How can a professional have a fair chance before a Tribunal to resist allegations, particularly of dishonesty, without finding the resistance itself unfairly counting against them if they are unsuccessful?

This was the principle consideration in the case of Sawati v General Medical Council [2022] EWHC 283 (Admin).

Dr Sawati won a place at Manchester University to study medicine, graduating in 2012. By August 2013 she had completed the first year of her foundation clinical training and was embarking on her second. But she started to encounter setbacks.

The judgment state that matters came to a head in 2017 when, her second year of training still incomplete, she was reported to the General Medical Council (GMC). The GMC investigated concerns about both her performance and possible misconduct. These concluded in formal allegations, and regulatory proceedings before a Medical Practitioners Tribunal. Dr Sawati finally completed her foundation training in 2019. But on 17th August 2021, the Tribunal found a number of the GMC’s allegations proved, and ordered her erasure from the register with immediate effect. Her career as a doctor was ended before it had got fully under way.

Dr Sawati appealed the decision, arguing there were serious defects in the Tribunal’s approach to some of its findings of fact, and to its sanction decision, making the outcome wrong and unfair.

Mrs Justice Collins Rice refused the first ground of appeal finding that:

“My conclusion is that the Tribunal’s decision on the first allegation of dishonesty (patient record) is one that was at least open to it on the totality of the evidence, properly addressed. It was not ‘wrong’ in that sense. I am also unpersuaded there is significant irregularity in its approach or reasoning sufficient to render its decision opaque or unfair. The Tribunal was the proper primary fact-finder and I do not find a sufficient basis to disturb its factual findings. In the circumstances, the premise that this alleged defect in the first finding of dishonesty infects the others must also fail.”

However, on the second ground of appeal, i.e. that the basis of the sanction of erasure was wrong and/or procedurally unfair, Rice J dealt with the question as to how a professional have a fair chance before a Tribunal to resist allegations, particularly of dishonesty, without finding the resistance itself unfairly counting against them if they are unsuccessful?

Rice J commented that there are two possible routes to a rejected defence counting against an individual; “lack of insight” or “not telling the truth to the Tribunal.”

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But where a doctor unsuccessfully defends a dishonesty allegation, they are at risk of being found for that reason not to have told the Tribunal ‘the truth’ (about being dishonest) and therefore to be compounding the dishonesty – a predicament labelled before now as Kafkaesque.

Rice J commented that there are two important and fundamental public policy interests are in tension here.

The first is the right to a fair trial for doctors facing charges involving dishonesty, with a proper opportunity to resist potentially career-ending allegations. The second is the necessity for protecting patients and the public, who place a huge amount of trust in doctors (as indeed they must), from practitioners on whose honesty and integrity they cannot rely. These principles may be simply stated. How the tension between them is resolved on the facts of individual cases may be difficult.

Rice J noted that neither of these principles are “sophisticated or complicated” but the question is how best to approach the facts of a given case. Rice J continued by setting out the “guidance of principle, but also the pattern of relevant factors to which the appellate courts” have, and should, apply:

  1. the primary allegations against the doctor – The proper place of dishonesty (or other states of mind such as ‘deliberate’ and ‘knowing’) in the scheme of the allegations matters. A rejected defence of honesty may be more fairly relevant to an overall assessment of conduct where dishonesty (the noun) is the primary allegation – deceit, fraud, forgery or similar – than where ‘dishonestly’ (the adverb) is a secondary allegation, aggravating a primary allegation of other misconduct which may or may not be done honestly – or not a formal allegation at all.  
  2. what if anything the doctor is positively denying – There is a difference between denying ‘primary facts’ – what happened and what the doctor did or did not do – and denying ‘secondary facts’ – the evaluation of the primary facts through the lens of what the doctor knew or thought and the choices available to them. Resistance to the objectively verifiable is potentially more problematic behaviour (and more relevant to sanction) than insistence on an honest subjective perspective.
  3. whether there is evidence of lack of insight other than the rejected defence – Before a rejected defence is held to be relevant evidence of ‘lack of insight’, it is necessary to consider what other evidence of insight or lack of insight is present.
  4. the nature and quality of the rejected defence – ‘Not telling the truth to the Tribunal’, when not freshly charged in separate proceedings as akin to perjury, has to amount to something more than a failure to admit to an allegation (especially a secondary allegation of dishonesty) or a putting to proof, before it can properly count against a doctor.

Summarising the correct approach, Rice J said:

In short, before a Tribunal can be sure of making fair use of a rejected defence to aggravate sanctions imposed on a doctor, it needs to remind itself of Lord Hoffmann’s starting place that doctors are properly and fairly entitled to defend themselves, and may then find it helpful to think about four things: (i) how far state of mind or dishonesty was a primary rather than second-order allegation to begin with (noting the dangers of charging traps) – or not an allegation at all, (ii) what if anything the doctor was positively denying other than their own dishonesty or state of knowledge; (iii) how far ‘lack of insight’ is evidenced by anything other than the rejected defence and (iv) the nature and quality of the defence, identifying clearly any respect in which it was itself a deception, a lie or a counter-allegation of others’ dishonesty.

On the second ground of appeal and applying the approach above to Dr Sawati’s case, Rice J commented:

The Tribunal’s determination of sanction discloses serious irregularity and error of principle, sufficient in themselves to make it unjust. It failed properly to assess and/or articulate the gravity of the misconduct it had established, by failing to make any, or any sufficient, assessment of the seriousness of the primary misconduct by reference to Dr Sawati’s actions and their consequences; and of the seriousness of the dishonesty, including by reference to the ‘authoritative steer’ of the Sanctions Guidance and the examples given there. It failed to direct itself properly, fairly or at all to risks of injustice in regarding Dr Sawati’s rejected defences to the allegations of dishonesty as grounds for aggravating sanction and it is not possible to be satisfied from its determination that it nevertheless avoided those risks. I am not satisfied that it handled Dr Sawati’s case fairly, and reached a conclusion on sanction which was demonstrably just. 

She therefore allowed the appeal in part, ordering that the Tribunal’s sanction determination be quashed and remitted to a differently constituted Tribunal for a fresh determination of sanction. 

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