Case No: CO/2490/2017
Neutral Citation Number: [2017] EWHC 2892 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/11/17

Before:

HIS HONOUR JUDGE SYCAMORE

(Sitting as a Judge of the High Court)

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Between:

	GENERAL MEDICAL COUNCIL 	Appellant	
	- and -		
	DR KENNEDY KRISHNAN	Respondent	

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Ivan Hare QC (instructed by GMC Legal) for the Appellant
David Morris (instructed by Radcliffes LeBrasseur) for the Respondent

Hearing date: 17 October 2017 

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Judgment
His Honour Judge Sycamore : 
1.	This is an appeal by the General Medical Council (“GMC”) under section 40A of the Medical Act 1983 (“the Act”) against the determination by the Medical Practitioners Tribunal (“MPT”) on 27 April 2017:

i)	that Dr Krishnan (“the Respondent”) was not dishonest in relation to working for another employer while on sick leave; and
ii)	that his fitness to practise was not impaired, on the ground that the MPT’s decisions are not sufficient to protect the public.

2.	The Respondent opposes the appeal and in his Notice purported to file a cross-appeal on the ground that:

The Tribunal was wrong in finding that the first (objective) part of the two-stage (Ghosh) test for dishonesty was met.  It failed to take into account, adequately or at all, all the relevant facts and matters it was required to consider in applying the first part of the test.  Had it done so it would not have been able safely to determine that the first part of the test was met.

3.	I heard submissions from the parties on the 17 October 2017 and reserved judgment.  A few days later the judgment of the Supreme Court in Ivey v Genting Casinos (UK) Limited (t/a Crockfords Club) [2017] UKSC 67 was published.  In the light of the relevance of that judgment to this case in relation to the test for dishonesty propounded in R v Ghosh [1982] QB 1053.  I invited the parties to provide further written submissions.  Both parties did so and I have considered those submissions in the course of preparing this judgment.

4.	Although, in the light of the impact of the judgment in Ivey, I have determined that a number of the points relied on in oral submissions which would have featured in this judgment had Ivey not superseded the appeal and cross appeal  fall away, I will nevertheless set out the history and background.

Cross-appeal
5.	As a preliminary issue I was invited, with the agreement of the parties, to treat the Respondent’s cross-appeal as an application for Judicial Review to be dealt with as a rolled up hearing and joined with the GMC appeal.

6.	This was necessary because a consequence of the provisions of the Act is that the GMC has a more extensive right of appeal than does a medical practitioner.  Section 40 of the Act provides a right of appeal to the medical practitioner and provides in part that: 

“ (1) The following decisions are appealable decisions for the purposes of this section, that is to say – 
a) 	a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration ….”

7.	Section 40A of the Act provides a right of appeal to the GMC and provides, so far as relevant, that:

“(1)	This section applies to any of the following decisions by a Medical Practitioners Tribunal – 
….
d) a decision not to give a direction under section 35D;
e) a decision under section 41 giving a direction that a person’s name be restored to the register;
f) a decision not to give a direction under paragraph 5A (3D) or 5C (4) of Schedule 4.”

8.	Section 35D (3) provides:

“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”.

9.	As a consequence, the GMC has a right of appeal in this case even though there was no finding of impairment.  Conversely the only mechanism a practitioner can use to challenge a warning or finding of impairment or finding of fact is by way of Judicial Review.

10.	No point was taken by the GMC in relation to this and at the invitation of both parties I agreed to treat the cross-appeal as a rolled up hearing for Judicial Review joined with the GMC appeal.

Relevant Background
11.	The Respondent is a registered doctor who qualified in 1987.  At the relevant time he was working in Brent Urgent Care Centre (“Brent UCC”), run by Care UK.  The allegations (as amended) against the Respondent were of misconduct.  The case was heard by the MPT between the 18 and 22 April 2017.  The two distinct particulars of the allegation (misconduct) were:

a)	The Respondent sent an email on 31 March 2014 to Dr A of Care UK raising 17 instances where patient safety was a concern, but he did not provide sufficient details to identify the patients involved, nor did he provide such details at, or after, a meeting at Care UK on 2 April 2014; and
b)	The Respondent worked as a locum GP for Med Team locum agency whilst on sick leave from Care UK in March and April 2013.  

The safety concerns raised by the Respondent arose from his opinion that the nurses who were triaging patients at Brent UCC were inadequately trained.

