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

On an appeal against a professional disciplinary sanction, the court should be slow to interfere with a specialist panel’s assessment of seriousness and penalty. The panel is concerned principally with protection of patients, the public interest, and the standards and reputation of the profession, rather than retributive punishment.

Where the practitioner is represented and the available sanctions have been canvassed, procedural fairness does not ordinarily require the panel to identify the particular sanction it is considering or invite further evidence about its personal consequences. The parties are responsible for deciding what evidence and submissions to present. A short suspension may be proportionate even where the breach has not affected clinical performance, because compliance with regulatory conditions and public confidence are material considerations.

Dr Russell, a consultant child and adolescent psychiatrist, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s decision to suspend her from the medical register for two months.

The Panel had found that her fitness to practise was impaired by bipolar affective disorder, then in remission, and that she had breached a condition requiring absolute abstinence from alcohol. She argued that the Panel had acted unfairly by failing to warn her expressly that suspension was under consideration and that the suspension was disproportionate.

She also sought to adduce fresh medical and employment evidence concerning the possible effects of suspension. The central issues were whether the procedure was unfair, whether the fresh evidence should be admitted, and whether the sanction was disproportionate or unreasonable.

1. Fresh evidence. The application to adduce fresh evidence was refused. The evidence could with reasonable diligence have been obtained before the Panel’s hearings, particularly since suspension was an obvious possibility. The principles in Ladd v Marshall were therefore not satisfied. The evidence would not materially add to what the Panel already understood about the possible effects of suspension. The approach in Watson v GMC and Abrahaem v GMC was endorsed; a failure by advisers to obtain evidence does not ordinarily justify introducing it on appeal.
2. Procedural fairness. There was no requirement for the Panel to announce that it was minded to impose a particular sanction. The practitioner had legal representation, suspension was one of the statutory sanctions under section 35 D(10)(b) of the Medical Act 1983, and suspension had been raised in submissions and by the legal assessor. The representative had addressed the proportionality and public-interest consequences of suspension and could have sought an adjournment or presented further evidence.
3. Substantive challenge. The court applied the principles in Dad v General Dental Council and Raschid v GMC. A specialist professional panel is better placed to assess seriousness and the sanction required to maintain professional standards and reputation. Its decision should not be disturbed unless there is a proper basis for intervention.
4. The Panel was entitled to give substantial weight to the public interest, the integrity of regulatory conditions, and public confidence. The fact that suspension might adversely affect the practitioner’s health, employment, or future practice did not make it disproportionate. A two-month suspension was within the Panel’s lawful judgment on the seriousness of repeated breaches and lack of candour.
5. The appeal was dismissed. The GMC was awarded costs summarily assessed at £4,666.75.

This was an appeal to the Administrative Court under section 40 of the Medical Act 1983 from a Fitness to Practise Panel decision dated 21 November 2007. The appeal was dismissed with costs.