Fatnani & Anor v General Medical Council

On a statutory appeal against a professional disciplinary sanction, the court must respect the specialist tribunal’s assessment of what is required to protect the public, maintain proper standards and preserve confidence in the profession. The statutory power to quash, substitute or remit a sanction does not permit a broad re-sentencing exercise.

The court may correct material errors of fact or law and must make a judgment on the application of principle. That judgment is secondary to the tribunal’s. Personal mitigation, including the practical effect of a sanction on the practitioner’s career, has reduced force where the sanction is otherwise necessary in the public interest.

The General Medical Council appealed two decisions of Collins J in statutory appeals under section 40 of the Medical Act 1983. In each case the Fitness to Practise Panel had found the relevant facts proved and imposed a sanction.

Dr Raschid, a psychiatrist, had acted inappropriately towards a vulnerable former patient. The Panel suspended his registration for 12 months and directed a review. Collins J reduced the suspension to one month and revoked the review direction.

Dr Fatnani had been convicted of assisting her daughter to retain or control the proceeds of criminal conduct. The Panel erased her name from the register. Collins J substituted a 12-month suspension.

The common issue was the proper scope of the High Court’s discretion to vary a disciplinary sanction on an appeal under section 40.

Appeals allowed unanimously. Laws LJ gave the judgment, with which Chadwick LJ and Sir Peter Gibson agreed.

1. The powers in section 40(7) of the Medical Act 1983 are wide. Nevertheless, the High Court’s appellate role is shaped by the purpose of professional discipline. A Fitness to Practise Panel is concerned principally with public protection, professional standards and public confidence, rather than retributive punishment.

2. The Panel has specialist experience in assessing the seriousness of misconduct and the sanction required in the public interest. The High Court may correct material errors of fact or law and must exercise its own judgment on the application of principle. Its judgment is, however, a distinctly secondary one. The formula that a decision must be “clearly wrong” was not an adequate guide unless understood in that context.

3. The court followed the approach in Gupta v the GMC [2002] 1 WLR 169 and Ghosh v GMC [2001] 1 WLR 1915. Mitigation relevant to criminal punishment may carry less weight in professional discipline. In particular, an otherwise proper suspension is not rendered wrong because it may prevent the practitioner from re-establishing a practice.

4. Collins J had effectively re-sentenced both doctors. In Raschid, he substituted his own view of the doctor’s conduct, the proper period of suspension and the need for a review. In Fatnani, there was no basis for finding that the Panel had misunderstood the extent of her criminal involvement or lacked a proper basis for its assessment of her insight and the seriousness of the conduct.

5. Neither case disclosed a proper basis to overturn the Panel’s sanction. The court restored the 12-month suspension and review direction in Raschid, and the erasure direction in Fatnani. No remittal was required.

• Court of Appeal (Civil Division): Allowed the General Medical Council’s appeals and restored the Fitness to Practise Panel’s sanctions: 12 months’ suspension with a review for Dr Raschid, and erasure for Dr Fatnani: [2007] EWCA Civ 46.

• High Court, Administrative Court: Collins J allowed each doctor’s statutory appeal. In Raschid, he reduced a 12-month suspension to one month and revoked the review direction (30 March 2006). In Fatnani, he substituted a 12-month suspension for erasure (12 June 2006).

• Fitness to Practise Panel: Imposed the original sanctions after findings of serious professional misconduct in Raschid and criminal convictions in Fatnani.