Fraudulent conduct will almost always warrant striking off from a professional roll or erasure from a register. However, there are circumstances where the ultimate sanction may not be proportionate, even where the individual has been convicted of a criminal offence. As such, care should always be taken to ensure that the rationale justifying any sanction imposed is explained clearly, warranted on the facts and proportionate. A good example of this is Dr Fatnani's case.
In June this year Dr Fatnani argued successfully before Mr Justice Collins that the erasure imposed by the General Medical Council ("GMC") following her conviction on four counts of fraud should be quashed. Although the circumstances in which Dr Fatnani found herself were extremely unusual, the case is nevertheless illustrative of why in every case the grounds justifying a striking off or erasure must reflect accurately the facts of the case.
Dr Fatnani was the mother of Mrs Joyti De-Laurey, who had worked as a PA at Goldman Sachs. In June 2004 Mrs De-Laurey was convicted of the theft of £4.2 million from her employers; Mrs De-Laurey used the stolen money to fund a particularly lavish lifestyle, and the case attracted considerable publicity at the time. Unfortunately Dr Fatnani was caught up in the prosecution and charged with five offences of assisting in the disposal of the proceeds of fraud. She was sentenced to six months' imprisonment, which was suspended for two years. An important feature of the criminal case was that Dr Fatnani was convicted on the grounds of her suspicion of her daughter's conduct, not on the basis of having direct knowledge of the frauds. Following her criminal conviction the GMC ordered erasure and Dr Fatnani appealed.
Two issues in particular are worth highlighting. The first is the way in which Mr Justice Collins approached the decision of the GMC; the second relates to his views on how fraudulent conduct should be approached in disciplinary proceedings.
The written decision imposing erasure stated that Dr Fatnani did not appear to have "insight" into her criminal conduct, despite apologising for her behaviour. On reviewing the transcript of the hearing, during which Dr Fatnani apologised for her behaviour, Mr Justice Collins held that there was no basis for a finding that Dr Fatnani had no insight into her crimes. So, this conclusion was unwarranted.
The decision went on to state that the "huge fraud" was "perpetrated primarily" by Dr Fatnani's daughter. Not so said Mr Justice Collins; the fraud was, in fact, "perpetrated entirely by her daughter"; Dr Fatnani was after all convicted of 'assisting' in the disposal of assets, not in carrying out the fraud itself. Although Mr Justice Collins makes it clear that the text of a tribunal's decision should not be scrutinised as if it was a statute, in his view the implication arising from this statement was that the hearing panel "may have taken a rather more serious view of the appellant's involvement than was justified by the evidence before them". As a result the panel had misdirected itself and it was open to the court to review the sanction. The erasure was quashed and a 12 month suspension was imposed in its place.
The panel misdirected itself in including Dr Fatnani's alleged 'lack of insight' as a basis for the sanction without further elaboration. Dr Fatnani had apologised on several occasions, and it was unclear why it was felt she had lack of insight. This conclusion, which weighed heavily with the hearing panel, should therefore have been explained fully in the written decision. As it stood, it was an unsupported conclusion allowing the court to hold that the panel had misdirected itself. Similarly, although it is a narrow point, the panel should have ensured it presented the relevant facts clearly and accurately: Dr Fatnani did not perpetrate the fraud; her crime was of assisting in the disposal of assets based, not on the basis of knowledge, but of suspicion. It seems reasonably clear that, had the decision not contained these shortcomings, Mr Justice Collins would not have felt able to go on to review the sanction imposed, for there would have been no obvious misdirection.
The second issue relates to how fraud should be dealt with in situations where there is not direct knowledge. It was argued on behalf of Dr Fatnani that dishonesty was not an element of the crimes she was convicted of: this was given short shrift by Mr Justice Collins who concluded that suspicion does involve dishonesty. It was also argued that there were degrees of dishonesty. Again Mr Justice Collins rejected this. The proper approach is to look at the facts and "decide from [them] what should result from the dishonesty in question". Dishonesty is, of course, the key issue in this context, as it is dishonesty that usually warrants the ultimate sanction of erasure or striking off. However, it is not sufficient to order erasure just because there has been dishonesty: what is required is an assessment of the dishonesty in light of all the facts and circumstances in reaching a concluded view on sanction.
Although this case is unusual, it does highlight how, even in more serious cases, where there has been a criminal conviction, the reasoning of disciplinary bodies can still come under close scrutiny and decisions on sanction reviewed.