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Uddin v. General Medical Council

The court stated obiter that in considering issues of dishonesty in fitness to practise cases, the General Medical Council had to take care in applying the Ghosh test of dishonesty, which was devised in a criminal law context, as it was clear that the standard of proof in the context of fitness to practise cases was the civil and not the criminal standard.

The appellant general practitioner (U) appealed against the decision of a fitness to practise panel of the respondent General Medical Council, finding her guilty of misconduct and erasing her name from the medical roll.

U and her husband, through a company they owned, had purchased a care home. Under the relevant employment legislation the employees of the care home including the manager (H) were transferred to the company. H resigned and an employment tribunal found that she had been unfairly dismissed. U referred H under the Protection of Vulnerable Adults (POVA) scheme and H was placed on a list barring H from working with vulnerable adults. That decision was later reversed. H referred U to the GMC. After applying the Ghosh test of dishonesty the panel made five findings of dishonesty. It found that her conduct in referring H to POVA was misleading and irresponsible, that the witness statements submitted by U had been falsified and that she should have ensured that the material sent to POVA to substantiate the referral was accurate. The panel found that her fitness to practise had been impaired, that she was guilty of misconduct and that her behaviour would damage the public trust in the profession and bring it into disrepute. The panel concluded that erasure from the roll was the only appropriate sanction. U challenged the panel’s findings on dishonesty.

HELD: (1) The panel’s findings of dishonesty were flawed and could not stand. The matter would be submitted to a fresh panel for reconsideration, Bhatt v General Medical Council [2011] EWHC 783 (Admin) and Southall v General Medical Council [2010] EWCA Civ 407, [2010] 2 F.L.R. 1550 considered. (2) (Obiter) In future, in considering issues of dishonesty, the GMC had to take care in applying the test in Ghosh, which was devised in the criminal law context, as it was clear that the standard of proof in the instant context was the civil and not the criminal standard. Even in the criminal context, it was not the general practice to give a Ghosh direction in all cases and the advice given by the Judicial College to Crown Court judges was that no direction was required on the meaning of dishonesty and a Ghosh direction was given where an issue was raised as to whether a relevant charge was dishonest by the standards of ordinary people. The real issue was whether the conduct took place and whether it was known that it was false or that it was innocent or negligent.

Appeal allowed.

Counsel for the appellant: Mary O’Rourke QC, Nadia Motraghi

LTL 23/7/2012