Blakely v The General Medical Council [2019] EWHC 905 (Admin)
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Blakely v The General Medical Council [2019] EWHC 905 (Admin) was an appeal by Dr Natalie Blakely to the High Court (Mr Justice Lewis) against a decision of the Medical Practitioners Tribunal which found at a review hearing that her fitness to practise remained impaired by reason of misconduct and suspended her registration for a further nine months. The appeal was dismissed.
Dr Blakely had been found at an earlier hearing on 14 May 2018 to have acted dishonestly by providing misleading information to patients which was untrue and known by her to be untrue. She admitted that she had caused or permitted the covert recording of patients’ consultations with another doctor at her clinic without the knowledge or consent of either the patients or that doctor. When patients complained after discovering these recordings, Dr Blakely sent emails asserting that she had sought and taken advice from the General Medical Council and the Care Quality Commission and that the GMC were aware the recordings were being made. The Tribunal found these assertions untrue. Dr Blakely had made brief anonymous telephone calls to the GMC and the CQC but had not provided her name, the name of the clinic or the other doctor’s name, and had given scant detail. The Tribunal concluded she had not sought advice but had merely informed the bodies of her intention to conduct covert recordings.
The Tribunal found that Dr Blakely was aware the information she used in her emails was untrue and had used untrue statements to pacify patients and defend her actions. In one email she had stated the clinic had sought advice from all relevant authorities and then acted as instructed, the word “instructed” reinforcing the view that she knew she needed to defend her position and was not being truthful. The Tribunal determined that using such untrue information to respond to patients expressing concerns about covert recording and breached confidentiality would be considered dishonest by the objective standards of ordinary decent people. It found her actions misleading and dishonest. The Tribunal considered that honesty was a fundamental tenet of the profession and that members of the public would be shocked and concerned at such dishonesty in communication with patients, constituting serious misconduct.
The Tribunal found Dr Blakely’s fitness to practise impaired by reason of misconduct. Although the risk of further covert recordings was negligible, the Tribunal was concerned that whilst the Appellant had the right to contest the allegations, she demonstrated limited insight into her dishonesty. It was not satisfied that if placed in a situation responding to patients’ complaints she would not act in a similar manner. The Tribunal suspended Dr Blakely’s registration for six months, determining that this period would promote and maintain public confidence and proper professional standards and would provide sufficient time for her to reflect on and gain insight into her dishonesty so she would not repeat it. There was no appeal against these findings or the initial sanction.
At the review hearing on 19 November 2018, the Tribunal considered a written reflection document prepared by Dr Blakely and heard oral evidence from her. In the document she accepted that her emails were misleading in giving the impression that the GMC and CQC knew exactly what she was doing. However, when cross-examined, Dr Blakely maintained that she had called the GMC and been advised to make the recordings and that in her mind the GMC were aware. She accepted that the CQC had no policies and therefore she had not taken advice from them, but maintained that she had telephoned and discussed matters with the GMC and they had recommended speaking to others. When asked directly by a Tribunal member whether she accepted she had been dishonest in respect of the emails, she conceded she had been wrong to reference the CQC but did not accept she had been dishonest in relation to the GMC.
The Tribunal determined there was a discrepancy between Dr Blakely’s written statement, in which she said she accepted the Tribunal’s findings, and her oral evidence, in which she made clear she did not accept the May 2018 finding that she had been dishonest. The Tribunal emphasised it was not determining whether Dr Blakely was a dishonest person but that her evidence demonstrated she did not accept the earlier findings. Whilst she had expressed regret and remorse, this seemed restricted to the personal impact of the proceedings and her suspension. The Tribunal saw no evidence that she understood the seriousness of her actions or their impact on public confidence in the medical profession and the profession’s reputation. The Tribunal concluded it still had serious concerns regarding Dr Blakely’s insight and determined the evidence of remediation was insufficient. It was not convinced the concerns identified by the previous Tribunal had been allayed and there remained a risk that Dr Blakely could repeat her dishonest misconduct if similar circumstances arose in the future. A finding of impaired fitness to practise was necessary to uphold public confidence in the medical profession and proper professional standards and conduct.
Regarding sanction, the Tribunal took account of the Sanctions Guidance issued by the GMC and noted that the purpose of imposing sanctions was not punitive but to protect the public interest. It took account of the principle of proportionality and weighed the Appellant’s interests against the public interest. Mitigating factors included the unique circumstances which led to the covert recordings, some demonstration of insight, and that she was a well-regarded doctor. The key aggravating factor was that in her oral evidence Dr Blakely did not accept the dishonesty found proved by the May 2018 Tribunal. Additionally, her expressions of remorse and regret made no mention of the impact of her actions on the reputation of the medical profession and public confidence, demonstrating poor insight. The Tribunal concluded that a further period of suspension was required for Dr Blakely to engage in meaningful reflection on her actions, not just for the impact on her but for the wider profession and public confidence, and to afford her the opportunity to gather documentary evidence of the type suggested by the previous Tribunal but not provided at this hearing. It determined nine months would be a sufficient period to achieve this and that the public interest outweighed Dr Blakely’s interests.
