Varma v General Medical Council

A professional disciplinary tribunal may continue proceedings despite unjustifiable delay where, after assessing all the evidence, it is satisfied that a fair hearing remains possible. A permanent stay is exceptional and requires serious prejudice preventing a fair trial. The tribunal should first use practical measures, such as adjournments, regular breaks and procedural explanations, to secure effective participation.

A tribunal may proceed in a practitioner’s absence where reasonable notice has been given and the practitioner has voluntarily waived attendance. On appeal against sanction, the High Court gives substantial weight to the specialist tribunal’s assessment, particularly where public confidence in the profession is engaged. Persistent, premeditated and concealed dishonesty, coupled with a lack of insight, may justify erasure.

Dr Sushant Varma appealed against a Fitness to Practise Panel’s decision to erase his name from the Medical Register and immediately suspend his registration. The Panel had found almost all of 13 dishonesty-related charges proved and had determined that his fitness to practise was impaired.

The appeal challenged: the refusal to stay proceedings because of delay and Dr Varma’s health; the decision to proceed during periods when he was absent and unrepresented; the refusal to read three late-produced lever arch files; and the proportionality of erasure. The central issues were whether the Panel had secured a fair hearing and whether its sanction was open to challenge.

1. Appeal dismissed. The Panel was entitled to refuse a stay. The governing approach, stated in R v S (2006) EWCA Crim 77, is one of judicial assessment. Even unjustifiable delay does not ordinarily justify a permanent stay. A stay requires serious prejudice such that a fair trial cannot be held.
2. The Panel was entitled to conclude, on the conflicting medical and documentary evidence, that Dr Varma understood the proceedings and could communicate with his lawyers. It properly balanced his private interests against the public interest in investigating serious professional misconduct. It also properly applied the practical approach described in R (TP) v West London Youth Court [2005] EWHC 2583 (Admin), including repeated adjournments and arrangements for prompt daily transcripts. A continuing power to stay remained available if effective participation later became impossible.
3. The Panel was entitled to proceed in Dr Varma’s absence under rule 31 of the Rules. It reasonably concluded that he had voluntarily waived attendance and representation, having been aware of the hearing and having taken no timely steps to secure replacement representation. The approach was consistent with R v Jones [2002] 2 WLR 524.
4. The refusal to read the three unindexed files was neither procedurally irregular nor unfair. They were produced after the GMC had closed its case and while the Panel was deliberating. Dr Varma had previously had ample opportunity to use them, and the documents were largely untested instructions concerning cross-examination. The Panel was not required to sift 1,355 pages to identify material said to be relevant.
5. On sanction, the High Court’s review is secondary. It corrects material errors of fact or law and assesses whether the principles were applied, while giving special respect to the specialist tribunal’s judgment, particularly where public confidence is concerned: Raschid v GMC (2007) 1 WLR 1460.
6. The Panel was entitled to regard persistent, premeditated and concealed dishonesty, extending across almost two years and accompanied by no insight, as incompatible with continued registration. Erasure was proportionate. The Panel also acted consistently with Crabbie v GMC [2002] 1 WLR 3104 (PC) in retaining the misconduct route where erasure remained a possible sanction.

• High Court (Administrative Court): Appeal from the GMC Fitness to Practise Panel dismissed. The Panel’s findings, procedural decisions and sanction were upheld.
• Earlier judicial review proceedings: Two related judicial review claims concerning the Panel proceedings were withdrawn or refused permission, but they did not alter the Panel’s determination.