Adu v General Medical Council [2014] All ER (D) 197

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The appellant doctor appealed against the decision of the Fitness to Practise Panel (the panel) of the respondent General Medical Council that his fitness to practise was impaired and that he should be removed from the register. The Administrative Court, in dismissing the appeal, held that the panel's decision had not been infected by bias and that an error in the statistical analysis of the appellant's assessment had not diminished the overall analysis that the appellant's performance had been deficient. Accordingly, there was no less intrusive measure that could have been used than removing the appellant's name from the register.

Facts

In 2006, the appellant doctor, who worked as a paediatrician, was referred to the respondent General Medical Council (the GMC). The GMC invited the appellant to attend to be assessed. In 2007, that assessment was carried out, with K and A performing significant roles. K and A had been involved in employment tribunal proceedings with the appellant, which had been settled. The final report contained adverse findings against the appellant and determined that he was only fit to practise on a limited basis.

In 2011, the appellant was invited for a reassessment. In February 2012, the report of the reassessment recommended that the appellant cease to practise, as there had been no improvement and the matter was referred to the GMC's Fitness to Practise Panel (the panel).

On the first day of the hearing before the panel, its legal assessor disclosed that nine years earlier there had been a failure in the treatment of his daughter. The panel continued the hearing on the basis that there was no real or apparent link between the legal assessor and the appellant, or any hospital where he had trained or worked. In the course of the hearing, the GMC notified the panel and the appellant that there had been an error in the statistical analysis in the assessment, which had not related to the appellant's score, but that an alteration had to be made to the reference group. Accordingly, the appellant agreed with the proposed course to remove the affected charge. The panel determined that the appellant's fitness to practise was impaired due to deficient professional performance and ordered his erasure from the register. The appellant appealed.

The grounds of appeal were as follows:

  1. whether the panel's decision had been infected by bias due to the participation of the legal assessor or the role of K and A;
  2. whether procedural unfairness had arisen due to the error in the statistical analysis; and
  3. whether the sanction had been disproportionate.

The appeal would be dismissed.

Judgment

A fair-minded and informed observer would not consider that an incident nine years earlier had had any influence. No such person could conclude apparent bias. Accordingly, the legal assessor's actual and apparent bias could be discounted. The panel's decision had not been wrong or unfair.

K's and A's assessment of the appellant had formed part of the 2007 assessment, which had not predetermined the reassessment. There was no evidence of K's and A's bias, and alternatively, no evidence could have or had determined the panel's finding. Accordingly, the panel's decision had not been wrong or procedurally unfair.

With respect to the error in the statistical analysis, there had been no procedural unfairness and the panel's decision had not been wrong. It had been open to recall the assessor, but that step would have achieved no advantage to the appellant. To have excluded one piece of the assessment had not diminished the overall analysis that the appellant's performance had been deficient. Further, there was no less intrusive measure that could have been used than removing the appellant's name from the register. That sanction had struck a fair balance between the appellant's rights and the protection of the public as a whole.

Cases applied: Raschid v General Medical Council; Fatnani v same [2007] All ER (D) 47 (Jan) applied; R (on the application of Compton) (on behalf of Community Action for Savernake Hospital) v Wiltshire Primary Care Trust [2009] All ER (D) 232 (Jul) applied; Bank Mellat v Her Majesty's Treasury [2013] 4 All ER 533.

Reproduced with the kind permission of LexisLibrary.