Jasinarachchi v General Medical Council [2014] EWHC 3570 (Admin)

A trainee doctor who was suspended following a finding of dishonesty has succeeded in his appeal to have the issue of sanction remitted for further consideration on the basis that the effect of the suspension imposed would be more severe than envisaged.

The facts

Dr J was a trainee GP when, in March 2012, he completed a death certificate and cremation certificate stating that he had examined the body of the deceased when he had not done so. His explanation for why he had done this was the pressure of time – he was only working a half day and due to fly to Australia later that day. On the same day that he completed the documents, he confirmed verbally to the practice manager that he had examined the body, before later admitting that he had not done so.

Dr J continued with his training, expecting to qualify as a GP in November 2014.

The allegations, including dishonesty, heard by a fitness to practise panel of the GMC in March 2014 were found proved. The panel imposed a suspension of six months.

The appeal

Dr J appealed on two grounds:

  • that the sanction was disproportionate, wrong in principle and that the court should substitute a lesser sanction. Dr J relied on the fact that the dishonesty had been a single episode and there was evidence which indicated that it would not be repeated. Dr J also referred to the difficulties which he had encountered during the two years before the matter came to hearing. He had apologised to the deceased’s family who had accepted the apology and asked that no further action be taken. He submitted that some of the panel’s reasoning was unclear in relation to the sanction imposed and that, given his position as a trainee, the finding of impairment itself was sufficient sanction such that no further sanction was required to maintain confidence in the profession.

  • that following the decision of the panel, it had become apparent that the effect of the suspension on Dr J would be unduly harsh and disproportionate in a way that panel had not envisioned. This was because, once the suspension was in place, Dr J's National Training Number would be removed which would, in turn, automatically lead to the loss of his training contract. The effect of this would be to terminate his training just a few months before he was due to qualify.

The decision

The first ground of appeal was rejected. The court held that the panel had not fallen into error in imposing a suspension. It had weighed all the relevant factors carefully and had properly considered all its options. The panel had been correct that dishonesty was a serious finding of impairment and the case was not an exceptional one where no further action was necessary.

Dr J succeeded on his second ground of appeal in which, in effect, he sought leave to adduce new evidence – that is, evidence of the severe practical effect of a six month suspension. The Court cited Sharab v Al-Saud [2009] EWCA Civ 353, where it was noted in relation to applications to adduce new evidence that the court must “give effect to the overriding objective of doing justice, but in that respect the pre-CPR cases, including Ladd v Marshall, remain… powerful persuasive authority“.

The principles in Ladd v Marshall are that the new evidence: (i) could not reasonably have been obtained for the original trial; (ii) would probably have an important influence on the result of the case but need not be decisive; (iii) must be apparently credible but need not be incontrovertible.

The court applied these principles in turn: (i) although the new evidence could have been obtained for the hearing before the panel, Dr J’s culpability for the fact that it had not been was not high and was not determinative; (ii) although it was difficult for the court to quantify the risk that Dr J’s training would end if he was suspended, there was a real risk that it might; (iii) the evidence was credible. In addition, the overriding objective required the new evidence to be admitted, particularly as the further hearing before the panel would be limited in scope, dealing only with the issue of sanction in the light of the new evidence.