Sulaiman v General Medical Council

A professional performance assessment is one part of the evidence before a Fitness to Practise Panel. The Panel must consider the whole evidential record and is entitled to determine the weight of assessment scores, written material, oral evidence and criticisms of the assessment process. Procedural shortcomings will justify appellate intervention only where they materially undermine the fairness or reliability of the determination. A practitioner’s insight into professional deficiencies may be relevant to the risk to the public and to impairment. The absence of an institutional audit process does not necessarily relieve an individual surgeon of the responsibility to undertake personal audit.

The appellant, an orthopaedic consultant, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel determination dated 27 May 2010. The Panel found deficient professional performance in several areas of Good Medical Practice, concluded that his fitness to practise was impaired, and imposed conditions on his registration for 12 months.

The appeal challenged the performance assessment, including the testing and scoring arrangements, the selection and treatment of third-party interview evidence, the handling of a proposed referee, the adequacy of the investigation, and the Panel’s reliance on alleged lack of insight. The central issue was whether those matters rendered the assessment or the Panel’s determination legally or evidentially flawed.

1. Appeal dismissed. There was no proper basis for disturbing the Panel’s determination. The assessment complied with the applicable statutory and procedural framework and was only one part of the evidence before the Panel.

2. The assessors’ professional judgments were not rendered unreliable merely because a separate person converted their gradings into numerical scores, or because the assessors’ scores differed. The underlying evidential basis was explored in cross-examination and in submissions. The Panel was entitled to assess the weight of the judgments and the criticisms made of them.

3. The use of third-party interviews did not make the assessment unfair. The interviewees included experienced surgeons and nursing sisters who had relevant knowledge. Their possible hostility or prior history with the appellant was raised before the Panel. The written responses were disclosed, the appellant could challenge their reliability, and he could have sought the attendance of interviewees for cross-examination.

4. The omission of a proposed third referee did not establish unfairness. The referee’s written assessment was before the Panel and could have been supplemented by oral evidence. The Panel in fact considered evidence from practitioners who had supervised the appellant.

5. The Panel was entitled to conclude that the appellant lacked insight into the need to restrict the breadth of his practice. That conclusion was supported by the evidence, including the appellant’s continuing wish to undertake a wide range of procedures and the view of a supportive supervisor that he should limit his practice. Lack of insight was relevant to the assessment of risk to the public and impairment. It was not simply a penalty for criticising the assessment process.

6. The absence of a formal institutional audit process was not a complete answer to criticism of the appellant’s audit performance. Personal audit was an established professional responsibility. The appeal therefore disclosed no material flaw in the factual findings or in the Panel’s conclusion that fitness to practise was impaired.

• High Court (Administrative Court): appeal under section 40 of the Medical Act 1983 against the Fitness to Practise Panel’s determination dated 27 May 2010. Appeal dismissed.