Kumar v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court gives weight to the professional tribunal’s expertise but may substitute its own judgment where the tribunal’s decision was wrong. Recklessness is subjective: it requires appreciation of an unacceptable risk and a decision to proceed despite that risk. Misconduct by an expert witness may nevertheless be established without recklessness or bad faith where the nature and degree of incompetence or negligence are sufficiently serious. Impairment is assessed at the time of the tribunal’s decision and looks to current and future fitness, but public confidence and professional standards may independently justify a finding of impairment. Sanction must protect the public and maintain confidence in the profession, rather than punish the practitioner.

The claimant, a consultant psychiatrist, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel decision. The Panel found that he had committed misconduct by accepting instructions in a murder case without relevant expert-witness experience and by producing and giving evidence based on an inadequately supported and controversial diagnosis of intermittent explosive disorder.

The Panel found recklessness, impairment of fitness to practise, and imposed four months’ suspension followed by review. The claimant challenged the factual finding, the recklessness findings, impairment, and sanction. The central issues were whether the Panel had applied the correct legal tests and whether its conclusions were wrong.

1. Appeal dismissed. The court’s function under section 40 was accurately summarised in Azzam v GMC [2008] EWHC 2711 (Admin). The Panel’s expertise and judgment deserved respect, but the court could exercise a secondary judgment and interfere if persuaded that the decision was wrong.

2. The Panel correctly applied a subjective test of recklessness, derived from R v G and Another [2003] UKHL 50. The question was whether the claimant appreciated an unacceptable risk and nevertheless proceeded. On the facts found, he knew the limits of his experience, understood the nature of the task, and appreciated the risks created by accepting instructions, failing to disclose his lack of homicide-trial experience, persisting with an inadequately supported diagnosis, and failing to identify material limitations and controversy. Those findings were justified.

3. The contextual observations in GMC v Meadow [2006] EWCA Civ 1390 did not assist the claimant. His failings arose in preparing the reports and acquiring and assessing information, rather than from pressure or confusion in the witness box. The court also clarified that honest mistake without recklessness will not invariably exclude misconduct. The governing test remained that in Preiss v General Dental Council [2001] 1 WLR 1926: sufficiently serious professional negligence or incompetence may amount to misconduct.

4. Misconduct and impairment were separate questions. Impairment had to be assessed at the time of the Panel’s decision with a forward-looking focus. Remediation and an intention not to repeat the conduct were relevant, but public confidence and the need to declare professional standards could independently justify impairment in an exceptionally serious case. The Panel was entitled to find impairment.

5. The four-month suspension and review were proportionate. Conditions would not adequately address the seriousness of the misconduct or the need to maintain confidence in medical experts assisting the criminal justice system. The Panel’s sanction was entitled to considerable respect.

This was a first-instance appeal to the Administrative Court under section 40 of the Medical Act 1983 from a Fitness to Practise Panel decision. The Panel had suspended the claimant’s registration for four months and directed a review.