Test for dishonesty; which one does the GDC apply?
DENTAL BULLETIN, ISSUE 55
The case of Kirschner v General Dental Council  EWHC 1377 (Admin) considered the appropriate test for dishonesty in professional regulatory matters.
Ms Kirschner was a Polish qualified dentist. She came to the UK from Poland in 2005 and worked as a GDP. Between 2010 and 2012 she was subject to a PCT review as concerns were raised regarding her performance under an NHS contract. She was subsequently referred to the GDC. Ms Kirschner faced allegations of clinical deficiencies and mismanagement. She was due to appear before the Professional Conduct Committee (PCC) in January 2013. On Christmas Eve she was sent a letter by the GDC alleging she had acted dishonestly.
The case finally came before the PCC in January 2014. Over the preceding year Ms Kirschner had been charged with 110 separate allegations; mainly of clinical deficiencies, but now including two allegations that she had acted dishonestly and had failed to cooperate with the authorities. Ultimately she was found guilty of a number of cases of clinical deficiencies, failing to cooperate and one of the two allegations of dishonesty.
She was found to have claimed payments under her NHS contract of £48 for three patients; a total of £144. The GDC found that her clinical deficiencies were not sufficient to suspend her. However, they found that the finding that she had been dishonest warranted a one year suspension.
She appealed against the finding of dishonesty and the sanction imposed to the High Court.
The judge, Mr Justice Mostyn, expressed serious misgivings about the test for dishonesty being applied by the professional disciplinary panels. He was concerned at the anomaly whereby a professional could be found to have acted dishonestly in the civil courts, but on the same facts be found not guilty of dishonesty by their professional regulator. However, he conceded that he was bound to follow the existing case law.
The two-stage Ghosh/Twinsectra test for dishonesty
As such the appropriate test for dishonesty in professional regulatory context remains the two stage test applied by the criminal courts in R v Ghosh and applied in the case of Twinsectra Ltd v Yardley and others  UKHL 12
– The tribunal should first determine whether on the balance of probabilities, a defendant acted dishonestly by the standards of a reasonable and honest person; and
– If it finds that he or she did so, must go on to determine whether it is more likely than not that the defendant realised that what he or she was doing was by those standards, dishonest.
This test was refined in the case of Hussein v GMC  EWCA (civ) 2246. Where the test applied was not of a reasonable and honest person, but of a reasonable and honest member of that particular profession.
In Ms Kirschner’s case the PCC had adopted the Ghosh/Twinsectra test, but did not adopt the amendment made in the case of Hussein as it had not been issued at that time. Whilst Mostyn J found that the correct test had been applied, he did not agree that the PCC had properly applied the law to the facts.
Ms Kirschner had on three occasions “split” courses of treatment. A child required 4 fillings; she completed 2 in one sitting, and then 62 days later completed another 2 and claimed a separate fee. She gave evidence that colleagues had told her that she could do this, and she had not realised that it was not allowed. Therefore she had not been dishonest. The GDC rejected this, finding that she had “persuaded herself that splitting claims was acceptable”; but that she knew that she was not entitled to do so. They found that a reasonable and honest person would recognise that this was dishonest and that she realised it was dishonest.
Mostyn J held that “it was simply impossible for the PCC to have correctly concluded that that it was more likely than not that the defendant realised that what she was doing was by the standards of ordinary and honest dentists, dishonest”, particularly if they accepted that she had received inappropriate advice from colleagues about the practice, and persuaded herself that what she was doing was allowed.
GDC approach in 2017
Two high profile cases of dishonesty have been brought before the GDC Professional Conduct Committee this year. Both illustrate the approach that will be taken by the GDC in cases of dishonesty.
1. Mr Jamie Kerr
In April 2017 Mr Jamie Kerr, a dentist, was suspended for 12 months by the Professional Conduct Committee of the GDC for offences of dishonesty. He had charged a patient for root canal treatment and a gold post that had not been completed or provided.
The PCC found that in relation to dishonesty a finding of impairment was required to “maintain public confidence in the profession, confidence in the system of regulation of dental professionals, and to declare and uphold proper professional standards.”
The PCC considered the “indicative sanctions guidance” issued by the GDC, in particular that registrants may be suspended where they have “not shown insight and/or poses a significant risk of repeating the behaviour” and where patients’ interests and public confidence would not be adequately protected by a lesser sanction.
In Mr Kerr’s case the committee held that the dishonesty was not at the high end of the scale, and as such a suspension (as opposed to being permanently removed from the register) was appropriate in the circumstances.
2. Mr Bashar Harateh
The second case involved Bashar Harateh, a dentist who qualified in Poland in 1993. He appeared before the PCC in March 2017 for a number of allegations of clinical failings relating to orthodontic work completed, inadequate note taking, inappropriate behaviour towards patients, failure to have appropriate indemnity cover and that he was dishonest in inaccurately recording that he had planned a treatment of Invisalign aligners.
The PCC found all the charges against Mr Harateh proved. In particular they found that he had purported to place Invisalign aligners on two patients, but had in fact placed an alternative, cheaper brand. They were satisfied that this was a deliberate and dishonest decision and that the Ghosh/Twinsectra test was met.
This was serious misconduct on behalf of the dentist, exacerbated by his failure to engage with the GDC, or indeed attend the hearing. They found that his fitness to practice was impaired as a result. The PCC found that the misconduct had persisted over a number of years, and that the dishonesty related to taking a financial advantage over patients.
In considering whether a suspension would be an appropriate order to impose, the Committee took account of the PCC Guidance:
“The issue of informed or valid consent is a cornerstone of the public interest and must be paramount in a Registrant’s mind prior to carrying out any treatment or investigation… A dental practitioner must not undertake work that is outside their scope of practice… Every patient is vulnerable when receiving treatment and therefore relies on the trustworthiness of the dental practitioner, which they are entitled to expect based on the practitioner’s registered status… Patients, employers, colleagues and the public should be able to rely on a dental professional’s integrity… Dishonesty, particularly when associated with professional practice, is highly damaging to the dental professional’s fitness to practise and to public confidence in the profession.”
The PCC ultimately found that there was no alternative but to erase Mr Harateh from the register.
Similitudes and differences between Mr Kerr and Mr Harateh’s cases
It is worth noting that whilst both Mr Kerr and Mr Harateh were found to be dishonest, and that both their actions had resulted in a financial loss to patients; one of the fundamental differences in the two cases was the engagement in the process by Mr Kerr. A finding of dishonesty by a professional regulator will have a manifest effect on any professional. However, in order to avoid the ultimate sanction of erasure, it is imperative to engage in the process and to illustrate proper insight into events.
If you have any questions about the content of this article please feel free to email Julia Furley at firstname.lastname@example.org, or call her on 0207 388 1658. If you need advice on appealing a decision by the professional conduct committee please contact our expert lawyers.
Julia Furley, Senior Barrister