In Fitness to Practise Proceedings, how can I demonstrate insight when I have denied the allegations?

The assessment of insight is a fundamental consideration to any Tribunal evaluating future risk. Insight rears its head at both the impairment and sanction stages of a hearing and its importance cannot be understated. This blog seeks to provide an overview of the key case law concerning how a Tribunal should approach the assessment of insight where a Registrant has been unsuccessful in defending a factual allegation – otherwise known as the “rejected defence”.

What is insight?

Insight was described by Collins J in Sawati v GMC [2022] EWHC 283 (Admin) at [76] as:

“an acknowledgment and appreciation of a failing, its magnitude, and its consequences for others – is essential for that failing to be properly understood, addressed and eliminated for the future. Future risk – to patients or to public confidence in general – is a proper preoccupation of Tribunals. If a doctor’s performance or conduct is faulty, but they do not have insight into that, that can give good grounds for concern that they are unlikely to be able to address and remediate it, and hence that they pose a continuing risk.”

Can a Registrant resist an allegation, without the risk of those denials being unfairly held against them at subsequent stages if unsuccessful?

In the Sawati judgment, Collins J recognised the “potential trap” for Registrant’s contesting allegations of dishonesty which are subsequently found proved. This is particularly difficult to navigate as dishonesty is often described as “difficult to remediate” so that “if a doctor whose career is on the line denies dishonesty and finds their defence rejected, they are at risk of being found for that reason to ‘be in denial about’ or ‘lack insight’…and ‘difficult to remediate’ is converted into ‘irremediable’”.

Having said that, how is a Tribunal to approach an assessment of current impairment and sanction in respect of a Registrant who is plainly not telling the truth and has put forward a wholly meritless or disingenuous defence? A Registrant’s response to an allegation must have some relevance to the assessment of their insight – otherwise, how else is a Tribunal supposed to properly assess future risk?

Collins J neatly summarised the “tension” between these competing interests as:                                   

“The first is the right to a fair trial for doctors facing charges involving dishonesty, with a proper opportunity to resist potentially career-ending allegations. The second is the necessity for protecting patients and the public, who place a huge amount of trust in doctors (as indeed they must), from practitioners on whose honesty and integrity they cannot rely. These principles may be simply stated. How the tension between them is resolved on the facts of individual cases may be difficult.” [80]

So how is a Tribunal to deal with a “rejected defence” when it comes to its assessment of insight?

How has case law approached insight and the “rejected defence”?

In order to understand how the “rejected defence” is dealt with in practice, it is necessary to undertake a review of the caselaw, which reveals the adoption of a highly fact-sensitive approach.

In Misra v GMC [2003] UKPC 7 it was held at [17] that it was both “unnecessary and oppressive” to include a charge which alleged that a Registrant had been dishonest in denying any of the factual allegations. As identified by Collins J at [83] of her judgment in Sawati this passage from Misra “…crisply articulates the danger of ‘oppression’ which lurks in putting doctors in a position not only of having to defend allegations of misconduct but also of having to defend their defences. That danger of oppression needs to be recognised by Tribunals also, approaching evaluative judgments about sanction”.

However, the position appeared to shift somewhat in Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin), which concerned a doctor who, when faced with a civil action by a patient, responded with forged clinical notes. The fact that the Registrant had gone so far as to commit a genuine act of dishonesty in forging notes, is likely to have been a key consideration and it was held at [19] of that judgment that a tribunal is entitled, at impairment and sanction stages, to consider a Registrant’s response to an allegation:

“In the ordinary case such as this, the attitude of the practitioner to the events which give rise to the specific allegations against him is, in principle, something which can be taken into account either in his favour or against him by the panel, both at the stage when it considers whether his fitness to practise is impaired, and at the stage of determining what sanction should be imposed upon him.”

The issue was revisited in GMC v Khetyar [2018] EWHC 813 (Admin), which concerned allegations of sexual impropriety. Whilst it was accepted that maintaining one’s innocence is not to be equated with a lack of insight, it was held at [49] that:

“…no sanction was to be imposed on him for his denials as such; however, insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must play close attention to the doctor’s current understanding of and attitude towards what he has done”

The practical effect of Nicholas-Pillai and Khetyar – particularly for those facing allegations of dishonesty or sexual impropriety - was that a Registrant’s persistent denial of an allegation, which was subsequently found proved would, more likely than not, be equated with a lack of insight and treated as an aggravating feature at the sanction stage.

However, recent caselaw demonstrates that the approach is much more nuanced than this; and there has been a move away from automatically holding that a Registrant’s denial of an allegation should be held against them at subsequent stages of a hearing.

GMC v Awan [2020] EWHC 1553 (Admin) concerned allegations that a doctor had a sexually-motivated online conversation with someone appearing to be a 13-year-old girl, but was in fact an undercover police officer. The doctor’s defence was that he knew this was an adult “imposter” and had engaged in conversation to try and expose her and reveal her true age. The Tribunal rejected this “frankly ludicrous” defence and suspended him. The GMC appealed the sanction on the basis the decision failed to reflect this behaviour in its decision. Whilst Mostyn J agreed the doctor’s defence was without merit, he observed that:

“I think that it is too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it. Indeed, it seems to me that to expect this of a registrant would be seriously to compromise his right of appeal against the factual finding, and add very little, if anything, to the principal allegations of culpability to be determined.”

And that:

“It seems to me that an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions.”

