QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Professional Standards Authority for Health and Social Care
|- and –
|(1) The General Medical Council
(2) Mr Andrew Hilton
Mr Richard Booth QC (instructed by DWF Law LLP) for the Second Respondent
Hearing dates: 22 May 2019
Crown Copyright ©
Mr Justice Freedman:
II Powers of the Tribunal
(1) Where an allegation against a person is referred under [section 35C(5)(b)] above to [the MPTS—
(a) the MPTS must arrange for the allegation to be considered by a Medical Practitioners Tribunal, and
(b) a Fitness to Practise Panel, subsections (2) and (3) below shall apply.
(2) [Where the Medical Practitioners Tribunal] find that the person's fitness to practise is impaired they may, if they think fit—
(a) except in a health case [or language case], direct that the person's name shall be erased from the register;
(b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(c) direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirements so specified as [the Tribunal] think fit to impose for the protection of members of the public or in his interests.
(3) Where [the Tribunal] find that the person's fitness to practise is not impaired they may nevertheless give him a warning regarding his future conduct or performance."
III Factual Background
"You carried out a spinal fusion of L2/L3 on March 26th 2014. I am still having problems with back issues …
My son took a photograph of the x-ray two days after you carried out the procedure and it appears to show that one screw was not in place from day one.
[There then followed various numbered questions]
4. Why was I repeatedly informed by you over the course of my appointments that my x-rays appeared normal; evidently this is not the case?"
"I have reviewed your imaging during and since surgery …
I confirm that the right superior L2 screw is placed laterally and therefore may not be in full contact with bone.
[There then followed the answers to the numbered questions]
With regard to your post-operative x-rays, there was a suggestion that the right L2/3 may be placed too laterally, however as I understood your progress was good, I felt that this did not require any further investigation."
"41. This is the crux of this determination on impairment. The central issue is the public interest in the promotion and maintenance of public confidence in the medical profession and the promotion and maintenance of proper professional standards and conduct in that profession [emphasis added].
42. This was an isolated incident at a meeting with Patient A on 2 November 2016, over two years ago. The Tribunal bore in mind the particular circumstances in which the dishonest conduct occurred: this was a difficult meeting between a former patient and a conscientious doctor who knew he had made a mistake and wanted to explain his actions to the patient in such a way as to minimise worry and concern for Patient A. In so doing he lost sight of the need to be open and transparent …
45. The Tribunal recognises that the Respondent did not make formal admissions to the allegation of dishonesty at the meeting; nor did he formally admit that the comments asserted in the allegation were "untrue". The Tribunal is somewhat perplexed by this, given his continued and consistent admissions, but relies in any event on the Respondent's own statements and correspondence with the GMC which make it clear that he, at no time, shied away from admitting what he said to Patient A.
52. Dishonesty is a breach of a fundamental tenet of the profession. Being honest and trustworthy and acting with integrity are at the heart of medical professionalism.
53. The Tribunal took into account that doctors occupy a position of privilege and trust. They are expected to act in a manner which maintains public confidence in them and in the medical profession and to uphold proper standards of conduct. The Respondent's conduct was dishonest. The Tribunal concluded that his conduct brought the profession into disrepute and breached a fundamental tenet of the medical profession.
54. The Tribunal recognises that these proceedings alone are not sufficient to meet the requirement of maintaining public confidence in the profession and the regulator or standards in the profession [emphasis added].
55. This is a very unusual case. The dishonesty occurred in the context of the Respondent attempting to do his best for Patient A. He was trying to help Patient A understand the context of his mistake and the impact of it. There was no financial or reputational motivation for the dishonest conduct. He apologised profusely; he was trying to help Patient A understand that no harm had come from the misplaced screw and that, even if he had recognised it earlier, the treatment would have been no different. He knew he was misrepresenting the facts but he did in the belief that it was for the good of Patient A and to help him understand.
56. A fully informed member of the public, including within medical profession, would have considerable sympathy for the Respondent who was faced with a difficult meeting. He was required to explain a complex topic (spinal fusion) and his objective was to reassure the patient. The manner in which he chose to do so, by adopting the patient's version of events to minimise areas of dispute, was foolish and led to his dishonesty.
