Medical Schools Conference
Dealing with dishonesty in student Fitness to
Practise cases
“for all professionals, a finding of dishonesty lays
at the top of the spectrum of misconduct”
Lord Steyn
Sarah Ellson, 11 May 2012
Introduction
• Recent legal developments and case law regarding
dishonesty
• Issues arising from case studies:
• Applying the two-stage test: objectivity and subjectivity (case studies 1
and 2)
• Plagiarism (case study 3)
• Dishonest or misleading? (case studies 4 – 6)
• Conclusions
What is ‘dishonesty’?
• Honesty – derived from Latin word honestus, meaning
“free of deceit, truthful and sincere”
• Dishonesty – “not honest, trustworthy or sincere” –
Oxford English Dictionary
Case law (1)
•
•
Criminal test for dishonesty established in case of R v Ghosh [1982]
QB.1053 (a criminal case)
•
The objective test: according to the standards of reasonable and honest
people, was the act dishonest?
•
The subjective test: if it was, must the defendant have realised the act was
dishonest by those standards?
“In most cases…it will be obvious that the defendant himself knew
that he was acting dishonestly. It is dishonest for a defendant to act
in a way which he knows ordinary people consider to be dishonest,
even if he asserts, or genuinely believes that he is morally justified
in acting as he did” – Lord Lane
Case law (2)
• Twinsectra Ltd v Yardley [2002] UKHL 12 (a civil case) –
confirmed the two-stage test established in Ghosh
• ‘…dishonesty requires knowledge by the defendant that
what he was doing would be regarded as dishonest by
honest people, although he should not escape a finding
of dishonesty because he sets his own standards and
does not regard as dishonest what he knows would
offend the normally accepted standards of honest
conduct’ – Lord Hutton
Case Law (3)
• Bryant v Law Society [2007] EWHC 3043 (Admin)
• The correct test to be applied, when considering whether
a solicitor who had been involved in dubious transactions
had been dishonest, was one that included both an
objective test as to whether that solicitor had acted
dishonestly by the ordinary standards of reasonable and
honest people, and a subjective element as to whether
he had been aware that by those standards he was
acting dishonestly.
Case Law (4a)
• Singleton v Law Society [2005] EWHC 2915
• Law Society alleged ‘conduct unbefitting a solicitor’ but
not dishonesty. Solicitor’s Disciplinary Tribunal found
that S had been dishonest.
• S appealed on the basis that there had been a
‘procedural irregularity’ as he did not have advanced
notice that the allegation was one of dishonesty
Case Law (4b)
•
R (on the application of Council for the Regulation of Health Care
Professionals) v Nursing & Midwifery Council [2007] EWHC 1806
(Admin);
•
K, a registered nurse, had forged a letter indicating that she had
passed all parts of a course when in fact she had failed one part of it.
K admitted the facts alleged in the charges. However, the committee
did not find her guilty of misconduct, having concluded that, although
much of the evidence related to her alleged dishonesty, dishonesty
had not formed part of the charges against her.
•
Dishonesty must be explicitly alleged
Case law (5)
•
Misra v General Medical Council [2003] UKPC 7
•
M was alleged to have been informed of four telephone calls
requesting a home visit for a patient. He admitted only receiving two
calls. He told the patient’s son and the GMC he had only received
two calls.
•
He was “charged” with giving the son and the GMC information that
he knew to be untrue
•
The High Court found that bringing charges of dishonesty in addition
to the substantive serious professional misconduct matter had been
prejudicial to M and that the addition of the allegations of dishonesty
were unnecessary and oppressive.
Case law (6)
Nicholas-Pillai v General Medical Council [2009] EWHC
1048:
• The attitude of a practitioner to the events that gave rise
to the specific allegations against him concerning his
fitness to practise was in principle something that could
be taken into account by the fitness to practise panel of
the General Medical Council when considering whether
fitness to practise was impaired and at the stage of
determining what sanction should be imposed upon him.
Case law (7)
• Donkin v Law Society [2007] EWHC 414 (Admin)
• The Solicitors’ Disciplinary Tribunal should have taken
into consideration D’s numerous testimonials and
statements of good character. Although previous good
character is not in itself a defence, it is relevant to the
issue of dishonesty
Medical Students: professional values and
fitness to practise - Medical Schools Council &
General Medical Council guidance
•
Thresholds for student fitness to practise
•
Has a student behaved dishonestly, fraudulently, or in a way
designed to mislead or harm others?