12.	A number of admissions were made by the Respondent at the MPT hearing.  The MPT found allegation (a) proved and specifically in so finding rejected the Respondent’s oral evidence to the MPT that he had left a document identifying the patients with a Mr Passaway, the manager at Brent UCC, after a meeting which took place on 2 April 2014.  This can be found at paragraph 38 of the determination on facts dated 25 April 2017:

“38.  In the circumstances the Tribunal rejects your sworn evidence that you left the documents on Mr Passaway’s desk after the meeting on 2 April 2014 or subsequently, and it therefore finds this paragraph proved”.

13.	As to the allegation at (b) the Respondent made an admission and accepted that it was misleading.  The Tribunal then went on to find that the Respondent failed to inform Care UK that he was undertaking locum GP work during the period when he was also on sick leave from his substantive post at Care UK.

14.	The Tribunal did not find the Respondent’s conduct to be dishonest.  The legal assessor to the Tribunal, understandably at that time, advised the Tribunal Panel as to the approach it should adopt in determining dishonesty relying on the tests set out in Ghosh.  Both parties agreed in their further submissions that Ivey applies to disciplinary proceedings such as these and sets out the correct test for dishonesty.

15.	In applying the Ghosh test in reliance on the advice of the legal assessor the Tribunal found that the first limb of the test set out in Ghosh was fulfilled but was not so satisfied in respect of the second limb.

16.	The Tribunal concluded that the allegations at both (a) and (b) constituted misconduct but did not find the Respondent’s fitness to practise to be impaired as a result.  These findings are set out in the Tribunal’s determination on impairment dated 27 April 2017 at paragraphs 22 to 23 and paragraphs 24 to 32.  In concluding as it did the Tribunal indicated that it placed great weight on the information provided by Dr Anthony Gallagher, a General Practitioner who worked with the Respondent at the Brent UCC.  The MPT imposed a warning on the Respondent which can be found at paragraphs 9 to 14 of the determination on warning dated 27 April 2017.

Relevant Law	
17.	The parties were agreed as to the relevant law.  Section 40A of the 1983 Act provides, as relevant:

“(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal -
	….
	(d) a decision not to give a direction under section 35D
(2)  A decision to which this section applies is referred to below as a “relevant decision”.
(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4)  Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient -
	(a)  to protect the health, safety and well-being of the 	public;
	(b)  to maintain public confidence in the medical 	profession; 
and
	(c) to maintain proper professional standards and conduct 	for members of that profession.
….
(6)  On an appeal under this section, the court may - 
	(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 Tribunal; or
	(d)  remit the case to the MPTS for them to arrange for a 	Medical Practitioners Tribunal 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.”

18.	I was helpfully directed to the decision of the Divisional Court in General Medical Council v Jagjivan & Another [2017] EWHC 1247 (Admin), at [39] as to the process the court should adopt on an appeal of this nature:

“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 [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.

‘In summary:

	     …

i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52.  A court will allow an appeal under CPR Part 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 part 52 that decisions are ‘clearly wrong’:  see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

iii) The court will correct material errors of fact and of law:  see Fatnani at paragraph 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) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in United Parcels Service Ltd UKHL 23, [2007] 1 WLR 1325 at paragraph 46,and Southall at paragraph 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 Part 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 Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 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 GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd’s Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c).  As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court “will afford an appropriate measure of respect of the judgment in 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 if 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 at paragraphs 55 to 56).”

19.	The GMC appeal was against the Tribunal’s determinations that (i) Dr Krishnan was not dishonest in relation to working for another employer while on sick leave; and (ii) that his fitness to practise was not impaired.  The Respondent’s application, which was to be treated as an application for Judicial Review, was against the Tribunal’s determination that the first (objective) limb of the two stage Ghosh test for dishonesty was met.

20.	Before I consider the impact of Ivey it will be helpful to set out the Ghosh test which can be found at page 1064 d to h.

“…. In determining whether the prosecution has proved that the defendant was acting dishonestly, 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 is was not dishonest by those standards that is the end of the matter and the prosecution fails.
If it 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.  In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.  It will be obvious that the defendant himself knew that he was acting dishonestly.  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. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest ….”.  

21.	In its determination on the fact of  25 April 2017 the Tribunal recited the legal advice from the legal assessor:

“52. 	In order to determine whether the GMC has proved that you are acting dishonestly the Tribunal accepted the advice of the legal assessor that there is a two stage test to be determined on the balance of probabilities.  First, the Tribunal has to determine whether your actions or omissions would be considered dishonest by the ordinary standards of reasonable and honest people (the objective test).  If so, and only if so, the Tribunal would go on to determine that you were aware that, by those standards your actions or omissions were dishonest (the subjective test).

