Abrahaem v General Medical Council

On a review after suspension for professional misconduct, a Fitness to Practise Panel must first decide whether fitness to practise remains impaired and only then determine the appropriate sanction. The practitioner bears a persuasive burden of demonstrating sufficient insight and remediation of the concerns identified in the original finding.

Conditions must be necessary and proportionate to the continuing impairment. A panel must give the practitioner a fair opportunity to make informed representations about particular employment or practice restrictions, especially where the proposed conditions address an issue such as alleged de-skilling that was not previously identified. An appellate court should not substitute its own conditions, but may remit disputed conditions for reconsideration.

Dr Abrahaem appealed under section 40 of the Medical Act 1983 against conditions imposed by a GMC Fitness to Practise Panel in May 2006. His registration had previously been suspended following findings concerning dishonest prescriptions and possession and storage of drugs. On an earlier appeal, Newman J substituted a one-year suspension for erasure: [2004] EWHC 279 (Admin).

At review, the Panel found that Dr Abrahaem remained impaired because he had not demonstrated sufficient insight, and imposed 18 months of conditions restricting supervision, prescribing, employment and on-call work. The central issues were whether continued impairment had been lawfully established, whether the conditions were proportionate and sufficiently reasoned, and whether their imposition was procedurally fair.

1. Appeal partly allowed. Conditions 7 to 10 were set aside and the matter was remitted to a further GMC Panel. The remaining conditions continued in force.
2. Under section 35D of the Medical Act 1983 and rule 22 of the General Medical Council (Fitness to Practise) Rules Order in Council 2004, a review proceeds in an ordered sequence. The Panel must first determine whether fitness to practise remains impaired and then consider the consequences. A fresh finding of misconduct, or proof beyond reasonable doubt that the original misconduct continued, was not required.
3. At review, there is a persuasive burden on the practitioner to show that the original concerns have been sufficiently addressed through insight, education, supervision or other achievement. The Panel was entitled to find that Dr Abrahaem had not fully addressed his lack of insight into the nature and potential consequences of his conduct. Its assessment of his evidence was entitled to particular weight because it had seen and heard him.
4. The Panel was entitled to reject the undertakings as insufficient. Conditions concerning supervision, prescribing, possession of controlled drugs and reporting were rationally connected with the outstanding concerns. However, conditions restricting practice to NHS training or supernumerary posts, excluding private practice, limiting locum work and prohibiting out-of-hours duties were not shown to be necessary or proportionate to the impairment identified.
5. Fairness required the Panel to identify and permit representations on the suitability of particular employment restrictions where they were based on alleged de-skilling or other matters not previously raised. The Panel did not have to provide a detailed provisional decision or negotiate proposed undertakings, but it had to provide a fair hearing within the statutory framework.
6. The court should not substitute conditions of its own. The disputed conditions were therefore remitted for reconsideration in light of updated evidence, including evidence about the Appellant’s professional work in Saudi Arabia and the practical effect of the restrictions.

The appeal was brought to the Administrative Court under section 40 of the Medical Act 1983 from the GMC Fitness to Practise Panel’s determination dated 25 May 2006.

On an earlier appeal in the same proceedings, Newman J quashed the erasure sanction and substituted a one-year suspension: [2004] EWHC 279 (Admin). That decision was not itself under appeal in the present proceedings.