What regulators regard as dishonest – More than you would think! (Part Two)

24 April 2019

We regularly act for clinicians accused of professional misconduct, including dishonesty. Many do not appreciate the kinds of matters which regulators consider to be dishonest, and are taken aback when criticism is levelled against them.

My colleague Julie Norris previously blogged on what regulators regard as dishonest – the current case is an interesting addition to her blog.

Dr Brian Flavin (Dr F) was a Consultant in Emergency medicine at Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust (the Trust) between August 2015 and August 2017. He appeared before a Panel of the Medical Practitioners Tribunal Service (MPTS) in relation to allegations that he inappropriately provided medical care to his wife on five occasions between July 2016 and April 2017. It was alleged that on four of those occasions Dr F treated his wife, who was not a Trust patient, at home, using items removed from the Trust. Additionally, it was alleged that he falsified medical records, on more than one occasion, to show that his wife had attended the Emergency Department, when she had not.

At the outset of the proceedings, Dr F made a number of admissions, including to matters alleged as being dishonest. Dr F gave oral evidence at the hearing and submitted documents which included:

  • Reflective statements;
  • Certificates of completion for a number of courses and modules, including courses entitled Professional Boundaries, How to Keep Good Clinical Records, Data Protection, Workload and Time Management and Maintaining Professional Ethics; and
  • A number of testimonials from colleagues.

At the impairment stage, Counsel on behalf of the GMC, referring to the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin), submitted that Dr F had acted dishonestly in the past, put patients at risk of harm, departed from a fundamental tenet of the medical profession, and had brought the medical profession into disrepute. Dr F, through his Counsel, disputed that his fitness to practise was currently impaired, referring to Cohen v GMC [2008] EWHC 581, particularly paragraph 65, which poses the following questions:

  1. Is the conduct remediable?
  2. Has it been remedied?
  3. Is it highly unlikely to be repeated?

It was submitted that all three questions should be answered in the affirmative in respect of Dr F. Counsel invited the Panel to consider carefully the compelling evidence it had heard from Dr F about the trying circumstances in his life at the time of the events.

In reaching its decision, the Panel paid particular regard to paragraph 16g of Good Medical Practice (GMP), namely that “[i]n providing clinical care you must, wherever possible, avoid providing medical care to yourself or anyone with whom you have a close personal relationship”. The Panel was mindful of the fact that, although Dr F’s wife was not a Trust patient, she was an NHS patient who was entitled to medical care, which would have been given had she attended the hospital. However, the Panel agreed that it was wrong for Dr F to take intravenous fluids from the Trust to treat his wife at home. Further, the Panel was “especially concerned in relation to patient safety, and felt that [Dr F] had put his wife at risk by treating her at home without making honest or accurate records of her treatment and without the required checks …..”

The Panel found Dr F’s fitness to practise to be currently impaired, and imposed a 1 month period of suspension.

Of particular interest to me, was some of the commentary which appeared following the article on this case run by the Times. Comments included:

  • 'Hardly Dr Shipman...’
  • ‘If his wife needed IV fluids then she would have been hospitalised. He saved the NHS money and left a bed free for other patients’
  • ‘What's wrong with that? It happens in all walks of life!’

It begs the question, is what regulators consider to be dishonest more draconian than “ordinary decent people”? In answer to this, one must consider that Panels of all the healthcare regulators in the United Kingdom are made of both medical and lay members. This means that decisions are made by those both inside and outside of the respective profession. Further, each of the regulators offers guidance to its registrants, GMP tells doctors that they:

‘….must make sure that [their] conduct justifies [their] patients’ trust in [them] and the public’s trust in the profession’

Paragraph 125 of the Sanctions Guidance (post February 2018) states :

Examples of dishonesty in professional practice could include:

  1. defrauding an employer
  2. falsifying or improperly amending patient records
  3. submitting or providing false references
  4. inaccurate or misleading information on a CV
  5. failing to take reasonable steps to make sure that statements made in formal documents are accurate.

In short, regulated professionals need to be very alive to the fact that they are held to high standards of conduct and behaviour. Not only may one-off issues lead to an allegation of dishonesty, but also more persistent behaviour, even where there is no actual gain for the individual.  Regulators are especially alive to matters which may bring the respective professions into disrepute, and will take action which may prematurely end a professional’s career.

As Julie stated in her previous blog, ‘[t]he dishonesty net is cast far wider than practitioners might appreciate and can lead to severe consequences….’ therefore ‘prevention is always better than cure’. 

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