Dr. Arun Kumar Rauniar v General Medical Council
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Lloyd Jones |
| Judgment Date | 30 March 2011 |
| Neutral Citation | [2011] EWHC 782 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5495/2010 |
| Date | 30 March 2011 |
[2011] EWHC 782 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: The Hon. Mr. Justice Lloyd Jones
Case No: CO/5495/2010
Mr. Mark Sutton (instructed by Weightmans) for the Appellant
Mr. Ivan Hare (instructed by the General Medical Council) for the Respondent
Hearing dates: 22 nd and 23 rd February 2011
The Hon. Mr. Justice Lloyd Jones:
This is an appeal by Dr. Arun Kumar Rauniar ("the appellant") pursuant to section 40, Medical Act 1983 ("the 1983 Act") against the decision of the Fitness to Practise Panel ("the Panel") of the General Medical Council ("GMC") at a review hearing on 14 th April 2010 to impose a period of 12 months suspension on his registration.
The Powers of the Court on a section 40 appeal.
Section 40 (7) of the 1983 Act provides:
"(7) On an appeal under this section from a Fitness to Practise Panel, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the direction or variation appealed against;
(c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Fitness to Practise Panel; or
(d) remit the case to the Registrar for him to refer it to a Fitness to Practise Panel to dispose of the case in accordance with the directions of the court,
and may make such order as to costs (or, in Scotland, expenses) as it thinks fit…"
CPR 52.11 (3), which applies to this appeal, provides that:
"(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."
The approach of the court on an appeal such as this was set out in Ghosh v General Medical Council [2001] 1 WLR 1915. There Lord Millett described the jurisdiction of the Privy Council, which at that time heard appeals such as this, in the following terms:
"33…The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a re-hearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes.
34…the Board will accord 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…"
In Raschid v General Medical Council [2007] 1 WLR 1460 the Court of Appeal addressed, more specifically, the proper reach of the High Court's power on appeal under section 40 of the Medical Act 1983 to vary a sanction imposed on a practitioner by the Panel. Laws L.J. identified two strands in the authorities:
"One differentiates the function of the panel or committee imposing sanctions from that of a court imposing retributive punishments. The other emphasises the special expertise of the panel or committee to make the required judgment." (At para 16).
He concluded:
"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 the 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." (At para 20).
Background
The appellant is a general practitioner contracted to Waltham Forest Primary Care Trust ("the PCT"). He formerly practised at Crawley Road Medical Centre, Leyton from May 1998 and at Vicarage Road Medical Centre, Leyton from June 2003.
The appellant came to the attention of the GMC in 2004 as a result of a complaint from a former patient. In the course of the investigation into this complaint the GMC received a letter from the Medical Director of the PCT raising concerns about his clinical performance, serious behavioural problems and cognitive difficulties. On 24 th June 2005 the PCT decided contingently to remove the appellant from the performers list. That order was subsequently varied on an appeal to the Family Health Service Appeal Authority ("the FHSAA").
As a result of these concerns the GMC invited the appellant to undergo a Performance Assessment. This took place in July and August 2005. The Performance Assessment comprised two main elements: peer review and a test of competence. This was a wide ranging assessment not limited to investigation of the particular matters which had led to the referral to the GMC. However the resulting assessment noted that the particular areas of concern leading to the assessment were inappropriate treatment and prescribing and poor relations with patients. The assessment team looked at 15 areas of the appellant's performance as a doctor. No acceptable judgment was made in any area. The areas giving cause for concern were cover and records. The following areas were judged to be unacceptable: assessment, investigations, treatment, limits, laws, resources, communication, education, audit and relationships. No overall judgment was made on teaching, education or emergencies. In the tests of competence his performance was unacceptable. The assessment process highlighted considerable areas where his performance was deficient. It found that there was evidence that he failed to assess patients properly, sometimes apparently because he could not be bothered to do so. He failed to provide proper investigations. The assessment concluded that some of his ideas were dangerous. He lacked insight into risks to patients. The assessment observed that "in general he does not seem to accept help or advice from his peers and is felt to have no insight into his low levels of competence." The assessment team concluded:
"The assessment team are of the opinion that Dr. R's problems are so comprehensive that he should not continue working as a doctor unless he undergoes a comprehensive period of retraining and successfully completes a further performance assessment.
Dr. R will find this to be difficult but may succeed with hard work."
These conclusions led to a hearing of the Interim Orders Panel on 5 th January 2006. That Panel noted that the assessment had indicated that his performance was unacceptable and that he was not fit to undertake clinical practice. The Interim Orders Panel determined that it was necessary for the protection of members of the public, in the public interest and in the appellant's own interests to make an order suspending his registration for a period of 18 months with immediate effect. This was an interim order intended to hold the position pending a full consideration by the Panel.
On 19 th February 2007 the FHSAA, on the appellant's appeal from the decision of the PCT, made an order of contingent removal from the PCT's Performers List with varied conditions. These included a condition that the appellant should not work in any capacity as an NHS general practitioner except under the supervision of a workplace supervisor who is an accredited trainer for a period of six months from the commencement of such work. There was a further condition that he should agree with the Director of Postgraduate Medical Practice Education, or his nominated deputy, a Personal Development Plan ("PDP") to address the deficiencies in his practice to include inter-personal skills, communication skills and consultation skills and to submit the PDP within two months of the date of the determination.
Professional training for doctors in the United Kingdom is carried out by various Deaneries, each covering a geographical area. On 27 th February 2008 the appellant attended the London Deanery ("the Deanery") to discuss how it could support his retraining needs. Those present included Professor Neil Jackson, Dean of Postgraduate General Practice, and his deputy Dr. Julia Whiteman. Following the meeting Professor Jackson in a letter to the appellant dated 27 th February 2008 stated:
"We discussed the means by which the London Deanery provide you with retraining and reiterated the information already given to you at previous meetings with Dr. Whiteman. The information relating to the Induction and Refresher Scheme ("IRS") can be found at [website reference]. We run the assessments for the scheme four times a year, the next round being in April. Dr. Whiteman advised you that since we only allow two attempts at the assessments it might be better if you deferred applying until the summer as you also have your GMC hearing to attend to in April. I reinforced for you the fact that there was no negotiation around meeting the criteria for joining the scheme nor for the way that the scheme operated. Specifically, if you were accepted onto the scheme and found a trainer with the capacity and willingness to retrain you, you would be retrained by that trainer in their practice, which would itself have been quality assessed as part of our trainer approval process.
We explored the possibility of you working with a trainer outside the scheme. You are of course at...
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