12 September 2019

It is a tricky - but not uncommon - scenario for a defence team to advise on in regulatory cases: dishonesty is denied but found proved against the registrant at a substantive hearing and they are going to maintain that denial at the review hearing.

In those circumstances, how can the registrant show the level of insight that will be necessary to convince a tribunal that they are now fit to practise again?

It requires the registrant to demonstrate that, although they do not accept that they were dishonest, they understand why the original tribunal took that view, and they acknowledge the seriousness of a dishonesty finding in terms of its impact on the public’s trust and confidence in the profession.

This case study looks at the appeal case of Blakely v GMC [2019] EWHC 905 (Admin) in light of the recent decision to revoke Dr Blakely’s suspension.

Dr Blakely ran a clinic specialising in aesthetic procedures. The misconduct here was that she secretly recorded a colleague’s discussions with patients because she suspected that her colleague was involved in an accounting fraud. Dr Blakely told the GMC that she had made the recordings on the advice of the GMC and CQC. Her account of those discussions was rejected by the tribunal. Allegations of dishonesty were found proved and her registration was suspended.

At the review hearing, Dr Blakely produced a reflective document in which she stated that she now accepted the tribunal’s findings. However, in oral evidence it became clear that she maintained her original position and lacked insight into the reasons for the original tribunal’s findings and the gravity of her actions. She was suspended for a further period.

Dr Blakely appealed, arguing that the tribunal’s decision on impairment was wrong. The High Court dismissed the appeal. The court was content that the tribunal did not err in its assessment that Dr Blakely had failed to demonstrate the required level of insight. However, the court reiterated the principles set out in Yusuff v GMC [2018] EWHC (Admin), in particular the importance of reconciling the need to ensure that the doctor has acquired the requisite insight with the fact that they cannot be required to accept a finding against them. The court expressed the view that Dr Blakely could have demonstrated sufficient insight at the review hearing by accepting wholeheartedly that she was dishonest, or by accepting that members of the public would view the conduct as dishonest.

Dr Blakely attended a second review hearing in August of this year and was able to convince the tribunal that she had now developed the necessary insight. She told the tribunal about the extensive remediation work and reflection she had done since the previous review and that she now accepted why others considered her actions to be dishonest and that she appreciated the gravity of her misconduct. The tribunal concluded that Dr Blakely, “...now has insight into her actions and their impact on the reputation of the profession.” Dr Blakely was found not impaired and the suspension was revoked.

Dr Blakely’s case is a helpful reminder that, with early advice and extensive remediation efforts, it is possible for practitioners to demonstrate the requisite level of insight at a review hearing without necessarily being required to accept a finding of dishonesty.

 Contact: Cara Docherty, Associate,  cdo@bto.co.uk T: 0141 221 8012