Brew v The General Medical Council

An appellate court reviewing a professional disciplinary sanction must decide whether the tribunal’s decision was wrong or unjust because of a serious procedural irregularity. It must respect the tribunal’s specialist expertise and must not substitute its own view of the appropriate sanction. Where incompetent representation is alleged, the court asks whether the advice was so unreasonable that no reasonable advocate would have given it, and, if so, whether it affected the fairness of the hearing and made the conclusion unjust. Erasure for dishonesty is a fact-sensitive judgment. The central question is whether the misconduct is fundamentally incompatible with continued registration. A tribunal’s assessment of insight, repetition risk, public protection and professional confidence attracts appropriate appellate deference.

Dr Eric Brew appealed under section 40 of the Medical Act 1983 against the decision of a Fitness to Practise Panel made on 21 November 2013. The panel found that he had falsified 18 clinical assessment entries, falsely represented that named assessors had completed them, and acted dishonestly. It found his fitness to practise impaired and ordered erasure from the medical register.

On appeal, Dr Brew relied on alleged incompetent legal advice, inadequate reasoning, insufficient recognition of his insight and mitigation, and disproportionality. The central issues were whether the hearing had been unfair, whether the panel’s reasons were adequate, and whether erasure was a sanction the panel was entitled to impose.

The appeal was dismissed. The panel’s decision was neither wrong nor unjust because of a serious procedural or other irregularity.

1. Applicable appellate approach. The appeal was governed by CPR 52.11(3), as summarised in Luthra v General Medical Council [2013] EWHC 240 (Admin) and drawing on Raschid v General Medical Council [2007] 1 WLR 1460. The court had to respect the Fitness to Practise Panel’s specialist expertise. Its role was supervisory and involved a secondary judgment, not re-sentencing or substituting its own view.
2. Incompetent representation. Applying R on the application of Aston v Nursing and Midwifery Council [2004] EWHC 2368 (Admin), the court assumed that the advice to contest dishonesty was negligent and Wednesbury unreasonable. Nevertheless, the appellant had been able to give extensive evidence, explain his conduct and correct his position at the sanction stage. The panel recorded and took that explanation into account. The advice therefore did not render the process unfair or the conclusion unjust.
3. Reasons. The panel’s decision satisfied the requirements stated in English v Emery Riembold and Strick Limited [2002] 1 WLR 2409. It explained why the parties’ respective positions had succeeded or failed and enabled an appellate court to understand why erasure, rather than suspension, was selected.
4. Insight and sanction. The panel was entitled to find that the appellant lacked full insight. Its assessment could take account of his incomplete admissions, attempts to minimise the falsification, reliance on technical difficulties, and evidence that some entries were fabricated or inflated. Under the Indicative Sanctions Guidance, the choice between suspension and erasure depended on whether the misconduct was fundamentally incompatible with continued registration. Dishonesty, repeated falsification, concealment and the effect on confidence in medical training records supported erasure.
5. Comparable cases and deference. The comparable FTPP decisions and Uddin v GMC [2012] EWHC 1763 (Admin) did not determine the outcome because sanction was fact-sensitive. The panel was entitled to conclude that the case fell on the erasure side of the line, even though another panel might have imposed suspension.

This was an appeal to the High Court under section 40 of the Medical Act 1983.

• Fitness to Practise Panel: on 21 November 2013, found dishonesty and impairment and ordered erasure from the medical register.
• High Court (Administrative Court): dismissed the appeal on 10 September 2014.