Saha v The General Medical Council

An appeal under section 40 of the Medical Act 1983 is a full rehearing, subject to appropriate respect for the specialist tribunal’s factual and professional judgments. A practitioner’s duty to provide relevant information to the regulator may extend to past employers where that information is relevant to investigating past professional conduct and assessing future risk. The duty to establish misconduct and the duty to assess present fitness are legally distinct, but separate formal stages or separate reasons are not required in every case. Persistent obstruction of a regulatory investigation may itself constitute misconduct impairing fitness to practise, particularly where it prevents investigation of potentially serious professional breaches. Erasure may be proportionate where the obstruction is sustained, serious and accompanied by lack of insight.

Dr Sisir Saha appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding that his fitness to practise was impaired by misconduct and directing erasure from the medical register.

The misconduct consisted of refusing to provide details of past employers and locum agencies during a GMC investigation concerning his hepatitis B status, past exposure-prone procedures and compliance with professional guidance. The Panel also found breaches of paragraph 30 of Good Medical Practice. The central issues were whether the GMC was entitled to seek the information, whether the refusal constituted misconduct, whether impairment had been properly assessed, and whether erasure was proportionate.

1. Appeal standard. An appeal under section 40 of the Medical Act 1983 is a full appeal by way of rehearing. The court must nevertheless respect the Panel’s expertise on factual matters, fitness to practise and sanction.
2. Confidentiality. Medical confidentiality is not absolute. Disclosure to the GMC or other appropriate health-care regulators may be justified by patient safety and the public interest. Any failure to warn the practitioner in advance did not make the disclosure unlawful. Even if there had been a breach of confidentiality, it would not automatically invalidate the GMC’s independent statutory investigation.
3. Information about employers. Section 35A(2) of the Act concerns current employers or current contractual arrangements and does not require information about past employers. The Panel therefore erred in treating the Appellant as having failed to provide details of current employers. However, past employment information was relevant to investigating whether he had performed exposure-prone procedures in 2000 and 2001 while exceeding the applicable viral-load limit and without proper occupational-health procedures. His refusal to provide that information breached paragraph 30 of Good Medical Practice.
4. Misconduct and impairment. The statutory scheme requires two steps: deciding whether misconduct has occurred and then deciding whether, by reason of it, present fitness to practise is impaired. The steps are distinct, but a formal two-stage procedure and wholly separate reasoning are not necessary in every case. Here the continuing failure to provide information remained unremedied up to the hearing, so the same facts could support both conclusions. The Panel was entitled to find impairment by reference to obstruction of the GMC’s regulatory function, protection of patients, public confidence and breach of a fundamental professional principle.
5. Sanction. The Panel was entitled to attach limited weight to personal mitigation and to focus on protection of the public and the standing of the profession. The misconduct was persistent, obstructed investigation of a potentially serious matter and was accompanied by inadequate insight. Although workable conditions could in principle have addressed future hepatitis-related risks, the Panel was entitled to conclude that the Appellant’s lack of insight and serious departure from professional standards made conditions inappropriate. Erasure was upheld and the appeal was dismissed.

The judgment was a first appeal to the Administrative Court from a Fitness to Practise Panel decision dated 19 October 2007. The Panel found misconduct, impairment of fitness to practise and directed erasure. The Administrative Court upheld the substantive findings and sanction.