Support for a nuanced approach to the assessment of insight following a “rejected defence” was reiterated in Sayer v General Osteopathic Council [2021] EWHC 370 (Admin) in which it was held at [25] that:

“It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it. However, attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight. The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere.”

However, the position is not absolute – as demonstrated in the recent case of Towuaghantse v GMC [2021] EWHC 681 (Admin) - and much will come down to the facts of each specific case. In Towuaghantse, the allegation against the doctor concerned clinical failings which resulted in the death of a baby. The Coroner made a number of findings which were critical of the doctor. The Fitness to Practise Tribunal found little evidence of insight, which resulted in a finding of the doctor’s limited capacity to remediate. This influenced the decision on sanction. On appeal, Mostyn J held at [63] that:

“…It is not procedurally fair for a registrant to face the risk of enhanced sanctions by virtue of having robustly defended allegations made against him before the MPT, or before another court.”

He qualified that however, at [71] – [72] by stating:

“I can see, were a defence to be rejected as blatantly dishonest, then that would say something about impairment and fitness to practise in the future. But there would surely need to be a clear finding of blatant dishonesty for that to be allowed. Absent such a finding it would, in my judgment, be a clear encroachment of the right to a fair trial for the forensic stance of a registrant in the first phase to be used against him in the later phases.

In my judgment a distinction should be drawn between a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts. The former is a binary yes/no question. The latter requires a nuanced analysis by the decision maker with a strong subjective component. If a registrant defends an allegation of primary concrete fact by giving dishonest evidence and by deliberately seeking to mislead the MPT then that forensic conduct would certainly say something about impairment and fitness to practise in the future. But if, at the other end of the scale, the registrant does no more than put the GMC to proof then I cannot see how that stance could be held against him in the impairment and sanctions phases. Equally, if the registrant admits the primary facts but defends a proposed evaluation of those facts in the impairment phase then it would be Kafkaesque (to use Walker J's language) if his defence were used to prove that very proposed evaluation. It would amount to saying that your fitness to practise is currently impaired because you have disputed that your fitness to practise is currently impaired.”

The position was considered again in 2021, in Al Nageim v GMC [2021] EWHC 877 (Admin) which concerned allegations of fraud. The Tribunal noted as an aggravating feature that the “doctor did not tell the tribunal the truth in his evidence…and did not demonstrate any insight into this”. The Court upheld the Tribunal’s decision on the basis the doctor’s defence had involved “an allegation of primary concrete facts” as opposed to “a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts”. The appeal was dismissed.

The issue of insight where dishonesty is not accepted and subsequently found proved was also considered in Ahmedsowida v GMC [2021] EWHC 3466 (Admin). Reflecting on the correct approach, Kerr J confirmed:

“I do not think the principle is sophisticated or complicated. It is just ordinary due process. Contesting the charges, even robustly, should not be treated of itself as evidence of lack of insight; something more must be shown. A finding that blatant lies were told to the tribunal is one possibility. A long hiatus between the fact finding, and impairment and sanction stages may be a contributing feature.”

Current position

The most recent case which considers this topic is Sawati v GMC [2022] EWHC 283 (Admin). It was acknowledged by Collins J that a tribunal can consider a Registrant’s “rejected defence” when considering impairment and sanction but only when it is fair to do so and this will undoubtedly be fact-sensitive to each case.

Nonetheless, Collins J set out the factors for the Tribunal to consider, which are spelt out at paragraphs 104 – 109 of the judgment. These can be summarised as follows:

1. Consider what is the primary nature of the allegation. A rejected defence of honesty will be more relevant to the overall assessment of conduct where dishonesty is the primary allegation, i.e. fraud or forgery.
2. What is the Registrant denying? Is it the primary facts, i.e. what happened and what he or she did or did not do? Or the evaluation of those primary facts? If the latter, it’s more likely to be unfair to hold their denial against them.
3. Is there evidence of a lack of insight other than the rejected defence?
4. The nature and quality of the rejected defence. Is the defence a “blatant and manufactured lie, a genuine act of dishonesty, deceit or misconduct in it’s own right…Or was it just a failed attempt to tell the story in a better light than eventually proved warranted?”

The position is summarised neatly at [109] as:

“In short, before a Tribunal can be sure of making fair use of a rejected defence to aggravate sanctions imposed on a doctor, it needs to remind itself of Lord Hoffmann’s starting place that doctors are properly and fairly entitled to defend themselves, and may then find it helpful to think about four things: (i) how far state of mind or dishonesty was a primary rather than second-order allegation to begin with (noting the dangers of charging traps) – or not an allegation at all, (ii) what if anything the doctor was positively denying other than their own dishonesty or state of knowledge; (iii) how far ‘lack of insight’ is evidenced by anything other than the rejected defence and (iv) the nature and quality of the defence, identifying clearly any respect in which it was itself a deception, a lie or a counter-allegation of others’ dishonesty.”

Ultimately, the position is not clear cut because the 4 principles above require the evaluative judgment of the Tribunal and are sensitive to the facts of each individual case. However, what is clear, is that there has been a marked move away from automatically holding that a Registrant’s denial will be used against them as an aggravating feature when considering insight at subsequent stages.

Further information

If you have any questions regarding this blog, please contact Kathryn Sheridan or Louise Murphy-King in our Regulatory team. 

 

About the authors

Kathryn Sheridan is a Senior Associate Barrister in the Regulatory team. She is an experienced Regulatory advocate.

Louise Murphy is a senior associate, who re-joined Kingsley Napley as a Solicitor in 2016, having previously worked as a Legal Assistant at the firm between 2010 and 2012.