Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Raychaudhuri v General Medical Council (Professional Standards Authority for Health and Social Care intervening)  EWCA Civ 2027
The Court of Appeal (‘CoA’) consisting of Lord Justice Sales, Lord Justice Bean and Lord Justice Underhill considered Dr Raychaudhuri’s (‘the appellant’s’) appeal against Mr Justice Sweeney’s finding of dishonesty and impairment in the High Court. The instances of dishonesty in dispute arose in a telephone conversation between the appellant and an on-call Paediatric Consultant. At the fitness to practise hearing, the Medical Practitioners Tribunal (‘MPT’) concluded that the appellant had provided false and misleading statements, however his actions were not dishonest.
Subsequently, the General Medical Council (‘GMC’) successfully appealed the decision of the MPT to the High Court using its powers under section 40A of the Medical Act 1983 (‘the Act).
On 13 December 2014, the appellant was working as a locum registrar paediatrician in the Paediatric Accident and Emergency (‘A&E’) at the Royal Berkshire Hospital, when Patient A was brought into A&E. Patient A was a 5 month old child diagnosed with Dandy Walker Syndrome. Prior to seeing Patient A, the appellant reviewed Patient A’s medical records and a letter from the referring GP, which he used to commence completing the history and examination section of the Emergency Department Paediatric Initial Assessment Form (‘the form’).
The appellant was called to attend on another patient, leaving the partially completed form in the paediatric doctor’s office. Patient A’s parents complained to the nursing staff that Patient A was yet to be seen, and after further enquiries, a junior doctor found the partially completed form which led to confusion about whether Patient A had been attended to. The appellant was approached by two nurses who queried whether he had seen Patient A.
Subsequently, a meeting was called with the appellant, the two nurses and the Emergency Department Consultant, Dr Nafousi. The appellant provided a full account of his conduct to Dr Nafousi and explained that he had the intention to see Patient A and he wanted to use the partially completed form as a prompt during the examination of Patient A. Later that evening, during a telephone conversation with Dr De Halpert, the on-call Paediatric Consultant, the appellant denied completing the examination section of the form.
The GMC alleged that the appellant had dishonestly denied making entries in the examination section of the form before seeing Patient A. However, the appellant claimed that he believed that “Dr De Halpert’s real or principal concern was that he had finalised the examination section without ever intending to see Patient A at all.” The appellant submitted evidence to the MPT that he explained to Dr De Halpert that he would “never do this”.
Following his evidence on this point, the MPT found proved that the appellant had misled Dr De Halpert by providing false statements. In their Determination on Impairment dated 6 February 2017, the MPT explained that, “The tribunal accepts that you thought [Dr De Halpert] was questioning the probity of someone making an examination note without ever seeing the patient, when your position was that you were simply preparing for seeing the patient. The tribunal however determined that [Dr De Halpert] was left with a false impression which was misleading and amounts to serious misconduct."
The MPT expressed that the incident had been a “one-off matter occurring on a single day; the appellant had a sufficient level of insight as to what he had done wrong to mitigate”. The MPT found that the conduct “fell just short of a finding of impairment”, and issued the appellant with a written warning.
In the High Court, Mr Justice Sweeney substituted the MPT decision with a finding of dishonesty and impairment. Mr Justice Sweeney sent the case back to the MPT to decide an appropriate sanction in light of the new findings.
The appellant appealed to the CoA on three grounds:
In relation to the first ground, Counsel for the appellant submitted that the High Court did not have jurisdiction under section 40A to “entertain an appeal by the GMC against a finding by a MPT”. The appellant’s Counsel also challenged the Divisional Court’s interpretation of section 40A in the General Medical Council v Jagjivan  EWHC 1247 (Admin)  1 WLR 4438. Lord Justice Sales did not accept this submission, stating as follows at paragraph 48, ‘on proper construction of section 40A, the GMC has a right of appeal to the High Court in a case like the present, where the GMC have brought a charge against a doctor that his fitness to practise is impaired...’.
In regards to the finding of dishonesty, at the time of the MPT hearing, the proper test for dishonesty was set out in R v Ghosh  QB 1053. However, in the High Court appeal Mr Justice Sweeney replaced this test with the new approach to dishonesty outlined in Ivey v Genting Casinos (UK) Ltd  UKSC 67;  AC 391 (‘Ivey’).
At the CoA hearing Lord Justice Sales approached the question of dishonesty using the test set out in Ivey which required the CoA to “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”. Following this, Lord Justice Sales considered that Mr Justice Sweeney’s approach to analysing the allegation of dishonesty was “too cut and dried” whilst the MPT regarded the facts as “finely balanced” and “thought there was an important moral distinction to be drawn in the particular circumstances of the case”.
In reaching his conclusion on the second ground, Lord Justice Sales agreed with the MPT’s assessment of the appellant’s conduct because “it was clear from his conduct in relation to Dr Nafousi and the nurses that this was not part of a deliberate and dishonest plan by the appellant to cover up what he had done.” Lord Justice Sales acknowledged that the appellant’s misleading statements in his conversation with Dr De Halpert, “was a venial and comparatively trivial effort by him to deflect Dr De Halpert's ire that night” and he consequently agreed with the MPT’s finding that the appellant had not acted dishonestly. The appeal was allowed on this ground.
Questions of dishonesty must be approached very carefully, as demonstrated by the CoA’s decision to overturn the High Court’s decision in this case.
Issues can arise in the course of everyday practice which means that a healthcare professional’s actions are called into question, such as they were in respect of Dr Raychaudhuri. Whilst conduct may be misleading, this does not mean that it is also dishonest. Fitness to practise panels and the courts alike, have to carefully consider all the surrounding circumstances and come to a judgement as to whether the underlying conduct is dishonest.
It would be interesting to understand why the GMC sought to use its section 40 power in this case given the MPT’s careful consideration of the facts.
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