Khan v General Medical Council

On an appeal from a fitness-to-practise sanction, the High Court may intervene only where the tribunal’s decision was wrong or unjust because of serious procedural irregularity. The court must respect the tribunal’s specialist expertise and must not substitute its own view on sanction.

Dishonesty by a doctor, particularly prescription fraud involving abuse of professional trust, is exceptionally serious. Where it is accompanied by persistent denial, lack of insight, lack of candour or lack of remorse, erasure will ordinarily be proportionate and may be the only rational sanction. Fitness-to-practise proceedings protect patients and public confidence; they are not punitive.

The claimant, a doctor, appealed under section 40 of the Medical Act 1983 against a Fitness to Practise Panel’s finding that his fitness to practise was impaired and its order erasing his name from the medical register.

He had been convicted after trial of fraud and theft arising from the use of stolen prescription forms to obtain controlled drugs, and had received an immediate custodial sentence. He continued to deny or minimise his conduct during the criminal proceedings and before the panel. The appeal challenged the panel’s approach, the admission of evidence, the proportionality of erasure and the treatment of alleged comparator cases.

1. Appeal dismissed. The panel’s finding of impairment was inevitable on the facts. The claimant’s dishonest use of prescription forms, criminal convictions, continuing denial, lack of insight and lack of candour demonstrated both a risk of repetition and conduct damaging to public confidence.
2. The appellate jurisdiction was governed by CPR 52.11(3). Applying Raschid v GMC [2007] 1 WLR 1460, the court could intervene only if the panel’s decision was wrong or unjust because of a serious procedural or other irregularity. The court had to respect the panel’s specialist expertise, correct material errors of law or fact, and avoid resentencing or substituting its own view of the merits.
3. The purpose of fitness-to-practise proceedings is protection of the public and maintenance of professional standards and confidence, not punishment: GMC v Meadow [2007] 1 QB 462. The assessment is prospective, although past conduct is relevant to present fitness. The consequences for the individual do not make an otherwise justified sanction wrong.
4. Dishonesty lies at the highest end of professional misconduct. Prescription fraud is especially serious because it involves both professional duties and a breach of public trust. In accordance with the authorities and the indicative sanctions guidance, erasure will almost invariably be appropriate, even after a guilty plea. Where dishonesty is combined with lack of insight or concealment, nothing short of erasure is likely to suffice.
5. The alleged comparator cases did not justify interference. The fresh evidence was inadmissible under the Ladd v Marshall [1954] 3 All ER 745 criteria, and the cases relied upon were not true comparators. The panel’s decision to erase was proportionate; absence of erasure on these facts would have been irrational and perverse.
6. An erased doctor could apply for restoration after five years under section 41 of the Medical Act 1983, subject to addressing candour, insight and remorse. The claimant was ordered to pay indemnity costs of £10,190.20. Permission to appeal was refused.

The judgment does not state a prior appellate decision. It records an appeal under section 40 of the Medical Act 1983 from the Fitness to Practise Panel’s decision dated 20 February 2014.

• High Court (Administrative Court): appeal dismissed; erasure upheld.