Soni v General Medical Council [2015] EWHC 364 (Admin)

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Facts

The appellant consultant ophthalmologist was alleged to have treated five private patients at the NHS Trust at which he was employed and to have failed to pass records of their treatment with a drug called 'Lucentis' on to the private patient office, and the Trust had not received the appropriate payments for the use of the hospital's facilities. The Fitness to Practise Panel (the FPP) of the respondent General Medical Council (the GMC) found serious misconduct and impairment proved, and exercised its power, under s 35D of the Medical Act 1983, to suspend his registration for a period of six months. The appellant appealed.

The appellant contended, amongst other things, that the evidence simply could not sustain a finding of misconduct, and the appeal should be allowed and the direction quashed. The GMC accepted that the FPP had made findings which it ought not to have made, namely, that the appellant had charged patients for Lucentis, but had not made payments to the Trust for that drug. However, it submitted that the court should exercise its power, under s 40(7)(d) of the Act, to remit the case for referral to a freshly constituted panel.

Judgement

The FPP had fallen into serious error, as there had been no evidence as to where the appellant had obtained the Lucentis for the five private patients: the GMC had not alleged that he had injected the patients with Lucentis from the hospital pharmacy and there had been no evidence that he had done so. Nor had the GMC alleged that he had failed to account to the Trust for the Lucentis he had used in his treatment of those patients and there had been no evidence that he had done so.

It had not been open to the FPP to infer that the appellant had deliberately withheld from the Trust sums of money which he had received from private patients and which he had known he should have paid the Trust and had been deliberately dishonest. There had been no evidential basis on which the FPP could have concluded that an explanation other than dishonesty had been less probable than deliberate dishonesty. Not only had the FPP been wrong in the decision it had made, but no future panel could be in any different position if the case were to be remitted (see [40], [61], [62], [70] of the judgment).

The appeal would be allowed.

Bhatt v General Medical Council [2011] All ER (D) 76 (Apr) applied.

Case Summary reproduced with the kind permission of LexisNexis.