Edward Mills v GDC  EWHC 89 (Admin)
Moseka v Nursing and Midwifery Council  EWHC 846 (Admin)
Recently, there has been a significant amount of debate in the Courts about the applicability of the two part Ghosh test in regulatory proceedings. Below we look at three decisions which indicate the extent to which the law relating to this issue is less than clear.
Prior to 2012, regulators had as a matter of practice used this test when considering allegations of dishonesty. The first part was objective (with the tribunal being asked to consider whether the defendant's conduct was dishonest by the standards of ordinary and decent people), while the second part of the test was subjective (with the tribunal being asked to consider whether the defendant realised at the material time that his conduct was dishonest according to the standards of ordinary decent people).
However, in the 2012 case of Uddin v General Medical Council  EWHC 1763 (Admin), the High Court urged caution about the use of the Ghosh test in a regulatory context, on the basis that (i) it was devised in the criminal law context, whereas the standard of proof in regulatory proceedings is the civil standard, and because (ii) even in the criminal context, it was not the general practice to give a Ghosh direction in all cases, but only where an issue was raised as to whether a conduct was dishonest by the standards of ordinary people. The real issue, it was suggested in Uddin, was whether the conduct took place and whether it was done knowing that it was false, as opposed to being an innocent or negligent mistake.
There was no further reported judicial comment on the issue until January 2014, when Mrs Justice Patterson considered the High Court appeal in the case of Edward Mills v GDC  EWHC 89 (Admin). The case involved a dentist who was alleged to have made inappropriate claims for payment from a PCT, which were said to have been motivated by financial gain and/or were dishonest, in that his intention was to minimise or avoid liability to repay sums to the PCT which had been overpaid to him previously. Various types of inappropriate claims were identified, including that Mr Mills had claimed Units of Dental Activity (UDAs), each with an approximate value of £26, for posting documents to patients consisting of oral health leaflets, prescriptions and “passports”. At a GDC hearing of his case, he was found to have acted dishonestly (on the basis that the sending out of the documents “was calculated to achieve extra UDAs and was motivated by financial gain, as each UDA claimed lessened the sum to be repaid to the PCT"). His fitness to practise was found to be impaired by reason of misconduct and it was directed that his name be erased from the register of dentists.
He appealed against the decision. Whilst Patterson J rejected his appeal, she did, as part of her introduction to the case, examine the approach taken in regulatory cases to the issue of dishonesty. She noted that on issues of dishonesty, a test including an objective and subjective element based on the decision in Ghosh has been used, but that in Uddin Singh J had urged some caution in adopting that approach without question. In that regard, she concluded “I consider the observations of Singh J in dealing with the issue of dishonesty in regulatory cases a more nuanced approach and a preferable one to follow”.
The issue arose again in the recent High Court decision in Moseka v Nursing and Midwifery Council  EWHC 846 (Admin), which was heard in March 2014. Allegations of dishonesty had been brought by the NMC against Ms Moseka, on the basis that, when completing an online application form, she had failed to disclose to her employer that she was the subject of an ongoing NMC investigation (which ultimately resulted in the imposition of a 12 month caution order). Ms Moseka denied acting dishonestly in failing to disclose the NMC investigation, arguing at the Conduct and Competence Committee (“CCC”) hearing of her case that the inaccuracy was an innocent oversight and was the result of her 13/14 year old daughter completing the online form. The CCC rejected this explanation and found that Ms Moseka had acted dishonestly. Her fitness to practise was found to be impaired by reason of misconduct and a striking off order was made.
Ms Moseka appealed to the High Court. Mr Justice Green ultimately rejected her appeal, but in doing so stated that “I do agree with the observations of Singh J [in Uddin – and which the CCC had referred to in its determination in Ms Moseka’s case] that (i) these are not criminal proceedings; (ii) the standard of proof is different being the civil standard of a balance of probabilities”.
However, in the case of Professional Standards Authority for Health and Social Care v General Dental Council (13 May 2014, Unreported), the Court stated that the Ghosh test remains good law in professional disciplinary proceedings. In that case, the GDC's Professional Conduct Committee ('PCC') considered the case of D. Patient X attended three appointments with D for filling replacement. X attended another dentist, E, on an emergency basis. E was concerned about the quality of the treatment D had provided and X wrote to D setting out E's criticisms and giving D the opportunity to explain. D told X by email that the filling work was incomplete and the work was only provisional. D apologised for not making it clear that he had not yet finished his work on her fillings. The PCC found that D's email had been misleading and had intended to mislead but that the GDC had not established that his conduct had been dishonest according to the high threshold in Ghosh. In refusing to make a finding of dishonesty, the PCC referred to the fact that D had been willing to carry out necessary further dental work for X and had apologised for not making things clearer earlier about the status of treatment. The PCC reprimanded D.
The High Court allowed the PSA's appeal and overturned the decision. It considered that the PCC's finding that dishonesty had not been established was manifestly wrong and irrational. On a proper analysis, the factors which seemed to have influenced the decision on dishonesty were either irrelevant or supported a finding of dishonesty. The fact that D had been willing to carry out further dental work for X was irrelevant to whether D's conduct in deliberately misleading X would have been regarded as dishonest by others. As to the committee's reliance on the fact that D had apologised for not making matters clearer, that apology formed part of the deceit alleged. Finally, as to the high bar that had to be met before a finding of dishonesty could be made, the PCC had noted D's good character and that it was inherently unlikely that a man of good character would be dishonest; however, having found that D had knowingly misled X, his good character was irrelevant to the objective test in Ghosh. The case was remitted to a fresh PCC for reconsideration.
The PCC's original decision was somewhat surprising and we consider that the High Court's judgment is unlikely to establish any significant new precedent. However, given the High Court's reliance on the Ghosh test in the case, there appear to be clear and compelling arguments for the issue of dishonesty in regulatory proceedings to be considered by the Court of Appeal, particularly since none of the decisions discussed above (including Uddin) refer to the leading civil case on dishonesty (Twinsectra v Yardley  UKHL 12). It seems clear that some clarity is required in order for regulators and practitioners to be confident in the test that tribunals should apply.