ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen's Bench Division (Administrative Court)
Mrs Justice Moulder
Strand, London, WC2A 2LL
B e f o r e :
Lady Justice King
Lord Justice Flaux
| The General Medical Council
|- and -
|Dr Shekhar Chandra
Mary O'Rourke QC and Nicola Newbegin (instructed by Medical Defence Shield) for the Respondent
Hearing date: 18 July 2018
Crown Copyright ©
Lady Justice King:
i) (a) Can there properly be said to be an analogy as between cases in relation to solicitors being restored to the roll and doctors being restored to the medical register?(b) In any event can it be said that a doctor can only be restored to the register if he or she can satisfy the MPT that there are "exceptional circumstances"?
ii) What is the proper approach to be taken by the MPT to the over-arching objective of the GMC when considering an application for restoration to the medical register?
"During this time there was physical contact between you, you put your hand on her leg, touched her hair, commented that her hair looked nice, stroked her hand and kissed Ms A. You then returned to the hospital."
"[Dr Chandra's] conduct and behaviour towards Ms A was inappropriate, unprofessional and not of the standard expected of a medical practitioner. Further the panel found that your conduct was sexually motivated, indecent and an abuse of your position of trust as a doctor."
"The panel has taken into account the public interest. The public interest includes the particular need to protect the individual patient, and the collective need to maintain the confidence of the public in their doctors…Doctors occupy a position of privilege and trust in society and are expected to act with integrity and uphold proper standards of conduct. That trust is not simply the trust that patients place in doctors, but also extends to colleagues and members of the public. This misconduct is serious as you abused a special position of trust, which you occupied, with a female patient whom you knew to be vulnerable. In particular while your first car park meeting with Ms A and subsequent visit to her house may have been initiated with some encouragement from Ms A, the second visit to her home after 2am was procured by you in the knowledge that you had already transgressed your professional boundaries. This was within the intention of continuing a relationship which the panel is satisfied you realised had become improper…
…The panel is also concerned about your failure to disclose your contact with Ms A to her treating clinicians after her admission to hospital following an alleged overdose. This behaviour was misleading and placed this vulnerable patient at a particular risk. In addition you should not have subsequently met with Ms A in… the car park in September which placed you both at risk."
The application to be restored to the Register
"1. - The General Medical Council.
(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as "the General Council") having the functions assigned to them by this Act."
"(1A) The over-arching objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public."
"(1B) The pursuit by the General Council of their over-arching objectives involves the pursuit of the following objectives-
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession."
"A person's fitness to practice shall be regarded as "impaired" for the purposes of this Act by reason only of—
(b) deficient professional performance;
(c) a conviction or caution in the British Islands for a criminal offence, or a conviction elsewhere for an offence which, if committed in England and Wales, would constitute a criminal offence;
(d) adverse physical or mental health; or
(e) a determination by a body in the United Kingdom responsible under any enactment for the regulation of a health or social care profession to the effect that his fitness to practice as a member of that profession is impaired, or a determination by a regulatory body elsewhere to the same effect."
"41. - Restoration of names to the register
(1) Subject to subsections (2) and (6) below, where the name of a person has been erased from the register under section 35D above, [or section 44B (4)(b) below,] a Medical Practitioners' Tribunal may, if they think fit, direct that his name be restored to the register.
(2) No application for the restoration of a name to the register under this section shall be made[…]
(a) before the expiration of five years from the date of erasure; or
(6) Before determining whether to give a direction under subsection (1) above, a Medical Practitioners' Tribunal shall require an applicant for restoration to provide such evidence as they direct as to his fitness to practise; and they shall not give such a direction if that evidence does not satisfy them.
(12)…In exercising a function under this section, a Medical Practitioners Tribunal must have regard to the over-arching objective."
"What factors do the medical practitioners tribunal take into account when considering the application for restoration?
10. The tribunal will consider a number of factors, including the following:
a. The circumstances that led to erasure.
b. The reasons given by the previous tribunal (or committee) for the decision to direct erasure.
c. Whether you have any insight into the matters that led to erasure.
d. What you have done since your name was erased from the register.
e. The steps you have taken to keep your medical knowledge and skills up to date and the steps you have taken to rehabilitate yourself professionally and socially.
"13. It is important to bear in mind that there is no right to be restored to the register. You will need to demonstrate why your name should be restored and that you are fit to practise."
