Arora v General Medical Council

On a statutory appeal from a Fitness to Practise Panel, the High Court exercises a strictly secondary judgment, while retaining power to correct errors of law and fact. A finding of dishonesty requires proof that the practitioner knew, or deliberately ignored, the relevant facts. Failure to take reasonable steps to verify a statement, even if seriously negligent, does not by itself establish dishonesty.

A finding of deficient professional performance may be based on professional competence and on a fair sample of work. An assessment need not involve genuine patients if it fairly tests the practitioner’s knowledge and skills in the relevant area. Where a dishonesty finding cannot stand, the issues of misconduct and sanction should ordinarily be reconsidered by the Panel.

Dr Om Prakash Arora appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision dated 25 January 2008. The Panel found impaired fitness to practise by reason of misconduct and deficient professional performance and directed erasure from the medical register.

The misconduct allegation included working as a general practitioner without being on the required Performers List and making a statement suggesting that he was on the Wandsworth list. The Panel found that statement dishonest. The Panel also relied on ophthalmic performance assessments and on a separate review of compliance with earlier conditions. The central issues were whether the dishonesty finding was adequately supported, whether the ophthalmic assessment established deficient professional performance, whether further expert evidence should have been admitted, and what consequence followed for sanction.

1. The appeal was allowed in part. The finding of dishonesty was set aside because the Panel had treated a failure to verify the accuracy of the statement as equivalent to dishonesty. The distinction between what a person knows or deliberately ignores and what the person should have known is fundamental. Negligence, however serious, does not establish dishonesty.
2. The Panel had been entitled to reject the submission that there was no case to answer. Applying the Galbraith approach, there was sufficient evidence at that stage for the Panel to hear the allegation and assess it in the light of the appellant’s explanation.
3. The removal of dishonesty did not necessarily remove misconduct. Working as a doctor without being on a required list was capable of being extremely serious. The misconduct issue was remitted to a Fitness to Practise Panel for reconsideration afresh, with dishonesty treated as incapable of proof on the evidence.
4. The Panel was entitled to find deficient professional performance from the ophthalmic assessment. Professional competence falls within the amended statutory concept of professional performance. An assessment lasting a full day, conducted in the practitioner’s own practice with his own equipment, could constitute a fair sample in a limited field of practice. The absence of genuine patients did not prevent it from assessing professional knowledge and skills.
5. The court expressed a preliminary view that evidence showing that shortcomings had been remedied could, in principle, be admissible when impairment was considered at stage 2 under Rule 17. It reached no final determination because the proposed evidence had not been produced and the issue was academic on the material before the court.
6. The erasure sanction was set aside for reconsideration alongside the misconduct issue. The matter was remitted to the Panel to reconsider misconduct and sanction. There was no order for costs.

The judgment describes the statutory appeal from the General Medical Council Fitness to Practise Panel under section 40 of the Medical Act 1983. The Panel’s decision dated 25 January 2008 imposed erasure. The High Court set aside the dishonesty finding and remitted misconduct and sanction for fresh consideration.