Denial treated as lack of insight

Short answer

No panel is entitled to treat the simple fact that you denied the allegation, or that you exercised a right of appeal, as proof that you lack insight. The law in England and Wales is clear that maintaining your innocence is not the same as lacking insight, and a rejected defence cannot automatically be turned into an aggravating factor. That said, the position is more nuanced than a flat rule, and how you deny the allegation, and what else the evidence shows, can legitimately bear on the panel’s assessment.

The leading authority: Sawati v GMC

The key case is Sawati v General Medical Council [2022] EWHC 283 (Admin). Mrs Justice Collins Rice set out the principles that all healthcare regulators (and, by analogy, other professional tribunals) now apply. The central points are these.

A registrant is entitled to defend an allegation and to put the regulator to proof. Doing so, and losing, does not by itself demonstrate a lack of insight or a lack of remorse. It is wrong in principle to equate the maintenance of innocence with a lack of insight.

The court drew a distinction that matters a great deal in practice. The question a panel should ask is whether there is evidence of a lack of insight beyond the mere fact of the denial. As the judgment puts it, a rejected defence which, on a fair analysis, adds to an evidenced history of faulty understanding is more likely to be relevant fairly to sanction than one said to constitute such faulty understanding in and of itself. In other words, the denial cannot be the insight problem by itself; it can only be relevant if it forms part of a wider, independently evidenced pattern.

Denial rejected as dishonest is different

Sawati and the regulators’ practice notes distinguish between:

1. Denying the primary facts, meaning what you are said to have done or not done. Contesting these is a legitimate exercise of your defence rights and normally carries no penalty even if you are disbelieved.

2. Denying a secondary allegation such as dishonesty, where the panel then finds not only that you did the act but that you lied about it or gave dishonest evidence at the hearing itself. Where a panel makes a specific, reasoned finding that your own evidence to the panel was dishonest or misleading, that finding (not the denial as such) can properly feature in the assessment of insight and sanction, because it is fresh misconduct or additional evidence of attitude, rather than simply the act of contesting the charge.

The distinction is important. It is not the denial that counts against you; it is a distinct, separately evidenced finding about your conduct or your understanding.

The impairment and sanction stages

The Health and Care Professions Tribunal Service practice note on finding impairment (which reflects Sawati) tells panels to exercise caution before treating a registrant’s denial, once rejected, as an aggravating factor in itself. Panels are directed to ask what other evidence of lack of insight exists apart from the rejected denial or defence. They are also reminded that lack of insight is not the same as lack of remorse, and that it is wrong to equate the two with the maintenance of innocence.

The more recent case of Ibrahim v Nursing and Midwifery Council [2024] EWHC 2991 (Admin) reinforces this. The court criticised errors including failing to apply the correct law on insight, equating lack of remorse and non-acceptance of the panel’s findings with lack of insight, and equating lack of insight with current impairment. These are recognised legal errors that can found an appeal against a panel’s decision.

Exercising a right of appeal

The same logic applies with even greater force to an appeal. Pursuing a statutory right of appeal is the exercise of a legal entitlement. A panel cannot logically hold against you at first instance a step you have not yet taken, and a decision to appeal after a determination cannot rationally be used to show a pre-existing lack of insight. If a regulator sought to rely on the fact that you had appealed as evidence of poor attitude or lack of insight, that would be an error of principle and, potentially, an unlawful chilling of your access to the court. There is no proper basis for treating the exercise of appeal rights as an aggravating factor.

Where denial can legitimately matter

To be balanced, there are situations where the way you conduct your defence can properly affect the outcome, and it is worth being realistic about them.

If, in maintaining your denial, you give evidence that the panel finds to be actively dishonest, fabricated, or an attempt to mislead them, that is separate misconduct and can weigh against you.

If your denial is part of a broader, independently evidenced picture, for example you have repeated the same conduct, ignored warnings, shown no understanding of the risk to patients or clients, or cannot articulate what went wrong even on a hypothetical basis, then the denial may add to that picture at the sanction stage.

Remediation and insight are usually assessed partly by looking at what you have done to understand and address the concerns. It is entirely possible to maintain that you did not do the thing alleged while still demonstrating reflective insight into the concern in the abstract, and doing so protects your position. A blanket refusal to engage at all is different from a reasoned denial coupled with evidence of reflection.

Practical points if you are facing this

Frame your defence carefully. You are entitled to deny the facts, but avoid giving evidence that could itself be found dishonest, evasive or misleading, because that is where genuine risk lies.

Prepare insight and remediation evidence in parallel, even while denying. You can present reflective statements, training, testimonials and evidence of safe practice on a contingent basis, addressing what you would do if the panel makes adverse findings, without conceding the facts. This protects you at the impairment and sanction stages.

If a panel has treated your denial or intended appeal as, in itself, proof of lack of insight, that is a recognised ground of legal challenge on appeal, because it is an error of law and principle under Sawati and Ibrahim. Note the appeal deadline that applies to your regulator, which is commonly 28 days from service of the decision, and check the exact period in the rules governing your regulator.

What would sharpen this answer

The precise position can turn on which regulator you are before, whether the denial relates to primary facts or to an allegation of dishonesty, whether the panel made any finding that your own evidence was untruthful, and exactly how the panel expressed its reasoning on insight. If you can say which body is involved and quote the words the panel used, it would be possible to assess whether the panel has fallen into the specific errors the courts have identified.