Shamsian v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court has full jurisdiction but should respect the specialist tribunal’s assessment of evidence, particularly credibility, unless the decision was wrong. A statement may be misleading without anyone being shown to have been actually misled. However, a finding of dishonesty requires a sound factual and logical basis under the two-stage test in R v Ghosh. A disciplinary panel must determine the allegation actually presented, give the practitioner a fair opportunity to answer it, and read an application form as a whole. Findings based on an altered allegation, selective consideration of the evidence, or unsupported inferences cannot stand.

Dr Negin Shamsian appealed under section 40 of the Medical Act 1983 against findings by a General Medical Council Fitness to Practise Panel. The panel found seven inaccurate statements in her 2005 application for a specialist registrar post to be misleading and dishonest, found her fitness to practise impaired, and suspended her for 12 months.

The appeal concerned the proper appellate approach, the distinction between misleading conduct and dishonesty, the interpretation of several entries in the application form, and whether the panel had followed fair process when determining the allegations.

1. Appeal allowed. The court had full jurisdiction under section 40 of the Medical Act 1983, but should accord appropriate respect to the panel’s factual and credibility findings. It would intervene where the panel’s decision was wrong or disclosed an error of approach.
2. Misleading conduct did not require proof that a reader had in fact been misled. The relevant question was whether the statement would lead someone to believe something untrue. Dishonesty remained subject to the two-stage test in R v Ghosh: dishonesty by the ordinary standards of reasonable and honest people, together with the practitioner’s subjective awareness that the conduct was dishonest.
3. The finding concerning the MD thesis and viva was unsustainable. The form naturally conveyed that the thesis was to be completed in January 2006. The panel had no proper basis for inferring that the appellant intended the alternative meaning that the viva was due then. The dishonesty finding therefore failed independently as well as because the misleading finding failed.
4. The finding concerning the ATLS certificate contained a flawed inference. Entering 2001 did not necessarily imply that the certificate remained current in December 2005. The panel’s reasoning did not establish dishonesty.
5. The findings concerning research and clinical time were unsustainable. The application form had to be read as a whole, including its chronological employment history. A reasonably careful reader would not treat the same 17-month hybrid post as two separate periods.
6. The findings concerning publications, presentations and CNN videos could not stand. The panel had materially altered the allegations without giving the appellant fair notice or an opportunity to answer them. It had also failed to address relevant evidence elsewhere in the form.
7. All findings of dishonesty were quashed. All findings of misleading conduct were quashed except paragraph 3(b), concerning the ATLS date. The findings of impairment, the suspension, and the immediate suspension direction under section 38(1) were also quashed. The GMC was ordered to pay costs of £22,000.

This was an appeal to the Administrative Court under section 40 of the Medical Act 1983 from findings and sanction imposed by a GMC Fitness to Practise Panel. The appeal was allowed and the relevant findings and orders were quashed.