57. The issue of impairment is finely balanced. The balance is just in favour of the Respondent being fit to practise. The Tribunal is satisfied that because of the lack of incentive to be dishonest other than the perceived best interests of the patient, that public confidence in the profession would not be undermined by a finding that the Respondent's fitness to practise is not impaired. Similarly, the promotion and maintenance of proper professional standards and conduct in the profession would not be undermined by such a finding. A fully informed member of the public would take into account the context of the dishonesty, including the Respondent's positive motivation, and consider the circumstances to be exceptional. This is one of those rare cases where a finding of impairment of fitness to practise is not warranted. This is not a case where patients' and the public's trust in the Respondent and the medical profession generally would be undermined by not finding his fitness to practise to be impaired.
58. The Tribunal has determined that the Respondent's fitness to practise is not impaired by reason of his misconduct, pursuant to Section 35C(2)(a) of The Medical Act 1983 as amended."
"14. The Tribunal recognises that a warning is appropriate when there has been a significant departure from GMP, as in this case. As indicated above, and for this reason also, the Tribunal's starting point is that a warning is appropriate. However, it also takes into account a warning is not mandatory in such circumstances: it is appropriate to take into account the merits of this case.
15. The Tribunal has considered the various factors identified in the guidance on warnings. There has been a clear and specific breach of GMP, as identified in the Tribunal's findings on impairment. The dishonesty is sufficiently serious that, if there were a repetition, it would result in a finding of impaired fitness to practise. The Tribunal bears in mind its findings on impairment as regards the impact on patient care, public confidence in the profession and the reputation of the profession. It considers there is no need to record formally the particular concerns because additional action will not be required: there will be no repetition.
16. The Tribunal acknowledges there is a presumption that the GMC should take some action when the allegations concern dishonesty (paragraph 24 of the guidance refers). However, it considers that this paragraph relates to the investigation stage, rather than to proceedings before the Tribunal. In any event, even if it were to apply to the Tribunal, the mere existence of a presumption is not, alone, sufficient to require the issue of a warning. This case should be considered in the round.
17. The Tribunal has applied the principle of proportionality. It has had regard to the guidance in Bolton v Law Society  1 WLR 512,  EWCA Civ 32.
18. As regards mitigating and aggravating factors, the Tribunal finds as follows.
• The Respondent apologised to Patient A at the outset of his dealings with him, having received the letter of complaint of 19 July 2016. He reiterated that apology many times, including in these proceedings (notwithstanding the existence of ongoing litigation for the recovery of damages resulting from alleged clinical negligence);
• The Respondent has a long and unblemished record (apart from this misconduct) and there is no adverse history from the date of the incident to today's date;
• The incident was an isolated one; there has been no repetition and there will be no repetition. This was an aberration;
• There are no indicators that the misconduct will be repeated;
• The Respondent has changed his practice; he has attended relevant courses and training. He has fully reflected;
• There are exemplary wide-ranging testimonials and references which are relevant and informed. the Respondent is held in high regard by his peers and patients;
• The context of the dishonesty was a difficult meeting with a former patient who had made a complaint and who had made it clear he was seeking financial compensation and if he did not receive it he would report the Respondent to his regulator;
• The Respondent's motive (albeit misguided) was to act in the perceived best interests of the patient;
• While the dishonesty occurred in a clinical context, Patient A was no longer the Respondent's patient. He was not cooperating with the Respondent (e.g. he did not give permission for The Respondent to see his CT scans);
• The dishonesty was not exculpatory.
19. The Tribunal accepts there would be some impact on the Respondent's earnings in the private sector if a warning were issued but gives this no weight. Similarly, it accepts he would resign from various official organisations if a warning were issued but it considers that he would consider doing this in any event given the finding of misconduct. It gives this no weight therefore.
20. It is an aggravating factor that the dishonesty occurred in a clinical context (albeit in dealings with a former patient).
21. The Tribunal has taken into account the likely content of a warning if one were issued (referring to the guidance and Template A).