"12. The GMC can appeal decisions made by tribunals, including those to restore doctors to the register. The GMC has the power to make an appeal where it considers that the decision to restore a doctor is not sufficient for the protection of the public, taking into account:
• protecting the health, safety and well-being of the public;
• maintaining public confidence in the medical profession; and/or
• maintaining proper professional standards and conduct for members of that profession…"
"24. The application is governed by Rules 23 and 24 and s41 of the Medical Act.
The tribunal may grant the application or refuse it. If the application is refused, the doctor may not make a further application within 12 months. The tribunal has no discretion to make this period longer or shorter unless the doctor has made two or more previous applications. If this is the case, the tribunal may consider whether the doctor's right to make an application for restoration should be suspended indefinitely.
If the doctor is unsuccessful in their application for restoration, there is no statutory right of appeal, although the doctor may challenge the decision by way of judicial review.
However, there is a statutory right of appeal against the tribunal's decision if it decides to suspend the doctor's right to re-apply indefinitely.
The doctor may apply to the Registrar for the decision to suspend their right to reapply indefinitely to be reviewed by a tribunal after three years from the date of the decision."
"22. In reaching its decision, the tribunal has given careful consideration to all the circumstances of your case, includes the following:
- the circumstances which led to erasure;
- reasons given by the FTPP for the decision to direct erasure;
- whether you have now any insight into the matters that led to erasure;
- what you have done since your name was erased from the Medical Register;
- steps that you have taken to rehabilitate yourself.
23. The tribunal was mindful that it is for the applicant for restoration to demonstrate that he is fit to practise. The tribunal has also born in mind that, should it restore you to the Medical Register, that registration would be unrestricted. Therefore, it needs to be satisfied you are a fit and proper person to be restored to the Medical Register that this time.
24. The tribunal has borne in mind the statutory over-arching objective, which including protecting and promoting the health, safety and wellbeing of the public, promoting and maintaining public confidence in the medical profession, and promoting and maintaining proper professional standards and conduct for the members of the profession."
"26. The tribunal was in no doubt that your actions between 2005 and 2009 were very serious and fundamentally incompatible with registration. Your sexual misconduct involving Miss A and your subsequent dishonest denial of your actions in sworn evidence to the FTPP in 2007 and 2008 were entirely reprehensible. Your actions forced Miss A, who was a vulnerable patient, to endure extensive cross-examination questioning her mental health, and regarding the events which had occurred, making her out to be a liar when you knew that she was telling the truth. The tribunal considered that you had compounded these actions with a continuation of this deceit in pursuing an appeal against the erasure decision of the FTPP, in the full knowledge that it was you that was giving an untruthful account of events, not Miss A, prolonging her ordeal."
"38. In all the circumstances, the tribunal considered that the over-arching objective, and in particular the public interest, would not be compromised through the restoration of your name to the Medical Register. It was of the view that you have accepted your wrongdoing, you have reflected appropriately, significantly gained in maturity and insight, and gained substantial understanding in regard to the proper boundaries and relationships with patients, and the central role of honesty and probity in the medical profession. It found that you have made sufficient progress such that you have demonstrated that you are now fit to practise, that you are a fit and proper person to be restored and that taking such a course would be an appropriate and proportionate response."
The Grounds of Appeal
"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust…"
"The second purpose is the most fundamental of all: to maintain the reputation of the solicitors' profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. To maintain this reputation and sustain public confidence in the integrity of the profession it is often necessary that those guilty of serious lapses are not only expelled but denied re-admission. If a member of the public sells his house, very often his largest asset, and entrusts the proceeds to his solicitor, pending re-investment in another house, he is ordinarily entitled to expect that the solicitor will be a person whose trustworthiness is not, and never has been, seriously in question. Otherwise, the whole profession, and the public as a whole, is injured. A profession's most valuable asset is its collective reputation and the confidence which that inspires.
Because orders made by the tribunal are not primarily punitive, it follows that considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that a solicitor appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learned his lesson and will not offend again. On applying for restoration after striking off, all these points may be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness. Thus it can never be an objection to an order of suspension in an appropriate case that the solicitor may be unable to re-establish his practice when the period of suspension is past. If that proves, or appears likely, to be so the consequence for the individual and his family may be deeply unfortunate and unintended. But it does not make suspension the wrong order if it is otherwise right. The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.
