Cheatle v General Medical Council

An appeal by way of rehearing from a Fitness to Practise Panel requires the High Court to decide whether the Panel was wrong. It is broader than judicial review, although appropriate respect is due to professional judgment, particularly on sanction.

A finding of impaired fitness to practise requires two stages: serious misconduct or another statutory ground, followed by a forward-looking assessment of present impairment in the context of the practitioner’s record before and after the events. Fairness may exceptionally require reasons for contested factual findings, despite there being no general duty to give them.

A decision founded on flawed factual findings, excluded relevant evidence, or inadequate reasons cannot stand.

The appellant, a consultant vascular surgeon, appealed from a Fitness to Practise Panel decision that his fitness to practise was impaired by misconduct arising from the treatment of Mrs Swain in April 2002. The Panel suspended his registration for ten months.

The allegations concerned consent for surgery, response to post-operative infection, and care after Mrs Swain’s readmission with a leaking and infected graft. Mrs Swain died following further bleeding.

The appeal challenged factual findings, the conclusion of impairment, and sanction. The principal issues were whether the Panel had properly explained disputed factual findings, assessed impairment by reference to the doctor’s present fitness, and given adequate weight to relevant evidence and consequences when imposing sanction.

1. Appeal allowed. The court quashed the indicated findings of fact, the finding that the appellant’s fitness to practise was impaired, and the ten-month suspension. The matter was not remitted because nearly seven years had elapsed since the patient’s death.

2. An appeal under section 40 of the Medical Act 1983 is by way of rehearing. The court must decide whether the Panel was wrong, rather than apply only public-law review. It should nevertheless accord appropriate respect to a specialist tribunal’s assessment of professional judgment, particularly when considering sanction.

3. Impairment under section 35C requires a two-stage analysis. The Panel must first establish misconduct or another statutory ground. It must then decide, looking forward and in the context of the practitioner’s conduct before and after the events, whether that conduct presently impairs fitness to practise.

4. The Panel was entitled to find serious failures concerning the post-operative infection and the appellant’s response after readmission. A consultant who knows that a particularly vulnerable patient has serious post-operative complications must ensure appropriate examination, monitoring and reporting, personally or through the clinical team. The appellant could not rely on system failure where he had failed to institute a management plan after being told of the leaking graft.

5. However, the Panel’s consent findings were flawed. It failed to explain why it confined the consent inquiry to the signing of the form, despite unchallenged evidence that consent was an ongoing process. It also failed adequately to address the defects in the evidence of the patient’s daughters, although those defects were central to the defence. Fairness exceptionally required reasons for those factual findings.

6. The Panel also disabled itself from conducting the required forward-looking impairment assessment by refusing, at that stage, evidence about the appellant’s otherwise unblemished practice and general abilities. It had therefore failed to take relevant matters into account.

7. In an alternative conclusion on sanction, the court held that the Panel had proceeded on false premises and given inadequate reasons for discounting severe staffing and workload pressures. The court tentatively considered that suspension for misconduct under section 47 of the Medical Act 1983 ends the relevant NHS appointment by operation of law; that consequence could not be ignored when assessing proportionality.

• High Court (Administrative Court): Allowed the appeal and quashed the indicated factual findings, the impairment finding and sanction.
• General Medical Council Fitness to Practise Panel: Found the appellant’s fitness to practise impaired by misconduct and suspended his registration for ten months.