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

On an appeal on the merits against a Fitness to Practise Panel’s sanction, the court must give weight to the Panel’s expertise in clinical standards, public confidence and assessment of the practitioner’s evidence. It may nevertheless intervene where the reasoning is legally or evidentially deficient. Erasure may be justified where there has been a particularly serious departure from professional standards and a persistent lack of insight into its seriousness. Retraining need not be preferred merely because it is theoretically possible. The relevant question is whether retraining is a realistic and sufficient response having regard to public protection, the practitioner’s insight, the extent of the deficiencies, the evidence and the circumstances of the practitioner’s career.

The claimant, an assistant anaesthetist, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision dated 14 June 2007. The Panel had found serious deficiencies in his management of a child’s blood loss during surgery and wider deficiencies identified during a subsequent professional assessment. It imposed erasure from the medical register.

The claimant accepted that the findings establishing impairment were open to the Panel but argued that erasure was inappropriate and disproportionate. The central issue was whether retraining, conditional registration or suspension could adequately protect patients and maintain public confidence, particularly in light of the claimant’s age, remaining potential career and alleged degree of insight.

1. Appeal dismissed. The court had jurisdiction to consider the merits under section 40 of the Medical Act 1983, rather than being confined to the conventional judicial review question. However, it was required to give appropriate weight to the Panel’s expertise in clinical standards, the protection of public confidence in the profession and the assessment of the claimant’s evidence.
2. The Panel was entitled to find that the claimant’s clinical failures were extensive and fundamental, and that he had demonstrated a persistent lack of insight into their seriousness. The conclusion was based on the scale of the failures, the later professional assessment, the claimant’s evidence and the absence of evidence that he had addressed his deficiencies or actively considered the retraining required.
3. The Indicative Sanctions Guidance identified insight as relevant across the possible sanctions. Conditional registration or suspension could be appropriate where there was sufficient insight and a realistic prospect of positive response to retraining. Erasure was available where the conduct involved a particularly serious departure from professional standards and persistent lack of insight.
4. The possibility that a retraining programme might theoretically be formulated did not require the Panel to adopt it. The proper question was whether retraining, at the claimant’s stage of career and in light of the scale of his deficiencies and capacity to learn, was a realistic and sufficient answer to the public interest.
5. The court would closely examine the Panel’s reasoning and intervene for legal error, evidential insufficiency or failure to apply the correct approach. Those errors were not established. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

• General Medical Council Fitness to Practise Panel — On 14 June 2007, found impairment of performance and imposed erasure from the medical register.
• High Court (Administrative Court) — The appeal under section 40 of the Medical Act 1983 was dismissed. The Panel’s sanction was upheld and the claimant was ordered to pay the defendant’s costs.