Raschid v General Medical Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE LAWS,LORD JUSTICE CHADWICK,SIR PETER GIBSON
Judgment Date19 Dec 2006
Neutral Citation[2007] EWCA Civ 46,[2006] EWCA Civ 1844
Docket NumberC1/2006/1052,(1) C1/2006/1512, (2) C1/2006/1052

[2006] EWCA Civ 1844

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE COLLINS)

Before

Lord Justice Laws

C1/2006/1052

Raschid
Claimant/Appellant
and
General Medical Council
Defendant/Respondent

THE APPELLANT APPEARED IN PERSON (instructed by Newcastle Law Centre).

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

LORD JUSTICE LAWS
1

Raschid's application is made in the course of an appeal to this court brought by the GMC, the General Medical Council, against a decision of Collins J dated 30 March 2006. Collins J was dealing with a statutory appeal by the respondent, Dr Raschid, against a decision of the Fitness to Practice Panel of the GMC. The panel had found the respondent guilty of serious professional misconduct. They directed that his registration as a medical practioner be suspended for twelve months and ordered that there be a resumed hearing at the end of that period.

2

Collins J dismissed the respondent's appeal against the finding of serious professional misconduct, but on sanction substituted a period of one month's suspension for the 12 months ordered by the panel and also he revoked the direction for a resumed hearing. Mummery LJ granted permission to appeal to the GMC on 12 June 2006 and observed that the case raises important points of principle as to the approach to be taken by the High Court to appeals against decisions of the GMC on sanctions for serious professional misconduct. There is a question how far the High Court ought legitimately to go in exercising its own powers dealing with sanctions on an appeal against the Fitness to Practice Panel.

3

In Dr Raschid's case, the misconduct alleged consisted in inappropriate behaviour of a sexually suggestive kind to a young female patient—that is merely a summary, is it not necessary for today's purposes to go into the detail at all. The young patient is said to have been a disturbed and vulnerable person. Dr Raschid accepted the primary facts that were alleged but he denied that they amounted to serious professional misconduct. As I have said, Collins J dismissed his appeal against that finding. The case is only concerned with the sanction.

4

The application before me today arises because there is another appeal extant in this court brought by the GMC against a decision of Collins J in the same jurisdiction. That is the case Fatnani. In that case the respondent doctor was struck off by the Fitness to Practice Panel for having assisted another person, in fact I think it was her daughter, to retain the proceeds of crime. As Dr Raschid has pointed out this morning, it is a very different case on its facts.

5

In Fatnani Collins J, when the matter got to the High Court, substituted a suspension of one year for the order striking the doctor off. So again, he overturned the sanction that had been imposed by the Fitness to Practice Panel. On 31 July 2006 Ward LJ granted permission to appeal in Fatnani and ordered that the case be heard along with Raschid. It is to this direction that Dr Raschid objects. He desires that his case—or I should more accurately say, the GMC's appeal in his case—should be heard on its own and not linked with Fatnani.

6

He has given two reasons for that this morning. The first of them is that he apprehends there is a danger that his case may be damaged by association with Fatnani, which is not only very different, as I have already said, on its facts but also quite complex. He secondly said that there is a feeling among some medical practioners that there is a degree of racial discrimination within the GMC. That is difficult to understand as an argument against Ward LJ's decision because Dr Raschid makes it quite plain he does not accuse this court of any racial discrimination and the court will be concerned only with questions of law. In particular it will be concerned with the breadth of discretion the High Court enjoys in sanctions appeals in this jurisdiction. It is that of course that provides a link between the two cases and it seems to me that it is desirable for the sake of good case management that the two cases be heard together; that, with respect, is no doubt why Ward LJ made the direction that he did.

7

There is no danger that Dr Raschid will suffer some form of damage by association. Apart from anything else the court will proceed on the elementary basis that each case had to be judged on its own merits, but more important in this particular case, the court will be concerned with the over-arching question, as I have said, of the width of the High Court's discretion. That is a question of principle and the fact that this case and Fatnani are very different on their facts really is not a significant feature of the matter, when one recognises that what is intended here is that the question of principle be looked at as a strategic issue which runs across both cases.

