Acting to stop harm: the FCA and Appointed Representatives
Court of Appeal considers the difference between “false” and “dishonest” and gives guidance on the appropriate wording of the Ghosh test in regulatory proceedings.
Judgment date: 7 November 2014
The appellant, a trainee general practitioner, appealed against a decision of the Administrative Court, dismissing his appeal against a decision of the Fitness to Practise Panel of the Medical Practitioners’ Tribunal Service (“the Panel”).
The appellant had been undertaking a placement at a GP’s surgery. During a 16-day hearing the Panel heard evidence that the appellant had made false statements on his CV, inputted false information on a Multi-Source Feedback Form, and plagiarised various online materials to compile his reflective learning log and e-portfolio. It was further alleged that this conduct had been dishonest.
In advising the Panel on the law the Legal Assessor had said that the word “false” denotes the deliberate and intentional making of a statement which was known to be incorrect, knowing that it would, and intending that it should, be relied upon by others. An untoward error or sloppy mistake was not sufficient. In advising on dishonesty, the Legal Assessor set out the two-stage test in R v Ghosh  QB 1053, comprising the objective and subjective limbs.
The Panel found the allegations proved, including that the appellant’s conduct had been dishonest. The Panel further found that the appellant’s fitness to practise was impaired by reason of misconduct and that he should be erased from the register.
“Outside the context of quiz games…”
Following an unsuccessful appeal to the Administrative Court the appellant took his case to the Court of Appeal, arguing, inter alia, that in reaching its decision the Panel had conflated falsity with dishonesty.
Giving the judgement of the court, Bean LJ observed that, in relation to the CV charge, the word “false” was ambiguous as it could mean either deliberately or inadvertently inaccurate. If the former - and it seemed to Bean LJ that outside the context of quiz games “false” usually has overtones of dishonesty - then the separate allegation of dishonesty added nothing and it was undesirable to have a duplication of charges. If “false” is used simply to mean “inaccurate” then the latter word should be used to avoid confusion.
The Panel had been faced with no such ambiguity when it came to the other allegations. On the Multi-Source Feedback Form charge the Panel had heard from the appellant and a healthcare assistant at the practice. The online form was designed to collect anonymous feedback from the healthcare assistant (and others) about the appellant’s clinical performance and professional behaviour.
During the hearing, the appellant had given evidence that he had partially filled out the form on the healthcare assistant’s behalf but that she had checked what he had written and transmitted the form. The healthcare assistant had disputed this in her evidence. Bean LJ noted that once the Panel had accepted the evidence of the healthcare assistant the finding of dishonesty was inevitable and nothing turned on the ambiguity of the word “false” in the allegation.
The same reasoning applied to the charge of plagiarism in respect of the learning log. The Panel had found that the appellant had plagiarised online reviews of The Citadel (a novel about medical ethics) which, he accepted in his evidence, he had not read at the time. Bean LJ said that in such a case a finding of dishonesty was, again, inevitable.
The appellant also argued that the Panel, when assessing whether he had been subjectively dishonest, had not given sufficient weight to his troubled state of mind arising from the death of his father. Further, the appellant contended that the Panel, when considering impairment and sanction, had not given adequate weight to the fact that all of the allegations related to a short, aberrant period in his life, during which he had been under great strain.
Dealing with these points, Bean LJ observed that grief caused by bereavement, while it may be mitigation, was not a defence to dishonesty. In relation to impairment, the appellant had not immediately admitted his wrongdoing, but had presented his case to the Panel on the basis that he had done nothing wrong. The appellant had therefore shown a complete lack of insight. In terms of sanction, the Panel’s view that erasure was proportionate could not be criticised.
Decision and per curiam opinion
The appeal was dismissed; the ambiguity in the CV charge not being sufficient to merit disturbing the Panel’s overall decision.
Longmore LJ observed, per curiam, that he was a little troubled by the Ghosh direction given by the Legal Assessor. The direction would have been standard in criminal proceedings but needed alteration to reflect that this was a professional disciplinary hearing. In future it would be appropriate for the first part of the direction to be adapted to read that a Panel should decide: “whether, according to the standard of reasonable and honest doctors [not people], what was done was dishonest”.
This case highlights the need for linguistic precision when drafting allegations so as to avoid ambiguous meaning and duplicitous allegations. This is particularly important where allegations pertain to dishonesty. Given the issues raised in this case it would seem sensible, where dishonesty is alleged, to avoid the use of the word “false” altogether and instead use the word “inaccurate”, with dishonesty alleged as a separate charge.
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