Fish v The General Medical Council

A professional disciplinary tribunal should find dishonesty only on solid grounds. The allegation must be clearly particularised, fairly put and adjudicated directly. Although the civil standard of proof applies, the seriousness and professional consequences of the allegation require careful scrutiny of the evidence.

On a statutory appeal, the court should respect factual findings based on the tribunal’s assessment of witnesses. It may nevertheless take a different view where it suffers no material disadvantage from not hearing the evidence. A tribunal cannot fairly uphold one component of an alleged fraudulent scheme as a free-standing act of dishonesty where the case was presented as an indivisible package, the associated misconduct was not proved, and the remaining inference lacks evidential and logical support.

A consultant anaesthetist appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s finding that he had dishonestly removed declarations of truth from locum timesheets. The Panel had rejected associated allegations that he had overclaimed working hours, but suspended his registration for 12 months on the basis of the declaration finding.

The principal issues were whether the Panel had sufficient evidence to infer deliberate deletion, whether that inference remained logically sustainable after the overclaiming allegation failed, and whether the Legal Assessor’s advice was inadequate. The appeal also required the court to consider the proper appellate approach to a professional tribunal’s factual findings.

1. The appeal was allowed. The Fitness to Practise Panel was wrong to find that the appellant had deliberately deleted the declarations. The finding under paragraph 5(b)(iii), and the sanction imposed in consequence of it, were set aside.

2. An appeal under section 40 of the Medical Act 1983 is determined by asking whether the Panel’s decision was wrong. The appellate court should be slow to interfere with findings dependent upon witnesses whom the Panel saw and heard. It must nevertheless examine all the material for itself. Where the court suffers no material disadvantage from the absence of live evidence, it may reach a different conclusion in an appropriate case.

3. A finding of professional dishonesty should rest on solid grounds. The allegation should be made for good reason, clearly particularised and fairly put to the person concerned. It must be articulated, addressed and adjudicated directly, rather than found indirectly or by default. Those safeguards do not alter the applicable balance-of-probabilities standard.

4. The case presented by the General Medical Council linked deletion of the declarations to fraudulent overclaiming. The Panel did not find the alleged overclaiming proved. Although the charges could grammatically have been treated separately, the declaration allegation had not been advanced as an independent case. The allegations formed a package which, as presented, stood or fell together.

5. The inference of deliberate deletion was also inherently weak. Removing a prominent declaration would have drawn attention to any intended overclaiming. If the hours were correct, deletion served no apparent purpose. The agency could not produce contemporaneous electronic evidence showing that the relevant forms, as sent, contained the declaration. Taken together, these matters displaced any evidential balance favouring deliberate deletion.

6. The Legal Assessor was not required in every dishonesty case involving a practitioner of previous good character to give advice derived from Re B and Re Doherty. Advice must be fashioned to the particular case. Any Lucas-based advice should likewise address the actual issues and possible innocent explanations for an untruth. Those observations did not provide the basis upon which this appeal was allowed.

1. High Court (Administrative Court): The appeal was allowed. The finding that the appellant had dishonestly removed the timesheet declarations, and the resulting suspension, were set aside: [2012] EWHC 1269 (Admin).

2. Fitness to Practise Panel of the General Medical Council: The Panel found the declaration allegation proved and, on 12 January 2012, directed the appellant’s immediate suspension from the Medical Register for 12 months. It dismissed the associated accommodation and overclaiming allegations.