Soni v The General Medical Council

On an appeal from a Fitness to Practise Panel, the court must respect findings based on the Panel’s specialist expertise and assessment of live evidence, but may intervene where the decision is wrong or unjust because of serious procedural irregularity. A finding of dishonesty requires evidence from which deliberate dishonesty can safely be inferred. Where the evidence also supports realistic explanations such as oversight, administrative error or confusion, those explanations must be considered and safely excluded as less probable before dishonesty is found. A failure to operate an effective administrative system does not, without more, establish dishonesty. Where the evidence is insufficient and no future panel could reasonably reach a different conclusion, the appropriate course is to quash the determination without remittal.

The appellant, Malhar Soni, appealed under section 40 of the Medical Act 1983 against findings by a Fitness to Practise Panel. The Panel found that he had failed to notify the respondent, the General Medical Council, of the treatment of five private patients on NHS premises, had retained fees and had failed to make appropriate payments to the Trust. It found dishonesty, serious misconduct and impairment, and imposed a six-month suspension.

The appeal concerned alleged procedural unfairness, abuse of process, the weight and sufficiency of the evidence, and the appropriate appellate order. The principal issue was whether the evidence could support a finding that the appellant had deliberately charged patients for hospital facilities and dishonestly retained sums due to the Trust.

1. Appeal allowed. The Panel’s determination was quashed and the case was not remitted.

2. The appeal was by way of rehearing under CPR Part 52, PD 22.3. Under CPR 52.11, the court could intervene where the Panel’s decision was wrong or unjust because of serious procedural or other irregularity. The court applied the approach summarised in Bhatt v GMC [2011] EWHC 783 (Admin): appropriate respect was due to the specialist tribunal and its assessment of live evidence, but less deference was required on matters outside its professional expertise and where an error of approach was alleged.

3. There was evidence supporting findings that the appellant had failed to notify the Trust of the private patients and had retained fees received from them. Those matters did not themselves establish dishonesty. The allegation required proof that the fees received included sums due to the Trust for hospital facilities and that the appellant deliberately withheld those sums.

4. The Panel had wrongly relied on an unsupported assumption that the appellant obtained Lucentis from the hospital pharmacy and failed to account for its cost. That finding went beyond both the evidence and the allegation. The evidence did not establish that the appellant had charged patients for hospital facilities and retained those charges.

5. Before inferring dishonesty, the Panel had to consider realistic alternative explanations and safely conclude that they were less probable than deliberate dishonesty. The evidence of deficiencies in the Trust’s recording system, possible administrative error or lost paperwork, the absence of evidence from the appellant’s secretary and nursing staff, the appellant’s positive good character, the absence of a convincing financial motive, and the fact that one treatment occurred on a Tuesday all undermined such an inference.

6. The Panel had conflated an administrative failure with dishonest conduct. The evidence was insufficient to prove dishonesty on the balance of probabilities. A rehearing could not cure the evidential deficiency, so remittal would not serve the public interest.

• Fitness to Practise Panel: found serious misconduct, impairment and dishonesty, and imposed a six-month suspension.
• High Court (Administrative Court): allowed the appeal, quashed the determination and declined to remit the case.