In McLennan v General Medical Council [0] CSIH 12, a Scottish Court dismissed an appeal by a doctor who had been erased from the register after it was held that she had been dishonest in preparing an expert report that had numerous inaccuracies.

Dr McLennan was a NHS consultant, specialising in Old Age Psychiatry, with an extensive private practice in preparing reports for parties in the Employment Tribunal.  She was instructed by the Ministry of Justice to provide a report on the condition of one of their employees during his period of employment, Mr A.  In the course of her report, she referred to various matters, including that Mr A has sworn “frequently and freely” during the examination.  Dr McLennan concluded that Mr A was not disabled and he subsequently lost his Employment Tribunal case.

Mr A had covertly recorded his examination by Dr McLennan.  He provided a copy of the recording and his transcript of the recording to the GMC, which he said demonstrated that Dr McLennan had fabricated what he had said and that her account of the examination was inaccurate.  The GMC obtained a transcript of the recording and expert evidence from an audio analyst and a phonetics expert.

At a hearing before the Medical Practitioners Tribunal Service, the panel held that Dr McLennan had reported things that Mr A had said during the examination that she knew he had not said, that she had noted impressions (such as “his speech was heavily peppered with expletives”) which were untrue and she had attributed direct quotes to Mr A, which she had known to be false.  The panel determined that Dr McLennan’s actions had been dishonest and it erased her from the register.

Dr McLennan appealed.  Two of the judges in the Court of Session dismissed the appeal, with a third giving a dissenting judgment.  The majority held that it had been established that there were a large number of statements in the report that had been attributed to Mr A that he had not said.  Dr McLennan, as a respected member of the medical profession, knew that her report would be relied upon in legal proceedings, and that a high degree of accuracy was important.  Given that the panel had been able to prove that Mr A had not said words and phrases attributed to him, the Court held that it was extremely difficult to attribute anything other than dishonesty to Dr McLennan’s actions.  Accordingly, the Court could not categorise the panel’s finding of dishonesty as plainly wrong.

Although this is a decision of the Scottish Court, there are a number of interesting observations in the judgment which, arguably, are different in tenor to some of the existing English case law.

• Dr McLennan argued that the panel had made several mistakes in its findings of facts.  The Court held that, if there is a dispute on a critical fact, the resolution of which depends upon the oral accounts of witnesses, if the fact finder accepts one or more witnesses and rejects others, it will rarely be sufficient for the panel merely to state the fact of acceptance or rejection.  Some reason, albeit short, will almost always be required in the event of a challenge to the decision.
• Dr McLennan had argued that it was unlikely that she would have “periled her career on the contents of the report”.  On this issue of inherent improbability, the Court confirmed that there ought to be cogent evidence before dishonesty is found.  In approaching the question of whether the fact of dishonesty is more likely than not to be the case, the panel “should keep an open mind, untinged by any preconceived general notions that dishonesty is inherently improbable, especially when the person accused is one of good repute”.  Whether dishonesty is made out will depend entirely on what facts are ultimately admitted or proved and what inferences can legitimately be drawn from them.
• Dr McLennan had argued that the panel had erred by failing to attach weight to her good character.  In relation to this, the Court said that a person’s character, whether good or bad, is normally a matter which is collateral to the issue of whether a person acted dishonestly on a particular occasion.  It is, the Court held, not directly relevant to the proof of that issue.  The Court went on to say that character could be taken into account when assessing a person’s credibility (ie their honesty) and, to a lesser extent, their reliability (ie their accuracy).  The Court did not consider that evidence of good character was relevant to the question of a person’s propensity to act honestly. However, the Court held that the degree to which character or reputation may be significant to the issue of credibility or reliability will vary according to the facts and circumstances of the particular case.  Caution was required, the Court held, before giving it too much weight.  Instead, the panel should focus on the evidence which bears directly on whether or not the act occurred.  The panel should not, the Court held, be deflected from that task by delving too deeply into an individual’s professional or personal background.
  
  In addition, the Court considered that proof of bad character will equally have no direct relevance to an issue of dishonesty in a particular setting.  Although it may be legitimate to establish that an individual has no previous disciplinary record, there must, the Court held, be practical constraints on the extent to which the panel should permit good or bad character evidence when that character is not the gravamen of the complaint.  In Dr McLennan’s case, the Court concluded that the panel had been entitled to attach little weight to Dr McLennan’s good character.

This article is part of our regular professional regulatory newsletter, read other articles in the August 2020 edition here.