Shanker, R (on the application of) v General Medical Council

A professional disciplinary committee gives adequate notice of a resumed hearing where notice is sent to the practitioner’s registered or last known address within the period required by the applicable rules. Any complaint about late receipt should also identify actual or perceived prejudice, particularly where the practitioner was represented and sought no adjournment.

The applicable rules permitted a Professional Performance Committee to require a further assessment during a period of suspension. A rule preventing a person from sitting where they had previously sat on another Fitness to Practise Committee did not prevent continuity of membership on the same committee hearing the resumed matter. A committee may rely on a witness’s changed evidence where the witness had an opportunity to consider relevant material and the evidence was not challenged in re-examination.

Dr Kailash Shanker appealed against a General Medical Council Professional Performance Committee decision dated 22 August 2003, which directed that he remain suspended from practice for a further six months. Earlier hearings had imposed suspensions in November 2001 and August 2002.

He challenged the decision on four grounds: inadequate notice of the resumed hearing; lack of jurisdiction to require a further assessment; improper constitution of the committee because its chairman had sat on an earlier occasion; and reliance on evidence from Dr Norris, a witness who changed his opinion after seeing an assessment report.

1. Notice. Rule 12(3) of the General Medical Council (Professional Performance) Rules Order of Council 1997 required notice of a resumed hearing to be sent at least 28 days beforehand to the practitioner’s registered or last known address. The letter was sent within time and postal delivery to the registered address was appropriate, even though the claimant did not personally receive or sign for it. No procedural unfairness arose because he was represented at the hearing and no adjournment was sought on grounds of prejudice.
2. Further assessment. Rules 11 and 27 of the 1997 Rules made it clear that a Professional Performance Committee had power to order a further assessment during suspension, should it consider that appropriate.
3. Committee constitution. Rule 6 of the General Medical Council (Constitution of Fitness to Practise Committees) (Traditional Arrangements) Rules Order of Council 2003, read with the definition in rule 1, prevented a person from sitting where they had previously sat on another category of Fitness to Practise Committee that had considered or adjudicated on the case. It did not prevent a member of the same Professional Performance Committee from continuing to sit on a resumed hearing. That construction promoted the necessary continuity of such proceedings and was the common-sense meaning of the Rules, although the drafting was unsatisfactory.
4. Changed witness evidence. The committee was entitled to take account of Dr Norris’s evidence that, after considering the assessment report, he would have reached a different view about the appropriate outcome. Any suggestion that he had previously seen the report could have been explored in re-examination, but no such re-examination occurred. The evidence provided a proper basis for the committee’s conclusion.
5. The appeal was dismissed. Leave to appeal further was refused because no sufficiently arguable further appeal was disclosed. The claimant was ordered to pay the defendant’s costs in the sum claimed on the assessed schedule.

The judgment records an appeal from a General Medical Council Professional Performance Committee decision dated 22 August 2003. The High Court dismissed the appeal and refused leave for a further appeal.