The Administrative Court has handed down its decision in Chauhan v GMC which reinstates guidance from Cohen v GMC, that when a Fitness to Practice Panel makes material findings of fact adverse to the practitioner which could themselves have been the subject of a charge of professional misconduct, and which are not within the charges set out in the Notice of Hearing, then those findings cannot properly or fairly be used by the panel to support its findings in the notice.

Mr Chauhan appealed against the decision and findings of the Fitness to Practise Panel (the panel) of the GMC, which had determined to erase Mr Chauhan from the medical register. A primary ground of appeal was that the panel made findings of fact which were outside the ambit of the particular charges which the appellant faced. The findings complained of were findings of dishonesty in respect of heads of charge where dishonesty had not been alleged and the use of this finding to find dishonesty proven where it had been alleged and where there was arguably insufficient evidence to support such a finding. Mr Justice King accepted the appellant’s argument that the General Medical Council (Fitness to Practise) Rules 2004 require the respondent to give notice of any allegation being pursued and to particularise the facts upon which it is based and that it is those facts which the panel is required to determine. It was held that for the panel to use a consideration which is outside of the matters in the notice in their determination of the express charges which the appellant did face, was contrary to natural justice. The respondent’s submission that they were entitled to introduce such evidence as propensity evidence, even if strictly outside the ambit of the charges, was rejected.  

There was also an allegation of apparent bias, based on the manner in which issues were raised and probed by panel members and the panel’s alleged one sided evaluation of the evidence in its reasons. However, it was held that no such bias could be established, based on either principles relating to the fairness of the proceedings (citing Yuill v Yuill [1949] and the Mayor of the London Borough of Southwark v Kofi Adu), nor on the basis of apparent bias (citing CRHCP v GMC and Ruscillo).