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

In an appeal from a fitness-to-practise decision, the court will not interfere with an expert tribunal’s evaluative conclusion unless there is a clear basis for doing so. A tribunal may reconsider its assessment before becoming functus, provided its final decision is not irrational and the process is fair.

Fitness to practise is assessed as at the present time, using past conduct as relevant evidence. A tribunal may seek further information about current competence, but it must not find impairment merely to protect the public. Public protection is relevant to the structure of the process and is especially important at the sanction stage; it is not an independent factor at every stage of deciding impairment.

The claimant, a consultant orthopaedic surgeon, appealed under section 40 of the Medical Act 1983 against a decision of the General Medical Council’s Fitness to Practise Panel. The Panel had found misconduct and deficient professional performance proved in relation to several surgical cases and had imposed conditions on practice.

The claimant did not realistically challenge the underlying findings or the conclusion of impairment considered in isolation. His challenge focused on the Panel’s sequence of decisions. The Panel first adjourned to obtain a performance assessment because it considered that it lacked sufficient information, then reversed that course and found impairment without further evidence. The central issue was whether that sequence was irrational or involved an impermissible reliance on public protection.

1. Appeal dismissed. The Panel’s decision was not irrational. The appellant was ordered to pay the GMC’s costs of £7,960.34.
2. The appeal turned on the Panel’s reasoning and decision-making sequence, rather than on the evidential evaluation of the seriousness of the misconduct or deficient performance. The court would be slow to disturb the conclusion of an expert tribunal on those evaluative matters.
3. The Panel was not functus when it reconsidered whether to order a performance assessment. It was legally entitled to change its mind. The final finding of impairment was not itself irrational, and no procedural unfairness was established.
4. The most coherent explanation was that the Panel initially considered whether it had sufficiently current and complete information to assess future fitness. A performance assessment could have assisted both public protection and fairness to the doctor. Once fairness concerns led the Panel not to obtain that assessment, it was entitled to decide impairment on the information already before it, including the findings relating to the three patients.
5. Fitness to practise is expressed in the present tense. The Panel must look forward, while taking past conduct into account as evidence relevant to present fitness. A performance assessment could be relevant to both misconduct and deficient professional performance because the two issues arose from the same facts viewed from different aspects.
6. Although protection of the public underlies the fitness-to-practise scheme, it cannot itself justify a finding of impairment. It is not a relevant factor at every stage of the decision-making process. It becomes necessarily relevant when sanction is considered. The Panel’s references to public protection, read with its repeated references to fairness, did not establish that it had made an adverse finding merely to obtain power to impose restrictions.

The judgment describes an appeal under section 40 of the Medical Act 1983 from the General Medical Council Fitness to Practise Panel’s decision dated 18 October 2007. The High Court dismissed the appeal and upheld the Panel’s decision.