Udom v General Medical Council

A professional disciplinary panel may impose either suspension or conditions on registration, but the two sanctions rest on mutually exclusive premises. Conditions must leave the practitioner registered and able to practise, subject to appropriate restrictions. A condition limiting practice to purely observational clinical attachments may, in substance, amount to suspension and is unlawful if imposed as conditional registration. A panel must also remain within the proper advisory role of a specialist assessor. An adviser may explain the medical significance of material before the panel, but should not give unsupported personal opinions on the length of retraining or attachment. If such evidence is accepted without a fair opportunity to test it, the hearing may be unfair. An appellate court may allow an appeal from a professional disciplinary tribunal where its decision is wrong, while recognising that substantial weight is due to the tribunal’s professional judgment.

Dr Udom appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s determinations of 19 May 2009. The Panel found impairment by deficient professional performance and physical or mental health, and imposed nine months’ conditions with immediate effect.

The appeal concerned sanction only. The principal issues were whether the conditions effectively suspended the appellant’s registration while imposing additional obligations, contrary to section 35D(2), and whether the Panel had unlawfully relied on personal opinion evidence from its specialist performance adviser concerning the appropriate period of clinical attachment.

1. Appeal allowed. The appeal was by way of rehearing, but the court recognised that a professional disciplinary tribunal’s judgment, particularly on sanction, commands considerable respect. Intervention was justified because the sanction was clearly wrong.
2. Section 35D(2)(b) and (c) of the Medical Act 1983 provide mutually exclusive alternatives. Suspension removes the practical effect of registration for a specified period. Conditions presuppose that registration and the ability to practise continue, subject to restrictions. A panel cannot use conditions to remove every practical benefit of registration, because that would render suspension otiose and evade the statutory limits applicable to suspension.
3. The condition restricting practice to clinical attachments was understood in its conventional GMC sense. Such attachments were purely observational and did not permit clinical work requiring registration. In the context of anaesthetics, the condition therefore prevented the appellant from practising medicine in substance. The additional requirements concerning rehabilitation and reporting were inconsistent with a sanction that had already deprived registration of effect.
4. The Panel also erred by accepting the specialist performance adviser’s unsupported opinion that approximately three months’ observation was appropriate. An assessor may advise on the medical significance of information before the Panel, and explain procedures or practice in the relevant speciality, but must not give personal opinion evidence on the practitioner’s individual rehabilitation requirements. The appellant had no fair opportunity to test or answer that opinion.
5. The sanction determination was legally flawed and was not cured by the Panel’s rehabilitation concerns. The impairment determination was not challenged and could stand. The sanction issue was remitted to a differently constituted Panel. The court declined to substitute its own conditions.

• High Court (Administrative Court): appeal under section 40 of the Medical Act 1983 allowed. The sanction determination was set aside and the sanction issue remitted to a differently constituted Fitness to Practise Panel.