22. As in the case of impairment, the decision whether to issue a warning is finely balanced. However, taking the relevant factors in the round and noting the exceptional circumstances of this case and the lack of adverse motive, the Tribunal considers that while a warning would be appropriate in this case, particularly given the significant breach of GMP and the need to promote and maintain confidence and standards in the profession, it is not necessary or proportionate, given the wide ranging mitigating factors and the particular circumstances in which the dishonesty occurred."
IV The GMC's core guidance
"Patients must be able to trust doctors with their lives and health. To justify that trust you must show respect for human life and make sure your practice meets the standards expected of you in four domains.
Communication, partnership and teamwork
Treat patients as individuals and respect their dignity.
Work in partnership with patients.
Give patients the information they want or need in a way they can understand.
Respect patients' right to reach decisions with you about their treatment and care.
Be honest and open and act with integrity.
Never abuse your patients' trust in you or the public's trust in the profession.
31. You must listen to patients, take account of their views, and respond honestly to their questions.
32. You must give patients the information they want or need to know in a way they can understand.
49. You must work in partnership with patients, sharing with them the information they will need to make decisions about their care …
55. You must be open and honest with patients if things go wrong.
61. You must respond promptly, fully and honestly to complaints and apologise when appropriate.
65. You must make sure that your conduct justifies your patients' trust in you and the public's trust in the profession.
68. You must be honest and trustworthy in all your communication with patients …
71. You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents. You must make sure that any documents you write or sign are not false or misleading.
a. You must take reasonable steps to check the information is correct.
c. You must not deliberately leave out relevant information."
"Every healthcare professional must be open and honest with patients when something goes wrong with their treatment or care which causes, or has the potential to cause, harm or distress."
V The Tribunal's Sanctions Guidance
"Medical practitioners tribunals use this guidance to make sure they take a consistent approach when deciding:
a. whether to issue a warning when a doctor's fitness to practise is not impaired
b. what sanction to impose, if any, when a doctor's fitness to practise is impaired.
The tribunal must base its decisions on the standards of good practice established in Good Medical Practice and on the advice given in this guidance.
17. Patients must be able to trust doctors with their lives and health, so doctors must make sure that their conduct justifies their patients' trust in them and the public's trust in the profession … the reputation of the profession as a whole is more important than the interests of any individual doctor.
24. … The tribunal is less able to take mitigating factors into account when the concern is … about public confidence in the profession.
65. It is important that the tribunal give clear reasons for issuing, or for not issuing, a warning.
128. Dishonesty, if persistent and/or covered up, is likely to result in erasure …"
VI GMC's Guidance on warnings
"1. This guidance aims to help GMC case examiners, the Investigation Committee and the medical practitioners tribunal determine when it is appropriate to issue a warning. While we recognise that individual cases must be decided on their own facts, the purpose of the guidance is to encourage consistent and appropriate decision making.
3. Warnings are available at both the investigation stage and the adjudication stage of the fitness to practise procedures.
"The purpose of warnings
10. The power to issue warnings, together with other powers available to the GMC and to MPTS panels, is central to their role of protecting the public which includes protecting patients, maintaining public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.
13. Although warnings do not restrict a doctor's practice they should nonetheless be viewed as a serious response, appropriate for those concerns that fall just below the threshold for a finding of impaired fitness to practise.
14. Warnings should be viewed as a deterrent. They are intended to remind the doctor that their conduct or behaviour fell significantly below the standard expected and that a repetition is likely to result in a finding of impaired fitness to practise. Warnings may also have the effect of highlighting to the wider profession that certain conduct or behaviour is unacceptable.
The test for issuing a warning
16. A warning will be appropriate if there is evidence to suggest that the practitioner's behaviour or performance has fallen below the standard expected to a degree warranting a formal response by the GMC or by the MPTS panel. A warning will therefore be appropriate in the following circumstances:
? There has been a significant departure from Good Medical Practice; or
20. The decision makers should take account of the following factors to determine whether it is appropriate to issue a warning:
a. There has been a clear and specific breach of Good Medical Practice or our supplementary guidance;
b. The particular conduct, behaviour or performance approaches, but falls short of, the threshold for the realistic prospect test or in a case before a tribunal, that the doctor's fitness to practise has not been found to be impaired.
