Daraghmeh v General Medical Council [2011] All ER (D) 272 May

In October 2005, the appellant placed a chest drain in the wrong side of a patient’s chest. In April 2007, he was subject to a performance assessment. His practice was found to be a “cause for concern” in ten of the fifteen areas assessed. In February 2009, the appellant appeared before a Fitness to Practise Panel of the General Medical Council (GMC). The Panel determined that his fitness to practise was impaired by reason of misconduct and deficient professional performance. He was suspended for twelve months.

In February 2010, the suspension was reviewed. The Panel found that the appellant’s fitness to practise was no longer impaired by reason of misconduct, but remained impaired by reason of deficient professional performance. Conditions were placed upon the appellant’s practise. The appellant appealed against the imposition of conditions. The material ground of appeal was that the amalgamated effect of the conditions was tantamount to a suspension, as it made it impossible for him to obtain work.

The GMC’s Indicative Sanctions Guidance, is as the name suggests, guidance. Panels are not bound by it, but must have cognisance to the principles embodied within it.  Namely, that any sanction imposed by a Panel must be proportionate. Specifically with regard to conditions, the conditions must also be justifiable and workable.

The Court dismissed the appellant’s appeal. Firstly, the Court recognised and reiterated that its role is to determine whether the decision of the Panel could have been said to be wrong. The Court further reiterated the long held view that Panels of regulatory bodies are specialist Panels, and therefore it should not interfere with their decisions, unless it could be sure that the Panel had failed to approach the question of sanctions in accordance with the statutory provisions, or with regard to the recognised procedures. 

With regard to whether the conditions had the effect of emasculating the appellant’s ability to practise, the Court held that he had not demonstrated the impossibility of obtaining work whilst subject to the conditions.  The Court was satisfied that the Panel had been fully aware of its powers and the requirements in the Indicative Sanctions Guidance regarding the imposition of conditions.

In the past, practitioners have been able to argue that the imposition of conditions upon their registration had the effect of restricting their ability to practise. This argument was advanced without the provision of any direct evidence, other than the lack of employment. The Court specifically addressed this matter by stating that it was not enough for the appellant to provide evidence which was based upon his own assertions, he must provide direct evidence that the conditions upon his registration were blocking his ability to obtain work.

It will be interesting to see what kind of evidence will satisfy this purpose, as it will be difficult to obtain direct evidence from a prospective employer stating that they were unwilling to offer a practitioner employment due to conditions upon their registration.