Dishonesty – a look at sanction and the difficulties faced in seeking to show that fitness to practise is not impaired

General Medical Council v Nwachuku and another; R (on the application of Nwachuku) v General Medical Council [2017] EWHC 2085 (Admin)

This case involved an appeal by the General Medical Council (GMC) against a determination made by the Medical Practitioners Tribunal (MPT) on 19 January 2017, in respect of Dr Nwachuku. There were two elements to the appeal:

1. Firstly, the decision of the MPT not to find his fitness to practice impaired by reason of his misconduct;
2. Secondly, the decision to issue a warning rather than impose a more serious sanction.

Dr Nwachuku opposed the appeal and sought judicial review of the MPT’s decision that his conduct was dishonest and that a warning should be imposed. Permission to apply for judicial review had already been refused on the papers.

Background

Dr Nwachuku was in the final year of his specialist training to become a General Practitioner (GP) and he also undertook locum work for an agency. Dr Nwachuku did not seek permission to carry out such work from his supervisor at the surgery, which he was required to do under his contract of employment. Dr Nwachuku was booked to provide locum cover at the Royal National Orthopaedic Hospital for three nights on 9, 10 and 11 October 2015, between 8pm and 8am. The email from the agency confirmed that Dr Nwachuku was required to submit authorised timesheets for his locum work to the agency and any breaks were to be clearly marked so that they could be deducted from his remunerated hours.

Dr Nwachuku completed his timesheet for the weekend of 9 to 11 October 2015, indicating he had worked from 8pm to 8.30am on each night. Dr Nwachuku signed the declaration stating that the information on the form was correct. He had arranged for the Orthopaedic Registrar on shift to sign off his timesheet on the evening of 11 October 2015, as they had a theatre list the following morning and therefore might be unable to attend the handover meeting.

At 5am on 12 October 2015, Dr Nwachuku attempted to leave the hospital before the end of his shift so that he could return in time for his Monday morning shift at the GP surgery, which was due to begin at 8.30am. He failed to arrange cover and failed to notify anyone that he was leaving. He was stopped at the main gate and was required to contact the Orthopaedic Registrar. When he explained to her that he needed to leave, the Registrar reportedly protested that this was dangerous and unprofessional conduct but Dr Nwachuku left the hospital at around 6am.

Despite finishing early, Dr Nwachuku still submitted his signed timesheet to his agency claiming that he had worked until 8.30am on Monday 12 October 2015, although this was subsequently amended following a complaint from the hospital.

Dr Nwachuku’s conduct was referred to the GMC. The MPT found that Dr Nwachuku’s conduct in submitting the false timesheet was dishonest and amounted to misconduct. However, they did not find that his fitness to practise was impaired by reason of his misconduct. As such, the MPT determined that a warning was an appropriate sanction.

Judicial Review

Dr Nwachuku sought judicial review of the MPT’s decision that his conduct was dishonest (he submitted that the MPT had applied the wrong test in making a finding of dishonesty) and if there was no dishonesty, the MPT should not have issued a warning.

Mrs Justice O’Farrell found that it was not reasonable to argue that the MPT made an error of law in making a finding of dishonesty, as they correctly identified and set out the two limbs of the Ghosh dishonesty test when making their determination.

She concluded that there was no merit in the challenge on the first ground and therefore the second ground must also fail. Permission to seek judicial review was therefore refused and the claim for judicial review dismissed.

Appeal

Having considered jurisdiction in respect of the appeal, Mrs Justice O’Farrell went on to consider the GMC’s arguments on appeal. The GMC’s case, which was supported by the Professional Standards Authority (PSA), was that the MPT erred in finding that Dr Nwachuku’s fitness to practise was not impaired.

Mrs Justice O’Farrell agreed with the GMC’s submissions and found that the MPT was wrong to find Dr Nwachuku’s fitness to practise was not impaired by reason of his misconduct. She  highlighted the following points:

• The dishonesty in question was serious as Dr Nwachuku knowingly submitted a false timesheet for personal gain. He persuaded the Orthopaedic Registrar to verify the hours on his timesheet, despite his intention not to work the final shift in full and despite the Orthopaedic Registrar’s request for confirmation that he would remain at the hospital for that shift. He also failed to notify the agency that the hours on his timesheet were incorrect, despite promising the Registrar that he would correct it.
• The MPT was entitled to have regard to the testimonials produced in support of Dr Nwachuku, but they did not address the question of his honesty, and therefore they were of limited relevance when considering the issue of impairment.
• The MPT in this case placed undue weight on Dr Nwachuku’s admission of dishonesty. Dr Nwachuku did not make such an admission in his statement or during cross-examination, it was only made following the finding of dishonesty by the MPT. Mrs Justice O’Farrell stated that the attempt to avoid responsibility for his dishonest behaviour should have been an aggravating factor, rather than one of mitigation.
• The MPT placed too much weight on Dr Nwachuku’s reflective statement in concluding that his misconduct was remedial. Mrs Justice O’Farrell noted that although he stopped agency locum work, he still continued to carry out GP locum work, including night shifts and there was no evidence that demonstrated he accepted responsibility for his conduct, or that he had taken steps to ensure there was no risk of repetition.
• Dr Nwachuku’s dishonesty and his other misconduct, amounted to serious breaches of Good Medical Practice and warranted a finding of impairment to protect the public and maintain confidence in, and the reputation of, the profession.

Mrs Justice O’Farrell therefore quashed the MPT’s determination on impairment and remitted to the MPT the issue of sanction.

Commentary

This case marks another exercise of the GMC’s appeal power under section 40A of the Medical Act 1983. The power allows the regulator to appeal decisions of the MPT which it considers to be insufficient for the protection of the public. It confirms the need for tribunals to correctly identify and set out the two limbs of the test in Ghosh when considering the issue of dishonesty, as the MPT had done when originally coming to their determination in this case. The case also highlights the importance that is attached to issues of honesty and integrity on the part of regulated professionals, and the importance of the tribunal taking into account all relevant factors in determining the appropriate action which should be taken based on the facts of the case.

Louise Murphy
Associate Solicitor