‘For all professional men a finding of dishonesty lies at the top end of the spectrum of gravity of misconduct’. So said Lord Steyn in 2003 in a case involving a vet claiming to have carried out surgery he had not (Tait v RCVS) . In 2017 it is time to reassess the validity of those words, and not only on the ground they imply the professions are exclusively male. Whilst dishonesty is always going to be viewed seriously by regulators such as the GMC, NMC and HCPC, three recent decisions have emphasised that not all dishonest conduct merits the ultimate sanction of removal from the profession, writes Andrew Granville Stafford. Returning a safe and competent practitioner to practice can be an important consideration in determining the appropriate sanction.
These points were made forcefully by Mr Justice Kerr in Lusinga v NMC (2017) . Whilst working full-time as a mental health nurse Mr Lusinga had been ‘moonlighting’ at a care home. His contract of employment required him to obtain permission from his employer for a second job but he had not done so. The panel found that this concealment was dishonest and struck him off.
Overturning that order and substituting a 12 month suspension, Mr Justice Kerr said this was at the very bottom of the scale of dishonesty. As Mr Lusinga had not ‘made any fraudulent gain, nor told any lie, nor committed any crime, he should not have been treated as if he had been a criminal’. The judge clearly felt more weight should have been given to the fact that the Registrant posed no risk to patient safety. He was also was critical of the NMC’s Indicative Sanctions Guidance for failing to differentiate between different forms of dishonesty:
‘. . . dishonest conduct can take various forms; some criminal, some not; some destroying trust instantly, others merely undermining it to a greater or lesser extent. . . The guidance, in my respectful opinion, needs to be more nuanced in that respect. It should not lump the thief and the fraudster together with the mere contract-breaker.’
That there may be shades of dishonesty has, in fact, been long recognised by the courts. Dishonesty, said Mr Justice Leggatt in 2013, encompasses a wide range of different facts and circumstances. In giving judgment in R (Hassan) v General Optical Council he said it was wrong to approach sanction on the basis that exceptional circumstances were required to avoid striking off. Other cases have made it clear that the sentencing tribunal should consider factors going to the going to the nature of the dishonesty, such as extent, severity, duration and whether it was committed for personal gain or caused loss and harm.
Two recent decisions also emphasise that the respondent’s ability to continue practising safely can be very relevant. The appellant in Abusara-Darwich v GDC (2016) was a dentist who had failed to declare on his re-admission form that had been working whilst unregistered and had criminal convictions. His conduct was found to be dishonest and erasure was ordered. On appeal Mr Justice Holman said:
‘. . . as I understand it, there is no evidence that there was ever any risk to any patient; and indeed, as I understand it, there is a body of evidence to the effect that the appellant was a good dentist, admired and respected by his patients. So the sanction of erasure upon a still young practitioner, somewhat still on the threshold of his career, when there has been no risk to patients, and I stress, no dishonesty directly against any patient, is obviously a severe one.’
The case was remitted for the Committee to investigate Mr Abusara-Darwich’s assertion that he had reported both convictions to his employer, a factor which the judge said could ‘just tip the balance so that some lesser sanction can be imposed’. Even if the practitioner poses no threat to the public, a striking off order can be justified on the grounds of public interest. Such an order may be necessary to uphold the reputation of the profession.
The Scottish case of PSA v NMC (2016) shows, however, that the public interest argument cuts both ways. The nurse in this case tried to conceal the fact that she had accidentally given the wrong medication to a patient. In amending records and destroying phials of a drug she acted dishonestly. However the panel found her fitness to practise was not impaired and imposed no penalty. In its view the public interest here was best served by returning a capable competent and caring nurse to unrestricted practice.
Subsequent to Mrs Justice Kerr’s comments in the Lusinga case the NMC’s guidance on sanctions in dishonesty cases has been revised.