Jasinarachchi -v- General Medical Council

The enhanced scrutiny on the medical profession in recent years has unsurprisingly led to an increase in referrals to fitness to practise panels and the imposition of sanctions for professional misconduct and poor practice. These sanctions are not intended to be punitive but instead a way of maintaining confidence in the medical profession and ensuring patient safety. For most, however, the outcome is punitive and can be disproportionate to the originating behaviour. A problem that can be associated with sanctions is the realisation that there can be unforeseen circumstances which have a much harsher reality than originally intended by the regulating body. The most recent example is in the case of Jasinarachchi -v- General Medical Council [2014] EWHC 3570 (Admin), which considered the outcome of sanctions in respect of trainee doctors and their ability to be able to practice after suspension. 

Background

The appellant in this case was suspended for six months following a referral to the fitness to practise panel (FTPP) for falsifying a death certificate and dishonesty in respect of this. He was a trainee doctor and was due to qualify in November 2014. On 2 March 2012, during his first year of training, he was asked to complete a death certificate and cremation 4 certificate for a patient who had recently deceased. That same day he was due to fly to Australia and because of time pressures decided he would not have time to attend on the patient and therefore falsely completed the forms stating he had seen her at 1pm. In furtherance to this he telephoned the crematorium and confirmed that he had attended on the body. Later that day it was discovered that he had not in fact done this and therefore the certificates could not be used.

The patient’s family accepted the doctor’s apology on his return from Australia and didn’t want it taken any further. Despite this, it was referred to the GMC and the Interim Orders Panel imposed conditions. The doctor also faced the possibility of criminal charges being brought against him. During the period of his interim conditions the doctor continued with his training. The GMC’s investigation was concluded at a hearing in March 2014 before its FTPP. It was determined that the doctor had committed professional misconduct and as a result his fitness to practise was impaired. The issue that arose was not in this finding but in the panel’s decision to suspend the doctor’s registration for a period of six months.

Ladd -v- Marshall - principles

There has previously been little case law in this area in respect of trainees and the impact sanctions can have on their ability to qualify and practise. However, there have been a number of cases in which appeals to sanctions have not been looked on favourably as it was found that '... the committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty' (Marinovitch –v- GMC [2002] UKPC 36 at 29). The outcome of imposing a suspension on a trainee, however, had not been considered to its full extent until now. 

On appeal the appellant wanted to bring fresh evidence in order to argue that the suspension was disproportionate and too harsh in the circumstances, as it meant that his National Training Number (NTN) would be removed on commencement of his suspension. As a consequence of this he would not be able to continue his training post-suspension and it was uncertain whether he would be able to successfully reapply. The judge gave regard to three principles in relation to the introduction of fresh evidence established in Ladd -v- Marshall [1954] 3 ALL ER 745:

  • '[First] it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that if given it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed or in other words, it must be apparently credible.'
  • Stewart J applied these principles to the two grounds of appeal pursued by the doctor. The first ground submitted was that the suspension was disproportionate given the information the panel had at the time it made the decision. This was not accepted by the judge and the appeal was dismissed on this first ground. The second submitted that matters had since come to light which concerned the practical consequences of suspending a trainee doctor’s registration. It was acknowledged that there was no way of knowing the prospects of his success when reapplying for a trainee position post-suspension as there was no precedent for this. 
  • It was held that the appellant could not rely on the first Ladd -v- Marshall principle; however Stewart J did agree that the fresh evidence would 'probably have an important influence on the result of the case' (Jasinarachchi -v- General Medical Council [2014] EWHC 3570 (Admin) at 37) and that the new evidence was credible. Despite the fact that the first Ladd –v- Marshall principle had not been satisfied, the judge believed that this was a rare occasion when the fresh evidence should be allowed for reasons of justice. He therefore allowed the appeal on the second ground and referred the case back to the FTPP in light of the new evidence.

What could this mean for future trainees?

Following this judgment a FTPP may now consider at greater length the consequences of the sanctions they intend to impose on trainee doctors and, in particular, they may weigh up the misconduct against the possible consequences of the sanctions imposed. It has been argued that a “finding of dishonesty lies at the top end in the spectrum of gravity of misconduct" (Patel –v- GMC [2003] UKPC 16 at 10), however in this case the dishonesty was not premeditated and uncharacteristic in the circumstances. Perhaps now the attitude that “the reputation of the profession is more important than the fortunes of any individual member" (Bolton –v- Law Society [1994] 1 WLR 512 at 519) will be more leniently applied in cases concerning consideration of trainee doctors and their future in the profession.