Chauhan v General Medical Council

An appellate disciplinary court may rehear an appeal on the evidence before the tribunal, but should respect factual findings based on credibility and exercise a distinctly secondary judgment on professional assessment. A fitness-to-practise panel must confine its findings to the allegations and facts particularised in the notice of hearing. Material adverse findings outside that ambit cannot fairly be used to support a charge, especially where dishonesty is alleged. The panel may consider whether consent was valid and informed when deciding whether consent was obtained. Intervention by panel members does not establish apparent bias unless it shows that the tribunal descended into the arena or that a fair-minded and informed observer would see a real possibility of bias.

The appellant, a consultant orthopaedic surgeon, appealed under section 40(1)(a) of the Medical Act 1983 against a Fitness to Practise Panel decision erasing his name from the Medical Register. The Panel found allegations proved concerning Birmingham Hip Resurfacing, autologous cartilage transplantation and a trauma case, and found misconduct, impairment and sanction at successive stages.

The appeal challenged the Panel’s fact-finding, the ambit of the charges, its questioning and alleged bias, the exclusion of an earlier employment inquiry report, impairment and erasure. The central issues were whether the Panel had decided unparticularised allegations and whether its surviving findings could support impairment and sanction.

1. Appellate jurisdiction. The appeal was a rehearing under CPR 52.11 and PD 52, paragraph 22.3(2), based on the material before the Panel rather than evidence called afresh. The court could correct material factual errors and was not confined to judicial-review grounds, but remained slow to interfere with credibility findings and exercised a distinctly secondary judgment on professional assessment, applying the guidance in Raschid v GMC [2007] 1WLR 1469, Meadow v GMC [2007] QB 462 and Cheatle v GMC [2009] EWHC 645.
2. Ambit of charges. Rules 15 and 17 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 required the allegation and the facts on which it was based to be particularised. The Panel had to determine those facts. Material adverse findings which could themselves have founded professional misconduct, but which fell outside the notice, could not fairly be used to support the pleaded charges. The requirement was particularly strict for dishonesty allegations, which had to be unambiguously and adequately particularised, following Strouthos v London Underground Ltd [2004] EWCA Civ 402 and Salha v GMC [2003] UKPC 80.
3. The Panel had impermissibly treated the appellant’s general statements about experience as an implication that he had performed Birmingham Hip Resurfacing as sole or lead surgeon. It also relied on uncharged allegations concerning training logs, alleged concealment, failure to obtain permission and the particular requirements of the employing hospital. The accepted expert evidence did not provide a proper basis for the findings that the relevant BHR charges were misleading, dishonest or unproved as formulated. Those findings were set aside and the proper verdict was “not proved”.
4. The challenges to the ACT findings failed. The Panel was entitled to prefer the evidence supporting pre-planning and to find that consent obtained while the patient remained affected by anaesthesia and analgesia was not valid or informed. The findings concerning the ACT and trauma charges therefore remained.
5. The Panel’s questioning did not establish procedural unfairness or apparent bias. The governing standards were whether intervention had caused the Panel to descend into the arena, and whether a fair-minded and informed observer would conclude that there was a real possibility of bias, applying Yuill v Yuill [1949] P 15, Mayor of the London Borough of Southwark v Kofi Adu [2006] EWCA Civ 281 and Muscat v Health Professions Council [2008] EWHC 2798 (QB).
6. Because the BHR dishonesty findings were set aside, the impairment findings could not stand. The court invited submissions on remitting impairment and on the relevance of the earlier inquiry report, and on sanction. No direction was given as to the professional judgment to be reached on reconsideration.

1. High Court (Administrative Court): Appeal from the Fitness to Practise Panel decision. The BHR findings under charges 3(a), 3(b), 5(a), 5(b) and 6(b) were set aside. The ACT and trauma findings remained. The court invited further submissions on impairment, sanction and the form of order.