Yusuff v General Medical Council

At a review of a doctor’s suspension, the tribunal must first decide whether fitness to practise remains impaired. The doctor bears a persuasive burden of demonstrating that the concerns underlying the original finding have been sufficiently addressed through insight, remediation, education or other achievement.

A doctor may maintain a denial of the misconduct found proved. Admission is not a condition precedent to demonstrating insight. The tribunal may nevertheless consider whether the misconduct is now admitted, and may take account of want of candour or continuing dishonesty.

Sanctions protect the public rather than punish the doctor. A competent doctor should return to practice only when it is safe. The tribunal must proceed from the least restrictive option and may continue suspension where conditions cannot adequately address deficient insight or remediation.

The appellant appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal decision made at the second review of his suspension. The Tribunal found that his fitness to practise remained impaired and extended his suspension by six months.

The original Tribunal had found dishonesty, sexually motivated misconduct, inappropriate communication and breach of an interim order. At successive reviews, the appellant provided statements and evidence of training, but the tribunals remained dissatisfied with his insight, remediation and maintenance of professional knowledge.

The appeal challenged the fairness of questioning about misconduct which the appellant continued to deny, the finding of impairment, and the proportionality and duration of the further suspension. It also raised whether conditions of practice should have replaced suspension.

1. Appeal dismissed. The review hearing was fair, and the findings of continuing impairment and the six-month extension of suspension were open to the Tribunal on the evidence.

2. At a suspension review, the findings of fact cannot be reopened. A registrant may decline to accept them or may accept them only in the sense of not seeking to go behind them while continuing to deny the underlying conduct. Admission is not a condition precedent to showing appreciation of the gravity of the misconduct and a low risk of repetition. Whether the registrant now admits the conduct remains relevant, and want of candour or continuing dishonesty at the review may bear on impairment. Once a denial is clear, questioning should not focus at length upon the denial or the original findings: Abrahaem v GMC [2008] EWHC 183 (Admin), Karwal v GMC [2011] EWHC 826 (Admin), Irvine v GMC [2017] EWHC 2038 (Admin) and Amao v Nursing and Midwifery Council [2014] EWHC 147 considered.

3. Although some questioning was overly adversarial and might have appeared to reopen the findings, it caused no material unfairness. The legally qualified chair controlled the questioning, the appellant understood the case he had to meet, and he received a fair opportunity to explain his insight and remediation. His difficulty arose from the inconsistency between maintaining his denials and professing remorse and shame for the conduct.

4. The specialist Tribunal was entitled to find that the appellant’s evidence of maintaining his knowledge and skills was inadequate and insufficiently reflective. Its finding that his oral evidence was evasive and inconsistent, and that his insight remained partial, limited and superficial, could not properly be disturbed. The persuasive burden of showing that the original concerns had been satisfactorily addressed had not been discharged.

5. The appeal under section 40 of the Medical Act 1983 was a rehearing without rehearing the evidence. Proper respect was due to the specialist Tribunal’s professional judgment and its advantage in seeing and hearing witnesses. The court nevertheless retained power to correct material errors of law or fact, procedural unfairness and evaluative conclusions that were wrong.

6. Sanctions serve public protection rather than punishment, though they may have a punitive effect. Proportionality requires the public interest to be weighed against the doctor’s interests, but a sanction necessary for public protection must be imposed despite hardship. Having proceeded from the least restrictive option, the Tribunal was entitled to find conditions unworkable because of the continuing lack of insight and incomplete engagement with earlier recommendations. A further six months’ suspension provided a reasonable opportunity for genuine insight and remediation.

1. High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was dismissed. The review hearing was fair, and the Tribunal’s decisions on impairment and sanction were upheld: [2018] EWHC 13 (Admin).

2. Medical Practitioners Tribunal, second review: On 25 August 2017, the Tribunal found that fitness to practise remained impaired and extended suspension for six months.

3. Medical Practitioners Tribunal, first review: On 24 March 2017, the Tribunal found insufficient insight and inadequate evidence of maintained knowledge and imposed a further four months’ suspension.

4. Medical Practitioners Tribunal, original proceedings: Between September 2015 and March 2016, the Tribunal found misconduct and impairment and imposed a 12-month suspension.