Understanding dishonesty in fitness to practise cases
Following the disciplinary action taken against nurse Pauline Cafferkey, Marie Dancer considers the approach of medical regulatory bodies to allegations of dishonesty
Fitness to practise cases arising from allegations of dishonesty were brought to the public’s attention in September with the news that Pauline Cafferkey had been cleared of all allegations of dishonesty and misconduct by the Nursing and Midwifery Council (NMC) panel.
Cafferkey had been accused of putting the public at risk upon her return from treating Ebola patients in Africa, when it transpired that she had allowed an incorrect temperature to be recorded at Heathrow airport and had not told a doctor that she had recently taken paracetamol, which could have affected the temperature reading. When it was later discovered that Cafferkey had contracted Ebola, the allegations of dishonesty were brought against her.
These allegations of dishonesty against medical practitioners are common across the major medical regulatory bodies in the UK, and often lead to serious sanctions, lengthy suspensions, or even erasure from the medical register. Given the gravity of dishonesty cases, lawyers should do all that they can to understand how the issue relates to fitness to practise, so as to effectively represent their clients and help those clients to understand the investigation process.
A report released by the General Medical Council (GMC) and DJS, a market research company, in 2015 gave an in-depth insight into all of the GMC’s fitness to practise cases in 2014.
One of the most important statistics from that report was that allegations of dishonesty made up 43 per cent (51 out of 119) of all fitness to practise cases (excluding hearings due to allegations that fitness to practise had been impaired by health factors, which are private) – by far the largest category.
This is just information from one regulatory body in one calendar year, but it nevertheless suggests how prevalent dishonesty is as a cause for regulatory investigations, highlighting the need for lawyers to be prepared to represent clients involved in these cases.
The GMC report uncovered deeper insights that are important for understanding the background to dishonesty cases, even if they do not necessarily inform the way that lawyers should act with specific clients. The biggest reason for allegations of dishonesty was that doctors had lied or withheld information regarding their qualifications and suitability for employment (44 per cent of work-related allegations). The other reasons were falsifying what was done at work (27 per cent), dishonesty regarding prescriptions (21 per cent), and other (8 per cent).
In terms of allegations regarding doctors’ personal lives, all three were made as a result of criminal convictions: two involved fraud and one ‘making a gain or causing a loss by deception with regards to a large retailer’.
There is an interesting trend regarding whether or not doctors admit to the allegations. Of the doctors facing allegations regarding their suitability for employment, just two out of 21 admitted to some or all of them, and none of the doctors admitted to any allegations regarding prescriptions. In contrast, nine of the 13 doctors accused of falsifying what they had done at work admitted to their allegations.
If a client admits dishonesty rather than having it proven against them, it will always make a difference to the quality of submissions that can be made at the sanction stage in relation to their insight.
Another key point of note if you are preparing to represent a client facing dishonesty charges is that the Medical Practitioners Tribunal Service (MPTS) considers dishonesty very difficult to remediate (though not impossible). Of the 48 work-related dishonesty cases, only five were considered to have demonstrated remediation.
The Ghosh test
While medical lawyers will already know what constitutes dishonesty in the context of fitness to practise cases, not all of our clients will. It is important that they are aware of how the fitness to practise panels will judge the extent of their dishonesty.
The Ghosh test (as set out in R v Ghosh  EWCA Crim 2) is the standard starting point for determining dishonesty in law, and it is known and used by the panels (see, for example, the General Pharmaceutical Council’s (GPhC) recommendation that the Ghosh test specifically should be applied in committee hearings). A simple way of explaining the Ghosh test to clients is that the panel will consider:
Whether what was done was dishonest according to the standards of an ordinary, reasonable person; and
If so, whether the individual themselves realises that what they have done was dishonest by those standards.
A practical reason for making a client aware of the Ghosh test is that they will then be able to assess more objectively whether they perceive their own actions to be dishonest, which could, in turn, lead to a better assessment of whether or not they should be prepared to admit some or all of the allegations in a hearing.
One thing that panels will also consider is whether or not the practitioner had reasonable insight into their actions. This is important for them to consider because they have to determine how likely the misconduct is to happen again.
Severity of sanctions
Allegations of dishonesty are treated very seriously by UK regulatory bodies, but that does not mean that a hearing will inevitably lead to suspension or erasure, and lawyers should not resign themselves to these outcomes for their clients. In order to get a clear picture of the sanctions, it is important to understand why medical regulators treat these cases so seriously, and what factors they consider when determining sanctions.
A statement from the General Optical Council (GOC) in a bulletin regarding dishonesty in fitness to practise is helpful here. The statement was made in a committee determination regarding a dishonesty case, and said clearly that it is the responsibility of a fitness to practise hearing to ensure that ‚the reputation of the profession is maintained (which is more important than the fortunes of the individual concerned)’.
An important part of regulatory panels’ role, as highlighted in this case from the GOC, is to protect the public perception of their particular profession. However, this does not mean that the panels are always ruthless.
Consider this quote from the GPhC: ‘The GPhC’s view is that cases of dishonesty can be complicated and that committees should carefully consider the context and circumstances in which the dishonesty took place... there should not be a presumption of removal in all cases involving dishonesty.’
We have seen this attention to context and circumstances played out in the case of Pauline Cafferkey’s NMC investigation. Although there were serious allegations of dishonesty brought against her, she was acquitted because the panel considered the early stages of Ebola would have impacted on her judgment at the relevant time, and so they concluded that there was no risk of future misconduct. While the regulatory bodies will not always demonstrate this kind of leniency, you should make sure that any mitigating factors or alternative causes of your clients’ dishonesty are brought before the panel, given that they may help to reduce the sanctions or even demonstrate your client’s lack of dishonesty.
Marie Dancer is managing partner at Richard Nelson and a member of the Medic Assistance Scheme