Gerstenkorn v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the High Court exercises a full appellate jurisdiction but should respect the specialist tribunal’s assessment of evidence, professional standards and matters akin to jury questions. Intervention is justified where the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity.

Fitness to practise proceedings involve distinct stages of fact-finding, impairment and sanction. A sanction decision attracts particular respect where it protects public confidence and the public. A disciplinary panel’s case-management decision should be upheld where the practitioner received a fair hearing and the decision was fair, reasonable and lawful.

The claimant, a doctor, appealed under section 40 of the [2009] EWHC 2682 (Admin) against a Fitness to Practise Panel’s findings that his fitness to practise was impaired by misconduct and deficient professional performance. The Panel had erased his name from the medical register.

The appeal challenged factual findings concerning three patients, the findings of impairment and sanction, alleged abuse of process, delay, procedural unfairness and refusals to stay or adjourn the hearing. The central issues were whether the Panel had made material factual or legal errors, whether its procedure was unfair, and whether erasure was a proportionate and lawful sanction.

1. Appeal dismissed. The Panel’s findings and sanction were not shown to be wrong, or unjust because of a serious procedural or other irregularity, within section 40 of the Medical Act 1983 and CPR 52.11(3).
2. The court followed the approach in GMC v Meadow [2006] EWCA Civ 1390. Appropriate weight must be given to the specialist tribunal’s understanding of professional standards, its opportunity to hear and see witnesses, and the fact that primary facts, secondary facts and overall professional judgments may reasonably admit of different answers. The court nevertheless retains jurisdiction to correct material errors of fact and law.
3. The Panel was entitled to find serious misconduct in relation to Patients X, S and D. It was entitled to conclude that Patient X underwent surgery without an adequate anaesthetic and in pain; that the proposed paediatric en-bloc transplant for Patient S was unsuitable and inadequately explained; and that the proposed withdrawal of gentamicin and request for an angiogram in Patient D were professionally unacceptable. The fact that the proposed treatment of Patient D was not ultimately carried out did not absolve the claimant from misconduct.
4. The Panel correctly treated the fact-finding, impairment and sanction stages as separate and distinct, applying the framework described in Cohen v General Medical Council [2008] EWHC 581 (Admin).
5. The claimant’s persistent denial, lack of insight and absence of evidence of remediation supported the finding of impairment and a real danger of repetition. Erasure was proportionate where the claimant’s conduct towards Patients S and X was fundamentally incompatible with continued registration.
6. The Panel’s refusals to stay or adjourn were lawful case-management decisions. The claimant had a fair opportunity to present evidence and submissions, and the subsequent procedure removed any potential unfairness. Allegations concerning pre-hearing abuse of process should ordinarily be raised by judicial review, as explained in Dzikowski v GMC [2006] EWHC 2008 (Admin).
7. The court was minded to award the GMC its costs of £20,725.50, subject to written submissions within 14 days and a further seven days for reply.

High Court (Administrative Court): The appeal against the Fitness to Practise Panel’s decision dated 13 February 2009 was dismissed. The Panel’s findings of impairment and erasure sanction were upheld.