Atkinson v General Medical Council

Erasure from the medical register is not inevitable in every case of proven dishonesty. A lesser sanction may be appropriate where there is compelling evidence of insight and the dishonesty appears isolated or out of character. Persistent dishonesty connected with obtaining medical employment, followed by attempts to conceal it, may nevertheless be fundamentally incompatible with continued registration. In assessing sanction, the tribunal must balance the practitioner’s interests against patient protection, public confidence and proper professional standards. The sanction must be proportionate and is not imposed as punishment, although it may have a punitive effect. An appellate court should be slow to interfere with factual findings based on oral evidence and should intervene on sanction only where the decision is wrong in all the relevant circumstances.

The claimant appealed under the Medical Act 1983 against a Fitness to Practise Panel’s decision directing her erasure from the medical register. The panel had found that she committed numerous dishonest acts over several years, principally by misstating qualifications and medical experience to obtain employment and training posts, and had continued to provide dishonest or misleading accounts during investigations and before the panel.

The appeal principally challenged the finding that she had lied to the panel about holding a physics degree and contended that erasure was disproportionate. The central issues were whether the finding of dishonesty was open to the panel and whether, even without that finding, erasure was wrong in all the circumstances.

1. Appeal dismissed. The panel was entitled to find that the claimant had been evasive and dishonest in her evidence concerning her alleged BSc in physics. Although a tribunal should be slow to infer dishonesty where confusion, inconsistency, incomprehension or language difficulties may explain the evidence, the questioning had to be assessed as a whole. The claimant’s evidence concerned the central issue in the disciplinary proceedings, and the panel could properly reject her explanation.
2. The appellate court should be slow to interfere with findings of fact made by the tribunal that saw and heard the witness. The claimant’s first language, stress, lack of representation, psychiatric examination and personal difficulties required consideration, but did not prevent the panel from reaching its conclusion.
3. Even if the panel should not have characterised the evidence as deliberate dishonesty, the uncontested findings independently justified erasure. The dishonesty was persistent, extended over more than five years, related directly to securing medical employment, and included attempts to conceal earlier deceit from senior staff, the police and the GMC. The claimant’s clinical competence was a factor in her favour, but did not outweigh the need to maintain public confidence and proper standards in the profession.
4. Erasure is not automatically required whenever dishonesty by a medical practitioner is proved. A lesser sanction may be appropriate where there is compelling evidence of insight and the dishonesty is isolated or out of character. This case did not contain sufficiently reliable evidence of rehabilitation. The panel’s use of the GMC’s Indicative Sanctions Guidance was appropriate: the guidance had to be taken into account, but was not legally binding. The purpose of sanction was not punitive, although it could have a punitive effect.
5. The panel’s decision was not wrong in all the relevant circumstances. The claimant was granted detailed assessment of public funding.

The judgment does not state any earlier judicial decision. The appeal was brought against the Fitness to Practise Panel’s sanction decision of 11 June 2009.