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It is important for pharmacists that FTP committees apply the correct test to the correct standard of proof

The dishonesty test

The GPhC recently directed its FTP committees to use a different test for dishonesty at hearings. Pharmacy law practitioner Richard Hough explains what this means in practice

Two similar case law tests for dishonesty are commonly applied by professional bodies' disciplinary committees. These are applied when a pharmacist's honesty is called into question at a General Pharmaceutical Council (GPhC) fitness to practise (FTP) hearing.

The Ghosh test derives from the criminal case of R v Ghosh (1982) and has two limbs:

1. An objective limb €“ the court must first decide whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest
2. A subjective limb €“ if it was dishonest by those standards, then the court must consider whether the defendant himself must have realised that what he was doing was, by those standards, dishonest.

The Twinsectra test derives from Twinsectra Limited v Yardley (2002). While the Twinsectra test is similarly worded, it does not require that the court has to be satisfied that the defendant €must€ have realised that his actions were, by the standards of ordinary people, dishonest in order to satisfy the subjective limb.

The Twinsectra standard requires that: €Before there can be a finding of dishonesty, it must be established that the defendant's conduct was dishonest by the ordinary standards of reasonable and honest people and that he himself realised that by those standards his conduct was dishonest, ie, that dishonesty requires knowledge by the defendant that what he was doing would be regarded as dishonest by honest people.€

The GPhC's position

The GPhC's recent consultation, in which it sought views on whether €the draft hearings and sanctions guidance clearly sets out our governing council's position where the issue of dishonesty forms part of the allegation€, received some critical responses.

As a result, the GPhC has accepted that the Ghosh test is, €not appropriate, open to interpretation and outdated and should therefore not be included€ in FTP hearings when the issue of dishonesty is being considered. Its indicative sanctions guidance, which is used in FTP proceedings, will be amended accordingly.

The issue of dishonesty is a rapidly evolving area of law and it is important for pharmacists that FTP committees apply the correct test to the correct standard of proof before a finding of dishonesty is made against a pharmacist, which in most cases results in the registrant's removal from the register.

It is important to distinguish between the civil standard of proof, which is €on the balance of probabilities€, and the criminal standard of proof, which is €beyond reasonable doubt€. The former simply means that the occurrence of the event in question was more likely to have occurred than not. In the latter, the standard is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.

Understandably, given that criminal sanctions can be imposed when findings of dishonesty are made, the latter standard is higher than the former. In FTP cases, the (lower) civil standard of proof is used.

Ghosh or Twinsectra?

The case of R (Professional Standards Authority for Health and Social Care) v Health and Care Professions Council and others (2014) highlighted the difficulties that disciplinary bodies have in applying the correct test to the correct standard of proof. In this case, when considering the question of dishonesty, the committee was directed that, €they should apply the civil standard of proof and that the test of dishonesty that they should apply was that set out in Ghosh€.

This resulted in the committee applying the wrong standard of proof because the use of the word €must€ in the subjective limb of the Ghosh test meant that the €the subjective element formulated in Ghosh is expressed in the language of the criminal standard of proof.€ The committee was meant to apply the civil standard when considering the factual particulars in this FTP case.

The difficulty with the Ghosh test in the context of disciplinary hearings arose simply from the use of the word €must€ in the subjective limb of the test, ie, that the registrant €must have realised that what he was doing was €¦ dishonest.€ The Concise Oxford Dictionary defines €must have€ in conjunction with the verb to do, as:

1. €Surely did or has done€
2. €Necessarily would have done€.

If this definition is applied in the context of disciplinary proceedings, you can see that if an FTP committee is asked to find on the balance of probabilities that a registrant surely did, or necessarily would have known, something, a requirement which appears to necessitate the exclusion of all other possibilities, this might prove, if not impossible, certainly contradictory and confusing.

So it appears that in ditching the Ghosh test, the GPhC will direct FTP committees to apply only the Twinsectra test, namely that any finding of dishonesty will require a decision as to whether the registrant acted dishonestly by the ordinary standards of reasonable and honest people and, if so, whether he was aware that by those standards he was acting dishonestly.

Richard Hough is senior associate, pharmacist and head of healthcare at Brabners LLP. Contact him on 0151 600 3302, or at richard.hough@brabners.com.