Council for the Regulation of Health Care Professionals, R (on the application of) v General Medical Council & Anor

On a statutory appeal from a professional disciplinary decision, the High Court may remit a case where a serious procedural irregularity prevents it from deciding whether the penalty was unduly lenient. The court must not speculate about how an issue would have been resolved when the issue was never put before the disciplinary panel and relevant evidence may not have been explored. Under-prosecution may constitute such an irregularity. The appropriate remedy may be to quash the decision, require amendment of the charge, and remit the matter to a differently constituted panel. Although remittal may involve double jeopardy, public protection may require the procedural failure to be corrected.

The Council appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Fitness to Practise Panel decision concerning Dr Mahesh Rajeshwar. The Panel found some allegations of incompetent or inappropriate breast-area examinations proved and imposed conditions on his registration.

The charge did not allege indecency or sexual motivation. After obtaining witness statements which justified such an allegation, the General Medical Council failed to consider amending the charge. The central issue was whether the High Court could determine that the sanction was unduly lenient, or should remit the case because the omitted issue had not been considered by the Panel.

1. Appeal allowed. The Panel’s decision was quashed and the matter was remitted to the chairman of the Preliminary Proceedings Committee, with a direction to amend the charge to include an allegation of improper motivation. The amended charge was to be considered by a differently constituted Fitness to Practise Panel.
2. The court could not decide whether the sanction was unduly lenient by speculating whether the Panel would have found indecency or sexual motivation proved. Because the issue had not been raised, relevant questions might not have been asked in evidence or by the Panel, and the court could not know what findings would have followed.
3. The failure to consider amendment of the charge after the witness statements amounted to a serious procedural irregularity. The approach stated by the Court of Appeal in Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo, [2004] EWCA Civ 1356, including the possibility of remittal where the court cannot determine whether the penalty was appropriate, applied directly.
4. The omission was capable of amounting to under-prosecution. The Panel had not properly performed its task because the issue of improper motivation had not been considered. The court therefore had power under section 29(8)(d) to remit notwithstanding its inability to determine that the penalty was in fact unduly lenient.
5. Double jeopardy and the additional stress caused by a rehearing were serious consequences, but under the statutory scheme they had to yield to the protection of the public where necessary to correct such a serious procedural failure.
6. Costs were payable by the GMC up to and including service of its skeleton argument on 4 November 2005. The second respondent was responsible for subsequent costs, subject to detailed assessment unless agreed.

The Administrative Court determined a statutory appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 from the Fitness to Practise Panel’s decision dated 13 May 2005. The Panel decision was quashed and the matter remitted.