53.	The Tribunal was in no doubt that the objective test of this two step process is met.  It was of the view that reasonable and honest people would consider that you had acted dishonestly by taking sick leave from your substantive post and working shifts for a locum agency without informing your substantive employer.”

54.	The Tribunal then considered whether the subjective test of this two step process is met.  In so doing the Tribunal took into account the advice of the legal assessor who stated that:

“In the light of this guidance you need to consider carefully what Dr Krishnan’s state of mind was when in March and April 2013 he continued with his locum work while he was on sick leave from his main employment with Care UK.  You should take account of the fact that not everyone has a sound working knowledge or understanding of employment law and of the meaning and effect of contractual terms.  You need to consider whether Dr Krishnan may have had – and still has – a flawed, but innocently flawed, understanding of his contractual entitlements and obligations, and of the significance and effect of taking sick leave.  You must remember that it is for the GMC to satisfy you that it is more likely than not that when Dr Krishnan was doing his locum work while on Care UK sick leave he knew, or must have known, that this was dishonest, applying the standards of reasonable and honest people”.

22.	Both parties agree that Ivey now applies to this case.

23.	Ivey clearly establishes that the second limb to the Ghosh should not be applied, as set out by Lord Hughes at paragraph 74:

“These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given.  The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffman in Barlow Clowes:  see para 62 above.  When dishonesty is in question the fact finding Tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts.  The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held.  When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact finder by applying the (objective) standards of ordinary decent people.  There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest”.

24.	It follows that the advice proffered by the legal assessor and its acceptance by the Tribunal Panel was in error.  Had the approach been in accordance with Ivey the Panel should have first determined the Respondent’s state of mind as to the facts and then gone on to consider whether his conduct was dishonest by the standards of ordinary decent people.  Ivey is clear authority for the proposition that in a case such as this the Tribunal should not have considered whether the Respondent must have realised that his conduct was dishonest by the standards of ordinary decent people.  In those circumstances, I conclude that it is inappropriate for me to determine whether the Tribunal erred in applying the second limb of the Ghosh test (the Appellant’s original ground of appeal).  I consider that Ivey has superseded the grounds of the Appellant’s appeal.  This approach is accepted by both parties in their further written submissions.

25.	I then have to consider whether it is appropriate to determine the Respondent’s “cross-appeal” which, as I have already indicated, was to be treated as a rolled-up hearing for Judicial Review.  The issue for determination was whether the Tribunal wrongly applied the first limb of the Ghosh test.  I agree with the submission made on behalf of the Respondent that the first stage (objective) Ghosh test is not the same as the second stage (objective) Ivey test.  The objective test in Ghosh had to be applied without reference to the actual state of mind as to knowledge or belief as to facts of the individual concerned. See Lord Hughes at paragraph 60:

“60.  It is plain that in Ghosh the court concluded that its compromise second leg test was necessary in order to preserve the principle that criminal responsibility for dishonesty must depend on the actual state of mind of the defendant.  It asked the question whether “dishonestly” where that word appears in the Theft Act was intended to characterise a course of conduct or to describe a state of mind.  The court gave the following example, at page 1063, which was clearly central to its reasoning:

“Take for example a man who comes from a country where public transport is free.  On his first day here he travels on a bus.  He gets off without paying.  He never had any intention of paying.  His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest.  It seems to us that in using the word “dishonestly” in the Theft Act 1968, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct which no moral obloquy could possibly attach”.  

But the man in this example would inevitably escape conviction by the application of the (objective) first leg of the Ghosh test.  That is because in order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging.  In order to decide whether this visitor was dishonest by the standards of ordinary people it would be necessary to establish his own actual state of knowledge of how public transport works.  Because he genuinely believes that public transport is free, there is nothing objectively dishonest about his not paying on the bus.  The same would be true of a child who did not know the rules, or of a person who had innocently misread the bus pass sent to him and did not realise that it did not operate until after 10.00 in the morning.  The answer to the court’s question is that “dishonestly”, where it appears, is indeed intended to characterise what the defendant did, but in characterising it one must first ascertain his actual state of mind as to the facts in which he did it.  It was not correct to postulate that the conventional objective test of dishonesty involves judging only the actions and not the state of knowledge or belief as to the facts in which they were performed.  What is objectively judged is the standard of behaviour given any known actual state of mind of the actor as to the facts”.

