General Medical Council v Shekhar Chandra [2018] EWCA Civ 1898

This case emphasises the importance of the overriding objective and confirms the test to be applied in restoring doctor’s to the register. The Court of Appeal’s judgement also provides a great deal of guidance in terms of the application of the test, particularly regarding the considerations and reasoning of tribunals and courts in doing so.

1. Why is this case important?

This case concerns an appeal by the General Medical Council (GMC) against a decision by the Medical Practitioners’ Tribunal (MPT) to restore a doctor to the register after being previously erased for misconduct. The case discusses the test to be applied in order to restore a doctor to the register, and in this regard gives consideration to whether there is a parallel between cases dealing with the restoration of lawyers to the roll. Additionally, it considers the correct approach to giving rise to the overriding objective under s. 1(1A) of the Medical Act 1983, being to promote, protect and maintain the health and safety of the public.

It was held that the principles set out in Bolton v Law Society [1994] 1 W.L.R. 512 in relation to the applicant’s restoration to the register, applied as equally to doctors as to solicitors. However the difference being is that doctors do not have to satisfy the requirement of exceptional circumstances before being restored. Both the High Court and the Court of Appeal held that the test for restoring a doctor to the register would be whether having regard to the overriding objective; the applicant doctor was fit to practise.

2. The facts

The respondent was a psychiatrist in the Isle of Wight. In June 2005 he became involved in sexual activities with a patient whom he knew to be a vulnerable person. When the patient reported the activity, the respondent maintained that the patient was lying and stated that the patient’s allegations were as a result of her unstable mental health. The case was called before the Fitness to Practise Panel which sat in August 2007, March 2008 and May 2008 and the patient was extensively cross-examined. The result of these sittings was that the respondent’s name was erased from the register due to the finding that his conduct was inappropriate, unprofessional and fell short of the standard to be expected of a medical professional.

The respondent was entitled to make an application for restoration to the register after five years, and made a successful application in 2016. In coming to this decision, the MPT considered the circumstances leading to as well as the reasons for the erasure of the respondent from the register. It also considered the respondent’s insight and rehabilitation and held that in light of this, and bearing in mind the overriding objective as set out in s. 1(1A) Medical Act 1983, the application was allowed.

3. The Appeal

This decision was appealed to the High Court by the GMC on the grounds that and I quote:

        I. There was a failure by the MPT to consider evidence of previously inconsistent and untruthful accounts and/or to give reasons regarding the same;

      II. There was a failure by the MPT to have regard to the respondent’s failure to apologise to the patient; and

    III. There was a failure by the MPT to give proper regard to the overriding public interest and to promote and maintain public confidence in the medical profession.

The High Court upheld the decision of the MPT and the GMC further appealed the decision to the Court of Appeal.

4. The Judgement

The Court of Appeal focused on the importance of the overriding objective in ruling on the test for both erasure and restoration to the register. The Court rejected the MPT’s suggestion that there would be a significant difference in the considerations at the stage of erasure compared to those at the stage of restoration, due to the passage of time. Lady Justice King stated that the only difference in considerations between the two stages would be that “certain features may carry different weight at the date of the erasure of a doctor from the register from that which it is given upon his or her application to be restored to the register.”

In addition, the Court stated that while the passage of time would be given some weight at the restoration stage, that there must be a considerable difference in considerations between instances of clinical error or incompetence and instances of dishonesty or sexual misconduct. A patient’s trust and confidence in his/her doctor should take precedence, as this goes to the root of a doctor’s role as a medical professional. Therefore, the Court of Appeal stated that while remediation over the five year period would be essential, it was not the definitive point for restoration.

The Court of Appeal went on to hold that the test for restoring doctors to the register was parallel to that set out in Bolton v Law Society regarding restoring solicitors to the roll, though there would be some distinction due to regulatory differences between the professions. It was held that the test would be whether, having consideration to the overriding objective, the doctor/applicant was fit to practise. It is in this way that the test differs from that applied to solicitors, as there is no requirement of exceptional circumstances before doctors can be restored to the register. This is as a result of the Solicitors Act 1974 not having the equivalent requirement that the tribunal must consider the overriding objective of protecting the public as under s. 41(2) of the Medical Act 1983. Additionally, there is no requirement for solicitors to wait five years before applying for restoration, as is the requirement for doctors.

5. The decision

The Court of Appeal held that the MPT had erred and had applied the wrong test. The Tribunal had failed to give regard to all limbs of the overriding objective, including the issue of damage caused to public confidence and professional standards by allowing restoration of the respondent to the register. The Tribunal should have considered the respondent’s remediation against the backdrop of the reasons leading to the respondent’s erasure, and considered whether in light of these findings, restoration would give rise to the overriding objective.

6. Commentary

This case emphasises the importance of the overriding objective and confirms the test to be applied in restoring doctor’s to the register. The Court of Appeal’s judgement also provides a great deal of guidance in terms of the application of the test, particularly regarding the considerations and reasoning of tribunals and courts in doing so.