by Graeme Watson, Partner and Bethany Dodds Associate at Clyde and Co. healthcare department
If a doctor denies dishonesty, in the teeth of a Medical Practitioners Tribunal Service (MPTS) finding to the contrary, can they ever demonstrate that they are now fit to practise?
In Natalie Blakely v General Medical Council  EWHC 905 (Admin), the High Court considered whether insight can be demonstrated in the absence of an admission of dishonesty. In refusing the doctor's appeal against the extension of her suspension at a review hearing, the court highlighted the distinction between admitting guilt of dishonest conduct and showing insight.
Dr Blakely ran a clinic specialising in cosmetic treatments. She suspected that another doctor at the clinic was undercharging for treatments. She hired a firm of private detectives to record his consultations covertly. When the surveillance was discovered Dr Blakely told patients that she had acted on the advice of the General Medical Council and Care Quality Commission.
At a hearing in May 2018, Dr Blakely admitted arranging the surveillance recordings but denied dishonesty. The MPTS found that while Dr Blakely had contacted the GMC and CQC before doing so, she had neither sought nor taken their advice and had therefore dishonestly misled patients. The tribunal found that her fitness to practise was impaired and she was suspended for six months.
At a review hearing in November 2018, Dr Blakely maintained that she had not acted dishonestly. The tribunal considered that her fitness to practise remained impaired and suspended her for an additional nine months. Dr Blakely appealed on the basis that this was an unfair decision made simply because she maintained that she had not acted dishonestly.
The court held that the tribunal was entitled to determine that Dr Blakely's fitness to practise remained impaired and to conclude that a further suspension was required to enable her to gain sufficient insight into why her conduct was unacceptable. The court highlighted the subtle difference between ensuring a doctor understands their conduct is unacceptable, and forcing a doctor to admit guilt for something he or she does not accept doing. The key consideration is that the doctor must be able to reassure the tribunal that they have sufficient insight to understand why the conduct was unacceptable and cannot be repeated.
This is a useful reminder of the factors which the court will take into account in considering whether a doctor shows the necessary insight to demonstrate their fitness to practise is not impaired by reason of dishonesty.
But more than that, the court highlighted that the distinction between admission and insight must be borne in mind by legal advisors and members of the tribunal. A bland statement by a doctor that they accept the tribunal findings may not be sufficient to demonstrate insight – particularly where, as in this case, that statement is superseded by oral evidence to the contrary. Doctors and legal advisors must be prepared for insight to be tested at a review hearing to the same extent as it is assessed during the substantive hearing.
And if lawyers representing doctors allow them to admit dishonesty in writing when we know their evidence will be the opposite – what insight are we showing?