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 3 rd 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 3 rd 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?