Can denying the allegations against you be held against you?
Interesting decision in the case of Al Nageim v General Medical Council (Admin) this week.
Mr Justice Knowles considered the issue of whether a doctor’s denial of allegations which are then found against them should be used against them when deciding whether their fitness to practise is impaired.
There is a fair amount of case law about this, the most recent probably being the case of Towuaghantse v GMC (Admin), in which Mostyn J confirmed that the Medical Practitioners Tribunal (MPT) should not use against the doctor the fact that they had contested the allegations against them, or see this as a refusal or inability to remediate. However, Mostyn j also drew a distinction between “a defence of an allegation of primary concrete fact and a defence of a proposed evaluation (or exercise of discretion) deriving from primary concrete facts”. He said that if a registrant defends a factual allegation by giving dishonest evidence and by deliberately seeking to mislead the MPT, then this has implications for the finding on impairment and future fitness to practise.
Mr Justice Knowles adopted Mostyn J’s wording when he said: “I do not consider the Tribunal was at fault in having regard to this dishonesty when it came to assess the Appellant’s level of insight. … dishonesty in knowingly advancing a case of false primary fact certainly ‘say[s] something about impairment and fitness to practise in the future’. … this was not a case where the Appellant was being punished for daring to contest the GMC’s case against him.”
As Defence solicitors, we will continue to be as careful as ever in advising our clients about the importance of showing insight and the consequences of advancing a factual case that may not be believed.