Dr Blakely appealed on six grounds: that the determination on impairment was wrong and substantially based on questioning about her evidence at the first tribunal hearing; that the decision to impose further suspension was wrong and disproportionate; that the Tribunal wrongly held that the public interest outweighed her interests; that the Tribunal failed to have regard to the public interest in allowing a competent doctor with no concerns over clinical ability to return to practice after suspension; that there was no need to impose further suspension; and that the period of suspension was wrong.
Mr Justice Lewis considered the principles established in Yusuff v General Medical Council, which held that at a review hearing findings of fact are not to be reopened, a registrant is entitled not to accept the findings, admitting misconduct is not a condition precedent to establishing understanding of the gravity of offending and unlikelihood of repetition, questioning should not focus on denials and previous findings if the registrant does not accept the truth of findings, but a want of candour or continued dishonesty at the review hearing may be a relevant consideration in looking at impairment. The judge held that the essential question was how to reconcile the need to ensure the doctor had acquired requisite insight into conduct so there would not be an unacceptable risk of repetition with the fact that a doctor cannot be required to accept having done something when this is denied, or when conduct is regarded as dishonest by the Tribunal but not accepted as dishonest by the doctor.
Mr Justice Lewis held that remediation and insight may be demonstrated in a number of ways, including accepting that with the benefit of hindsight what was done was wrong or dishonest even if not considered so at the time, or accepting that members of the public would view the conduct as dishonest and undermining their trust even if the doctor considers the conduct, viewed in context, was excusable or not dishonest. The fundamental problem was that Dr Blakely had said in the emails that she had been advised and instructed by the GMC to do what she did, which was not factually accurate. Unless the Tribunal were satisfied that the Appellant had sufficient insight into why that conduct was considered unacceptable on the part of a doctor, there was a risk it would be repeated.
The judge found there were ways Dr Blakely could have demonstrated sufficient insight. She might have accepted that with hindsight her actions were dishonest even if she had not appreciated that at the time, or she might have demonstrated understanding of why the Tribunal took the view that members of the public would regard such action as dishonest and why that conduct could not be repeated. Whilst Dr Blakely recognised it was wrong to say the CQC had advised her, the Tribunal considered she had not demonstrated such insight into statements made in relation to having been advised by the GMC. The Tribunal considered she was not able to accept or recognise that making untrue statements in response to serious complaints would or could be regarded as dishonest by objective standards. She was not able to separate her view of her actions from the view others could or would take nor recognise how responding to patients in this way would undermine public confidence in the profession.
Mr Justice Lewis held that whilst balancing concerns about ensuring the doctor understands why conduct is unacceptable may be difficult without forcing the doctor to admit guilt for something not accepted, a bland reference to accepting the Tribunal’s findings may be insufficient. The doctor has to demonstrate how, given those findings, sufficient insight has been acquired and the doctor knows and understands why the conduct was considered unacceptable and cannot be repeated, which is subtly different from having to accept doing what accused of. Questioning may need to bear this distinction in mind. In the present case, however, the decision was not wrong. The Tribunal did not allow or conduct unfair questioning. The central issue was whether the Appellant could understand the problems in stating to a patient as fact something which was not correct. The questioning by GMC counsel focussed appropriately on whether she accepted and understood why it was not factually accurate to say the GMC had advised her. The questioning by the Tribunal member about dishonesty, read fairly and in context, was addressed to whether she now accepted that sending emails containing false assertions would be seen as dishonest. The Tribunal were entitled to determine on the material before them, having heard oral evidence, that her fitness to practise remained impaired.
Regarding sanction, Mr Justice Lewis held that the task was to determine what sanction would appropriately meet the statutory objective of protecting the public, including promoting and maintaining public confidence in the medical profession and proper professional standards and conduct. The appropriate sanction was suspension. The decision on sanctions, including extension of supervision, is an evaluative decision requiring consideration of a number of factors. The court should only interfere if there was an error of principle or the decision exceeded the bounds of what the Tribunal could reasonably and properly decide. The Tribunal did not err in principle and its decision was not wrong. It reminded itself that sanctions were not punitive but to protect the public interest, expressly weighed the Appellant’s interests with the public, and took into account that she was a well-regarded doctor. The Tribunal determined she had shown inadequate insight into the dishonest conduct and could repeat it in similar circumstances, and there remained a risk to public confidence in and the reputation of the profession. There was no realistic basis to say the decision was outside the range reasonably open on the evidence. The fact that she stated as fact things that were not factually accurate, namely that the GMC had advised her when it had not, meant the Tribunal were entitled to conclude a further period of suspension was required to enable her to reflect on her actions and their impact not just for her but for the wider profession and public.
Regarding the length of suspension, the judge held that the period is linked to the time the Tribunal considered the Appellant needs to demonstrate insight into her actions and is not a penalty or punishment. The fact the period was longer than initially imposed did not of itself make it wrong. Bearing in mind the Tribunal’s advantage in seeing and assessing the Appellant give evidence, it could not be said that nine months was wrong in this case.
In short, the High Court held that the Tribunal had been entitled to find that Dr Blakely’s fitness to practise remained impaired because she had not demonstrated sufficient insight into why knowingly making untrue and misleading statements to patients in response to complaints would undermine public confidence in the profession, and that the decision to impose a further nine-month suspension was neither wrong nor disproportionate.