Sharma v General Medical Council

An appeal from a fitness to practise decision succeeds only where the tribunal was wrong in its conclusions. The appellate court respects the specialist tribunal’s findings of primary fact and witness credibility, but exercises greater scrutiny over evaluative conclusions outside the tribunal’s specialist expertise.

Dishonesty requires proof, on the balance of probabilities, that the conduct was dishonest by the standards of reasonable and honest people and that the practitioner realised this. The seriousness of an allegation remains relevant to the assessment of probabilities. An erroneous finding on one allegation does not necessarily invalidate a sanction reached on the remaining findings.

The appellant, a general practitioner and hospital clinical assistant, appealed under Medical Act 1983 section 40 against a Fitness to Practise Panel decision finding misconduct, current impairment of fitness to practise and imposing a 12-month suspension.

The appeal challenged findings of dishonesty concerning a failure to notify a hospital employer of a GMC warning, an inaccurate Employer Details Form, and failure to notify the employer of interim conditions. It also challenged the findings on impairment and sanction. The central issues were whether the Panel had been wrong in its factual and evaluative conclusions and whether one incorrect dishonesty finding affected the overall disposal.

1. The appeal was dismissed. The Panel’s finding that the appellant had dishonestly failed to notify his hospital employer of the 2007 warning was wrong. The warning letter required disclosure to subsequent employers, not current employers, and the omission did not itself establish dishonesty. The Panel had also failed adequately to consider the surrounding circumstances, including the earlier finding that the omission from the 2006 form had not been proved dishonest.

2. The court adopted the appellate approach summarised in Bhatt v GMC [2011] EWHC 783. The court may correct errors of fact or approach, but should respect a specialist tribunal’s understanding of professional standards and its findings based on live evidence. It should be more willing to intervene where the issue is judgment or evaluation outside the tribunal’s specialist expertise.

3. The Panel was entitled to find dishonesty in relation to the 2010 Employer Details Form. The covering letter expressly required details of all current employers and identified disclosure as a professional obligation. The appellant’s omission of his long-standing hospital employment was therefore capable of satisfying both the objective and subjective elements of dishonesty.

4. The Panel was also entitled to find dishonesty in the failure to notify the hospital of the interim conditions. Read as a whole, the Panel’s reasoning rejected the evidence that any fax had been sent. The appellant knew the conditions took immediate effect and had made no adequate further attempt to notify the hospital or obtain acknowledgement.

5. The findings concerning failure to cooperate with the audit and breach of the interim condition supported misconduct and current impairment. Practitioners are expected to cooperate with regulatory investigations irrespective of their view of the allegations or their source. The absence of insight meant that repetition remained possible.

6. The incorrect 2007 warning finding did not invalidate the 12-month suspension. The sanction was based on the findings viewed in the round, including poor clinical care, disregard of professional guidance, dishonesty on other matters, and prolonged failure to cooperate. The same conclusion on impairment and suspension would inevitably have been reached without the erroneous finding.

• Fitness to Practise Panel: on 10 January 2014 found misconduct, current impairment of fitness to practise and imposed a 12-month suspension with immediate effect.
• High Court (Administrative Court): appeal under Medical Act 1983 section 40 dismissed.