High Court success for GMC after Medical Practitioners Tribunal fails to grapple with concerns about Doctor's evidence

General Medical Council (GMC) v Lamming Queen's Bench Division (Administrative Court), 18 December 2017 [2017] EWHC 3309 (Admin)

In 2007 Dr Lamming (Dr L) was erased from the register for dishonest misconduct. In 2017 Dr L made an application for restoration. On 10 February 2017 following a hearing in which the GMC resisted the doctor’s application, the Medical Practitioners Tribunal (MPT) granted Dr L’s application and restored his name to the register. The GMC appealed the decision on the basis that the MPT’s decision failed to properly address the GMC’s concerns about Dr L’s evidence or reach proper conclusions.

Background

In 2004 Dr L was suspended from the register for dishonestly claiming to have a PhD on his CV which he did not possess and making other false or misleading claims about his qualifications and experience. In those proceedings, the Panel rejected Dr L’s evidence about how those representations came to be made and stated “your demeanour as a witness showed little insight into the seriousness of your repeated dishonest actions”.

After the suspension elapsed, Dr L returned to practice but was disciplined again in 2007 for dishonestly retaining £31,275.80 paid to him by the NHS in error between January 2000 and November 2000. At the relevant time he was on study leave in the United States and so was not entitled to keep this money. It was not until the Trust realised that overpayments had been made that the payments were stopped. When the Trust contacted Dr L about the overpayments, he gave untrue explanations as to why he thought he had been entitled to them. It was Dr L’s retention of this money and his subsequent untrue explanations to the Trust that led to the disciplinary proceedings and resulted in his name being struck off the GMC’s register.

The Panel in the 2007 proceedings found that Dr L had defrauded his employer and rejected his explanations as to the circumstances surrounding how the overpayments were made. The Panel concluded that Dr L’s conduct in retaining the money and claiming that he had been entitled to the money was “dishonest, unprofessional and likely to bring the medical profession into disrepute”.

The Panel noted in its decision the seriousness of Dr L’s conduct and that he had changed his evidence to them on more than one occasion. Initially, Dr L claimed in his evidence that he was surprised when he received the money. He later said that he thought that the money received was funding granted for him to study overseas. He then later claimed that he thought the money was a loan from the Deanery. The Panel went on to state that it had “grave concerns that your dishonest actions amount to a serious and deep-seated behavioural problem, leading to a significant risk that this behaviour may be repeated”.

The 2017 proceedings

The burden of satisfying the MPT that his application for restoration should be allowed rested upon Dr L. He provided two witness statements in support of his application and gave oral evidence to the MPT. However, copies of the previous disciplinary decisions were also before the MPT as were the transcripts of the previous hearing. The latter contained Dr L’s previous explanations to the 2007 Panel which differed to the explanations given in his 2017 evidence.

The GMC opposed Dr L’s application for restoration on the following basis:

The 2004 and 2007 proceedings demonstrated that Dr L had a propensity to be dishonest
That his account to the MPT in 2017 about how he had come to retain the salary in the previous proceedings differed markedly from the explanations he gave in the 2007 proceedings
The second point above demonstrated a refusal to accept that what he had done was wrong
Overall, there was a lack of insight into his dishonest behaviour and showed a continuing propensity to be dishonest

The MPT decision

The MPT noted the inconsistencies between Dr L’s evidence at the 2007 and 2017 hearing and the GMC’s invitation to find that it demonstrated a propensity to be dishonest. Before granting Dr L’s application for restoration to the register the MPT stated:

“However, in accordance with its earlier decision not to re-litigate the facts founds proved by the 2007 Panel, the tribunal gave far more weight to your responses to the questions put to you by the tribunal itself, which went to the issue of insight.

You demonstrated a clear understanding of the nature of dishonesty, and whilst maintaining that you had never set out to defraud the Trust, you recognised fully that your subsequent behaviour was dishonest. You also appreciated that you were solely to blame, which had not been the case at an earlier stage of your life. You were ‘mortified’, humiliated, and deeply regretful for your behaviour at the relevant time. The tribunal felt that your evidence at that stage of the hearing was sincere and truthful”.

The MPT also noted that Dr L had reflected and learned since 2007 and had recently completed a course ‘Ethical Leadership: Character, Civility and Community’. The MPT concluded that the dishonest conduct had been remediated and was “highly unlikely” to be repeated.

The appeal

The GMC appealed the MPT’s decision to restore Dr L’s name to the register. The main ground was that the MPT did not adequately address important aspects of the GMC’s concerns in its decision. The GMC argued that the MPT failed to grapple with the inconsistencies in Dr L’s evidence and whether or not he was a trustworthy witness. The failure to address this crucial part of the decision making process, undermined their later conclusions about his insight, remediation and propensity to be dishonest.

The High Court agreed. Mr Justice Knowles confirmed that the starting point for the MPT considering restoration was whether Dr L had provided sufficient evidence to enable the MPT to resolve the concerns identified by the previous Panel, in his favour.

However, before embarking upon this exercise Mr Justice Knowles confirmed (paragraph 85) that in order to determine the question of propensity and insight “it was incumbent on the Tribunal to grapple with Dr Lamming’s various accounts and come to a conclusion about what had changed, and why it had changed”.

In summary, the High Court found that the MPT had noted the inconsistencies in Dr L’s evidence but did not consider them in detail or at all. Mr Justice Knowles highlighted the wording of the MPT’s decision (underlined as above), which set out their conclusion that Dr L was sincere and truthful when answering their questions, but also made no explicit conclusion about the evidence he gave in examination in chief or cross examination. Mr Justice Knowles noted that the MPT’s decision:

“carries the clear implication that the Tribunal felt that Dr Lamming’s evidence at other times during the hearing had not been “sincere and truthful”. But if that were the case the Tribunal had, in my judgment, to confront that lack of truthfulness head on and consider and reach conclusions about its impact on the overall issues that it had to consider”.

Accordingly, Mr Justice Knowles concluded that the MPT’s reasons were plainly legally deficient and quashed the decision to restore Dr L to the register. Dr L’s application will now be remitted to a freshly constituted Panel.

Conclusion

This case confirms that disciplinary Panels should give reasons that are adequate and those reasons must be intelligible and meet the substance of the arguments advanced. Where a regulator identifies concerns about important inconsistencies in an applicant’s evidence, the Panel needs to deal with any inconsistencies head on in its decision. Failure to do this could undermine its subsequent conclusions in respect of propensity, insight and the risk of repetition.

For applicants wishing to apply for restoration, any explanations of previous misconduct given in an application will likely be scrutinised against accounts given previously. Therefore, any temptation to sweep previous accounts under the carpet ought to be resisted. Before any re-framing of past misconduct is done, a detailed and careful analysis of previous decisions must be undertaken to risk assess the extent to which a new account or explanation contradicts a previous version.

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