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

A professional disciplinary tribunal may proceed in a practitioner’s absence where the practitioner knew of the hearing, lacks a reasonable explanation for non-attendance, and deliberately chooses not to attend. An appeal court ordinarily reviews the decision on the material before the primary tribunal and should not receive a portfolio or other evidence that was not placed before it. A practitioner must respond to patient complaints and co-operate with a directed professional-performance assessment. The period of immediate suspension under the Medical Act 1983 does not count towards a later substantive suspension where the statutory scheme provides otherwise. An unsuccessful appeal may attract an order for the regulator’s reasonable costs.

Dr Ghosh appealed to the Administrative Court against a Fitness to Practise Panel decision suspending his registration for 12 months. The Panel had proceeded in his absence after he declined to attend, relying on unresolved requests for further documents. It found that he had failed to respond to patient complaints and had failed to co-operate with an assessment of his professional performance. The central issues were whether the Panel was entitled to proceed in his absence, whether disclosure was inadequate, whether the findings were supported, and whether the suspension and costs orders should be disturbed.

1. Appeal dismissed. The Fitness to Practise Panel was entitled to proceed in Dr Ghosh’s absence. He knew of the hearing, had documents which had been disclosed to him, and deliberately chose not to attend. There was no reasonable explanation for his absence. The approach was consistent with the guidance referred to from R v Jones.
2. The GMC was required to disclose the material it held and which would be placed before the Panel. It could not be required to produce documents it did not possess. The bundle before the Panel included material favourable to Dr Ghosh, and the Panel did not err in law by proceeding on that basis.
3. The Panel confined its findings to Dr Ghosh’s failure to respond to patient complaints and his failure to co-operate with the directed professional-performance assessment. It made no findings on the underlying merits of the patient complaints. A doctor must respond to a complaint whether or not it is justified, and must co-operate with an assessment directed by the GMC’s Assessment Referral Committee.
4. Evidence or a portfolio not placed before the primary decision-maker could not properly be used by the High Court to substitute a different decision. The grounds alleging lack of opportunity to demonstrate competence, inadequate investigation, and lack of notice of possible immediate suspension therefore failed.
5. The court had no power to treat the period of immediate suspension under section 38(1) of the Medical Act 1983 as counting towards the 12-month substantive suspension. The court noted the potential for hardship and possible injustice, but left any change to those responsible for reviewing the statutory scheme.
6. The appeal was dismissed, and Dr Ghosh was ordered to pay £3,416 plus VAT towards the GMC’s costs.

• High Court (Administrative Court): dismissed the appeal against the Fitness to Practise Panel’s decision of 13 September 2005 to suspend Dr Ghosh’s registration for 12 months.