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

An appeal from a professional performance decision raises a question of law where the committee’s material finding lacks sufficient evidence, is clearly erroneous, materially misunderstands the evidence, or results from an unfair hearing. The appellate jurisdiction is therefore sufficiently broad to correct injustice, while respecting the committee’s specialist judgment.

A performance committee may consider character, honesty and credibility when assessing the reliability of evidence and fitness to practise. It must, however, keep those matters separate from the standard of professional performance. Findings of deficient insight may properly be based on the evidence as a whole, including expert assessment and the practitioner’s responses. Indefinite suspension may be proportionate where performance remains seriously deficient and retraining is unlikely to succeed.

Dr Kailash Shanker appealed against the decision of the Committee on Professional Performance of the General Medical Council made on 23 July 2004. The Committee had directed that his registration be suspended indefinitely under section 36A(4) of the Medical Act 1983.

The decision followed repeated findings of seriously deficient performance, unsuccessful periods of suspension and further assessment showing inadequate knowledge, consulting and clinical skills, together with a lack of insight and little prospect of successful retraining. The appeal alleged errors concerning the assessment evidence, the use of character and honesty matters, and the finding that the appellant lacked insight.

1. Appeal dismissed. The Committee was entitled to direct indefinite suspension under section 36A(4) of the Medical Act 1983. The assessment results remained substantially below the required standards, and the Committee had made allowance for the appellant’s period away from practice.
2. Under section 40(5), an appeal lies only on a question of law. Applying Stefan v General Medical Council [2002] UKPC 10, the court adopted a generous approach. A material finding unsupported by sufficient evidence, a clearly erroneous finding, a material misunderstanding of evidence, or procedural unfairness may amount to an error of law. The court nevertheless found cogent evidence supporting the Committee’s conclusions.
3. The function of the Committee was protective and rehabilitative rather than penal, consistently with Sadler v General Medical Council [2003] UKPC 59. The court also applied the approach described in Dr Nandi v General Medical Council [2004] EWHC 2317 (Admin): appropriate respect should be given to the Committee’s specialist judgment, but no more deference than the circumstances warrant.
4. The Committee was entitled to consider the appellant’s convictions, alleged lies and statements about complaints when assessing the credibility of his evidence and his fitness to practise. It was required, and did, disregard those matters when determining the standard of his professional performance.
5. The finding of lack of insight was open to the Committee. It was based on the assessment report, Dr Campbell’s evidence, Dr Norris’s evidence and the appellant’s inconsistent evidence. The Committee was entitled to reject the appellant’s explanation of the assessment results and to conclude that retraining was unlikely to succeed.
6. The appellant was ordered to pay the respondent’s costs, assessed at £5,231.25.

• Committee on Professional Performance, General Medical Council: on 23 July 2004 directed that the appellant’s registration be suspended indefinitely under section 36A(4) of the Medical Act 1983.
• High Court (Administrative Court): dismissed the appeal and ordered the appellant to pay the respondent’s costs.