24. There is a presumption that the GMC should take some action when the allegations concern dishonesty. There are, however cases alleging dishonesty that are not related to the doctor's professional practice and which are so minor in nature that taking action on the doctor's registration would be disproportionate. A warning is likely to be appropriate in these cases. An example of this might include, in the absence of any other concerns, a failure to pay for a ticket covering all or part of a journey on public transport.
25. In deciding whether to issue a warning the decision maker should apply the principle of proportionality, weighing the interests of the public with those of the practitioner. It is important to bear in mind, of course, that warnings do not restrict the practitioner's practice and should only be considered once the decision maker is satisfied that the doctor's fitness to practise is not impaired.
32. …. As explained above, warnings may only be issued where the decision makers have concluded that the doctor's fitness to practise is not impaired or that the realistic prospect test is not met.
33. However, if the decision makers are satisfied that the doctor's fitness is not impaired or that the realistic prospect test is not met, they can take account of a range of aggravating or mitigating factors to determine whether a warning is appropriate. These might include:
? The level of insight into the failings,
a. A genuine expression of regret/apology
b. Previous good history
c. Whether the incident was isolated or whether there has been any repetition;
d. Any indicators as to the likelihood of the concerns being repeated;
e. Any rehabilitative/corrective steps taken;
f. Relevant and appropriate references and testimonials."
34. The decision makers should record their reasons for issuing or not issuing a warning."
"Paragraphs 34 to 41 of the main guidance for decision makers at the investigation stage advise that there will be a presumption that the GMC or MPTS Tribunal should take some action when the allegations concern dishonesty."
VII The statutory basis of this appeal
"the decision is not sufficient (whether as a finding or a penalty or both) for the protection of the public."
"(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the profession concerned; and
(c) to maintain proper professional standards and conduct for members of that profession."
Previously, a part of the applicable test had been undue leniency.
"(a) dismiss the appeal,
(b) allow the appeal and quash the relevant decision,
(c) substitute for the relevant decision any other decision which could have been made by the committee or other person concerned, or
(d) remit the case to the committee or other person concerned to dispose of the case in accordance with the directions of the court, and may make such order as to costs… as it thinks fit."
VIII Grounds of appeal
Ground 1: the Tribunal was wrong to find that the Respondent's fitness to practise was not impaired
"The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission….A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus, it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
The Respondent's response
"40. The Tribunal then went on to consider whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment was not made.
41. This is the crux of this determination on impairment. The central issue is the public interest in the promotion and maintenance of public confidence in the medical profession and the promotion and maintenance of proper professional standards and conduct in that profession."
(paragraph 41 is referred to for the second time in this judgment, but this time with emphasis added).
The Respondent's response
The Respondent's response
The Respondent's response
The Respondent's response
Ground 2: the Tribunal was wrong not to warn the Respondent
"16. The Tribunal acknowledges there is a presumption that the GMC should take some action when the allegations concern dishonesty (paragraph 24 of the guidance refers). However, it considers that this paragraph relates to the investigation stage, rather than to proceedings before the Tribunal. In any event, even if it were to apply to the Tribunal, the mere existence of a presumption is not, alone, sufficient to require the issue of a warning. This case should be considered in the round."
The Respondent's response
The Respondent's response
The Respondent's response
The Respondent's response
The Respondent's response
Ground 3: the Tribunal failed to give sufficient reasons for its decisions
(1) for its departures from the guidance set out above.
(2) which were capable of explaining to an informed reader why it had come to what appeared to be an aberrant decision.
The Respondent's response
a. Respect for decision-making body
"39 As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council  QB 462 ; Raschid v General Medical Council  1 WLR 1460 ; and Southall v General Medical Council  2 FLR 1550) as appropriately modified, can be applied to section 40A appeals."
40 In summary:
(i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Pt 52 . A court will allow an appeal under CPR Pt 52.21(3) if it is "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings in the lower court".
(ii) It is not appropriate to add any qualification to the test in CPR Pt 52 that decisions are "clearly wrong": see Raschid's case at para 21 and Meadow's case at paras 125–128.
(iii) The court will correct material errors of fact and of law: see Raschid's case at para 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing: see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)  1 WLR 577 , paras 15–17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd  1 WLR 1325 , para 46, and Southall's case at para 47.
(iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Pt 52.11(4) .
(v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Raschid's case at para 16; and Khan v General Pharmaceutical Council  1 WLR 169 , para 36.
(vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v General Medical Council and Southall  EWHC 579 (Admin) at , and Khan's case at para 36. As Lord Millett observed in Ghosh v General Medical Council  1 WLR 1915 , para 34, the appellate court "will accord an appropriate measure of respect to the judgment of the committee … But the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
(vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.
(viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust: see Southall's case at paras 55–56." [emphasis added]
"57 In my view, the evaluative judgment made by the MPT in this regard should be given great weight. That is both because it had the advantage of seeing the appellant and the witnesses, so that it was well placed to make an evaluative judgment regarding the nuances of their interactions and the nature and seriousness of what the appellant did, and because of the practical expertise of a MPT in being able to understand the precise context in which and pressures under which a doctor is acting in a case such as this."
"61. The decision of the Tribunal that suspension rather than erasure was an appropriate sanction for the failings of Dr Bawa-Garba, which led to her conviction for gross negligence manslaughter, was an evaluative decision based on many factors, a type of decision sometimes referred to as "a multi-factorial decision". This type of decision, a mixture of fact and law, has been described as "a kind of jury question" about which reasonable people may reasonably disagree: Biogen Inc v Medeva Plc  RPC 1 at 45; Pharmacia Corp v Merck & Co Inc  EWCA Civ 1610,  RPC 41 at ; Todd v Adams (t/a Trelawney Fishing Co) (The Maragetha Maria)  EWCA Civ 509,  2 Lloyd's Rep 293 at ; Datec Electronics Holdings Ltd v United Parcels Service Ltd  UKHL 23,  1 WLR 1325 at . It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision."
67. That general caution applies with particular force in the case of a specialist adjudicative body, such as the Tribunal in the present case, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts: see Smech at ; Khan v General Pharmaceutical Council  UKSC 64,  1 WLR 169 at ; Meadow at ; and Raschid v General Medical Council  EWCA Civ 46,  1 WLR 1460 at -. An appeal court should only interfere with such an evaluative decision if (1) there was an error of principle in carrying out the evaluation, or (2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide: Biogen at 45; Todd at ; Designers Guild Ltd v Russell Williams (Textiles) Ltd (trading as Washington DC)  FSR 11 (HL) at ; Buchanan v Alba Diagnostics Ltd  UKHL 5,  RPC 34 at . As the authorities show, the addition of "plainly" or "clearly" to the word "wrong" adds nothing in this context." [emphasis added]
"However, the amount of weight to be attached to expertise of the Panel below, assuming regard has been had to relevant factors, will, in my judgment, depend on the circumstances of a particular case (see, for example, Council for the Regulation of Health Care Professionals v GMC and Southall  EWHC 579 (Admin) at paragraph 11:
"… where there is misconduct constituted by a failure to reach proper standards in treating patients, the expertise of the tribunal in deciding what is needed in the interests of the public is likely to carry greater weight … But where, for example, dishonesty or sexual misconduct is involved, the court is likely to feel that it can assess what is needed to protect the public or to maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the tribunal …")
"36. An appellate court must approach a challenge to the sanction imposed by a professional disciplinary committee with diffidence. In a case such as the present, the committee's concern is for the damage already done or likely to be done to the reputation of the profession and it is best qualified to judge the measures required to address it: Marinovich v General Medical Council  UKPC 36, para 28. Mr Khan is, however, entitled to point out that:
(a) the exercise of appellate powers to quash a committee's direction or to substitute a different direction is somewhat less inhibited than previously: Ghosh v General Medical Council  UKPC 29,  1 WLR 1915, para 34;
(b) on an appeal against the sanction of removal, the question is whether it "was appropriate and necessary in the public interest or was excessive and disproportionate": the Ghosh case, again para 34; and
(c) a court can more readily depart from the committee's assessment of the effect on public confidence of misconduct which does not relate to professional performance than in a case in which the misconduct relates to it: Dad v General Dental Council  1 WLR 1538, pp 1542-1543."
