The Scottish Court of Session has overturned a MPTS decision and substituted it with a full erasure, following an appeal by the PSA.
In Appeal by The Professional Standards Authority for Health and Social Care against a Decision of the Medical Practitioners’ Tribunal [2022] Scotcs Csih_37 (18 August 2022), the Medical Practitioners Tribunal (MPT) determined that a doctor’s fitness to practise was impaired by reason of her misconduct; in particular that she had acted dishonestly, misled her employer and as a result had carried on practising as a doctor when she ought to have been suspended.
By way of sanction, the MPT imposed a suspension of 12 months, being the most severe sanction available short of erasure.
The Professional Standards Authority for Health and Social Care (PSA) challenged the decision on the basis that the sanction is not sufficient for the protection of the public. The PSA argued that given the doctor’s past dishonesty, in relation to which she had previously received a period of suspension, only erasure was appropriate in the present case. The previous dishonesty related to her misrepresenting to supervisors the volume of work that she had carried out on projects while on attachment and, separately, she had misled colleagues and supervisors as to the status of a journal article.
It was also contended that the decision was not sufficient to maintain public confidence in the medical profession and to maintain professional standards and conduct in that profession. The court is asked to quash the decision insofar as it relates to sanction and to substitute a sanction of erasure.
The General Medical Council (GMC) adopted a neutral position on the appeal. The appeal proceeded unopposed on the basis of full written submissions from the Authority alone.
The decision on sanction
The GMC sought to have Dr Austin’s name erased from the medical register. It contended, and the MPT accepted, that there were various aggravating factors relating to her dishonesty and that there were no mitigating factors.
In opting for a suspension, the MPT’s reasons were recorded as:
“The MPT considered whether suspension would be appropriate or proportionate. It noted that suspension had a deterrent effect and would be appropriate where the misconduct fell short of being fundamentally incompatible with continued registration, where only erasure would be appropriate. Although the reputation of the profession as a whole was more important than Dr Austin’s individual interests, the MPT considered that there was a potential for remediation such that erasure would not be in the public interest.
“Remediation would be difficult, but there was a successful pathway to it. That being so, erasure would not be proportionate. Suspension for twelve months was sufficient to send a clear message to Dr Austin, the profession and the wider public that this type of behaviour was unacceptable.”
Lord Pentland upheld the appeal saying:
“…we consider that Dr Austin’s persistent dishonesty was so grave as to be wholly incompatible with her continued registration as a doctor. Honesty lies at the very
heart of the profession of doctor. Such repeated dishonesty as occurred in the present case carries with it the potential to undermine completely public confidence in the medical profession. In the circumstances, we are satisfied that erasure was the only sanction that could properly have been imposed. In Good medical practice persistent dishonesty is expressly stated to be one of the grounds justifying erasure. We consider that the guidance on this point is directly applicable in the circumstances of the present case.”We shall allow the appeal, quash the MPT’s decision of 15 December 2021 insofar as
it relates to the sanction imposed, and substitute for that sanction an order that Dr Austin’s name be erased from the register of medical practitioners. We have reserved all questions of expenses.
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