Azzam v The General Medical Council

On an appeal from a fitness to practise decision, the court must respect the specialist judgment of the panel but must intervene where the panel’s decision is wrong. Fitness to practise is a forward-looking assessment. A panel must consider a practitioner’s current skills, insight and steps taken to remedy past deficiencies, giving relevant evidence substantial weight. Serious past misconduct does not automatically establish continuing impairment. Sanctions are protective, not punitive. Suspension is unjustified where the practitioner presents no continuing risk and the public requires no protection from incompetence. A professional conduct allegation must also identify fairly what the practitioner is said to have done wrong and what should have been learned; an unparticularised and materially prejudicial allegation should be excluded.

Dr Hussam Mohammed Azzam appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding serious misconduct, impairment of fitness to practise and imposing a one-month suspension. The findings arose from his misinterpretation of a cardiotocograph trace during a difficult labour, his failure to act urgently, inadequate handover and deficient record keeping.

The Panel also admitted an allegation that he had failed to learn from an earlier case, although the GMC’s expert had not criticised his conduct in that case and no particulars were given of the learning said to be required. The appeal concerned the factual findings, continuing impairment, sanction and procedural fairness.

1. Factual findings and appellate approach. Under section 40, the court respected the Panel’s specialist judgment concerning professional standards and the public interest, but had to exercise a secondary judgment and intervene if the decision was wrong. The approach in Raschid & anor v GMC [2007] 1 WLR 1460, Gupta v GMC [2007] EWHC 2918 (Admin) and R (Harry) v GMC [2006] EWHC 2050 (Admin) was followed. The Panel was entitled to characterise the cursory review of the trace and inadequate handover as irresponsible. That conclusion did not mean that every professional failure or clinical negligence was irresponsible.
2. Impairment. Under sections 35C and 35D of the Medical Act 1983, the relevant question was whether Dr Azzam’s fitness to practise was impaired at the time of the hearing. Following Meadow v GMC [2007] QB 462 and Cohen v GMC [2007] EWHC 581 (Admin), the assessment was forward-looking, although past conduct remained relevant. The Panel had to consider accepted evidence of current ability, insight and remedial steps. The uncontested evidence showed outstanding rehabilitation and current competence. Giving that evidence little weight because the original failures were serious was a material error. The finding of impairment was quashed.
3. Sanction. The purpose of fitness to practise proceedings was protection of the public, maintenance of confidence and professional standards, not punishment. Suspension could not properly be used merely to punish Dr Azzam or to signal that serious misconduct required punishment where continuing public protection was unnecessary. The sanction was quashed as well.
4. Allegation 4 i. The Panel should have struck out the allegation concerning the Mahoney case. Dr Azzam was not criticised for his conduct in that case, no particulars identified what he should have learned, and the two cases were materially different. The allegation was prejudicial and of little probative value. Nevertheless, its inclusion did not render the hearing unfair as a whole, because it had little material effect on the Panel’s decisions.
5. The appeal was allowed in relation to stages 2 and 3. The finding of impairment and the one-month suspension were quashed. The factual findings were otherwise upheld.

1. High Court (Administrative Court). On 12 November 2008, the court allowed the appeal against stages 2 and 3 and quashed the finding of impairment and the sanction: [2008] EWHC 2711 (Admin).
2. GMC Fitness to Practise Panel. On 12 October 2007, the Panel found serious misconduct and impairment of fitness to practise and imposed a one-month suspension. No separate citation is stated in the judgment.