Ivey strikes again

General Medical Council v Raychaudhuri

 [2017] EWHC 3216 (Admin)

Background

The Respondent is a doctor who specialises in paediatrics.

An incident occurred on 13 December 2014 whilst he was working as a Locum Paediatric Registrar in the Emergency Department of the Royal Berkshire Hospital, in that Patient A, a 5 month year old child with Dandy Walker Syndrome (chronic brain malformation) was left unseen for a period of time. The Respondent had started to complete a paediatric assessment pro-forma but then got called to see another patient. Patient A was eventually seen to.

There was no complaint by the parents but the Respondent’s contract was terminated and a referral made to the GMC.

The Respondent faced charges before a Panel of the Medical Practitioners Tribunal Service (MPTS) to the effect that:

1. he had completed the history, examination findings, summary/impression and management plan sections of the initial assessment pro-forma in relation to Patient A with information that he had obtained from Patient A's previous medical records, and that, at the time that he had entered it, he did not know the information to be correct, and knew it to be untrue, because he had not undertaken an examination of Patient A. These actions were misleading and dishonest;
    
2. he knowingly and falsely advised Nurses B and C that Patient A had been assessed by a junior colleague. This action was misleading and dishonest; and
    
3. in a later telephone conversation with a Consultant Paediatrician, Dr D, he denied writing examination findings on the pro-forma before seeing Patient A. He stated that he had only written in the background information based on a letter from Patient A's General Practitioner. These statements were false, of which he was aware, and therefore his actions were misleading and dishonest.  

MPTS Hearing

At the time of the hearing the test for dishonesty was that set out in R v Ghosh:-

• whether, by the standards of reasonable and honest people, what the Respondent did was dishonest; and
• whether the Respondent had realised at the time that what he did was dishonest by those standards. 

The Respondent’s position was that he admitted completing the history section of the pro-forma before seeing Patient A but denied having completed (i.e. finalised) the other sections.  

The Panel’s findings were that:       

1. the completion of the patient history was not misleading, but completing the examination findings and management plan sections was misleading. Overall, completing the pro-forma using Patient A’s previous medical records was misleading but not dishonest. The Panel found that the pro-forma was taken from the office without the Respondent’s knowledge, and that he had every intention of examining the patient and amending the form accordingly;
    
2. advising his colleagues that Patient A had been seen by a junior colleague was false and misleading but the Respondent did not know this to be false and misleading; and
    
3. his comments Dr D to the effect that he had only written the background information, not the examination findings on the form was misleading but not dishonest.

The Panel did not make a finding of current impairment, but determined that a 5 year warning was necessary.

Appeal

The GMC appealed and submitted that the Panel’s decision was wrong. One of the grounds of appeal was made on the basis that the Panel had been correct at the time to apply the test in R v Ghosh, however subsequently in Ivey v Genting Casinos UK Limited, the Supreme Court decided that the second (subjective) limb in Ghosh did not correctly represent the law. The parties made submissions following the Ivey decision.

The appeal was heard by Mr Justice Sweeney. He found that the Respondent had maintained his denial despite Dr D reminding him that, had anything been written on the pro-forma before assessing the patient, it could be a serious probity issue. The judge was persuaded that, even applying Ghosh, the finding that it was not proved that the Respondent had been dishonest when he had denied to Dr D that he had written examination findings before seeing Patient A, was not an appropriately nuanced finding by the Panel, and moreover, it was inconsistent with its other findings.

He opined that the position was even clearer when applying Ivey rather than Ghosh as the relevant test for dishonesty. He stated that he could:

see no basis upon which the Respondent's state of knowledge or belief as to the essential facts could lead to any conclusion other than that, by the standards of ordinary decent people, the Respondent's denial was dishonest”.

Given the above, Mr Justice Sweeney concluded that the Panel should have made a finding of current impairment, and that sanction needed to be reconsidered in light of his decision. He quashed the warning and remitted the case back to the Panel for further consideration as to sanction.

Commentary  

This case is a reminder to panels in fitness to practise proceedings to carefully review the evidence, apply it to the circumstances, and come to a reasoned decision. In this case the Panel’s findings in respect of the doctor’s actions were criticised by the Court. This is also another case further to GMC v Krishnan [2017] EWHC 2892 (Admin) (here), in which the changing test for dishonesty served to clarify the nature of the registrant’s actions when considered first in the context of their own state of mind.