that the final entries were written on the date of consultation, when they were not.
The Panel found the Appellant to be dishonest and decided to erase him from the medical register.
The Appellant’s primary submission was that the Panel failed to lend any, or any sufficient weight to certain factors which, on the balance of probabilities, were more consistent with a finding that Dr Jenyo’s actions were not subjectively dishonesty.
His secondary submission was that the Panel failed to provide any or any sufficient reasons for its rejection of his explanation for making the alterations to the records. The Appellant essentially argued that he was unlikely to have made the alterations in order to deceive, because his behaviour was bound to come to light if anyone carried out an audit. In support of that proposition he relied upon the case of GMC v Soni  EWHC 364, in which the issue was whether on a fair view of the evidence as a whole it was open to a fitness to practice panel to infer that a doctor had acted dishonestly. The overriding principle must nonetheless apply that before an inference could properly be drawn, a fitness to practise panel has to be able safely to exclude, as less than probable, other possible explanations for the alleged conduct.
The Appellant therefore submitted that where a doctor raises an alternative explanation for his conduct, the panel must consider it in the light of factors for and against it, before giving its reasons for rejecting it.
Justice Andrews emphasised that where the key issue was one of disputed fact which was dependent upon the assessment of oral testimony, as it was here, considerable deference must be afforded to the decision of the Panel, which had the advantage of seeing and hearing the witnesses, including the Appellant himself. The court will be slow to interfere, and will only do so if the decision is plainly wrong.
In addition, she stated that the court will not conclude that a finding of fact was against the evidence unless it finds that it is not possible for such conclusions to be drawn from the evidence. Justice Andrews highlighted that it is insufficient that the court might have drawn a different conclusion, as outlined by Justice Laws in Subesh v Secretary of State for the Home Department  EWCA Civ 56.
Justice Andrews distinguished the present case from that of Soni as it was accepted that the alterations were made deliberately and that it was the Appellant who made them. In Soni the doctor had not admitted that he had deliberately failed to keep the patient records, but provided an alternative innocent explanation for that failure. Justice Andrews stated that in this case there were two competing explanations for the alterations, and the only person who was able to give direct evidence as to his intention in making them was the Appellant. Therefore, his credibility was at the heart of the issue that the Panel had to decide.
Justice Andrews rejected the argument that a doctor is unlikely to have acted dishonestly because they knew they were bound to be found out if someone looked at the records. She stated that the ease of which the alterations could be discovered did not reveal anything of the intentions of the individual making them.
Nevertheless, Justice Andrews found that the Panel had considered this line of argument and that this was clear from the reasons the Panel gave for finding dishonesty. As such, the Panel did not need to go through why it rejected the Appellant’s argument. Justice Andrews found that the Panel had considered the Appellant’s explanation and that it was not bound to take the same view of his honesty, and that the evaluation of the Appellant’s witnesses was of marginal, if any, relevance, since the members of the Panel had to make up their own minds.
This case once again highlights the reluctance of the Court to interfere with a decision made by a Fitness to Practise Panel because they had the advantage of seeing the evidence first hand.
Moreover, in cases of dishonesty, the Registrant’s credibility is at the heart of the Panel’s decision. Thus the advantage of seeing the Registrant provide evidence first hand will mean the Panel’s conclusions will often be within the generous ambit afforded to a tribunal of fact.
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