b. Consequence of finding of misconduct
"Not every case of misconduct will result in a finding of impairment. An example might be an isolated error of judgment which is unlikely to recur, and the misconduct is not so serious as to render a finding of impairment plainly necessary. On the other hand, misconduct may be so egregious that, whatever mitigatory factors arise in respect of insight, remediation, unlikelihood of repetition, and the like, any reasonable person would conclude that the registrant should not be allowed to practise on an unrestricted basis, or at all. In such a case, to have been guilty of misconduct of such a nature is itself clear evidence that the practitioner should not be allowed to practise, or to practise unrestricted; and the public interest will point to a finding of impairment, and the imposition of an appropriate sanction. On the other hand, as one judge observed:
'[T]he [practitioner's] misconduct may be such that, seen within the context of an otherwise unblemished record, a Fitness to Practise Panel could conclude that, looking forward, his or her fitness to practise is not impaired, despite the misconduct." (Cheatle v General Medical Council, Cranston J, para 22).
"In my judgment, the PSA's submission that a doctor's fitness to practise "is impaired" if he acts dishonestly does not accurately reflect the statutory scheme or the authorities, since, even in cases of dishonesty, a separate assessment of impairment is required, and not every act of dishonesty results in impairment."
"There must always be situations in which a Panel can properly conclude that the act of misconduct was an isolated error on the part of a medical practitioner and that the chance of it being repeated in the future is so remote that his or her fitness to practice has not been impaired. Indeed, the Rules have been drafted on the basis that the once the Panel has found misconduct, it has to consider as a separate and discreet (sic) exercise whether the practitioner's fitness to practice has been impaired. Indeed s 35D (3) of the Act states that where the Panel finds that the practitioner's fitness to practice is not impaired, 'they may nevertheless give him a warning regarding his future conduct or performance'.
"Sales J also referred to the importance of the wider public interest in assessing fitness to practice in Yeong v. GMC  EWHC 1923 (Admin) , a case involving a doctor's sexual relationship with a patient. Pointing out that Cohen was concerned with misconduct by a doctor in the form of clinical errors and incompetence, where the question of remedial action taken by the doctor to address his areas of weakness may be highly relevant to the question whether his fitness to practise is currently impaired, Sales J considered that the facts of Yeong merited a different approach. He upheld the submission of counsel for the GMC that:
"… Where a FTPP considers that the case is one where the misconduct consists of violating such a fundamental rule of the professional relationship between medical practitioner and patient and thereby undermining public confidence in the medical profession, a finding of impairment of fitness to practise may be justified on the grounds that it is necessary to reaffirm clear standards of professional conduct so as to maintain public confidence in the practitioner and in the profession. In such as case, the efforts made by the medical practitioner in question to address his behaviour for the future may carry very much less weight than in case where the misconduct consists of clinical errors or incompetence."
"I agree with that analysis and would add this. In determining whether a practitioner's fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances."
c. Where misconduct is dishonesty
"45 Dishonesty encompasses a very wide range of different facts and circumstances. Any instance of it is likely to impair a professional person's fitness to practise: R (Hassan) v General Optical Council  EWHC 1887 per Leggatt J at paragraph .
46 Dishonesty constitutes a breach of a fundamental tenet of the profession of medicine: PSA v GMC & Igwilo  EWHC 524. A finding of dishonesty lies at the top end in the spectrum of gravity of misconduct: Patel v GMC Privy Council Appeal No.48 of 2002.
47 A finding of impairment does not necessarily follow upon a finding of dishonesty. If misconduct is established, the tribunal must consider as a separate and discrete exercise whether the practitioner's fitness to practise has been impaired: PSA v GMC and Uppal  EWHC 1304 at paragraph .
48 However, it will be an unusual case where dishonesty is not found to impair fitness to practise: PSA v Health and Care Professions Council & Ghaffar  EWHC 2723 per Carr J at paragraphs  and .
49 The attitude of a practitioner to the allegations made and any admissions of responsibility for the misconduct will be taken into account as relevant factors in determining whether or not fitness to practise has been impaired: Nicholas-Pillai v GMC  EWHC 1048 per Mitting J at paragraph .
