Alhy, R (on the application of) v General Medical Council

On a statutory appeal under section 40 of the Medical Act 1983, the Administrative Court conducts a rehearing but gives appropriate respect to the specialist tribunal’s expertise. It corrects material errors of fact and law and makes a distinct but secondary judgment on the application of legal principles to the facts.

A Fitness to Practise Panel need not give specific reasons for imposing a different sanction from that imposed by a foreign regulatory or criminal authority. The relevant question is whether the reasons, read in the context of the proceedings as a whole, enable the affected person to understand the decision. A doctor’s personal duty to notify the regulator of criminal convictions is not displaced by any notification duty imposed on a foreign authority.

Dr Stephane Alhy appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision finding misconduct and ordering his erasure from the medical register.

He had been convicted in France in connection with the deaths of two patients. The French courts imposed criminal penalties and prohibited him from practising as a surgeon for three years. The French regulatory authority later notified the General Medical Council, but Dr Alhy had not personally reported his convictions.

The appeal challenged the adequacy of the Panel’s reasons, particularly its failure to explain why its sanction differed from the French outcome. It also challenged the finding concerning non-notification and the proportionality of erasure.

1. The appeal was dismissed. The court’s function under section 40 of the Medical Act 1983 was by way of rehearing. The court had to correct material errors of fact and law, while exercising a distinct and firmly secondary judgment concerning the application of the relevant principles.

2. The Panel was a specialist tribunal whose assessment of professional standards and sanctions deserved respect. Its sanctions were protective and concerned the public, the standing of the profession and proper professional standards, rather than retributive punishment. The court therefore applied the approach in Rascid v General Medical Council [2007] EWCA Civil 46; [2007] 1 WLR 1460.

3. The Panel was not required to explain expressly why its sanction differed from sanctions imposed in France. Article 56(2) of Directive 2005/36/EC required exchange of information concerning disciplinary action and criminal sanctions, but did not establish primacy for the home Member State or create a hierarchy between national professional bodies. Nor did fairness or Wednesbury reasonableness impose the proposed additional duty.

4. Requiring the Panel to investigate and explain the decision-making process of foreign authorities would extend beyond its remit, powers and competence. The Panel’s reasons were full and clear. They enabled Dr Alhy and others concerned with the decision to understand why erasure had been imposed, including the significance of his failure to notify the General Medical Council and his continuing lack of insight after the criminal proceedings had ended.

5. Dr Alhy had a personal obligation under the General Medical Council’s regulations to notify the General Medical Council of his convictions. The French authority’s separate obligation to provide notification did not relieve him of that duty.

6. The sanction was not disproportionate merely because it was more onerous than the French sanctions. The Panel had considered the available sanctions in ascending order, applied its indicative sanctions guidance and assessed the relevant factors. Its specialist assessment was not shown to be wrong.

Permission to appeal was refused. The appellant was ordered to pay the respondent’s costs assessed at £6,975 inclusive of VAT, interest and disbursements.

The judgment describes an appeal from a General Medical Council Fitness to Practise Panel decision dated 21 January 2011. The Administrative Court dismissed the statutory appeal, refused permission to appeal and made a costs order.