UK: Injecting Some Reality Into The Prospects Of Appealing A GMC Fitness To Practice Panel Determination

The recent decision of Mrs Justice Lang highlights the hurdles a doctor faces in seeking to successfully appeal a decision of the GMC's Fitness to Practice Panel ('FPP'). It also emphasises a general reluctance of the courts to interfere with determinations of the FPP.

The case

Dr Cornish, a consultant anaesthetist at Yeovil District Hospital, had been struck off the register. The FPP had found that his fitness to practice was impaired on a number of grounds including a previous conviction for theft of drugs from his employer, misconduct (for taking drugs from the hospital and administering them on Trust premises and at home) and his adverse physical or mental health (he had abused medicinal drugs such as Fentanyl and Morphine, obtained in the course of his employment, for many years and had also been diagnosed with Opioid Dependence Syndrome).

Dr Cornish appealed against the FPP's determination that his name be erased from the medical register, and against the FPP's determination on the facts. He did not contest the FPP's finding that his fitness to practice was impaired on the grounds of his previous conviction, his misconduct or his adverse physical and mental health. He did, however, appeal against the FPP's determination that he self-administered drugs within the hospital buildings of Yeovil District Hospital.

At the hearing, he admitted to self-administering drugs in the hospital car park, in his car and at his home, but he disputed the finding of fact that he had also self-administered within the hospital itself (in his evidence to the FPP, Dr Cornish accepted that if he was found to be taking drugs whilst at work in the hospital buildings, it would impact on his future employability).

The FPP's finding of fact

The FPP concluded that it did not consider Dr Cornish to be a credible witness given that he had consistently lied about his drug history. Furthermore, and by his own admission, Dr Cornish had told the FPP that at one stage his drug taking had become chaotic and there were times where he could not wait 20 minutes to get home to self-administer drugs. In light of this, the FPP considered that he could not have had the self-control not to self-administer drugs within the hospital. Dr Cornish had also been found to be storing drug paraphernalia in his hospital locker.

The FPP was therefore satisfied that it could reasonably infer, on the balance of probabilities, that Dr Cornish had self administered drugs within the hospital building.

The FPP's sanction of erasure

The FPP had determined that, in light of his previous conviction and misconduct, erasure was the appropriate sanction for Dr Cornish. Dr Cornish appealed on the grounds that the decision was excessive and disproportionate. He made a number of submissions including the fact the FPP had failed to attach any weight to evidence from colleagues that he was a well-regarded, competent practitioner and there had been no formal or informal complaints about his work with patients during his 15 years of opioid dependence.

The High Court decision

Mrs Justice Lang rather unsurprisingly dismissed both grounds of Dr Cornish's appeal in this particular instance. In doing so, she considered the High Court's jurisdiction on appeal from a determination by the GMC in light of two recent Court of Appeal cases.

In the first of those cases1, Auld LJ stated that it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

  1. the body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect
  2. the tribunal had the benefit, which the court normally does not, of hearing and seeing the witnesses on both sides, and
  3. the questions of primary and secondary fact and the overall value judgment to be made by the tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers

In the second of those cases2, Laws LJ took the view that consideration should be given to the difference in function of the FPP in imposing sanctions from that of a court imposing retributive punishment. Where professional discipline is at stake, the relevant committee is not concerned primarily with the punishment of the practitioner concerned, but rather the reputation or standing of the profession. The consequences of a sanction (such as erasure) may be deeply unfortunate for the individual concerned (i.e. an inability to continue practicing) although, in light of the reasoning above, does not necessarily make the sanction wrong. It seems therefore that the court considers the reputation of the profession more important than the fortunes of any individual member.

Mrs Justice Lang stated that the above principles constitute the essential approach to be applied by the High Court on appeal. Interestingly, she went on to say that such approach does not necessarily emasculate the High Court's role in the appeal process. The court will, for example, correct material errors of fact and law and it will exercise judgment, albeit distinctly and firmly as a secondary judgment as to the application of the principles to the facts of the case.

In this particular case however, Mrs Justice Lang considered that the FPP had set out an impressive summary of the evidence prior to its conclusions and that its reasons were fully and clearly stated. She considered the FPP was entitled, on the basis of the evidence before it, to conclude Dr Cornish had self-administered within the hospital buildings. Furthermore, and in her judgment, Mrs Justice Lang considered the FPP had correctly concluded erasure was the appropriate sanction, particularly bearing in mind the seriousness of Dr Cornish's misconduct.

In Mrs Justice Lang's view, the FPP had correctly directed itself on the relevant law and guidance, fairly assessed the evidence, and reached conclusions which were justified on the evidence before it. In light of this, she came to the same conclusions as the FPP such that any degree of deference to the more specialist tribunal, in her view, was irrelevant.

Comment

Perhaps the facts of this particular case are not the best example of how one might go about successfully appealing a FPP determination. The judge did not even need to stray into questions of deference as eluded to above, for example.

The case does, however, give a succinct view of what a High Court Judge has in mind when considering whether or not a FPP has come to the correct decision. The principles referred to by Mrs Justice Lang appear, on their face, unproblematic. On closer inspection however, the hurdles that must be overcome are difficult.

The court acknowledges for example, if the FPP has observed the witnesses and weighed their evidence, its decision on such matters is more likely to be correct than any decision of the court which cannot deploy those factors when assessing the position. Furthermore, the court appears quick to defer to the FPP on issues which are relevant to the profession (issues of medical practice and the standing of the profession for example).

There is hope for any potential appeals however, and consideration should be given to whether or not the FPP has made material errors of fact, law and/or judgment. In these circumstances, the court should be more ready to overrule a determination.

Footnotes

1 Meadow v General Medical Council [2007] QB 46s

2 Raschid v General Medical Council [2007] 1 WLR 1460

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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