On 16 April 2021, a tribunal of the Medical Practitioners Tribunal Service (the tribunal) decided that the name of the Dr Sowida, the appellant, should be erased from the medical register and imposed an immediate suspension from practice order. They were based mainly on findings of serious misconduct amounting to dishonesty. The tribunal found that his fitness to practise was impaired by reason of misconduct, and that nothing less than erasure would be a sufficient sanction to protect the public.
- misapplied the tests of dishonesty in Ivey v. Genting Casinos (UK) Ltd (t/a Crockfords Club)  AC 391;
- made a procedurally unfair late amendment to the charges;
- made inconsistent findings of fact;
- impermissibly “cumulated” distinct findings of misconduct;
- at the impairment stage, lowered the test of dishonesty to that of recklessness; and
- at the sanction stage, wrongly approached the issue of insight into dishonesty.
The full facts of the case is outlined in paragraphs 5 to29 of the judgement.
Mr Justice Kerr, rejected the first three grounds of appeal but upheld grounds 4 to 6.
Regarding ground 4, Kerr J commented:
“…the tribunal failed to consider whether there was a large number of non-serious misconduct findings making up a series. The charge elevated to serious misconduct (charge 15b) was one in a series of only three. Moreover, the other two (charges 15a and 15c) were not the subject of findings of non-serious misconduct but of serious misconduct. The cluster was too small and the other two components of it were not the right ones.
“The cumulation exercise, if permissible at all, is supposed to involve the cumulation of non-serious with other non-serious misconduct findings; not of one non-serious misconduct finding with two findings of misconduct that is serious in its own right. In the latter context, there is no good reason to cumulate; the quality of the conduct is already correctly expressed, without the need for any cumulation.
“In the present case, as in Schodlok, there was no “last straw” as where a series of minor incidents, relatively trivial in themselves, when taken together is too serious to dismiss as not capable of impairing fitness to practise. There was nothing analogous to the series of minor niggling fouls in a football match, eventually cumulated to merit a yellow card, or even ultimately a red one.”
“Wherever the boundary lies between permissible and impermissible cumulation (which I do not attempt to decide), it is clear that the tribunal misapplied Schodlok by wrongly placing this case on the far side of that boundary. It ought not to have elevated charge 15b to the level of serious misconduct.”
Regarding the 5th ground, Kerr J said:
“I am troubled by the tribunal’s proposition, repeated three times, that Dr Sowida was “reckless … and therefore dishonest” because of the way in which he completed the first CV, the second CV and the job application to Birmingham Trust, “not caring sufficiently as to the accuracy of the contents”. The language used at the stage of determining the facts is harsher. The clear findings about the same conduct are of deliberate deception amounting to dishonesty. That language cannot be reconciled with the language used at the impairment stage.
“I am not willing to overlook the difference between dishonesty and recklessness on the basis that it is just a slip or a linguistic infelicity. I am left with the possibility that the true reasoning in the determination of the facts may be that Dr Sowida was dishonest because, as stated at the impairment stage, he was not careful enough about ensuring the accuracy of the contents of the first and second CVs and the form for the application to the Birmingham Trust.
“Whether that matters depends on whether it could have affected the outcome, a question I will consider shortly after addressing the sixth and final ground of appeal. The fifth ground is made out in the sense that there is a clear error in the tribunal’s reasoning.”
Finally, on ground 6, Kerr J said:
“The tribunal’s assessment of the evidence of dishonesty was not without its difficulties, as demonstrated by the success of the fourth and fifth grounds of appeal. The misplaced invocation of recklessness, in particular, is of concern. Could it have had some influence on the tribunal’s deliberations on impairment and sanction? That issue is best considered in the context of what remedy, if any, I should grant. I uphold the sixth ground and turn to consider that question.”
He finally concluded therefore that:
“The appeal has exposed three errors in the determinations which I have already identified: (i) erroneous treatment of charge 15b relating to the second incident as serious misconduct; (ii) the findings of recklessness in the provision of certain information in the first and second applications and in the second CV, at impairment stage, undermining the findings of dishonesty in respect of the same conduct, at the fact finding stage; and (iii) holding against Dr Sowida his refusal to admit to dishonesty, at the impairment and sanction stage.
“It follows that the decisions on impairment and sanction cannot stand unless I am entirely satisfied, all other things being equal, that the tribunal’s decision would inevitably have been the same even if it had not made these errors (R. (Smith) v North Eastern Derbyshire Primary Care Trust  1 WLR 3315, per May LJ at ). After careful reflection, I am not so satisfied.
“A tribunal reconsidering the matter unburdened by those errors could well reach the same conclusion that erasure is the only appropriate sanction. Dr Sowida may have something of a mountain to climb because of the principle famously stated by Sir Thomas Bingham MR (as he then was) in Bolton v Law Society  1 WLR 512, 519, that personal mitigation counts for less than in other contexts because of the imperative need to uphold and maintain public confidence in the profession.
“It is, however, possible that a different conclusion may be reached, as it was in Towuaghantse, where a second tribunal decided to impose a four month suspension after remission back from this court (a decision subject to a pending appeal). The tribunal in this case commented that Dr Sowida’s dishonesty was not necessarily irremediable. I think it is right that the impairment and sanction determinations should be reconsidered in the light of this judgment. I will therefore remit the proceedings to the Medical Practitioners Tribunal Service.
“I propose to make an order setting aside the finding of impairment and the sanction of erasure and directing that the impairment and sanction stages of the proceedings should be reconsidered, on the footing that (i) charge 15b should be treated as non-serious misconduct; (ii) the conduct found reckless at the impairment stage should not, in fairness to Dr Sowida, be treated as dishonest conduct; and (iii) the decisions on impairment and sanction must be taken without reference to or taking into account Dr Sowida’s decision to contest the allegations made against him or the manner in which he contested them.”