The risks of wrongly cumulating findings of misconduct

Dr Bashir Ahmedsowida v General Medical Council [2021] EWHC 3466 (admin)

In Ahmedsowida, Mr Justice Kerr made an order setting aside the findings of impairment and erasure, and remitting the matter back to the Medical Practitioners Tribunal Service (MPT) to reconsider the impairment and sanction stages. The appeal was bought on six grounds, and the administrative court found three errors in the MPT’s determinations.

Firstly, His Honour found that the MPT misapplied Schodlok v GMC [2015] EWCA Civ 769. Kerr J agreed with the Appellant, that the MPT had “failed to consider whether there was a large number of non-serious misconduct findings making up a series” [110]. He stated that:

Secondly, His Honour considered the question of whether the MPT had wrongly diluted the test of dishonesty. His Honour was “troubled” by the proposition, repeated at three points in the reasoning of the determination, that the Appellant was “reckless…and therefore dishonest” [123]. His Honour said he was “left with the possibility that the true reasoning” in the factual determination may have been that the Appellant was dishonest because, as the MPT stated at the impairment stage, he was not “careful enough about ensuring the accuracy” of his two CVs and the form for his application to the Birmingham Trust [124].

Thirdly, Justice Kerr accepted that, at the sanction stage, the MPT had wrongly approached the issue of the Appellant’s insight into dishonesty.  His Honour agreed with Mostyn J’s formulation of the principle in Towuaghantse v GMC [2021] EWHC 681 (admin) at [63], that:

Kerr J found that it was clear from the MPT’s determination that the MPT had held against the Appellant for his refusal to admit to dishonesty.

Comment

The case reminds regulatory practitioners to be alive to the risks of a conduct committee wrongly cumulating findings of misconduct, and of equating a robust defence of charges to a lack of insight, and thereby facing a more serious outcome.