Sharief v General Medical Council

On a section 40 appeal, the High Court must correct material errors of fact or law and exercise its own secondary judgment on sanction. It must, however, give particular respect to the professional disciplinary panel’s assessment of the measures needed to maintain professional standards and protect the public. The court should reassess sanction only on the findings that remain upheld and should intervene only where the panel’s decision is materially wrong or disproportionate. Serious professional dishonesty, especially research dishonesty, may justify erasure, but a panel’s decision to impose suspension will stand where the remaining findings independently support it.

The appellant challenged the sanction imposed by a Fitness to Practise Panel after the court had previously quashed the factual findings relating to an allegation that he forged another practitioner’s signature. The court had upheld six separate findings involving dishonesty, including research misconduct, and the appellant accepted that his fitness to practise remained impaired.

The issue was whether removing one allegation required the sanction to be reconsidered under CPR Part 52.11(3), and whether the asserted effect of section 47 of the Medical Act made the suspension disproportionate.

1. The appeal against sanction was dismissed. The court considered the approach stated by the Court of Appeal in Raschid & Fatnani v General Medical Council [2007] 1 WLR 1460: the High Court must correct material errors of fact and law and exercise its own, distinctly secondary, judgment, while respecting the professional panel’s judgment on professional standards and public protection.
2. The court assessed the sanction on the facts that remained upheld. The quashed forgery allegation was serious, but it was not materially more serious than the surviving findings of dishonesty. The Panel would therefore have imposed the same sanction, both as to its nature and duration.
3. The appellant’s concession that impairment remained established was relevant. The continuing findings of research dishonesty were particularly serious under the GMC’s Indicative Sanctions Guidance. Erasure would have been justified, and the Panel’s lesser sanction of suspension provided strong evidence that it had considered the mitigation relied upon by the appellant.
4. The argument based on section 47 of the Medical Act failed. Even if suspension automatically terminated the appellant’s NHS employment, rather than creating only a very significant risk of termination, that difference did not materially affect the proportionality of the sanction when imposed.
5. The appellant was ordered to pay the GMC’s costs, subject to detailed assessment on the standard basis if not agreed.

• High Court (Administrative Court): On 27 April 2009, the court dismissed the appeal against the Panel’s findings of fact except in relation to the allegation concerning forgery of another practitioner’s signature.
• High Court (Administrative Court): In the present judgment, the court upheld the Panel’s sanction of suspension and dismissed the appeal against sanction.