On 13 August 2018, the UK Court of Appeal handed down judgment in respect of a General Medical Council (GMC) appeal in relation to the test to be applied to the restoration of doctors to the medical register following a determination by a Fitness to Practise Panel to erase the doctor from the medical register.
Dr Chandra was a Senior House Officer (SHO) practising in the area of Psychiatry. It was alleged that Dr Chandra had engaged in a sexual relationship with a patient whom he knew to be a vulnerable person. Following a Fitness to Practise hearing in 2008, Dr Chandra was erased from the medical register. In August 2016, Dr Chandra made an application for restoration to the Medical Practitioner’s Tribunal Service (MPTS) and his application was successful on the basis that he was remorseful, had developed insight in respect of his actions and presented a low risk to patient safety.
The GMC appealed this decision to the High Court.
Appeal to the High Court
In its appeal to the High Court, the GMC asserted that the Medical Practitioners Tribunal Service (MPTS) had failed to give proper regard to the overriding public interest and to promoting and maintaining public confidence in the medical profession. The GMC also sought to establish that only in “exceptional circumstances” should a doctor who has been struck off for serious misconduct be permitted back onto the register. In its submissions, the GMC relied on the well-known principle set out in Bolton v Law Society . In Bolton, one of the principles established was that the need to protect the reputation of a profession demands that readmission of a professional’s name to a particular register following cancellation/erasure should not be granted in circumstances where such a decision would adversely affect public confidence in that profession.
In rejecting the GMC’s appeal, Moulder J made the following points:
- It would be inappropriate to import the exceptional circumstances test for restoration hearings. Decisions to erase a practitioner from the register are “significantly different” from decisions to restore someone to the register. Each require a different balancing exercising, taking into account different factors.
- It would be wrong to suggest that greater weight should be placed on the public interest as opposed to the remediation undertaken by the individual.
The GMC subsequently appealed the decision of the High Court to the Court of Appeal.
Court of Appeal
In allowing the GMC’s appeal and remitting the matter back to the MPTS for further consideration, Lady Justice King made the following important points
- The MPTS made an error in principle. The MPTS decision focused on Dr Chandra’s acceptance of his wrongdoing, his insight, the risk of repetition and his competence. The MPTS did not address, or address adequately, the issue of whether public confidence and professional standards would be damaged by restoring the applicant to the register.
- There is no test of “exceptional circumstances” that must be satisfied in order for a restoration application to be granted. It should be noted that this submission was not pursued by the GMC before the Court of Appeal.
- Lady Justice King did not accept the proposition that greater weight should be placed on the need for maintenance of public confidence and upholding professional standards than on the remediation undertaken by the practitioner.
- There must be a balancing exercise whereby positive findings regarding a doctor’s remediation are weighed against the three limbs of the “the overarching objective”, which were outlined as follows:
- protecting the health, safety and well-being of the public;
- maintaining public confidence in the medical profession;
- maintaining proper professional standards and conduct for members of that profession.
5. Not only do the Bolton principles apply equally to doctors as they do to solicitors, but the principles and approach established in Bolton apply equally to both sanctions and restoration. There is no “bright line” as between sanction and restoration whereby a different balancing act may be appropriate.
Whilst this is a decision of the UK Court of Appeal, it will undoubtedly be of interest to all regulators in Ireland in determining relevant factors to be considered in respect of applications for restoration following cancellation of a practitioner’s registration. The judgment of the Court of Appeal can be accessed here.