Honesty is the best policy
The obligation to uphold professional standards by acting honestly and with integrity is enshrined in the standards of professional conduct for all healthcare professionals. Paragraph 56 of Good Medical Practice describes such mandatory traits as being “at the heart of medical professionalism”.
When will a finding of dishonesty be justified? In many cases the answer to that question will be obvious but in cases on the margin much may turn on the legal test for dishonesty that is applied.
Legal tests for dishonesty
In the context of criminal proceedings the settled position is encapsulated in the following comments of Chief Justice Lord Lane in the case of R v Ghosh  1 QB 1053:
“…a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter…”
“It if was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest…It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did…”
By contrast, in private civil litigation the test for dishonesty is that set out in Twinsectra Limited v Yardley  2 AC 164. That test differs from the Ghosh test in that it does not include a requirement to find that the defendant must have realised that his actions were dishonest.
Professional disciplinary proceedings
The Ghosh test has been applied in a wide range of professional regulatory proceedings, albeit in proceedings which are civil in nature and in which the civil standard or proof applies. Many regard that as properly reflecting the quasi-criminal nature of such proceedings.
In Professional Standards Authority for Health and Social Care v Health and Care Professions Council and Elizabeth Abosede David  EWHC 4657 (Admin), Mr Justice Popplewell considered that the appropriate test to apply was the Ghosh test but noted that it “may require some further modification in its application to disciplinary proceedings…” The test was arguably framed in more favourable terms for the purposes of professional disciplinary and regulatory hearings following the decision in Hussain v GMC  EWCA Civ 2246. Lord Justice Longmore clarified that the clinician should be judged by reference to doctors (or the equivalent discipline) and not the ordinary man on the Clapham omnibus.
In a detailed analysis in Kirschner v GDC  EWHC 1377 (Admin) Justice Mostyn suggested that one test for dishonesty should apply in all civil proceedings regardless of their context. He advocated the test discussed by the Privy Council in Barlow Clowes International Ltd v Eurotrust International Ltd  UKPC 37, which involved a modification of established Twinsectra principles. Justice Mostyn went on to say that, “…the only relevant mental state of the defendant accused of dishonesty in civil proceedings is his or her knowledge”. That would represent a significant step down from the criminal test, or indeed the modification in Hussain, but Justice Mostyn felt unable to adopt his preferred approach because of the constraints of established authority.
As Mr Justice Foskett rightly noted in Fish v GMC  EWHC 1269 (Admin), allegations of dishonesty are amongst the most feared by professional people and they are “…often easily made…not easily defended and…can be…career-ending”. Findings of dishonesty give rise to a very real risk of a lengthy suspension or erasure given that it is invariably positioned at the higher end of the scale in respect of sanction. This is illustrated by the GMC’s Indicative Sanctions Guidance which makes it clear that, “Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor’s clinical responsibility, is particularly serious because it can undermine the trust the public place in the profession”.
Given the possibility of serious consequences and the complexities of the law in this area, it is prudent to take advice at an early stage in any proceedings where allegations of dishonesty are raised.
For further information or advice please contact:
Partner and Solicitor
T. 0207 227 7418
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.