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

An appeal from a Fitness to Practise Panel is a rehearing constrained by established appellate principles. In matters requiring professional medical assessment, the court must give appropriate weight to the expertise of the specialist panel. It should not interfere merely because another view is possible, particularly where the decision falls within the range of reasonable professional disagreement.

A suspended doctor must provide the best evidence reasonably available to demonstrate remediation. A reflective diary recording supervised learning may constitute objective material despite its subjective source. A maximum period of suspension is not disproportionate where it gives the doctor a reasonable opportunity to complete an approved assessment programme and demonstrate fitness to practise.

Dr Lotay appealed under sections 40(1)(a) and 40(4) of the Medical Act 1983 against a Fitness to Practise Panel decision continuing the suspension of her registration for 12 months.

The Panel found insufficient evidence that she had remedied previously identified deficiencies or that the public would be adequately protected by conditional registration. The appeal challenged the Panel’s treatment of the evidence, including examination results, educational activities and a clinical attachment, and challenged the length of the suspension.

1. Appeal dismissed. The court treated the appeal as a rehearing limited by established appellate principles, including those identified in R (on the application of Arley Erlester Clark) v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2004] EWHC 1350, Moody v General Osteopathic Council [2004] EWHC 967 and Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642; [2003] 1 WLR 577. The court would not interfere unless the conclusion fell outside the bounds within which reasonable disagreement was possible.

2. There was an important measure of deference to the professional expertise of the Fitness to Practise Panel. Whether the evidence demonstrated fitness to practise, and whether conditional registration would adequately protect the public, were matters pre-eminently for the Panel’s assessment.

3. The Panel was entitled to regard the absence of a reflective diary as significant. In context, the diary was intended to record case observation, discussion, possible video review, team meetings, learning and self-assessment. Although produced by the doctor, it could have shed objective light on her learning and fitness to practise.

4. The Panel had considered the relevant evidence, including the clinical attachment, audit, event analysis and examination performance. It was entitled to conclude that failure in two parts of the MRCGP examination, failure to keep the reflective diary and the remaining evidence did not demonstrate fitness to practise subject to conditions. The reasons did not need to mention every item separately.

5. The further 12-month suspension was not disproportionate merely because it was the maximum period. Its purpose was to provide an opportunity to undertake a professional performance assessment approved by the GMC. The order reflected paragraph 28 of the Indicative Sanctions Guidance for Fitness to Practise Panels, and the doctor could request details of the approved programme from the GMC.

6. Shortening the suspension would have conflicted with the Panel’s professional assessment and might have operated against the doctor’s interests. The appeal was dismissed and costs were summarily assessed at £4,355, including VAT.

• High Court (Administrative Court): dismissed the appeal against the Fitness to Practise Panel’s decision to continue the claimant’s suspension for 12 months.