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

On a section 40 appeal, the High Court may quash a Fitness to Practise Panel’s decision where there is a material error of law or fact. The court must give appropriate weight to the Panel’s expertise, but deference does not prevent correction of a wrong decision, particularly where the issue depends on documents rather than medical expertise.

A finding of dishonesty is unsafe where the Panel may have applied an incorrect legal test. In an exceptional case, the High Court may determine the issue afresh instead of remitting it, having regard to delay, prejudice and the nature of the evidence. Inaccurate or misleading conduct does not necessarily establish dishonesty or impairment of fitness to practise.

The claimant appealed under section 40 of the Medical Act 1983 against findings by a Fitness to Practise Panel. The Panel found that one entry in his job application was dishonest, found two further entries misleading, determined that his fitness to practise was impaired, and imposed a four-month suspension.

The claimant argued that the Panel had applied, or might have been influenced by, an incorrect test of dishonesty contained in guidance. He also challenged the factual findings, the impairment determination and the sanction. The central issues were whether the Panel’s decision was legally unsafe, whether the High Court should decide the issues afresh or remit them, and whether the remaining inaccuracies justified a finding of impairment.

1. Appeal allowed in material respects. The finding of dishonesty was quashed. The Panel had referred to the correct two-stage test in [2001] 1 WLR 1915, but the chairman had also presented an incorrect test, namely that failure to take reasonable steps to verify a statement could establish dishonesty. The later reliance on that incorrect test when considering impairment meant that it could not safely be assumed that the Panel had applied the correct test.
2. The Panel’s finding that the publication entry was dishonest was independently wrong. The documents contained numerous obvious errors, the disputed reference duplicated a reference immediately elsewhere, the article was available in the claimant’s portfolio, and the Panel gave no adequate reasons for rejecting the innocent-error explanation. The claimant’s evidence was not necessarily evasive, and the documentary evidence supported an innocent inference.
3. Under the section 40 appeal regime, the question was whether the Panel’s decision was wrong. The High Court must give the Panel’s decision the weight it deserves, particularly where professional expertise is involved, but may correct material errors of fact or law. The degree of deference depends on the tribunal, the issue and the evidence. The disputed dishonesty issue involved ordinary documentary inference rather than medical expertise.
4. It was appropriate for the court to determine dishonesty and impairment itself rather than remit the case. The allegations were more than five years old, the suspension had damaged the claimant’s career, and the documentary evidence permitted a fair determination without a further hearing.
5. The finding that the claimant’s use of “MD” was misleading was quashed. The description was accurate for an American medical doctor and the surrounding CV made the qualification’s origin clear. The finding concerning the description of a short paper as an abstract was upheld because the Panel was entitled to adopt the ordinary understanding that an abstract is a shorter version of a longer document.
6. The inaccurate and misleading entries, without dishonesty and in the special circumstances of this case, did not establish impairment under section 35C(2) of the Medical Act 1983. The four-month suspension was quashed. No formal warning was remitted because the judgment itself sufficiently addressed the need for future care. The GMC was ordered to pay the claimant’s costs.

Fitness to Practise Panel: found one allegation of dishonesty, two further misleading entries and impairment of fitness to practise, and imposed a four-month suspension.

High Court (Administrative Court): quashed the dishonesty finding, one misleadingness finding, the impairment determination and the suspension. The finding concerning the abstract was upheld. No formal warning was ordered.