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

On a review of a suspension imposed because a practitioner failed to undergo a directed performance assessment, a Fitness to Practise Panel need not determine, or redetermine, whether the practitioner’s fitness to practise is impaired. Under section 35D(5)(c) of the Medical Act 1983, the essential question is whether an earlier qualifying suspension was imposed and whether the practitioner failed to comply with the direction requiring assessment. The Panel may then order a further suspension, applying the familiar principle of protecting the public interest. Transitional provisions require an earlier suspension under the former statutory scheme to be treated as made under the corresponding new provisions. A mistaken finding that fitness to practise continues to be impaired does not invalidate the decision where the necessary finding of non-compliance was made and the suspension was otherwise justified.

Dr Kamel challenged a Fitness to Practise Panel’s decision of 8 December 2005 extending his suspension from the medical register for a further 12 months. The original suspension had followed his repeated failure to comply with a direction, made under the former statutory scheme, requiring him to undergo an assessment of his professional performance.

At the review hearing, the Panel considered whether his fitness to practise continued to be impaired and concluded that it did. It then imposed a further suspension. The central issues were whether the transitional provisions gave the Panel power to extend the suspension, whether it had to determine impairment of fitness to practise, and whether it had to reconsider the underlying allegations or the reasonableness of the assessment requirement.

1. Appeal dismissed. The Panel had power to order a further 12-month suspension.
2. The former Committee on Professional Performance had directed an assessment under rule 27 of the General Medical Council (Professional Performance) Rules Order 1997. Dr Kamel failed to comply, and the subsequent suspension was imposed under section 36A of the Medical Act 1983.
3. Paragraph 36 of Schedule 2 required the later Panel to treat the earlier suspension as having been made under the corresponding provisions of the amended Act. Since the suspension could not properly be treated as one imposed under section 35D(2), it fell within section 35D(5)(c).
4. Under section 35D(5)(c), the Panel only had to establish that a qualifying suspension had already been imposed. The fact of the earlier suspension and Dr Kamel’s non-compliance with the assessment direction were sufficient. The Panel was not required to find, or reconsider, that his fitness to practise was impaired.
5. The Panel’s statement that his fitness to practise continued to be impaired was legally unnecessary and arguably incorrect, because no earlier finding of impairment had been made. It did not vitiate the decision: the necessary finding was that he had failed to undergo the directed assessment.
6. The Panel was not required to investigate the merits of the underlying allegations or determine whether the original assessment requirements were reasonable. On review, it could order a further suspension in accordance with the public-protection purpose of the statutory scheme. Its reasons for imposing suspension were plainly justified. The claimed breaches of Articles 6 and 1 of Protocol 1 to the Convention added nothing once the suspension was found lawful.

The judgment describes the earlier GMC proceedings but gives no citation for a lower court decision.

• General Medical Council Fitness to Practise Panel: imposed a 12-month suspension on 25 November 2004 after finding non-compliance with the direction for assessment, and extended it by a further 12 months on 8 December 2005.
• High Court (Administrative Court): dismissed Dr Kamel’s appeal against the review decision.