Fatnani & Anor v General Medical Council

On a statutory appeal against a medical disciplinary sanction, the High Court must recognise that professional discipline is principally concerned with maintaining public confidence and professional standards. It must accord special respect to the specialist Panel’s assessment of the appropriate sanction. The court retains power to correct material errors of fact and law, but its assessment of the application of principles to the facts is distinctly secondary. A test of whether the sanction was clearly wrong is inadequate unless understood in that context. Ordinary mitigation of punishment carries less weight in professional discipline. An inability to re-establish practice cannot itself invalidate a suspension which is otherwise justified.

The General Medical Council appealed against two decisions of Collins J on statutory appeals under section 40 of the Medical Act 1983. The respondents, Dr Fatnani and Dr Raschid, were registered medical practitioners whose cases had been determined by the Council’s Fitness to Practise Panel. Dr Fatnani had been convicted of assisting her daughter to retain or control the proceeds of criminal conduct. The Panel directed her erasure from the Medical Register. Dr Raschid, a consultant psychiatrist, had engaged in inappropriate conduct towards a vulnerable patient, which the Panel found constituted serious professional misconduct.

The Panel suspended Dr Raschid’s registration for 12 months and directed a review hearing. Collins J replaced Dr Fatnani’s erasure with a 12-month suspension and reduced Dr Raschid’s suspension to one month, revoking the review direction. The findings establishing liability were not challenged before the Court of Appeal. The common issue was the proper scope of the High Court’s discretion to vary disciplinary sanctions on a section 40 appeal.

Both appeals were allowed. Laws LJ’s reasoning was expressly agreed with by Chadwick LJ and Sir Peter Gibson.

1. The substantive appellate powers under section 40(7) of the Medical Act 1983 were effectively unchanged when jurisdiction transferred from the Privy Council to the High Court. The earlier Privy Council guidance therefore supplied the appropriate approach to sanctions appeals (paras [14]–[16]).

2. Professional discipline was centrally concerned with the standing of the profession rather than punishment of the individual doctor. Consequently, considerations ordinarily mitigating punishment had less effect. Inability to re-establish a practice could not make an otherwise justified suspension wrong. The approach in Gupta v the GMC, [2002] 1 WLR 169, drawing on Bolton v Law Society, [1994] I WLR 512, applied (paras [17]–[18]; [21]).

3. The Panel’s experience made it especially qualified to assess misconduct and the measures needed to maintain professional standards and public confidence. Its judgment deserved special respect, although the circumstances determined the appropriate degree of deference. The High Court retained responsibility for correcting material factual and legal errors and exercising a distinctly secondary judgment on the application of principles to the facts. A clearly wrong formulation was inadequate unless firmly understood within that approach (paras [18]–[21]).

4. In Dr Raschid’s case, Collins J’s account of the doctor’s purpose contradicted the Panel’s assessment. His treatment of unemployment as ordinary mitigation was inconsistent with the disciplinary principles. His conclusions concerning the suspension period and review hearing substituted his own view of the merits for the Panel’s (paras [21]–[22]).

5. In Dr Fatnani’s case, the Panel had understood her role in her daughter’s criminal conduct. Its language did not establish an exaggerated assessment of her involvement. The evidence supplied no basis for displacing its assessment of her insight, and the Panel had not treated dishonesty as legally requiring erasure (paras [22]–[25]).

6. Neither case disclosed a proper basis for overturning the sanctions. There was no basis for remittal. The Panel’s sanctions were restored, including Dr Raschid’s 12-month suspension and review direction and Dr Fatnani’s erasure (paras [26]–[27]).

• Court of Appeal (Civil Division): In [2007] EWCA Civ 46 , allowed both General Medical Council appeals and restored the Fitness to Practise Panel’s sanctions. Neither case was remitted.
• High Court, Administrative Court: Collins J, on appeals under section 40 of the Medical Act 1983, replaced Dr Fatnani’s erasure with a 12-month suspension on 12 June 2006. On 30 March 2006, he reduced Dr Raschid’s suspension from 12 months to one month and revoked the review direction. Dr Raschid’s challenge to the finding of serious professional misconduct was dismissed.
• Fitness to Practise Panel: Directed Dr Fatnani’s erasure following her criminal convictions. Directed Dr Raschid’s suspension for 12 months, with a review hearing, following a finding of serious professional misconduct.