Saha v General Medical Council [2009] EWHC 1907 (Admin)

Source - Penningtons.co.uk

As the purpose of fitness to practise proceedings is to protect the reputation and standing of the profession, rather than to punish the practitioner, factors of personal mitigation carry less weight

This involved an appeal against the decision of the General Medical Council's Fitness to Practise Panel (FTPP) that the doctor's fitness to practise was impaired by reason of misconduct and ordering his erasure from the register.

The appellant surgeon had a contagious medical condition. NHS guidance required healthcare workers with that condition to undergo tests and to refrain from work in certain circumstances.

The GMC became aware that the appellant had undertaken tests other than through formal NHS screening procedures (as required by the NHS guidance). The GMC made a number of requests of the appellant to provide information as to his current and past employers, but he failed to do so That failure was found by the FTPP to have constituted misconduct, leading to a finding of impairment of fitness to practise and his erasure from the register. The appellant appealed on several grounds:

1. Although it would have been 'better' if the FTPP had indicated distinct consideration of the two issues of 'misconduct' and 'impairment', there is no requirement in all cases for there to be a formal 'two stage' process.

The court held that 'the requirement under the Act is that there are two 'steps': the panel must consider whether there has been misconduct and further whether that misconduct is such as to impair fitness to practise. Whilst misconduct is about the past, impairment is an assessment addressed to the future albeit made in the context of past misconduct'. It was held that the FTPP had considered both issues and found, broadly, that one and the same facts gave rise to the misconduct and the impairment. The approach was not erroneous as a matter of law.

2. It was held that 'impairment' is not only an 'elusive concept', but is essentially a matter of overall value-judgement, as well as being a matter of professional judgement. Further, the court noted the concept of impairment in the fifth Shipman report, where one of the four possible bases of impairment cited by Dame Janet Smith is where the practitioner has, 'breached one of the fundamental tenets of the profession'. The FTPP finding of impairment was upheld.

3. It was held that the FTPP is essentially concerned with the reputation and standing of the profession, rather than with punishment of the doctor, and thus factors of personal mitigation carry less weight. The court held further that particular regard should be had to the special expertise of the FTPP, being the body best qualified to judge what measures are required to maintain the standards and reputation of the profession. The court did not accept the appellant's argument that either a short period of suspension or the imposition of conditions would have been an appropriate and sufficient sanction. The court held that the FTPPs 'decision of erasure was proper and should be upheld'.

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