Fernando v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the court conducts a rehearing but gives special respect to the professional tribunal’s assessment of sanction and the public interest. A tribunal may consider the practitioner’s wider professional history, including uncharged conduct, when assessing seriousness, insight and the risk of repetition. Persistent or covered-up dishonesty, abuse of professional position and unreliable probity may make continued registration fundamentally incompatible with public protection and public confidence. The tribunal must balance personal mitigation against the public interest and give reasons sufficient to explain the outcome, but need not address every evidential point in detail. Where the tribunal has considered the material factors, applied proportionality and adequately explained why lesser sanctions are inappropriate, appellate intervention is not justified.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against a fitness to practise panel’s decision to erase him from the medical register. The finding that his fitness to practise was impaired was not challenged. The misconduct included presenting false prescriptions, concealing matters from colleagues and regulators, retaining prescription pads, allowing professional indemnity insurance to lapse and failing accurately to disclose earlier employment history.

The appeal concerned whether erasure was disproportionate, whether the panel had failed to consider medical and personal mitigation, candour, remediation and previous conduct, and whether its reasons were adequate.

1. Appeal dismissed. The panel’s decision to erase the appellant was neither wrong nor unjust because of procedural irregularity.
2. Under section 40 of the Medical Act 1983, the appeal was by way of rehearing. The court could correct material errors of fact or law and exercise a secondary judgment on the application of principle to facts. However, particular respect was due to the panel’s professional assessment of sanction, especially because its purpose included maintaining public confidence in the profession.
3. The panel was entitled to consider the appellant’s whole professional history, including admissions concerning conduct outside the formal charges. Past dishonesty was relevant to present probity, insight and the likelihood of repetition. Current fitness required consideration of both past misconduct and subsequent remediation.
4. The panel had considered the appellant’s admissions, counselling, medical condition, apology, testimonials and lack of clinical-performance concerns. It was entitled to treat these matters as mitigation, but to give greater weight to the repeated and covered-up dishonesty, the abuse of professional position, the lapse of indemnity insurance and the continuing concern about insight and repetition.
5. The panel’s reasoning was adequate. A fitness to practise panel must deal with the principal controversial issues and explain why the practitioner has succeeded or failed, but need not produce a fully detailed judgment on every point. The determination showed that the panel had progressed through the sanctions in order, applied proportionality and concluded that suspension could not adequately protect the public because the appellant’s probity could not be relied upon.
6. The panel’s conclusion that erasure was the only appropriate and proportionate sanction was therefore unimpeachable. The appellant was ordered to pay the respondent’s costs of £11,048.70.

The judgment describes an appeal under section 40 of the Medical Act 1983 from the fitness to practise panel’s decision dated 6 December 2013. The impairment finding was not challenged; the appeal was directed solely to sanction.