Saverymuttu v The General Medical Council

In a statutory appeal from a fitness to practise decision, a professional disciplinary panel may rely on a further fact emerging during the hearing if the allegation is amended or treated as amended and procedural fairness is secured. An adjournment and a genuine opportunity to recall witnesses and make further submissions may cure any resulting unfairness.

Where an insurer has clearly defined its own procedure codes, the relevant question is how the insurer understands the code, not whether it accords with an earlier clinical or professional classification. A practitioner who knows that an insurer will understand a code as describing a therapeutic procedure, but submits it for a diagnostic procedure without clarification, may be dishonest. The appellate court should give substantial weight to the panel’s assessment of live evidence and state of mind.

The appellant, a consultant physician, appealed under section 40 of the Medical Act 1983 against findings by a Fitness to Practise Panel of misconduct, dishonesty and impaired fitness to practise. The panel found that he had used an insurer’s code for therapeutic endoscopy when submitting claims for diagnostic procedures. It imposed a 12-month suspension.

During the disciplinary hearing, the panel relied on a March 2005 letter which was not expressly included among the factual particulars of the allegation. The central issues were whether reliance on that letter was procedurally unfair, whether the dishonesty finding was wrong, and whether the impairment and sanction decisions could stand.

1. Procedural fairness. The March 2005 letter constituted a further fact on which the allegation was based. Although no formal amendment application had been made, the issue was whether the procedure was fair, not whether the correct procedural form had been used. Under rule 17(3), particulars and supporting facts could be amended. The panel’s adjournment, permission to recall witnesses and opportunity for further submissions were sufficient to cure any potential unfairness. The appellant chose not to recall the relevant insurer’s witness. The panel also had to take account of its public duty to investigate serious professional misconduct.
2. Meaning of the insurer’s codes. The insurers were entitled to adopt and adapt their own coding language. The codes were based on, but were not identical to, the OPCS classification or the BMA guidelines. After the relevant revisions, the schedules and the 2004 letters clearly indicated that G6500 described a diagnostic procedure and G4500 a therapeutic procedure.
3. Dishonesty. The panel correctly applied the two-stage test in [1982] QB 1053. After receiving the March 2005 letter and checking the schedule, the appellant knew how the insurer would understand G4500. His continued use of that code for diagnostic procedures, without a narrative explaining his different intended meaning, was conduct which the panel was entitled to find dishonest. His own view that G4500 was clinically correct, the views of other practitioners, and earlier claim audits did not displace that finding.
4. Appellate restraint and sanction. The court was not confined to errors of law under section 40, but the panel had the important advantage of hearing extensive live evidence, particularly on credibility and state of mind. The dishonesty finding was not wrong. The appellant accepted that, if it stood, impairment and the 12-month suspension could not successfully be challenged. The appeal was dismissed.

• Fitness to Practise Panel — On 15 March 2010, found misconduct, dishonesty and impaired fitness to practise, and imposed a 12-month suspension.
• High Court (Administrative Court) — On 6 May 2011, dismissed the statutory appeal under section 40 of the Medical Act 1983.