Ayyub v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the High Court exercises a secondary judgment. It respects the specialist assessment of a Fitness to Practise Panel, but may intervene where the decision is wrong, takes account of irrelevant matters, or imposes a disproportionate sanction.

A Panel may draw reasonable inferences from circumstantial evidence, including inconsistencies and implausible failures of recollection, even where there is no direct evidence of the relevant conduct. Repeated dishonesty, serious breaches of professional standards, inadequate insight and an unresolved risk of repetition may make erasure necessary to protect public confidence in the profession. The sanction is not punitive in its primary purpose.

Dr Asim Ayyub appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel direction erasing his name from the Medical Register. The Panel had found misconduct and impairment arising from two incidents: failures concerning a patient’s blood tests and subsequent accounts of the patient’s discharge, and downloading and attempting to view pornography on a hospital computer during a clinic.

The appeal challenged the finding that Dr Ayyub had used a wheelchair to take the patient from the emergency department and challenged the proportionality of erasure. The pornography findings were otherwise not challenged. The central issues were whether the wheelchair finding was properly inferred and whether the sanction was legally or proportionately unsustainable.

1. Appeal dismissed. The court could not say that the Panel was wrong, had taken irrelevant matters into account, or had imposed a disproportionate outcome.
2. Under section 40 of the Medical Act 1983, an appeal is by way of rehearing, but the High Court ordinarily does not hear the witnesses or have the Panel’s opportunity to assess them. The court therefore exercises a secondary judgment. The Panel is entitled to particular respect when assessing professional standards, the reputation of the profession and the measures required to protect the public.
3. The Panel was entitled to infer that Dr Ayyub had wheeled the patient from the department. Although the GMC produced no direct evidence of wheelchair use, the Panel could rely on the changes in his account, his acknowledged clear recollection of the patient, and the fact that he was reminded of the incident the following day. His repeated suggestion that he might have used a wheelchair could properly be found disingenuous.
4. The Panel had found repeated dishonesty and serious departures from professional standards. It considered the absence of repetition, Dr Ayyub’s expressions of regret and his partial insight, but found his insight insufficient and was not satisfied that the misconduct would not recur. Its conclusion that the conduct was fundamentally incompatible with continued registration was open to it.
5. The Panel’s primary concern was protection of public confidence and the reputation and standing of the medical profession, rather than punishment. In that context, erasure was a permissible and proportionate sanction.

The judgment describes an appeal from a Fitness to Practise Panel determination dated 8 March 2011. The Panel had directed that Dr Ayyub’s name be erased from the Medical Register. The High Court dismissed the appeal under section 40 of the Medical Act 1983.