Honesty & Integrity: The Difference Between the Two and Why it Matters to the Regulators

Two doctors find themselves under investigation by the GMC. The first is a young registrar who was working in A&E, presented with an 18-month- old child patient who had a non-blanching rash, high temperature, drowsiness and vomiting, but she dismissed it as a bad cold and sent the child home on Calpol. The child died the next day of meningococcal septicaemia. This was the most serious of a string of clinical errors which showed real concerns about the doctor’s clinical ability and generally error-strewn practice, so the GMC duly opened an investigation. The second doctor was a consultant who had had a gleaming, unblemished career with many accolades and international recognition as a leader in his field, who wrote areference for his wife (an aspiring junior doctor) but failed to declare their relationship when asked how he knew her, going so far as to say that he only knew her professionally – doing so because he knew his reference would carry less weight if the prospective employer knew it had come from her husband, and his wife would be less likely to get the job. The GMC investigated his conduct, accusing him of acting dishonestly. One of the two doctors ended up being suspended for six months; the other was ordered to work under supervision for 6 months, before then returning to unrestricted practice. You can probably guess, given the title of this article, that it was the second doctor who was suspended, while the first doctor continued to work throughout.

The two examples above are based (loosely) on actual cases, and illustrate the importance the GMC (like all regulators) places on honesty and integrity. Even a doctor who makes catastrophic clinical errors which lead to a tragic death can continue in practice, provided they react to their mistakes in a positive way, learn from what went wrong and implement changes to ensure it never happens again – the much-feted culture of learning, coupled with the (now statutory) duty of candour widely acknowledged as necessary to maintain standards in our healthcare system. In such cases, if the errors identified are capable of being remedied, have been remedied (through re-training, mentorship and so on), and are unlikely to happen again, the doctor will usually be able to continue to practise because it is possible to improve an under-performing doctor. By contrast, the dishonest doctor is in a far more difficult position because it is much harder to remediate dishonesty – you are either an honest person, or you are not. If the regulator concludes that you are not, it is likely they will throw the book at you and your registration will be at significant risk. Pointing out that no harm came to any patients (the ‘no-one died’ defence) rather misses the point.

There is an expectation that doctors, like any regulated professional, will act with honesty and integrity. This is enshrined in Good Medical Practice,which states: “You must make sure that your conduct justifies your patients’ trust in you and the public’s trust in the profession.” The take-home message is that, whatever your level of technical proficiency, your patients must be able to trust you. Dishonesty is therefore treated extremely seriously by the regulators, as a breach of one of the ‘fundamental tenets’ of the profession. For that reason, it is commonplace for doctors found guilty of dishonesty to be suspended or erased from the medical register.

The test for what constitutes dishonesty is set out in the 2017 case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, which overturned the long- established two-stage test in R v Ghosh [1982] QB 1053. The decision in Ghosh held that dishonesty is established if the answer to the following two questions is “yes”:

1. Whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest (the “objective test”); and
2. If it was dishonest by those standards, whether the defendant himself must have realised what he was doing was, by those standards, dishonest (the “subjective test”).

The decision in Ivey changed the focus of the subjective test, deeming the Ghosh test to be outdated – particularly if a defendant with a warped sense of right and wrong might not appreciate that an ordinary, reasonable and honest person would consider their conduct to be dishonest (think Robin Hood complex), and therefore be found not guilty on the “subjective test”. Ivey states that the test is now as follows:

1. What was the Defendant’s state of knowledge at the time?
2. Based on that, would ordinary, honest people consider the Defendant’s actions to be dishonest (objective test)?
   
   

The decision led to concerns that it would now be easier to prove dishonesty and that that would lead to more adverse outcomes, particularly in disciplinary proceedings. Whether or not the seismic change people feared has in fact eventuated is very much open for debate, as findings of dishonesty in accordance with the Ghosh test were far from difficult to establish before Ivey, and the regulators always took such findings seriously.

Honesty v Integrity

What has in the past been less clear is what to do with the individual who has not been dishonest in the sense of telling an outright lie, but who conducts himself in a manner where his behaviour or words might lead to an untruth being implied from what is said, or perhaps not said. The words used might not be untrue, but they lead to a misinterpretation of the truth. In such cases, an individual might be considered to have acted without integrity, and the decision in Wingate v SRA [2018] EWCA Civ 366 has offered guidance on how someone might not be dishonest, but nevertheless lack integrity, paving the way for regulators to charge lack of integrity a standalone allegation, distinct from dishonesty. In the judgment, Jackson LJ explained the distinction as follows:

“Honesty is a basic moral quality which is expected of all members of society... Telling lies about things that matter or committing fraud or stealing are generally regarded as dishonest conduct...”

“Integrity is a more nebulous concept...In professional codes of conduct, the term ‘integrity’ is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members...The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards... Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty.”

That reference to the “higher standards which society expects from professional persons and which the professions expect from their own members” is really the nub of it: by entering into a regulated profession, we are expected to hold ourselves to higher standards than the ‘ordinary’ member of the public. To be in a profession which puts us in a position of trust is a privilege which carries with it responsibility; and for that reason the regulators will fall heavily on those who breach that trust. Put another way, so far as the regulator is concerned, better a negligent doctor than a dishonest one.

Stephen Hooper is an Associate at Eastwoods Solicitors Ltd and can be contacted on stephen@eastwoodslaw.co.uk

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