•
The medical school should take action if a student’s behaviour is
such that trust in the medical profession might be undermined. This
might include plagiarism, cheating, dishonesty in reports and
logbooks, forging the signature of a supervisor, or failing to comply
with the regulations of the medical school, university, hospital or
other organisation
Medical students: professional values and
fitness to practise - probity
In order to demonstrate that they are fit to practise, students should:
•
•
•
•
•
•
•
•
be honest, genuine and original in their academic work, including research,
be honest and trustworthy when writing reports and logbooks, and when
completing and signing forms
be honest in CVs and all applications and not misrepresent their
qualifications, position or abilities
not plagiarise others' work or use their own work in a way that could mislead
be honest and trustworthy in any financial dealings
co-operate with any formal inquiry by their medical school or other
organisation into their (or anyone else’s) health, behaviour or performance
comply with the laws of the UK
comply with the regulations of their medical school, hospital or other
organisation.
Case study 1:
Student accused of unprofessional behaviour
• Summary:
• Student “falsely” signed attendance register on six occasions
• On two occasions, attended GP day
• On remaining four occasions, arrived two to three hours late
• Committee found he had been dishonest on six
occasions
Case study 1 – matters to consider
•
Was his conduct really dishonest?
•
Two part test:
•
was the student’s behaviour dishonest by the standards of reasonable and honest
people?
•
must the student have known his behaviour was dishonest by the standards of
honest and reasonable people?
•
Clarity around the attendance register
•
What did it/could it record?
•
What did students do about GP days?
•
Is being late dishonest?
•
What was the student’s intention?
Case study 2: Failure to disclose convictions at
time of application
• Summary
• Student completed UCAS form for medical degree and did not disclose
any relevant convictions/cautions
• Later informed university of some details and that received police
caution for assault and accepted a place on the course
• CRB check later identified 5 minor offences – cautions/fines/community
orders
• Student said she genuinely believed the criminal assault was her only
conviction
Case Study 2 – matters to consider
Possible questions:
•
What did the UCAS guidance state regarding previous criminal
cautions/convictions?
•
What is the student’s understanding of matters which constitute an
actual criminal offence? Could she be ignorant of the offences?
•
What was her intention? Again two-stage test – objective and
subjective limbs
•
was the student’s behaviour dishonest by the standards of
reasonable and honest people?
•
must the student have known her behaviour was dishonest by the
standards of honest and reasonable people?
Case study 3 - plagiarism
• Summary:
• Yr 1 student submits SSC essay on health problems in third world
• Includes 3 paragraphs of demographic data on Senegal from internet –
not referenced or attributed to source
• School Discipline Committee found student had plagiarised work
Case Study 3 – matters to consider
• What knowledge and training does the student have in
referencing and citations?
• If someone else had written them, how did she expect
the reader to know that?
• Did she intend the reader to believe that it was her own
work? What was her subjective understanding?
• Did she think her actions were misleading, or that it was
wrong not to credit the source?
• [Is plaigarism always dishonest? Option for misleading?]
Case Study 4 – signature forgery
• Summary
• Final year medical student forged supervising consultant’s signature for
4-week placement and awarded himself an average grade
• Satisfactorily completed placement, but “forgot” to get form signed and
supervisor later on holiday
• Student admitted he’d panicked but never intended to be dishonest
Case Study 4 – matters to consider
• Two limbs of dishonesty:
• Was his behaviour dishonest by the standards of reasonable and honest
people?
• Must the student have know his behaviour was dishonest by the
standards of honest and reasonable people?
• Questions around intention, what weight to give
subjective account.
Case Study 5 – Train fare dodging
• Summary
• 3rd year student boarded train without ticket and he lied twice about
where he had boarded at the train
• Prosecuted and convicted of “travelling on the railway without paying the
fare”
• Despite signed agreement to promptly inform medical school of any
criminal investigations, he delayed reporting until beginning of next
academic year
• Student made two false statements in written submissions to Committee
• Committee found that student had exhibited a pattern of dishonesty
Case Study 5 – matters to consider
• Was it right to find a pattern of dishonesty?
• Unrelated dishonesty
• Conduct during the hearing
• What has been charged – and what can therefore be
“found” proved
Case Study 6 – breach of patient
confidentiality
• 3rd year medical student overheard on bus talking about
a patient (the local MP admitted to hospital following a
medication overdose)
• Bus passenger reported this to the hospital, and story
later appeared in press
• Student denied that she had discussed the patient with
anyone other than her colleagues, and said someone
else must have breached the patient’s confidentiality
Case Study 6 – matters to consider
What issues should be covered in the allegations?
• Alleged breach of patient’s confidentiality
• What about further dishonest accounts?
Summary and conclusions
• If the allegation is that the student has been dishonest or
misleading, this must be specified in allegation
• Do not be ‘oppressive’ and allege that the student’s
account or defence is dishonest
• Ensure that you consider both limbs of the dishonesty
test:
• 1) was the student’s behaviour dishonest by the standards of reasonable
and honest people?
• 2) must the student have known her behaviour was dishonest by the
standards of honest and reasonable people?