Jasinarachchi v General Medical Council  EWCH 3570 (Admin)
A Fitness to Practice Panel imposed a 6 month suspension on a trainee GP's Registration. It subsequently came to light that the effect of this was for the trainee to be removed from their training programme. During the course of the appeal hearing, new evidence was adduced and it was held that, despite the fact that one of the Ladd v Marshall principles had not be complied with, justice required fresh evidence to be admitted and for the matter to be reconsidered by the FTPP.
The General Medical Council [GMC] conducted an investigation concerning the Appellant's [A] fitness to practise which, concluded in a hearing before a Fitness to Practise Panel [FTPP]. The allegations brought against A involved the dishonest completion of statutory documentation and A's subsequent dishonest oral statements made in relation to the same.
The FTPP found misconduct and determined that A's fitness to practise was impaired. The FTPP delivered a sanction of 6 months suspension from the Register. The reasoning behind the sanction imposed was surrounding the seriousness of the misconduct found regarding Patient A (one of three patients contained within the allegations). Furthermore the case involved three allegations of dishonesty, two of which were admitted and found proved, one of which was disputed but found proved, which were also central to the FTPP's decision.
A appealed the FTPP's decision on sanction.
There were two grounds to A's appeal:
- "That on the evidence and information before them, the FTPP imposed an excessive and disproportionate sanction. A submitted that any suspension was wrong in principle, and submitted that if the ground succeeded, the court should substitute a lesser sanction exercising its power under section 40(7)(c) of the Medical Act 1983 (the Act)."
- "That since the FTPP's decision, matters have come to light concerning the practical consequences of suspending a trainee doctor's registration. It is said that this casts a fresh light on the determination, making it unduly harsh and disproportionate and that this could not have been envisaged by the FTPP. A submitted that if this ground succeeds, and the first does not, he invited the court to remit his case for further consideration on the issue of sanction under section 40(7)(d) of the Act."
Handed down by Stewart J
First Ground of Appeal
The FTPP had found, in considering the overall context that the dishonesty was not premeditated and that A had reacted badly to the pressure of time. This amounted to A's uncharacteristic reaction to the circumstances in which he found himself. The FTPP also said that it was a single episode in an otherwise unblemished career.
A made four submissions in relation this ground of appeal, the fourth of which, was that the FTPP held that a decision to suspend A for six months was "proportionate, given your position as a trainee GP". It was submitted by A that this was "wholly unclear and there was no exploration by the panel as to how a suspension may affect a trainee doctor; nor did the panel attempt to explain why a decision to suspend A was justified because he was still in training".
Stewart J stated in response to this submission that the above statement of the FTPP "does not in any way suggest, as a logical and proper explanation, that the FTPP was proceeding on the footing that a period of suspension imposed on the trainee should be more justified compared with that for a fully qualified doctor. It can, and should, be read that the most likely explanation is that the FTPP accepted that A was a trainee and therefore a lesser period of suspension should be imposed than might otherwise be the case". Overall, it was held that the FTPP had not erred when imposing their chosen sanction.
The first ground of appeal was dismissed.
Second Ground of Appeal
A provided a witness statement in support of his second ground of appeal. Within this statement, A claimed that his understanding of the FTPP's decision was that his 6 months suspension from the Register would have a temporary impact on his work as a doctor, and was not intended to prevent him from continuing to train as a GP on a long term or permanent basis. When the panel made their decision, A was in his final 6 months of his GP training and was making satisfactory progress.
Upon receipt of the determination, A notified his employer, Health Education East Midlands, of the outcome and he was informed that the effect of his suspension would be that his National Training Number ["NTN"] would be removed when the suspension came into force. A submitted that this meant his current training would cease and there was no certainty that he would be able to enter an alternative programme once the suspension had been served. A produced a letter from the GP Dean of Health Education East Midlands in support of his position.
A accepted that he was seeking to adduce fresh evidence to the Court and thus the principles as set out in CPR 52.11.2 and in Ladd v Marshall  EWCA Civ 1, needed to be considered.
The first Ladd v Marshall principle is that "the evidence could not have been obtained with reasonable diligence for use at the trial". Stewart J was of the view that the Dean's letter could have been obtained with reasonable diligence. Prior to the appeal hearing, the GMC obtained witness evidence from the Head of Approvals in the Educations and Standards Directorate at the GMC. This evidence stated that A's NTN would be withdrawn and set out the options available to A in terms of recommencing his training and the period of time he would be required to train for, most likely an additional 12 months rather than his remaining 6. Stewart J therefore ruled in favour of allowing the additional evidence and in favour of A's case, even though this first principle of Ladd v Marshall was not made out.
Stewart J stated that A's culpability was not particularly high in regard to the possible affects upon his suspension and noted that A was represented at the FTPP hearing. Nonetheless, there was no evidence to suggest that the panel had appreciated the possible consequences of A's suspension. Stewart J did not regard the lack of compliance with the first principle of Ladd to be determinative and there was no suggestion that the Postgraduate Dean had in any way alerted A, or his lawyers, to these consequences and no evidence that the Panel was aware of them.
In terms of the remaining Ladd v Marshall principles, Stewart J regarded the "fresh evidence as probably having an important influence on the result of the case" and to be credible. It was Stewart J's judgement that this was "one of the rare cases where, notwithstanding that one of the Ladd v Marshall principles had not be complied with, justice required fresh evidence to be admitted and for the matter to be reconsidered by the FTPP... This would not be by way of a re-hearing of the case, but merely a hearing which takes into account the fresh evidence so as to decide what, if any, difference it makes to sanction".
The appeal succeeded on the second ground.