Council for the Regulation of Health Care Professionals v General Medical Council & Anor

In disciplinary proceedings, the facts alleged must be proved to the applicable standard, but whether established facts amount to serious professional misconduct is a matter of judgment or assessment. A disciplinary panel must keep those stages distinct. An erroneous direction applying the criminal standard to the evaluative stage is an error of law and may justify quashing the decision and remission. The appellate court should respect the panel’s expertise where relevant factors have been considered, but must reassess a decision affected by procedural failure. Actual harm is not essential to seriousness, although the absence of proved causation may properly be considered. Where the outcome remains uncertain after correcting the error, the court should remit rather than substitute its own decision.

The Council for the Regulation of Health Care Professionals appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Fitness to Practise Panel’s decision that Dr Tarun Kumar Biswas was not guilty of serious professional misconduct. The Panel had found numerous failures in his assessment, diagnosis, communication and record-keeping proved, but concluded that they did not amount to serious professional misconduct.

The appeal alleged that the Panel had been misdirected to apply the criminal standard of proof when deciding whether the proved facts constituted serious professional misconduct, and raised further challenges concerning mitigation, insight, causation, harm and immediate referral. The central issue was whether the Panel’s decision was legally flawed and, if so, what remedy should follow.

1. The appeal was allowed on the alleged misdirection. The Panel had already determined which facts were proved. At the second stage it had to exercise judgment or assessment as to whether those facts constituted serious professional misconduct. The legal assessor’s repeated direction that the Council had to satisfy the Panel so that it was sure imposed the wrong test.

2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, read with [2004] EWCA Civ 1356, the Administrative Court may allow the appeal where the Panel’s decision was wrong or unjust because of a serious procedural or other irregularity. Weight should ordinarily be given to the Panel’s expertise where it has considered the relevant matters. A failure of process requires the decision to be reassessed.

3. The error was material. The Panel expressly accepted the legal assessor’s advice, and its conclusion that it was not satisfied that the facts supported serious professional misconduct reflected the erroneous standard. It was possible, though not certain, that a properly directed Panel would reach a different conclusion.

4. The remaining grounds failed. The reference to Dr Biswas’s negligence was a contextual reference to counsel’s submission, not personal mitigation. His subsequent lack of insight was of limited relevance to the primarily objective assessment. The Panel was not required to give detailed reasons for every matter, provided its principal reasoning was stated.

5. The Panel was entitled to take account of the absence of proved causal harm, since causation was not charged or proved. Potential harm was implicit in the assessment of seriousness. The Panel was also entitled to find that immediate referral had not been proved necessary on the evidence.

6. The Panel’s decision was quashed and the matter remitted under section 29(8)(d) for a fresh determination whether the admitted and proved charges constituted serious professional misconduct. The Panel was directed not to apply the criminal standard of proof to that question. Dr Biswas was ordered to pay one-third of the CRHP’s costs as against him; otherwise there was no order for costs.

This was an appeal to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against the Fitness to Practise Panel’s decision that Dr Biswas was not guilty of serious professional misconduct. The appeal was allowed on the misdirection ground, the decision was quashed, and the matter was remitted for redetermination.