Raza v General Medical Council

An appeal under section 40 of the Medical Act 1983 is by way of rehearing, but the appellate court ordinarily accepts factual findings based on oral evidence unless material error is clearly demonstrated. A Fitness to Practise Panel must separately determine misconduct and current impairment. Serious past misconduct may support an inference of present impairment, but the Panel must explain that inference and address material submissions, including whether the conduct was isolated, whether remediation has occurred and the risk of repetition. Reasons must be sufficient to show why the conclusion was reached, particularly where professional standing and livelihood are affected. A failure to provide adequate reasons may justify quashing and remission to a freshly constituted Panel.

Dr Raza appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s findings that aspects of his conduct towards a patient were inappropriate and sexually motivated, that his fitness to practise was impaired, and that he should be suspended for 12 months.

The appeal challenged factual findings concerning a remark about the patient’s tattoo, two embraces at the end of the consultation and a subsequent text message. It also challenged the impairment finding and sanction. The central issues were whether the Panel had made material factual errors and whether it had adequately explained its conclusion that past misconduct demonstrated current impairment.

1. Appeal standard. The appeal was by way of rehearing under section 40 of the Medical Act 1983, CPR 52.11 and the Part 52 Practice Direction. The Court could correct material factual errors, including findings unsupported or insufficiently supported by evidence, but had to give appropriate weight to the Panel’s assessment of witnesses.
2. The Panel was wrong to find that the tattoo remark was sexually motivated. The patient had not alleged that the remark was sexual or objectionable and had accepted that it was made reassuringly. The doctor’s withdrawn explanation did not, without more, establish sexual motivation. The associated finding that the remark abused his professional position therefore also failed.
3. The remaining findings concerning the embraces and text message were open to the Panel. It was entitled to assess the evidence as a whole, including the patient’s evidence, the circumstances of the text message and the doctor’s unsupported explanations for sending it.
4. Impairment. Under section 35C of the Medical Act 1983, misconduct and impairment are separate stages. Present impairment may be inferred from serious past misconduct, but the Panel had to explain why the conduct demonstrated current impairment. Its references to an undefined underlying attitude did not explain how that conclusion followed from an otherwise unblemished record, an apparently isolated incident and the steps taken to prevent recurrence. Its dismissal of the use of a chaperone as self-protection was also inadequately reasoned.
5. The Panel’s reasons did not meet the minimum standard required in a case affecting professional livelihood and standing. Its decision was quashed. The impairment issue, and the sanction issue if applicable, were remitted for expedited determination by a freshly constituted Fitness to Practise Panel.

• Fitness to Practise Panel: Found misconduct, current impairment and imposed 12 months’ suspension.
• High Court (Administrative Court): Quashed the Panel’s decision and remitted impairment, and sanction if applicable, to a freshly constituted Panel.