Jasinarachchi v General Medical Council

On a statutory appeal against a professional disciplinary sanction, the High Court must correct material errors of fact or law, while according appropriate respect to the specialist judgment of the professional panel. The court’s review remains a secondary judgment on the application of relevant principles to the facts.

Fresh evidence may be admitted where the interests of justice require it, even though it could have been obtained earlier, provided it is credible and probably capable of materially influencing the outcome. Where that evidence concerns the practical consequences of sanction, the appropriate course may be remission to the panel for reconsideration rather than substitution of the sanction.

A doctor appealed against a Fitness to Practise Panel decision finding misconduct and impairment and imposing six months’ suspension. The finding of impairment was not challenged. The first ground alleged that suspension was excessive and disproportionate. The second relied on fresh evidence concerning the effect of suspension on the appellant’s specialist training, including the likely withdrawal of his National Training Number and uncertainty about re-entry.

The central issues were whether the sanction was legally or proportionately wrong and whether the fresh evidence should be admitted under CPR 52.11 and, if so, whether the case should be remitted under section 40(7)(d) of the Medical Act 1983.

1. First ground dismissed. The Fitness to Practise Panel had made no material error in imposing suspension. Its reasons showed that it considered the non-punitive purposes of sanction, including protection of patients, maintenance of public confidence and the upholding of professional standards, together with proportionality and the mitigating evidence.
2. The panel was entitled to treat dishonesty in completing statutory documentation and making related oral statements as a serious matter. It was also entitled to conclude that the case was not exceptional and that taking no action would fail to protect the public interest. The court would not interfere merely because it might have attached different weight to the appellant’s personal difficulties or the deceased’s family’s wishes. The reference to the appellant’s status as a trainee was properly read as supporting a lesser period of suspension, not as making suspension more appropriate.
3. On the second ground, the court admitted fresh evidence under CPR 52.11(2)(b). The first Ladd v Marshall criterion was not satisfied because the evidence could have been obtained with reasonable diligence, but that failure was not determinative. The evidence was credible and disclosed a real risk that suspension would terminate the appellant’s current training, with uncertain prospects of re-entry. It was therefore probably capable of having an important influence on the sanction decision.
4. In the circumstances, the overriding objective required the fresh evidence to be considered by the professional panel. The remission was limited to reconsideration of sanction in the light of that evidence and was not a rehearing of the underlying misconduct case.

The appeal on the first basis was dismissed. The appeal on the second basis was allowed and the case was remitted under section 40(7)(d) of the Medical Act 1983. There was no order as to costs.

• Fitness to Practise Panel found misconduct and impairment and directed six months’ suspension.
• High Court (Administrative Court) dismissed the challenge to the original sanction, but allowed the fresh-evidence ground and remitted the issue of sanction under section 40(7)(d) of the Medical Act 1983.