Rauniar v General Medical Council

On a statutory appeal from a professional disciplinary tribunal, the court conducts an appellate re-hearing and may correct material errors of fact or law. It must nevertheless give appropriate weight to the tribunal’s specialist expertise, particularly on professional competence and patient safety. A deanery may require a basic competence examination as a gateway to supervised remedial training where patient contact is involved. A specialist performance adviser may give technical advice about professional standards and assessment methods, but must not decide the ultimate issues of competence, impairment or sanction. Where a doctor has comprehensive deficiencies, has made little progress during conditional registration and presents a continuing patient-safety risk, suspension may be proportionate.

Dr Arun Kumar Rauniar appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision at a review hearing. The Panel found that his fitness to practise remained impaired, found breaches of conditions imposed in 2008, and suspended his registration for 12 months.

The appeal challenged the requirement that he pass the London Deanery’s Induction and Refresher Scheme examination, the role of the Panel’s specialist performance adviser, alleged bias, the assessment of his personal effort, and the choice of suspension rather than further conditional registration. The central issues were whether the Panel had acted unlawfully or irrationally and whether its sanction was proportionate.

1. The appeal was dismissed. Under section 40 of the Medical Act 1983 and CPR 52.11(3), the court’s jurisdiction was appellate rather than supervisory. It could re-hear the matter and substitute its own decision, but had to accord appropriate respect to the Panel’s expertise. Its judgment on sanction remained a secondary judgment: it would correct material errors of fact or law but would not readily interfere with specialist evaluative conclusions (Ghosh v General Medical Council, [2001] 1 WLR 1915; Raschid v General Medical Council, [2007] 1 WLR 1460).

2. The London Deanery was entitled to require the MCQ examination before admitting the appellant to the Induction and Refresher Scheme. The scheme involved supervised patient contact, and a basic test of knowledge was justified by patient safety and by the need to establish whether the doctor could benefit from further training. The test’s standard, comparable to that expected of a Foundation Programme Year 2 doctor, was appropriate. The appellant’s very poor score made criticisms of the marking system academic.

3. The specialist performance adviser’s permissible function included technical advice on professional practice, the nature of assessments, and the knowledge required for safe general practice. The adviser could not express an opinion on the adequacy of the appellant’s practice or on impairment or sanction. Although the Panel had unnecessarily permitted questioning of the adviser, the answers remained within the permissible area and the Panel had not abdicated its decision-making function (Watson v General Medical Council, [2005] EWHC 1896 (Admin); Sadler v General Medical Council, [2003] UKPC 59; [2003] 1 WLR 2259; Udom v General Medical Council, [2009] EWHC 3242 (Admin); Richardson v Redpath Brown & Co Ltd, [1944] AC 62).

4. The question put by the medical member about internet-based learning did not establish actual or apparent bias. In any event, a bias challenge should be made at the first reasonable opportunity; none had been made before the Panel (Locabail, [2000] QB 451).

5. The Panel was entitled to find that little progress had been made during two years of conditional registration. It had considered the appellant’s difficulties with his appraisal and the Deanery, but was also entitled to consider his failure to undertake retraining, his very poor MCQ result, his refusal to retake it, and the comprehensive nature of the identified deficiencies.

6. The Panel had applied proportionality and considered sanctions in increasing order of severity. Patient safety was paramount. Given the appellant’s comprehensive failure in the GMC assessment, very poor examination result, prolonged absence from practice, limited progress and lack of insight into the extent of retraining required, the Panel was entitled to conclude that further conditional registration would pose an unacceptable risk. The effect of the sanction on the appellant was a secondary consideration (Bolton v Law Society, [1994] 1 WLR 512).

• High Court (Administrative Court): appeal under section 40 of the Medical Act 1983 dismissed. The court upheld the Fitness to Practise Panel’s decision to suspend the appellant’s registration for 12 months.
• Fitness to Practise Panel: at a review hearing on 14 April 2010, found continuing impairment and breaches of conditions imposed in 2008, and directed 12 months’ suspension.