50 The overarching concern is the public interest in protecting the public and maintaining confidence in the practitioner and medical profession when considering whether the misconduct in question impairs fitness to practise: Yeong v GMC  EWHC 1923 per Sales J at paragraphs  and ; Nicholas-Pillai (above) at paragraph :
"In cases of actual proven dishonesty, the balance ordinarily can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the practitioner concerned. Indeed, that sanction will often and perfectly properly be the sanction of erasure, even in the case of a one-off instance of dishonesty."
"First of all, I respectfully agree with the MPT that dishonesty is not necessarily a monolithic concept. That has two consequences. First of all, questions of degree obviously arise - that much must be self-evident - but secondly, that dishonesty in an individual does not have to be an all-pervading or immutable trait. A person can be dishonest just on one occasion. Secondly, I agree with the MPT that at least it was open for the MPT to consider the context of the respondent's dishonesty."
d. Features about the facts in the instant case
(1) the way in which the dishonesty case relating to the 2 November 2017 meeting was presented as a secondary case, and not referred to in the Rule 7 letter ("the change in the primary case");
(2) the impact of the letter of 25 August 2016 insofar as it related to the meeting of 2 November 2016;
(3) the worth of the apology which was provided by the Respondent which was used as some underpinning reason for the lie, and the question of benign motive;
(4) the absence of admission to the dishonesty;
(5) the fact that the secondary case prevailed.
e. The change in the primary case
f. The letter of 25 August 2016
"73… Thus he was making an admission without knowing the consequences of that admission for himself and his practice. This suggests he was attempting to be open and transparent with Patient A to some degree. That said, he also stated at bullet point four in that letter that "he had previously been aware that there may have been misplacement but had felt it did not require any further investigation. That statement was not true."
76… However, Mr Hilton knowingly misrepresented the facts in two ways: he told Patient A he had known earlier than was the case about his failure to identify the misplaced screw and that he had taken a positive decision to watch and wait, having identified that misplacement and not wanting Patient A to worry about it. This was a misrepresentation of the facts as he knew them to be and a repetition of the assertions he had made in similar vein in his letter to Patient A of 25 August 2016.
[This was repeated almost word for word at paragraph 25 of the determination on impairment].
78…. It is wholly understandable that Mr Hilton sought to minimise areas of disagreement between them in such circumstances given his objective of apologising again to Patient A (as he had already in his letter of 25 August 2016). It would have been clear to Mr Hilton that this matter would not be resolved as a result of anything he did at that meeting: the patient had been consulting Mr B by the stage of his initial complaint and was already seeking financial recompense before the meeting in November 2016."
g. The apology
"79. When asked why he had created a false impression deliberately, he referred to Patient A as being an angry man and his not wanting to dispute the position of the screw although he knew it had to be in bone. He agreed, in retrospect, under cross-examination, that this was not what he should have done; he wanted to apologise and "make it as easy as possible" for Patient A to understand spinal fusion and that a misplaced screw was not a failure of surgery. Mr Hilton denied being flustered; he said he had been confused by the information in front of him (emphasis added)."
(1) "This was a doctor-patient relationship which had broken down and would not be recovered" 
(2) "Thus the information given by Mr Hilton to Patient A was not material to any future relationship between them as patient and doctor." 
(3) Due to the unattractive manner of Patient A who made threats to the Respondent and refused him access to crucial medical records, which would have informed him where he had gone wrong in the treatment of Patient A, "an ordinary decent and fully informed member of the public would have considerable sympathy for Mr Hilton in his dealings with Patient A at the meeting in November 2016." 
(4) The Respondent had not acted dishonestly in the past and had no history with the GMC and he was "a man of good character and a credible witness who has given wholly reliable evidence about his perception of the situation with Patient A. He has not sought to excuse the manner in which he dealt with Patient A's complaint. He sought to do his best for Patient A when he realised he had missed a misplaced pedicle screw…" 
(5) "He did not maliciously intend to deceive Patient A. His intention was to lay the basis for creating a dialogue between himself and Patient A such that he could apologise to Patient A for failing to identify the screw had been misplaced and to reassure Patient A that the outcome of his surgery had not been adversely affected by his failure. By doing so Patient A was misled. That said, this is not a case of Patient A being unable to make an informed choice about his treatment; nor is it a case of his not being fully informed about possible courses of action or his making a decision which he would not otherwise have made. He was by this stage being treated by Mr B." .
