Jenyo v The General Medical Council

An appellate court reviewing a fitness to practise decision must respect the tribunal’s advantage in seeing and hearing witnesses. It should interfere with findings of primary fact only where they are plainly wrong or fall outside the generous ambit of reasonable disagreement. A panel must consider an alternative innocent explanation for alleged dishonesty in light of all the evidence, but need not recite every factor relied upon by the doctor. The ease with which retrospective electronic amendments could be detected by an audit is neutral on the issue of dishonest intention. Reasons are adequate where they make clear why the doctor’s explanation was rejected; express reference to every supporting factor is unnecessary.

Dr Robert Jenyo appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s decision to erase him from the medical register. The Panel found that he had acted dishonestly by retrospectively altering the electronic records of a patient who later died of cancer, after concerns about the patient’s treatment had been raised and after litigation commenced.

The appeal challenged the finding of subjective dishonesty and the adequacy of the Panel’s reasons. The appellant argued that the electronic audit trail, the absence of any permanent alteration, and his explanation that he intended to clarify the records pointed towards innocence.

1. Appeal dismissed. The appeal jurisdiction under CPR r. 52.11 permitted intervention only if the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. Where disputed facts depend on oral evidence and credibility, substantial deference is owed to the specialist tribunal that saw and heard the witnesses. Findings of primary fact are virtually unassailable and should be disturbed only where plainly wrong or where objective grounds show that the conclusion falls outside the generous ambit within which reasonable disagreement is possible.
3. The Panel was required to consider the appellant’s innocent explanation by reference to the probabilities, the context and the evidence as a whole. That did not require it to recite every factor relied on in submissions. The Panel considered the explanation, assessed the appellant’s credibility, examined the timing and nature of the amendments, and gave cogent reasons for rejecting it.
4. The fact that the electronic records retained an audit trail, making the amendments discoverable, was neutral on the issue of dishonest intention. It did not make dishonesty impossible or materially less probable. A person might take the chance that no audit would occur or seek to explain the amendments innocently if they were discovered.
5. The Panel was entitled to find that the amendments created a misleading clinical picture, improved the appellant’s position in anticipated negligence proceedings, and were made dishonestly. Its conclusion remained within the permissible range even if one particular amendment might have been evaluated differently. The reasons were sufficient because they made clear why the appellant’s explanation was not believed. The appeal was dismissed.

• High Court (Administrative Court): Appeal against the Fitness to Practise Panel’s determination dated 9 July 2015. Appeal dismissed.