Adeyemi, R (on the application of) v General Medical Council

On an appeal against a sanction imposed by a professional disciplinary tribunal, the High Court exercises a distinctly and firmly secondary judgment. It may correct material errors of fact or law and review the application of legal principles, but must give special weight to the specialist tribunal’s judgment.

At a review hearing, the practitioner bears a persuasive burden of demonstrating that the concerns underlying the original impairment finding have been sufficiently addressed through insight, application, education, supervision or other achievement. A later panel is not bound to impose the same sanction as an earlier panel. Where continuing deficiencies and an ongoing risk to patients remain, erasure may be proportionate and directed to public protection rather than punishment.

The claimant, a doctor, appealed under section 40 of the Medical Act against a 2011 Fitness to Practise Panel decision that her fitness to practise remained impaired and that her name should be erased from the Medical Register.

Earlier panels had identified deficiencies in anaesthetic and general medical skills. In 2009 conditions were imposed, and in 2010 suspension followed after a review conducted in her absence. An earlier appeal against the 2010 decisions had been dismissed. The central issues were whether the 2011 panel had acted unfairly or disproportionately, failed to follow the earlier panel’s directions, or ignored the claimant’s recent progress and clinical knowledge.

1. Appeal dismissed. The 2011 Fitness to Practise Panel had found continuing impairment and concluded that conditional registration and suspension were insufficient. Its decision to erase the claimant’s name was upheld.
2. The court applied the approach in Rashid and Fatnani v General Medical Council [2007] 1 WLR 1460. An appeal court may correct material errors of fact or law and exercise its own, distinctly secondary, judgment on the application of principle. It must give particular weight to the specialist tribunal’s assessment, especially because public confidence in the profession must be preserved.
3. The court adopted the practical approach stated in Abrahaem v General Medical Council [2008] EWHC 183 (Admin). At a review, the practitioner must persuasively demonstrate that the concerns arising from the original impairment finding have been sufficiently addressed through insight, application, education, supervision or other achievement. This applies to impairment based on professional performance as well as misconduct.
4. The later panel was entitled to reach a different sanction from the earlier panel. The claimant had not demonstrated that her medical skills and clinical knowledge were up to date after five years away from practice, and the original deficiencies were wide-ranging. Her developing insight and relevant study did not adequately address those deficiencies.
5. Erasure was a public-protection measure, not a penalty. The panel was plainly entitled to conclude that continuing deficiencies and the resulting risk to patients required erasure. No material error of fact or law justified intervention.

• Fitness to Practise Panel: Conditions were imposed in 2009, suspension was imposed at the 2010 review, and erasure was ordered at the 2011 review.
• High Court (Administrative Court): An earlier appeal against the 2010 decisions was dismissed by His Honour Judge Robert Owen QC. The present appeal against the 2011 determination was dismissed.