The case of Raschid v GMC highlighted the need for courts to accord special respect to the judgment of professional decision-making bodies, such as fitness to practise panels. This is reiterated by the recent case of Saverymuttu v GMC.
As part of his practice, Mr Saverymuttu performed oesophago gastro-duodenoscopies (OGDs), either as diagnostic procedures or procedures that involved therapeutic intervention. When performing OGDs on private patients, payment would be sought from their private health insurer. Insurers required doctors seeking payment to identify the procedure performed by reference to a code. Mr Saverymuttu would use the code for therapeutic OGDs when he had in fact performed diagnostic OGDs. The insurers paid more to doctors for performing therapeutic OGDs.
On the evidence, the GMC’s Fitness to Practise Panel (FTPP) found that Mr Saverymuttu had behaved dishonestly and held his fitness to practise to be impaired by reason of misconduct.
On appeal at the Administrative Court, Mr Justice Nicol noted that it was his task to decide whether the FTPP had been wrong in their decision that Mr Saverymuttu’s fitness to practice was impaired by reason of misconduct arising from dishonesty. In doing so he must consider the evidence on which the FTPP’s finding of dishonesty was based. In his judgment, Mr Nicol stated that on the facts the FTPP were plainly entitled to make the finding that they had of dishonesty and he dismissed the appeal.
In his judgment, Mr Nicol highlighted the FTPP’s “substantial advantage” when considering whether Mr Saverymuttu’s fitness to practise was impaired. The FTPP had the benefit of hearing live evidence from witnesses and in this process had heard live evidence from the appellant himself, who had also answered questions from the FTPP.
Mr Justice Nicol referred to the case of GMC v Raschid, which outlines the task of the court as a secondary judgment regarding the application of principles to the facts in the case. He noted the expertise of the FTPP and its ability to judge what sanction is necessary to maintain the reputation of the profession, placing the FTPP in a particularly good position to judge whether the facts constituted misconduct, and whether this would render Mr Saverymuttu impaired.
Nicol J also cited Chyc v GMC which highlighted the advantage the FTPP had in considering the reliability and credibility of witnesses, as well as the appellant’s state of mind at various stages. This is a particular advantage when considering issues of dishonesty.
The experience of such professional decision-making bodies and their proximately to the evidence requires that courts give them particular deference when reconsidering their decisions from a more remote view.