If a police officer facing professional disciplinary proceedings disputes the misconduct allegations and continues to do so even after a finding of gross misconduct, can the misconduct hearing conclude that that the officer lacks insight and remorse – and impose a higher disciplinary sanction? The case of General Medical Council v Awan [2020] EWHC 1553 (Admin) from the medical regulatory tribunals suggest that such a conclusion should not be reached automatically, although a continued denial of the findings may well be a relevant consideration. 

Whilst professional disciplinary proceedings brought by the General Medical Council (‘the GMC’) against doctors are based on a different regulatory regime, the general principles underpinning those proceedings are equally applicable to police misconduct hearings.

Dr Awan, a GP, was suspended from practice for nine months; the GMC submitted that this decision was wrong and the sanction was insufficient to protect the public. In relation to its first ground of appeal, the GMC argued that Dr Awan’s "implausible, incredible and inconsistent" evidence at the hearing was relevant to his "insight into his misconduct and the risk of repetition", yet the regulatory tribunal failed to refer to this and failed to count this as an aggravating factor [35]. 

Notwithstanding that Mostyn J described Dr Awan’s defence before the Tribunal as "ludicrous", he rejected this ground of appeal. He thought it "inconceivable" that the tribunal did not have in mind the nature of Dr Awan’s defence when making its findings about insight. In any event, Mostyn J considered it to be "too much to expect of an accused member of a profession who has doughtily defended an allegation on the ground that he did not do it suddenly to undergo a Damascene conversion in the impairment phase following a factual finding that he did do it." To expect the professional to do that would be "seriously to compromise his right of appeal against the factual finding" and would add little to the assessment of culpability [37].

Continuing this point, the judge held, "an accused professional has the right to advance any defence he or she wishes and is entitled to a fair trial of that defence without facing the jeopardy, if the defence is disbelieved, of further charges or enhanced sanctions" [38]. That is why explicit admissions of culpability are often not made after the factual findings are made; the professional might instead say "I am sorry if what I have said has caused you to take offence" or might admit that "what the tribunal had found proved was serious and deplorable" [39]. This is as much as can be expected in the absence of a significant hiatus between the factual findings and the sanctions stage "in which full reflection can be undergone" [40]. This ground of appeal advanced by the GMC was rejected. 

This followed an earlier case of Yusuff v General Medical Council [2018] EWHC 13 (Admin), which involved an appeal by a doctor against his regulatory tribunal’s review hearing decision that his fitness to practise was still impaired and that he remain suspended from practice for a further six months. At the original disciplinary hearing, Dr Yusuff had been found guilty of misconduct involving dishonesty and sexual impropriety, and he was suspended for twelve months. At that time, the regulatory tribunal found that Dr Yusuff showed no insight into his misconduct.

At the first review hearing, Dr Yusuff told the tribunal that he accepted its factual findings. The tribunal considered that showed insufficient understanding of the seriousness of the misconduct and directed a period of four months’ suspension. At the second review hearing, it concluded that his fitness to practise was still impaired and determined that a further period of six months' suspension "would be sufficient to allow Dr Yusuff to gain genuine and full insight".

Dr Yusuff appealed on the basis that, inter alia, the tribunal’s determination on impairment at the second review hearing was wrong and based substantially on unfair questioning in relation to previous denials of the facts. Yip J held that it "would be wrong to equate maintenance of innocence with a lack of insight", although a continued denial of the finding of misconduct "will be relevant to the Tribunal’s considerations on review". Things would have moved on by the time of a review hearing, and the professional "may be able to demonstrate insight without accepting that the findings at the original hearing were true." However, "[a] want of candour and continued dishonesty may be taken into account by the Tribunal in reaching its conclusions on impairment."

In turn, Yip J referred to the earlier case of Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin), in which Walker J considered it "thoroughly inappropriate, almost Kafkaesque, to cross-examine Ms Amao in a way which implied that she would be acting improperly if she did not "accept the findings of your regulator”. The nurse was entitled to say that she did not accept the findings of the panel. In the event, Yip J held that the tribunal’s finding that Dr Yusuff’s oral evidence was "evasive and inconsistent" was "unassailable". There was no reason for interfering with the Tribunal’s judgment that his "insight was partial, limited and somewhat superficial." 


In Awan, Mostyn J was not referred to Yusuff or the earlier case of Amao, despite those decisions raising similar issues. One might initially have thought that there was a disparity between the judgments, on the basis that Mostyn J in Awan concluded that a professional who advances a ludicrous defence should not be given a harsher sanction if that defence is disbelieved (and/or still maintained thereafter). That is perhaps consistent with the well-known adage that the purpose of sanctions made by professional disciplinary tribunals is not primarily punitive. 

However, one must read Awan more closely. Despite Mostyn J’s support of professionals’ right to advance any defence they wish without the jeopardy of further charges or enhanced sanctions, this did not mean that the nature of that defence (or the professional’s continued denial) was not relevant to the sanction stage. First, Mostyn J said that a continued denial would add little, if anything, to the assessment of culpability. Secondly, he held that it was "inconceivable" that the Tribunal did not have in mind Dr Awan’s "ludicrous" defence when making its findings about "insight". From this, it is clear that the nature of a professional’s defence and their continued denial of the misconduct after it has been found proved may be relevant to insight and remorse, notwithstanding its irrelevance to culpability.

There are some practical tips to take away from this: