Any dishonesty is serious misconduct. Honest!

Dishonesty is a serious business when it comes to professional conduct issues. But how serious does the dishonesty have to be before the ultimate sanction of erasure from a professional practice list is justified? What approach will the disciplinary panel or the appeal court take in deciding what sanction is proportionate to the dishonesty?

Let’s take a look at the recent decision of the High Court in Dr Saima Alam –v- GMC (27/3/15) [2015] EWHC 854 (QB) that dealt with such issues in an interesting judgment that shows the serious category into which dishonesty cases fall.

This article will be of interest to those representing professionals accused of dishonesty – even though the tribunal concludes there was no or little advantage to be gained from the lies.

The allegations

In 2008 Dr Alam (a doctor registered with the GMC) sent fraudulent documents to the Medical Board of Queensland, Australia, in order to seek registration there as a doctor. She was caught lying. She was referred to the GMC (her regulatory body in the UK) and warned as to her behaviour, but no further action was taken.

Sadly, Dr Alam did not change her behaviour. Between 2009 and 2011, she lied in 5 documents submitted by her in relation to applications for employment or appraisals. So the GMC decided to take action, and she was placed before a Fitness to Practice Panel.

The Fitness to Practice Panel of the GMC

The panel found her unimpressive and lacking insight. It went on to find that the dishonesty amounted to serious misconduct. The fact she had repeated instances of dishonesty, and the risk of her acting dishonestly again, meant her fitness to practise was impaired. None of this is surprising to any of us.

The findings of fact that followed from the panel were very surprising.  The panel concluded it had not identified any motive for the lies or any gain from them. That might surprise you: they certainly surprised Mr Justice Morgan, who heard the appeal from the findings of the panel. The judge’s view was that it was obvious the lies were told to improve her prospects of success.

The panel concluded that, even though no motive or gain from the lies had been established, and even though otherwise Dr Alam appeared a very competent clinician (supported by several testimonials) with an otherwise unblemished record, her name should be removed from the register in order to protect the public from her repeated dishonesty and lack of insight.

The appeal to the High Court

The appeal was based solely on the sanction of erasure imposed. The issue for the court was whether the decision was “wrong” [CPR 52.11(3)(a)].

On appeal, a central issue was whether, based on the panel’s findings as to motive and gain, and the otherwise excellent mitigation available to Dr Alam, the sanction of erasure was disproportionate – and therefore wrong.

The interesting aspect of the judgment is that the High Court was bound by the findings of fact made by the panel.

The appeal therefore turned on whether dishonesty of this sort, even if committed by an otherwise good doctor with support from other medical staff, who had an unknown motive and gained nothing from her actions, merited the likely termination of her medical career. Was it wrong to erase her name from the medical list?

The conclusion of the court was straightforward. It was not wrong. The court concluded that for the panel to decide that erasure was appropriate fell well within the boundaries of discretion available to the panel. The fact that she had an excellent clinical record, had gained nothing from her lies, had been the subject of internal disciplinary procedures, and had no other findings of misconduct, were insufficient to make the decision wrong.

Conclusions

You might think that the sanction was harsh. It certainly was. Suspension from practise for a period of time was open to the panel. That was deemed insufficient to protect the public from the risk of harm. A dishonest but clinically competent doctor is unsuitable for professional practise. That seems a sensible approach for any regulatory panel to adopt.

The case shows that both disciplinary panels and the courts will take dishonesty from professionals very seriously. This is so even if the dishonesty has had no impact and no clear motive for or gain from the lies is proved. The panels have a wide discretion when making findings of fact. The appeal court will only interfere with such findings in a limited number of cases where the panel has clearly gone beyond the wide discretion given to it.

• See the High Court judgment in Alam v GMC.
• See the original findings of the Fitness to Practise Panel of the GMC.

Abdul Iqbal QC

Abdul Iqbal QC, called 1994, qualified as a pharmacist and has experience of clinical practise. He now specialises in regulatory and disciplinary law, together with serious criminal work (especially representing professionals charged with criminal or regulatory offences). Read Abdul’s profile and contact his clerk:

Contact Madeleine Gray on 0113 202 8603.