Nagiub v General Medical Council

An appeal from a Fitness to Practise Panel is technically by way of rehearing, but ordinarily involves a review of the evidence and material before the Panel. The court must respect the Panel’s advantage in assessing live evidence and its professional expertise, while remaining able to correct errors of law, fact or judgment. The court may also give substantial weight to the Panel’s sanction, particularly where the purpose is protection of patients and public confidence rather than punishment. A defect in reasoning does not necessarily invalidate the decision where ample independent material supports the same outcome. A performance assessment may legitimately be used to assess professional competence, provided the process is fair.

Dr Wafaa Nagiub appealed under section 40 of the Medical Act 1983 against a decision of the General Medical Council’s Fitness to Practise Panel. The Panel had found her fitness to practise impaired by deficient professional performance, misconduct and health concerns, and directed a 12-month suspension from the medical register.

The principal challenges concerned the fairness and conclusions of a GMC performance assessment, findings arising from the treatment of a patient with a displaced wrist fracture, procedural fairness during the hearing, and the proportionality of suspension. The central issue was whether the Panel’s findings, impairment decision or sanction disclosed an error justifying appellate intervention.

1. The appeal was dismissed. The court found no sustainable ground for interfering with the Panel’s findings or its 12-month suspension.
2. An appeal under section 40 of the Medical Act 1983 is technically by way of rehearing, but in reality involves review of the evidence and material before the Panel. The appellate court must recognise that the Panel has seen and heard the witnesses and possesses professional expertise in assessing professional practice and shortcomings. It may nevertheless intervene where the appellant establishes an error of law, fact or judgment. This approach was drawn from Chyc v General Medical Council [2008] EWHC 1025 (Admin), Gupta v General Medical Council [2002] 1 WLR 1691, Ghosh v General Medical Council [2001] UKPC 29, Threlfall v General Optical Council [2004] EWHC 2683 (Admin), and Preiss v General Dental Council [2001] UKPC 36.
3. The Panel was entitled to regard the performance assessment as a reasonable and structured method of testing professional competence and patient safety. It had heard the assessors, considered the alleged defects and recognised occasional errors or glitches in the assessment. Those matters did not undermine the overall conclusion that the appellant’s performance was deficient.
4. The Panel was entitled to accept the evidence concerning the wrist manipulation. The procedure had been carried out without adequate analgesia or sedation, appropriate equipment, assistance or informed consent. The findings justified the conclusions of misconduct and impairment.
5. The Panel’s criticism of the appellant’s conduct during the hearing was of doubtful relevance to her day-to-day professional fitness. However, that defect did not vitiate the decision because there was ample other material supporting impairment. The sanction reasoning was otherwise beyond legitimate criticism. Applying the approach in Fatnani Raschid v General Medical Council [2007] EWCA Civ 46, the court accorded substantial respect to the Panel’s judgment on sanction. A 12-month suspension was neither wrong nor disproportionate.

High Court (Administrative Court): The appeal against the Fitness to Practise Panel’s findings of impairment and 12-month suspension was dismissed. The court upheld the Panel’s decision and found no basis for substituting or quashing the sanction.