(1) the lies were told in a clinical context as between a doctor and a patient about the treatment given as a doctor. This cannot be minimised by saying that the role of the Respondent as the treating doctor was over. A lie told to a patient is very serious, even in the context of a dispute after the treatment has been concluded or after the doctor has been replaced by another doctor. It undermines the public confidence in the medical profession if a doctor cannot be relied upon to be truthful in discussing the treatment given. A lie in this context violates a fundamental requirement that a healthcare professional is honest and open with a patient.
(2) it is no longer the case, if it ever was, that a doctor is able to lie so as not to upset the patient, or so as to avoid an argument, or so as to make something easier to understand. A patient is entitled to have total reliance on the accuracy of the information provided by a doctor.
(3) a lie does not amount to something less serious simply because there is alleged to be a positive motivation. It is difficult to understand what is a positive motivation when any lie between a doctor and patient is liable to have the effect of undermining the public confidence in the medical profession.
(1) there was no admission of liability;
(2) there was a truthful account of what had been done that was wrong, but integral to what was being said were two deliberately untrue statements;
(3) in answer to the submission of Mr Booth QC that the Respondent was being empathic (he was sorry for the condition which Patient A had), he did not need to tell lies in order to do so.
h. The Respondent's failure to admit dishonesty
(1) are the grounds of appeal on impairment made out;
(2) does this criticism of the factual basis of the decision undermine the decision of the Tribunal on impairment to such an extent that it cannot stand?
(1) the reference to the confusion of the Respondent on 2 November 2016 is difficult to accept having regard to the earlier letter of 25 August 2016, but noting that the Tribunal did consider the meeting of 2 November 2016 against the background of the earlier letter;
(2) the criticisms of the shortcoming of the apology and the failure to admit dishonesty before the Tribunal;
(3) the criticism about any acceptance of positive motivation, albeit that it was recognised by the Tribunal that the Respondent was dishonest, and the Tribunal reminded itself about how serious dishonesty was.
(1) The Tribunal had not just found misconduct, but the nature of the misconduct was dishonesty in a clinical context to a patient;
(2) The Tribunal had found that the dishonesty was so serious that the decision as to impairment was "finely balanced" and the balance was "just in favour of the Respondent";
(3) The Tribunal recognised that the starting point was that there should be a warning because there has been something falling just below impairment and there has been a clear departure from Good Medical Practice (paragraphs 11 and 14 of the determination on impairment).
(4) The Tribunal's decision on warning was said also to be "finely balanced", and also "just in favour of the Respondent".
(1) this was a case not simply where there was a clear and specific breach of Good Medical Practice, but the breach was lying amounting to dishonesty;
(2) the dishonesty related to the Respondent's professional practice irrespective of the fact that the doctor was no longer the treating doctor. It was to a patient wishing to review his treatment. It is of the utmost importance to confidence in the medical profession that a doctor does not lie, and especially in that context;
(3) the effect of the dishonesty was to mislead the patient when he was about to bring litigation and to make a complaint to the GMC;
(4) in fact, the lies had an effect on the GMC because they must have helped to found the primary case referred to above, namely that the Respondent had deliberately not told the patient about the results of the x-rays. One of the problems about lying is that it is difficult to know when the person who lies is telling the truth and when he or she is lying, and at lowest the Respondent must bear some of the responsibility for the primary case brought against him, albeit that it failed: the allegation was not correct, but his lies taken at face value might have indicated that it was true;
(5) the dishonesty gave rise to a presumption under the Guidance on Warnings to take some action;
(6) mitigation such as absence of misconduct in the past, personal reflective statement, remorse and testimonials of patients and colleagues are of less importance than the need to protect the confidence in the profession.
"If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the Court must intervene. It has no option but to assume that there has been some misconception of the law and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test." [emphasis added].
Lord Radcliffe stated that he preferred the third formulation that there was only one true and reasonable conclusion.
3. Ground 3: failure to provide reasons