The Professional Standards Authority for Health and Social Care v The General Medical Council & Anor

In a statutory appeal under section 29 of the National Health Service Reform and Health Professions Act 2002, undue leniency is established where the disciplinary decision falls outside the range of decisions reasonably open to a properly directed tribunal, having regard to public protection and the reputation of the profession.

Fitness to practise is assessed at the hearing by looking forward, while considering the nature of past misconduct, remediation, insight and the risk of repetition. A panel must also consider whether failing to find impairment would undermine proper professional standards or public confidence. Serious, sustained dishonesty directed at deceiving the regulator may require a finding of impairment despite remediation and low risk of repetition.

The Professional Standards Authority referred to the High Court decisions of a Fitness to Practise Panel concerning Dr Igwilo. The Panel had found that he committed extensive dishonesty by falsifying documents submitted in support of applications for specialist registration, but concluded that his current fitness to practise was not impaired and that a warning was disproportionate.

The General Medical Council conceded that the decision was unduly lenient. Dr Igwilo did not participate. The issues were whether the Panel’s findings of misconduct were inadequate, whether its conclusion on current impairment was wrong and unduly lenient, and whether a warning should have been imposed.

1. The appeal was allowed under section 29 of the National Health Service Reform and Health Professions Act 2002. The Panel’s decision on impairment was quashed, a finding that Dr Igwilo’s fitness to practise was impaired was substituted, and sanction was remitted to a freshly constituted Panel.

2. Applying Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356, the question was whether the Panel’s decision was wrong or involved serious procedural irregularity. Undue leniency requires a decision which a disciplinary tribunal, having regard to the relevant facts and the purpose of disciplinary proceedings, could not reasonably have imposed.

3. The Panel’s findings of misconduct, although sparse, were adequate when read with the formal findings of fact. The first ground of appeal therefore failed.

4. Current impairment requires a forward-looking assessment. Past misconduct, remediation, insight, remorse and the risk of repetition are relevant, but the Panel must also consider public protection, the maintenance of proper professional standards and public confidence in the profession and regulator. This approach reflects CHRE v NMC & Grant [2011] EWHC 927 (Admin), Cohen v General Medical Council [2008] EWHC 581 (Admin), Cheatle v General Medical Council [2009] EWHC 645 (Admin) and Yeong v GMC [2009] EWHC 1923 (Admin).

5. The dishonesty was serious, sustained and elaborate. It involved falsifying numerous documents, misrepresenting colleagues’ work and attempting to obtain specialist registration by deception after earlier applications had failed. It jeopardised the integrity of specialist medical regulation and the standards of expert evidence. The Panel gave insufficient weight to these matters and was overly generous in its assessment of Dr Igwilo’s admissions and apology.

6. A properly directed Panel could not reasonably conclude that public confidence and professional standards were adequately protected merely because proceedings had occurred and the practitioner had demonstrated insight and remorse. The finding of no current impairment was therefore wrong and unduly lenient. It was unnecessary to determine the alternative ground concerning a warning.

High Court (Administrative Court): the statutory appeal under section 29 of the National Health Service Reform and Health Professions Act 2002 was allowed. The Panel’s decision on impairment was quashed, impairment was substituted, and sanction was remitted to a freshly constituted Panel.