Patricia Rogers, R (on the application of) v The General Medical Council

The realistic prospect test for referring fitness-to-practise allegations has two limbs. First, there must be a realistic prospect that the alleged facts will be proved. Only if that limb is satisfied does the question of current impairment arise. A presumption of impairment for dishonesty operates at the second limb and does not remove the need to assess whether the alleged conduct is realistically capable of proof.

A retrospective medical-record entry may be dishonestly motivated even if its contents are accurate. Decision-makers must consider that issue separately. Case examiners must give adequate reasons, engage with material expert evidence and assess the public-confidence and professional-standards aspects of impairment. Failure to do so may render both the original decision and a review decision unlawful.

The claimant sought judicial review of the General Medical Council’s decision not to refer allegations concerning Dr Faisal Patel to a Medical Practitioners Tribunal. Dr Patel admitted making retrospective, undated and unexplained amendments to the clinical records of the claimant’s late partner, Victor Loder, shortly after learning of his cancer diagnosis.

The allegations included making improper amendments, including untrue information, acting dishonestly, and intending to avoid potential allegations of failings in care. The Case Examiners declined to refer the allegations, and the GMC upheld that decision on review. The central issues were whether the Case Examiners applied the realistic prospect test correctly, whether they separately considered the alleged dishonest motivation, and whether their reasons adequately addressed expert evidence and current impairment.

1. The claim succeeded on Grounds 3 and 4. The decisions of 6 September 2022 and 9 February 2023 were quashed insofar as they concerned Allegations 1, 2 and 5. Those allegations were remitted for reconsideration by the Case Examiners.
2. The realistic prospect test has two limbs. Limb 1 asks whether there is a realistic prospect that the alleged facts will be proved. Limb 2 asks whether, if proved, there is a realistic prospect that the doctor’s fitness to practise would be impaired to a degree justifying action on registration. The Guidance’s presumption of impairment in dishonesty cases applies only to Limb 2, after Limb 1 has been satisfied.
3. The Case Examiners were entitled to conclude that Allegations 3 and 4 did not satisfy Limb 1. They were entitled to assess the weight of documentary evidence and to avoid resolving substantial conflicts of recollection based only on documents. The presumption of impairment was therefore not engaged for those allegations.
4. The Case Examiners nevertheless erred in relation to Allegation 5. The fact that a retrospective entry might be accurate did not exclude a realistic prospect that it was dishonestly motivated. The Case Examiners failed properly to consider the timing, substantial nature and undisclosed manner of the amendments, the explanation offered for them, the circumstances in which they were discovered, and Dr Patel’s credibility. They appeared to accept his correspondence without sufficient critical analysis.
5. In relation to Allegations 1 and 2, the reasons for concluding that there was no realistic prospect of current impairment were inadequate. The Case Examiners failed properly to engage with the Independent Expert’s strongly expressed criticism that the amendments were misleading, seriously below professional standards and damaging to the reliability of medical records. They also failed to consider the expert’s concerns about insight, the twofold requirement to date and explain retrospective amendments, and the effect on public confidence and professional standards.
6. The GMC review decision was itself unlawful because it failed to identify those material flaws and unreasonably concluded that the expert evidence had been given appropriate weight.

First-instance judicial review proceedings. The decisions of the GMC Case Examiners and the subsequent GMC review were quashed in part and remitted to the Case Examiners for reconsideration.