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

A professionally constituted disciplinary panel may determine whether misconduct is serious even if some members lack previous experience of applying the precise statutory test. Serious professional misconduct is a value judgment, not a technical legal exercise. A single consultation may disclose serious misconduct where the totality of the failings represents a significant departure from the standards expected of a reasonably competent practitioner. A reviewing court should respect the specialist tribunal’s assessment unless it is irrational, plainly wrong or affected by legal error. In disciplinary proceedings, sanctions primarily protect the public and maintain confidence in the profession. The seriousness of misconduct does not depend logically on the harm actually caused, although potential consequences may be relevant.

Dr Biswas appealed under section 40 of the Medical Act 1983 against a nine-month suspension imposed by a General Medical Council Fitness to Practise Panel. An earlier panel had found numerous failings in his consultation with a patient but had applied the wrong approach to seriousness. Jackson J quashed that decision and remitted the issue to a newly constituted panel. The second panel found serious professional misconduct and imposed suspension. The appeal challenged the panel’s composition, its assessment of seriousness, and the proportionality of the sanction.

1. Panel constitution. The three-member panel was properly constituted and was quorate. An experienced lay chairman and two qualified medical practitioners were capable of assessing whether conduct was serious. The question was an ordinary value judgment rather than a technical legal exercise. Allowing routine challenges based on the precise balance of expertise could encourage forum shopping.
2. Serious professional misconduct. The second panel was required to consider the facts found proved by the first panel and not go behind them. It was entitled to consider evidence from the earlier hearing where that evidence supported and remained consistent with the established findings. It could not rely on evidence relating to allegations that had not been proved.
3. The combination of inadequate history-taking and examination, failure to assess the patient properly, an unjustified diagnosis, inadequate information to the patient and family, and inaccurate records was capable of amounting to serious professional misconduct despite involving one patient and one consultation. The panel’s conclusion was neither irrational nor plainly wrong. It had taken account of the absence of causation, the isolated nature of the incident and the other relevant circumstances.
4. Sanction. Professional discipline is primarily protective and regulatory rather than punitive. Public protection, professional standards and public confidence may outweigh considerations that would ordinarily mitigate punishment. The patient’s death was not caused by the misconduct, but the potential for serious consequences remained relevant. A nine-month suspension, with a review before its expiry, fell within the reasonable range and was proportionate.
5. The appeal was dismissed. The claimant was ordered to pay costs, assessed at £12,000 inclusive of VAT.

• General Medical Council Fitness to Practise Panel: The first panel found various facts proved but failed to determine seriousness using the correct legal approach.
• High Court: Jackson J allowed the GMC’s appeal against the first panel’s decision and remitted the seriousness issue for reconsideration.
• General Medical Council Fitness to Practise Panel: The second panel found serious professional misconduct and directed nine months’ suspension.
• High Court (Administrative Court): The appeal against the second panel’s decision was dismissed.