"Their Lordships consider that the Professional Conduct Committee was right to be guided by the judgment in Bolton v Law Society…It is true that in that case misconduct of a solicitor was at stake. But the approach there outlined applies to all professional men. There can be no lower standard applied to doctors: Gupta v General Medical Council…For all professional persons including doctors a finding of dishonesty lies at the top end in the spectrum of gravity of misconduct…"
10…contrary to a suggestion from Mr Larkin QC for Dr Bawa-Garba, [that] the comments of Sir Thomas Bingham MR in Bolton apply to doctors as much as to solicitors".
"103 Any of the following factors being present may indicate that erasure is appropriate:
h. Dishonesty, especially where persistent and/or covered up"
"26. The principles laid down in the cases for determining whether or not somebody should be restored to the Roll of Solicitors are not in dispute. They have recently been summarised by Burnett J in Thobani v the Solicitors Regulation Authority  EWHC 3783 at paragraph 6:
"The approach in Bolton has to a degree been adjusted in the way set out in paragraph 14 of Langford v the Law Society  EWHC 2802 (Admin):
"14. Before examining the substance of these submissions, it is necessary to identify, briefly, the approach which this court should, as it seems to me, adopt to an appeal of this kind. The classic authority as to the approach of this court is Bolton v Law Society  1 WLR 512 … As to the approach, in general, which this court should adopt, it is not contested to the contrary by Mr Williams, on behalf of the Law Society, that Mr Foster's submission, based in particular on Ghosh v General Medical Council  1 WLR 1915 and MacMahon v Council of the Law Society of Scotland SLR 36 , is appropriate. That is to say, in dealing with an appeal of this kind, a greater flexibility is now appropriate than was suggested in Bolton which was decided before the coming in to force of the Human Rights Act. In Ghosh, at 1923, Lord Millett, giving the judgment of the Privy Council, in an appeal under the Medical Act 1983 … said this:
'The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not called makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes …'
Lord Millett went on to refer to Evans v General Medical Council (unreported) and just above G said this:
'For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances …'"
27 To similar effect is the following observation of the Master of the Rolls, Sir Anthony Clarke MR, in the case of Jideofo v the Law Society (No 06 of 2006), when he said this:
"The decision in Bolton, which has been followed on many occasions, establishes that where a solicitor has committed proven acts of dishonesty he will almost always be struck off the roll. Where there has been serious dishonesty, such as fraud or theft, only after a number of years during which the individual has redeemed his reputation will he be able to seek re-admission. Even then, only in rare cases will such a person be re-admitted. There must be exceptional circumstances justifying restoration to the roll. The reason for this stringent approach is the public interest in protecting the public and maintaining the reputation of the profession."
28 So the Tribunal has to identify exceptional reasons which would allow the unusual step of restoration to the Roll for someone who has committed proven acts of dishonesty.
i) The use of the expression "exceptional circumstances" may give the impression that it is a test to be applied by the MPT before an applicant can be restored to the register. That would be incorrect, the test is whether having regard to the over-arching objective, the applicant is now fit to practice.
ii) In this respect, there is also a distinction to be drawn between the two professions. The difference is neither in respect of their obligations to the public nor, contrary to the submissions of Ms O'Rourke, by way of distinction as to the level of integrity required by either type of practitioner; but rather the differentiation lies in respect of certain important regulatory differences which, in my view, render the non-statutory addition of "exceptional circumstances" as a requirement before a doctor can be restored to the register, as unnecessary and inappropriate. In particular:
a) Restoration of solicitors to the roll is governed by section 47 Solicitors Act 1974. There is, however, no equivalent of section 41(12) Medical Act 1983 requiring a tribunal to consider an over-arching objective to protect the public.
b) Unlike doctors who must wait at least 5 years before they can make an application to be restored to the register, there is no minimum period before a solicitor can make such an application.
"101 The Committee should therefore have asked themselves not only whether the Registrant continued to present a risk to members of the public, but whether the need to uphold proper professional standards and public confidence in the Registrant and in the profession would be undermined if a finding of impairment of fitness to practise were not made in the circumstances of this case. In my judgment, in failing to have regard to these issues and to ask themselves the right questions, the Committee were in error.