26.	On any view, in the light of the analysis by Lord Hughes in Ivey, the Tribunal, relying on the advice of its legal assessor, mistakenly proceeded by applying the objective Ghosh test and in those circumstances I agree with the Respondent’s further submissions and I consider that it is inappropriate for me to determine whether the MPT wrongly applied the first limb of the Ghosh test as the “cross appeal”/judicial review has also been superseded by Ivey and is therefore academic given Lord Hughes’ analysis in Ivey as set out in paragraph 25 above.

27.	The remaining issue between the parties is as to the impact of Ivey in terms of the approach to be adopted for disposal of this case. In essence, in his further submissions the Respondent invites the Court to draw on the findings of the Tribunal and uphold the finding that he was not dishonest. Conversely, the Appellant invites the Court to conclude that, in the light of its findings, the Tribunal has in fact answered the relevant questions as identified in Ivey and, as a consequence the Respondent was dishonest.

28.	I have concluded that, as the decision of the Tribunal was based on a Ghosh direction which is acknowledged to have been the wrong test, it is inappropriate for the Court to substitute its own decision drawing on the findings of the Tribunal. That is a determination which should be made on reconsideration on by the Tribunal, which has heard all of the evidence, applying the correct legal and factual approach in accordance with Ivey. In so concluding I remind myself of the observations of King J in GDC v Endicott [2014] EWHC 2280 (Admin) at paragraph 51:

“…the court should be slow to substitute its own findings of dishonesty for those of a specialist tribunal which has heard all the evidence. A finding of dishonesty is a grave conclusion.”

29.	The decision of the Tribunal that the Respondent was not dishonest is therefore quashed and I remit the case to the same panel of the Tribunal for the issue of dishonesty to be redetermined together with  the question of impairment and sanction

Costs 
30.	Finally I deal with the question of costs. In their further submissions both parties make representations in relation to costs. In my judgment both the appeal and “cross-appeal” /judicial review were based on the premise that the Ghosh test for dishonesty was correct. That is no longer the case as is clear from Ivey. The appropriate order for costs in relation to the appeal and “cross appeal” /judicial review is that each party bears its own costs and I so direct.

CO/2490/2017
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

Before 

HIS HONOUR JUDGE SYCAMORE (sitting as a Judge of the High Court)

IN THE MATTERS OF:

AN APPEAL UNDER SECTION 40A OF THE MEDICAL ACT 1983

BETWEEN:

GENERAL MEDICAL COUNCIL
Appellant
-and-

DR KENNEDY KRISHNAN
Respondent

AND

AN APPLICATION FOR PERMISSION TO SEEK JUDICIAL REVIEW

BETWEEN:

THE QUEEN
(on the application of DR KENNEDY KRISHNAN)
Claimant
-and-

GENERAL MEDICAL COUNCIL
Defendant

___________________________

ORDER
___________________________

UPON HEARING Counsel for the Parties,

AND UPON READING the Parties’ further Written Submissions,

IT IS ORDERED:

BY CONSENT:

1.	the Respondent’s cross-appeal is to be treated as an application for judicial review; and

2.	permission to seek judicial review is to be determined at the hearing along with the merits of the application;

IT IS FURTHER ORDERED:

ON THE APPEAL:

3.	the appeal is allowed;

4.	the decision of the Medical Practitioners Tribunal under paragraph 8(b) of the Allegation that Respondent’s conduct under paragraphs 4, 5, 6, 7(a) and 7(c) of the Allegation was not dishonest is quashed;

5.	the decision of the Medical Practitioners Tribunal that the Respondent’s fitness to practise was not impaired is quashed;

6.	the decision of the Medical Practitioners Tribunal to impose a Warning on the Respondent’s registration is quashed;

7.	the issues set out at paragraphs 4 and 5 of this Order and the issue of sanction (if any) are remitted to the Medical Practitioners Tribunal Service for them to arrange for the same Medical Practitioners Tribunal to determine them on the basis of the facts already found proved and in light of the judgment of the Court; and

8.	there is no order as to the costs of the appeal;

ON THE APPLICATION FOR JUDICIAL REVIEW:

9.	the application for judicial review is dismissed and permission is refused;

10.	there is no order as to the costs of the application for judicial review.

Dated: 20th November 2017