Khan v General Medical Council

On a review of conditional registration, a Fitness to Practise Panel may consider both whether conditions have been breached and whether the practitioner’s fitness to practise remains impaired. A previous finding of impairment is a proper starting point, but does not automatically determine the later decision. The practitioner must provide evidence capable of showing that the impairment has ceased. An appeal court must respect the specialist Panel’s evaluative judgment and intervene only where the decision is wrong or unjust because of procedural or other irregularity. The same restrained approach applies to sanction, subject to correcting material errors of fact or law.

Dr Daud Basharat Khan appealed under section 40(1) of the Medical Act 1983 against a Fitness to Practise Panel’s determination. The Panel had previously found misconduct involving dishonest claims for reimbursement of employer pension contributions and imposed conditions on his registration. At the review hearing, it found that several conditions had been breached, that his fitness to practise remained impaired, and that suspension for 12 months was appropriate.

The appeal concerned whether a review Panel dealing with conditional registration could consider impairment of fitness to practise as well as compliance with conditions, whether the finding of continuing impairment was properly reached, and whether the maximum suspension was proportionate.

Appeal dismissed.

1. Jurisdiction on review. The statutory scheme in section 35D of the Medical Act 1983 permits a Panel reviewing conditional registration to consider both compliance with previously imposed conditions and whether the practitioner’s fitness to practise remains impaired. Rule 22 of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 supports that construction. Reading the rule as limiting a review Panel to breach of conditions would make sections 35D(11) and (12) redundant.
2. Continuing impairment. The earlier finding of impairment was a legitimate starting point, rather than a conclusive determination. The Panel was entitled to consider the original misconduct, the failure to comply with conditions designed to address practice-management deficiencies, the absence of requested development, mentoring and audit evidence, and continuing concerns identified by the Primary Care Trust. The Panel therefore had a proper basis for concluding that impairment continued.
3. Clinical practice. The absence of criticism of clinical competence did not answer the practice-management concerns. The Panel was entitled to disregard that matter as irrelevant to the impairment issue and could take breaches of conditions into account in its overall assessment.
4. Sanction and appellate restraint. The Panel had considered mitigation, including the appellant’s health, his wife’s illness, his role as a sole practitioner and the effect of suspension on patients. Applying the appellate approach in Fatnani & Raschid v General Medical Council [2007] EWCA Civ 46, the court’s role was a secondary judgment. There was no justification for interfering with the 12-month suspension.
5. The appeal was dismissed. Costs were awarded to the General Medical Council in the sum of £7,881.25.

Fitness to Practise Panel: The Panel found impairment, breaches of conditions and imposed a 12-month suspension on 3 January 2008.

High Court (Administrative Court): The appeal under section 40(1) of the Medical Act 1983 was dismissed. Costs were awarded to the General Medical Council.