Ground 2: The judge failed to give proper weight to the interests of (a) the maintenance of public confidence in the medical profession; and (b) the maintenance of proper professional standards and conduct for that profession.
"19. It appears that a reason for the change in concept may have been to emphasise that the regime under the Act is concerned with a medical practitioner's current and future fitness to practise rather than with imposing penal sanctions for things done in the past, although that was also the case under the previous version of the regime (in common with the position in relation to a range of bodies which regulate professionals): General Medical Council v Meadow  EWCA Civ 1390, -. The statute requires the FTPP to consider whether the fitness of a medical practitioner to practise "is" impaired: see s. 35D(2). Accordingly, the FTPP has to assess the current position looking forward not back: see also Meadow at  per Sir Anthony Clarke MR; Zygmunt v General Medical Council  EWHC 2643 (Admin) at  (Mitting J). However, as Sir Anthony Clarke MR also observed in Meadow at : "… in order to form a view of the fitness of a person to practise today, it is evident that [the FTPP] will have to take account of the way in which the person concerned has acted or failed to act in the past.""
"50. First, in my judgment, the over-arching function of the GMC as set out in s. 1(1A) of the Act informs the meaning of impairment of fitness to practise by reason of misconduct in s. 35C(2), so that under s. 35C(2) and s. 35D the FTPP (acting on behalf of the GMC) is entitled to have regard to the public interest in the form of maintaining public confidence in the medical profession generally and in the individual medical practitioner when determining whether particular misconduct on the part of that medical practitioner qualifies as misconduct which currently impairs the fitness to practise of that practitioner. Where a medical practitioner violates such a fundamental rule governing the doctor/patient relationship as the rule prohibiting a doctor from engaging in a sexual relationship with a patient, his fitness to practise may be impaired if the public is left with the impression that no steps have been taken by the GMC to bring forcibly to his attention the profound unacceptability of his behaviour and the importance of the rule he has violated. The public may then, as a result of his misconduct and the absence of any regulatory action taken in respect of it, not have the confidence in engaging with him which is the necessary foundation of the doctor/patient relationship. The public's confidence in engaging with him and with other medical practitioners may be undermined if there is a sense that such misconduct may be engaged in with impunity.
51. Secondly, where a FTPP considers that fitness to practise is impaired for such reasons, and that a firm declaration of professional standards so as to promote public confidence in that medical practitioner and the profession generally is required, the efforts made by the practitioner to address his problems and to reduce the risk of recurrence of such misconduct in the future may be of far less significance than in other cases, such as those involving clinical errors or incompetence. In the former type of case, the fact that the medical practitioner in question has taken remedial action in relation to his own attitudes and behaviour will not meet the basis of justification on which the FTPP considers that a finding of impairment of fitness to practise should be made. This view is also supported to some degree by the judgment of McCombe J in Azzam at  (distinguishing the case before him, which involved clinical errors, in respect of which evidence of remedial steps and improvement was relevant, from a case involving "a rape or misconduct of that kind", in relation to which – by implication – such evidence might be less significant).
"39. As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council  EWCA Civ 1390;  QB 462; Fatnani and Raschid v General Medical Council  EWCA Civ 46;  1 WLR 1460; and Southall v General Medical Council  EWCA Civ 407;  2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.
40. In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)  EWCA Civ 1642;  1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd  UKHL 23,  1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council  UKSC 64;  1 WLR 169, at paragraph 36.
vi) However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall  EWHC 579 (Admin);  Lloyd's Rep Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC  UKPC 29;  1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".
vii) Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the over-arching concern of the professional regulator is the protection of the public.
viii) A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).
"38. In all the circumstances, the tribunal considered that the over-arching objective, and in particular the public interest, would not be compromised through the restoration of your name to the Medical Register. It was of the view that you have accepted your wrongdoing, you have reflected appropriately, significantly gained in maturity and insight, and gained substantial understanding in regard to the proper boundaries and relationships with patients, and the central role of honesty and probity in the medical profession. It found that you have made sufficient progress such that you have demonstrated that you are no fit to practice, that you are a fit and proper person to be restored and that taking such a course would be an appropriate and proportionate response."
"61…. The profound unacceptability of the respondent's behaviour has been clearly declared by his erasure from the register."
Lord Justice Flaux
Lord Justice McCombe