Brew v The General Medical Council [2014]

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The Court heard an appeal of a decision made by the Medical Practitioners Tribunal Service ["MPTS"] of the General Medical Council ["GMC"]. The appeal was brought on the ground of procedural unfairness resulting in an unfair outcome. The appellant submitted that he had received negligent advice from his Barrister in regards to disputing the dishonesty element of the charges brought against him. It was further argued that this had led the MPTS to find that the appellant had not demonstrated sufficient insight and therefore they proceeded with a "disproportionate" erasure sanction. The Court considered whether the advice received could be considered unreasonable (as per the standards of Wednesbury) which consequently had led to a procedural unfairness. The Court found in favour of this first ground, but dismissed the appeal as it was believed the MPTS had considered the case fully and the negligent advice had not prejudiced the outcome.

The appellant was a doctor, in his fourth year of specialist training, employed at Leicester Royal Infirmary. He had previously been employed at Kettering General Hospital. The appellant accepted that he falsified 18 clinical assessment entries on his e-portfolio on four separate occasions, giving the impression that the named assessors had been involved in the completion of those entries, when he later accepted that they were not. When asked about those entries by an Annual Review of Competency Progressions (ARCP) panel, he falsely informed its members that he had taken a week off work to visit the consultants at Kettering General Hospital and had sat down with the named assessors who had all been involved in the completion of the entries in relation to his e-portfolio. The appellant did not correct that false information directly with the ARCP panel that day, but went straight to Kettering General Hospital where he sought to meet with the consultants concerned in order to apologise. The appellant was referred to the General Medical Council's Fitness to Practise Panel (FTPP). On the advice of his former barrister, the appellant admitted the first two charges, which related to the creation of the false entries on the e-portfolio and the giving of false information to the ARCP panel. He denied the third charge, that his conduct had been dishonest. At the second stage of the hearing, the FTPP found that, by failing to accept that his wrongdoing was dishonest and in concentrating on the difficulties which triggered the episode, the appellant had demonstrated a lack of insight into the nature of his wrongdoing, which gave rise to concerns of repetition. At that point, the appellant told the FTPP that he accepted that he had been dishonest and had realised that as soon as he left the ARCP panel hearing. In its written decision, the FTPP stated that, based on the appellant's further evidence, his insight might be developed to a slightly greater extent that previously thought, but not so fully that it fundamentally altered the very serious concerns which lay at the heart of the matter. The FTPP resolved to erase the appellant from the medical register. The appellant appealed.

The appellant submitted that the decision to erase him was unjust and disproportionate and, as a consequence of the negligent advice he had received from the barrister who had appeared for him below, the original hearing had been procedurally unfair, leading to an unjust conclusion.

The appeal would be dismissed.

First, the FTPP's written decision showed that it had recorded and accepted the evidence which the appellant had given about his reluctance to concede dishonesty being based on legal advice, and that it had shown more insight than his previous evidence had suggested. That seemed to be conclusive evidence that the FTPP had been prepared to accept and take into account the explanation put forward by the appellant about his unwise decision to contest dishonesty, and to determine the issue of the appropriate sanction on the basis of the totality of his evidence, not just the evidence which had been given on the first few days. The FTPP had dealt with the difficulty in the fairest way that it could. Next, the extent and nature of the duty to give reasons had been adequately met in the FTPP's written decision as to the imposition of the sanction of erasure. Lastly, there had been more than adequate material available for the FTPP to conclude that he had had less than full insight into the seriousness of his actions. Even ignoring the fact that the appellant had not admitted dishonesty at the start of the hearing as he should have done, there had been a number of features of the evidence that the FTPP had been entitled to take into account in concluding that the appellant had had less than full insight into his wrongdoing (see [15], [16], [18], [26], [31] of the judgment).

The decision to erase the appellant from the medical register had been one which the FTPP had been entitled to reach on the evidence before it, even if another FTPP might, possibly, have reached a different view (see [31] of the judgment). 

English v Emery Reimbold & Strick Ltd [2002] All ER (D) 302 (Apr) applied; Aston v Nursing and Midwifery Council [2004] All ER (D) 362 (Jul) considered; Luthra v General Medical Council [2013] All ER (D) 222 (Feb) considered.

Lee Gledhill (instructed by Lester Morrill Incorporating Davies Gore Lomax) for the appellant.

Simon Phillips QC (instructed by GMC Legal) for the General Medical Council. 

Reproduced with the kind permission of LexisLibrary.