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New test in tribunal cases could find more doctors acted dishonestly

BMJ 2017; 359 doi: http://www.libreriabv.com/10.1136/bmj.j5453 (Published 23 November 2017) Cite this as: BMJ 2017;359:j5453
  1. Clare Dyer
  1. The BMJ

A new test for dishonesty has been adopted by medical practitioners tribunals that could increase the chances that doctors will be found to have acted dishonestly.

Tribunals will no longer follow the two stage “Ghosh” test for dishonesty, which was said in a UK Supreme Court judgment last month to be wrong, but will use the simpler test that is now applied in civil cases.

The new test was followed when the General Medical Council won an appeal on 20 November overturning a tribunal finding that Kennedy Krishnan, a doctor who worked for a locum agency while on sick leave from his main employers, was not dishonest.1 The High Court quashed the finding and sent the case back to the tribunal to consider the issue again.

The tribunal, which delivered its findings last April, had used the Ghosh test, which required it first to determine whether a doctor’s conduct would be considered dishonest by the standards of ordinary decent people. Then it went on to consider the second stage of the test: whether the doctor himself had realised that this was so.

The tribunal decided that the answer to the first question was “yes” but the second answer was “no” and therefore the doctor was not dishonest.

The Ghosh test dates back to a Court of Appeal judgment in 1982 in a criminal case called R v Ghosh. But in last month’s Supreme Court judgment in Ivey v Genting Casinos (UK) Ltd, a civil case in which a professional gambler sued a casino that refused to pay his winnings, Lord Hughes said that the second leg of the Ghosh test “does not correctly represent the law and that directions based upon it ought no longer to be given.”2

The Ghosh test has been used for years in criminal cases and hearings by professional regulators. But in civil cases a different and more objective test, the “Barlow Clowes” test, has come to be used. The Supreme Court said that there was no justification for using a different test for dishonesty in different types of proceedings.

In future the tribunal or jury would have to decide, as in civil cases, what was the individual’s knowledge or belief as to the facts and whether his or her conduct was dishonest according to the standards of ordinary decent people. Whether the individual thought that his or her conduct was honest would be irrelevant.

The Medical Practitioners Tribunal Service issued a circular on 8 November to all tribunal members and legal assessors, notifying them that in future cases the civil test and not the Ghosh test was to be used.

In a commentary on the Ivey case, Fergal Cathie and Rupert Webber, solicitors at Clyde & Co, wrote, “Whilst a welcome clarification, the adoption of the Barlow Clowes standard may mean that professionals may now find themselves at greater risk of findings of dishonesty.”3

They added, “Arguably, this will make it easier to prove dishonesty, as it will no longer be necessary to prove that a professional subjectively understood that he or she was acting dishonestly. This may throw up professional indemnity insurance coverage issues and the professional facing a disciplinary investigation may have new challenges to confront.”

References

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