Adu v General Medical Council

On an appeal under section 40 of the Medical Act 1980, the High Court conducts a secondary review. It allows the appeal only where the tribunal’s decision was wrong or where serious procedural unfairness or another irregularity made the proceedings flawed. Particular respect is owed to the specialist tribunal’s factual and professional judgment, especially where public confidence and protection of the public are engaged. Apparent bias is assessed by asking whether the fair-minded and informed observer would conclude that there was a real possibility of bias, having regard to the nature of the adviser’s role, the subject of the advice and the relationship between adviser and decision-maker. Sanction must also satisfy a structured proportionality assessment. Erasure is justified where it is rationally connected to public protection, no less intrusive measure is adequate and a fair balance is struck.

Dr Kofi Adu appealed under section 40 of the Medical Act 1980 against a Fitness to Practise Panel determination that his fitness to practise was impaired by deficient professional performance and that his name should be erased from the medical register.

He challenged the proceedings on three principal grounds: alleged apparent bias on the part of the legal assessor; alleged bias affecting two doctors involved in an earlier assessment; and procedural unfairness arising from a late correction to statistical analysis and amendment of one charge. He also challenged the proportionality of erasure. The central questions were whether the Panel’s decision was wrong or procedurally unfair and whether erasure was a proportionate sanction.

1. Appeal dismissed. The court applied section 40 of the Medical Act 1980 and CPR 52.11. The Panel’s decision had to be wrong, or unjust because of serious procedural or other irregularity, before the court could interfere.
2. The specialist composition of a Fitness to Practise Panel and the public interest in maintaining confidence in the medical profession required the court to give special respect to its findings and decisions. The court’s role remained a firm but secondary review, including correction of material errors of fact and law and review of the application of legal principles.
3. The apparent-bias test was whether the fair-minded and informed observer, knowing the relevant facts and neither complacent nor unduly suspicious, would conclude that there was a real possibility of bias. Advice from an assessor could vitiate a decision, but the assessment depended on the nature of the advice, the matter to which it related and the relationship between adviser and decision-maker. The legal assessor’s unrelated experience, nine years earlier, had no real or apparent bearing on the Panel’s advice or findings.
4. The earlier involvement of two doctors did not establish bias. Their evidence formed only part of a wider assessment process and did not determine the later reassessment or the Panel’s decision. The absence of evidence about the claimant’s other litigation also meant that no procedural unfairness was shown.
5. The correction to the statistical analysis did not affect the claimant’s score. Removing the affected test from the charge was a cautious course, and recalling the relevant witness would not have provided any material advantage. The detailed assessments, historical evidence and other empirical material independently supported the finding of deficient performance.
6. Erasure was proportionate. The objective of protecting the public and ensuring competent medical practice was sufficiently important, erasure was rationally connected to that objective, no less intrusive measure was available and the balance between the claimant’s rights and the community’s interests was fair. The sanction therefore remained. Costs were awarded to the General Medical Council, subject to the VAT issue.

The claimant appealed to the High Court under section 40 of the Medical Act 1980 against the Fitness to Practise Panel’s determination dated 20 December 2013. The Panel had found deficient professional performance, impairment of fitness to practise and that erasure from the medical register was appropriate. The High Court dismissed the appeal and upheld the sanction.