29.38.1Raschid v General Medical Council [2007] EWCA Civ 46, [2007] 1 WLR 1460
It was necessary for an appellate court to accord special respect to the judgment of the GMC’s Fitness to Practice Panel (FPP)
Facts: two doctors successfully appealed to the High Court in relation to sanctions imposed on them by the GMC’s FPP but the Court of Appeal allowed the GMC’s appeal on the ground that the High Court judge had effectively engaged in a re-sentencing exercise.
Judgment: the Court of Appeal (Chadwick and Laws LJJ, Sir Peter Gibson) held that:
16. In these circumstances it seems to me to be clear that we should follow the guidance given in the cases decided before the change in the appeal system effected on 1 April 2003. First, the Privy Council is of course a source of high authority; but, secondly, we are in any event considering an effectively identical statutory regime. As it seems to me there are in particular two strands in the relevant learning before 1 April 2003. One differentiates the function of the panel or committee in imposing sanctions from that of a court imposing retributive punishment. The other emphasises the special expertise of the panel or committee to make the required judgment.
17. The first of these strands may be gleaned from the Privy Council decision in Gupta v General Medical Council [2002] 1 WLR 1691, para 21, in the judgment of their Lordships delivered by Lord Rodger of Earlsferry:
‘It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517–519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at p 519: ‘The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.’ Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the committee in this case.’
18. The panel then is centrally concerned with the reputation or standing of the profession rather than the punishment of the doctor. This, as it seems to me, engages the second strand to which I have referred. In Marinovich v General Medical Council [2002] UKPC 36 Lord Hope of Craighead, giving the judgment of the Board, said:
‘28. … In the appellant’s case the effect of the committee’s order is that his erasure is for life. But it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.’‘29. That is not to say that their Lordships may not intervene if there are good grounds for doing so. But in this case their lordships are satisfied that there are no such grounds. This was a case of such a grave nature that a finding that the appellant was unfit to practise was inevitable. The committee was entitled to give greater weight to the public interest and to the need to maintain public confidence in the profession than to the consequences to the appellant of the imposition of the penalty. Their Lordships are quite unable to say that the sanction of erasure which the committee decided to impose in this case, while undoubtedly severe, was wrong or unjustified.’
19. There is, I should note, no tension between this approach and the human rights jurisprudence. That is because of what was said by Lord Hoffmann giving the judgment of the Board in Bijl v General Medical Council [2002] Lloyd’s Rep Med 60, paras 2 and 3, which with great respect I need not set out. As it seems to me the fact that a principal purpose of the panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, particular force is given to the need to accord special respect to the judgment of the professional decision-making body in the shape of the panel. That I think is reflected in the last citation I need give. It consists in Lord Millett’s observations in Ghosh v General Medical Council [2001] 1 WLR 1915, 1923, para 34:
‘the Board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner’s failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee’s judgment more than is warranted by the circumstances.’
20. These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.