Odes v General Medical Council

An appeal from a professional disciplinary panel is by way of rehearing, but the court should respect the panel’s professional expertise and its advantage in hearing live evidence. Factual findings should not be disturbed unless the court is satisfied that they were wrong.

A disciplinary panel’s reasons need only make clear why the parties won or lost. At the impairment stage, the panel must consider the misconduct together with all relevant circumstances, including insight, remediation and the risk of repetition. Sanction is principally directed to maintaining professional standards and public confidence. The court should interfere only where the sanction is clearly inappropriate.

Dr Odes appealed under section 40 of the Medical Act 1983 against a four-stage Fitness to Practise Panel determination. The Panel found allegations concerning his treatment of two patients proved, found his fitness to practise impaired by misconduct, and imposed a four-month suspension not taking effect immediately.

The appeal challenged factual findings concerning patient care, the standard of proof, alleged expert bias, the adequacy of the Panel’s reasons, impairment and sanction. The central issues were whether the Panel had erred in its findings or approach and whether the suspension was disproportionate.

1. Disposition. The appeal was dismissed. The Panel’s findings, its determination that the appellant’s fitness to practise was impaired, and the four-month suspension were upheld. The appellant was ordered to pay the GMC’s costs, subject to detailed assessment if not agreed.
2. Standard of proof and factual findings. Rule 34(12) of the 2004 Rules required the civil standard, namely the balance of probabilities. The court’s appeal jurisdiction was by way of rehearing, but it would be cautious before reversing findings made by a professional panel that had heard the witnesses and possessed relevant professional expertise. Applying the approach in Thomas v Thomas [1947] AC 484, as adopted for disciplinary panels in Gupta v General Medical Council [2001] UKPC 29, the court found no basis for disturbing the Panel’s findings.
3. Reasons. The Panel was not required to provide a court-style judgment or explain every acceptance and rejection of evidence. It was sufficient that the parties could understand why they had won or lost, consistently with English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, Phipps v General Medical Council [2006] EWCA Civ 397 and R (Luthra) v General Dental Council [2004] EWHC 458 (Admin).
4. Patient B. The Panel was entitled to conclude that the chest drain had been removed without sufficient clinical justification and contrary to specialist advice. Even if the patient had been in significant pain, the evidence supported the conclusion that there was time to seek further specialist advice and no emergency requiring removal.
5. Patient A. The charges did not depend upon proof that septic arthritis actually existed on the first admission. The relevant issue was whether appropriate steps had been taken to consider and disprove that possibility, investigate infection, provide leadership and supervision, and maintain adequate records. The Panel was entitled to find that those steps had not been taken.
6. Impairment and sanction. The Panel properly treated impairment as a distinct stage and considered the appellant’s wider career, appraisals, insight, remediation and risk of repetition, applying the approach in Cohen v General Medical Council [2008] EWHC 581. The principal purposes of sanction were maintaining professional standards, public confidence and patient protection. The practitioner’s interests remained relevant to proportionality but were not the primary consideration. Applying Bolton v The Law Society [1994] 1 WLR 512, Raschid & Fatnani v General Medical Council [2007] EWCA Civ 46 and Cheatle v General Medical Council [2009] EWHC 645 (Admin), the suspension was not clearly inappropriate.

• Fitness to Practise Panel: On 26 March 2009, the Panel found allegations concerning two patients proved, found impairment by misconduct, and imposed a four-month suspension not taking effect immediately.
• High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was dismissed. The Panel’s findings and sanction were upheld, with costs ordered against the appellant.