Sawati v GMC: Good character and considerations of dishonesty and rejected defences.

Dr Sawati was referred to the GMC as a junior doctor in 2017. The allegations of misconduct related to six separate incidents over a period of four years and included dishonesty. She also faced allegations of deficient professional performance. Dr Sawati denied dishonesty. Her good character was admitted as an agreed fact at the outset of proceedings. The MPTS panel found three allegations of dishonesty proved and further found that those allegations amounted to serious professional misconduct. The Tribunal went on to determine that Dr Sawati's fitness to practise was impaired, finding that all four limbs of Dame Janet Smith's test for impairment were engaged. The panel also found her fitness to practise impaired by reason of the deficiencies detailed in a 2018 performance assessment. The panel considered that erasure was necessary in the public interest.

Appeal

Dr Sawati appealed the decision, citing a procedural error in the factual findings of dishonesty, namely a failure to properly consider Dr Sawati's good character and communication difficulties, and the disproportionality of the sanction.

Previous Authorities

The High Court considered a number of previous authorities discussing the correct approach to good character, including:

- Donkin v Law Society [2007] EWHC 414 (Admin) "cogent evidence of positive good character" is relevant to consideration of dishonesty, although the weight to be attached to it is in the end a matter for the Tribunal;

- Wisson v Health Professions Council [2013] EWHC 1036 (Admin) (paragraphs 41-44). First, good character can go to credibility – how reasonable it is to believe or disbelieve what an individual says. Second, it can go to propensity – the probability that they have misconducted themselves. It may be considered less likely that an erstwhile blameless person has seriously misconducted themselves if they have never done so before;

- Martin v SRA [2020] EWHC 3525 (Admin) (paragraphs 51-54) "evidence of good character is relevant to credibility and to propensity in relation to allegations of dishonesty". The Court cautioned against overstating the significance of such evidence; it should not detract from the primary focus on the evidence directly relevant to the alleged wrongdoing. "Decisions as to the weight to be attached to particular parts of the evidence are pre-eminently a matter for the fact finder and ought not to be disturbed on appeal unless the decision is one that no reasonable tribunal could have reached";

- Khan v GMC [2021] EWHC 374 (Admin) The Judge accepted that in professional disciplinary proceedings good character is relevant to both credibility and propensity, but found it "impossible to infer that the Tribunal must then have left it wholly out of account" once it was established that the Tribunal had received submissions and a proper direction from the legally-qualified Chair about how to approach good character.

Judgment

From paragraph 92, the court concluded:

"From these authorities I derive the following. Whilst a disciplinary Tribunal must take good character evidence into account in its assessment of credibility and propensity, Donkin, supra, and Bryant, supra, show it is an error not to do so, it is not required slavishly in its reasons to give a self-direction to that effect (although if it does do so, there can be no room for argument – a proposition Ms Hearnden did not disagree with). It is sufficient, where the matter is raised on appeal, if the appeal court is able to infer from all the material that the Tribunal must have taken good character properly into account. That is the conclusion I reach in this case. It would be simply unrealistic to suppose that the Tribunal overlooked it, given what it had received orally and in writing including, most importantly, a clear direction from its legally qualified Chair, who was a constituent member of the Tribunal. In Donkin, supra, Maurice Kay LJ said at [25] that, 'I am not satisfied from the text of the stated Reasons that [good character] played any part in its consideration of dishonesty.' That, it seems to me, was a conclusion on the particular facts of that case. I have concluded that is not the situation here."

Mrs Justice Collins Rice rejected this ground and concluded in Dr Sawati's appeal:

"... on the face of the factual determination there is no obvious indication that the Tribunal had unfairly closed its mind on the question of Dr Sawati's credibility and honesty or adversely prejudged the other dishonesty allegations. It addressed itself to their respective merits. It did not find them all proved, or proved in all respects. If it looked for objective corroboration of Dr Sawati's accounts and explanations, and if it in all the circumstances preferred others' evidence to hers on an issue by issue basis, then it was on the face of it entitled to do that for the reasons it gave."

The High Court went on to carefully review the principles to be derived from the "rejected defence" authorities on the question of 'denial of allegations, insight and sanctions' (see paragraphs 81-102). In cases where allegations are denied and later found proved, the Court identified two potential means of this denial counting against a registrant. Firstly, the practitioner may be found to lack insight. This goes to potential future risk of repetition. In cases of dishonesty:

"77 ... there is a potential trap where the failing in question is a defect of honesty. Dishonesty is a serious charge against a professional, potentially putting a career at risk. Dishonesty is often said in general to be 'difficult to remediate'; it tends to be viewed as a defect of character. But if a doctor whose career is on the line denies dishonesty and finds their defence rejected, they are at risk of being found for that reason to 'be in denial' about, or 'lack insight' into, their fault – and 'difficult to remediate' is converted into 'irremediable'.

78. The second route is 'not telling the truth to the Tribunal'. How a professional responds to formal proceedings may be relevant to an overall assessment of their professionalism: putting the public's interests ahead of their own, integrity and candour, and other important considerations may be engaged, as well as insight and remediability. Lying to Tribunals and putting forward disingenuous or meretricious defences cannot be expected to be consequence-free."

Although not all the authorities considered by the Court are rehearsed here, it is worth considering the judgment in Sayer v General Osteopathic Council [2021] EWHC 370 (Admin) (paragraph 25):

"(1) Insight is concerned with future risk of repetition. To this extent, it is to be distinguished from remorse for the past conduct.

(2) Denial of misconduct is not a reason to increase sanction.

(3) It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it.

(4) However, attitude to the underlying allegation is properly to be taken into account when weighing up insight. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight.

(5) The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere."

The High Court summarised the principles to be derived from the case law:

"109. 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.

110. These are all evaluative matters. Tribunals need to make up their own minds about them, and their relevance and weight, on the facts they have found. But they do need to direct their minds to the tension of principles which is engaged, and check they are being fair to both the doctor and the public. They need to think about what they are doing before they use a doctor's defence against them, to bring the analysis back down to its simplest essence."

Analysis

Dr Sawati's appeal was ultimately successful on the second ground. The Court found that the Tribunal failed properly to assess and/or articulate the gravity of the misconduct it had established, or the seriousness of the dishonesty. 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 and, as a result, Dr Sawati's case was not handled fairly and justly. The Tribunal's sanction determination was quashed and the case remitted to a differently constituted Tribunal for a fresh determination of sanction.

The case highlights the correct approach panels should take when considering how to approach rejected defences. The reader-friendly judgment should be read in full and drawn to the attention of legal advisers in Fitness to Practise proceedings.