Dishonesty in fitness to practise cases

blog detail img

11
Oct

Dishonesty in fitness to practise cases
By: Anonymous | Published On: 11/10/20 2:52 pm

Openness, transparency and fairness are fundamental principles in health and social care.  This might appear obvious but in clinical practise the reality is much more complicated. 

For example, as has been noted in Lying: Moral Choice in Public and Private Life, “Should physicians lie to dying patients so as to delay the fear and anxiety which the truth might bring to them?” 

The issue of honesty in health and social regulation can be complicated.  Research by the Professionals Standards Authority (PSA) found that “Reports of dishonesty in relation to health and social care professions are many and various. Some of these reach the threshold for fitness to practise complaints and many do not.

“The literature … reviewed suggests that while being candid is almost universally acknowledged as ‘the right thing to do’, health professionals and social workers still struggle, for a variety of reasons, to be as open as they might be when things have gone wrong.” 

A case study: R v Ghosh

R v Ghosh [1982] EWCA Crim, is an English criminal law case setting out a test for dishonest with particular reference to healthcare circumstances.  This case is important because analysis by the PSA showed that “fitness to practise panels universally make reference to R v Ghosh (1982) QB 1053 in their reasons.” 

The case

Dr Ghosh was a consultant anaesthetist working for the NHS who was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1).  The charges related to his work as a locum surgeon when he was paid one set of extra wages and attempted three times to obtain such wages by claiming for work that others had carried out and for work reimburseable to him.

The jury found him guilty on the charges. He subsequently appealed on the grounds that the trial judge directed the jury in objective terms, which was to decide whether the defendant’s conduct was dishonest according to the standards of ordinary decent people rather than whether the defendant believed his conduct, was dishonest (a subjective question).

Court of Appeal

The appeal was turned down.  In handing down its judgement, the court reformulated the test for dishonesty:

“... a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest ... If it was dishonest ... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.”

The test for dishonesty therefore is subjective and objective:

  • Was the act one that an ordinary decent person would consider to be dishonest (the objective test)? If so:
  • Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?

Clinical and personal – does it matter? 

Dishonesty in a clinical context is would appear to be the most relevant, but health and care professionals should be aware that dishonest conduct in non-clinical contexts can be equally serious and complex.

Dishonesty in non-clinical contexts can take many forms including “dishonesty towards employers, colleagues, regulators or the state as, for example, when registrants lie about qualifications, plagiarise academic work, do not disclose criminal convictions or cheat on their tax return.” (A Typology of Dishonesty - Illustrations from the PSA Section 29 Database)

Dishonesty in non-clinical contexts carries much weight with the public and stands accused of bringing the profession into disrepute.  The PSA gives an example of a dentist charged with tax evasion. Even if no direct harm to patients or the public follows from dishonesty in private life, it can be argued that dishonesty or deception may cause harm to the reputation of, and trust in, the profession overall. [Ditto]

Sanctions 

The question relating to what extent a finding of dishonesty in professional regulatory proceedings go hand-in-hand with a finding of impaired fitness to practise was considered in the case before the High Court after the GMC appealed the decision of a Medical Practitioners Tribunal in GMC v Chaudhary (2017).  

The outcome of this case found that a finding of impairment does not inevitably flow from a finding of dishonesty. 

Where dishonesty leads to a finding of impairment however, the full range of sanctions is potentially available to the tribunal considering the case. 

Kings View Chambers

As a leading medical regulation chambers, Kings View Chambers have represented clients facing fitness to practise proceedings resulting from dishonesty.  Recent cases include: 

Contact us for any fitness to practise issues you may be facing.  We offer a free, no obligation case assessment.

Comments