8

For those reasons I do not propose to overturn Ward LJ's decision, which seems to me, as I have said, to be elementary sensible in the circumstances and the two cases will accordingly proceed together. Thank you very much indeed.

Order: Application refused. Cases C1/2006/1052 and C1/2006/1512 should remain linked and should be heard together at the substantive appeal hearing listed for 15 January 2006.

[2007] EWCA Civ 46

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand

London, WC2

Before

Lord Justice Chadwick

Lord Justice Laws

Sir Peter Gibson

(1) C1/2006/1512, (2) C1/2006/1052

(1) Fatnani
(2) Raschid
Claimant/Respondent
and
General Medical Council
Defendant/Appellant

MR R ENGLEHART QC and MR I HARE (instructed by the General Medical Council) appeared on behalf of the Appellant

(1) MR J HARDY (instructed by Stake Partnership) appeared on behalf of the Respondent

(2) THE RESPONDENT APPEARED IN PERSON.

LORD JUSTICE LAWS
1

1. These are two appeals brought by the General Medical Council against decisions of Collins J given in the Administrative Court. They are listed together pursuant to a direction given by Ward LJ on 31 July 2006 when he granted permission to appeal in one of the two, namely Fatnani. Permission to appeal in the other, Raschid, had been given earlier by Mummery LJ on 12 June 2006. On 19 December 2006 I refused an application by Dr Raschid to rescind Ward LJ's order and direct that his case be heard separately from Fatnani. In each case Collins J was dealing with a statutory appeal to the High Court brought under section 40 of the Medical Act 1983 as amended against a decision of the Fitness to Practise Panel of the GMC. Proceedings had been taken before the Panel against the two medical practitioners, who are respondents to these appeals, Dr Raschid and Dr Fatnani, for what I may in short call disciplinary offences.

2

2. The facts relied on against the doctors (which, as I shall explain, differ greatly as between the two cases) were admitted or found proved. The Panel accordingly had to consider what sanction to impose. In Dr Fatnani's case they directed that the respondent's name should be erased from the Medical Register. In Dr Raschid's case they directed that Dr Raschid's registration be suspended for 12 months and that there should be a resumed hearing or a review at the end of that period. On appeal to the High Court the basis of each respondent's liability was either not contested or upheld. In each case the live issue for our purposes, which was determined by Collins J, concerned the sanctions which the Panel had imposed. In Fatnani in his judgment given on 12 June 2006 Collins J quashed the order for erasure and substituted a 12-month suspension of Dr Fatnani's registration. In Raschid in his judgment given on 30 March 2006 the judge quashed the order for a 12-month suspension and substituted it with an order for suspension for one month. He also revoked the order for a resumed hearing or a review. In each case Collins J directed himself that the test that he had to apply in deciding whether to overturn the sanction imposed by the Fitness to Practise Panel was whether the Panel's decision was “clearly wrong”—see the Raschid judgment, paragraph 42, and the Fatnani judgment, paragraph 12.

3

3. The issue for this court in both appeals is as to the proper reach of the High Court's discretion on a section 40 appeal to vary a sanction imposed upon a doctor by the Panel. The issue is of some importance because the High Court's jurisdiction under section 40 dates only from 1 April 2003. Before that appeals against decisions of the Fitness to Practise Panel, then known as the Professional Conduct Committee, lay to the Privy Council. There is case law in the Privy Council, but this is the first occasion on which this court has been asked to consider what the approach of the High Court should be to its jurisdiction conferred on 1 April 2003. Granting permission to appeal in Raschid, Mummery LJ said this:

“This is a second appeal which raises important points of principle on the approach by the High Court to appeals from decisions of the General Medical Council (Fitness to Practise Panel) on sanctions to be imposed for serious professional misconduct.”

4

That was echoed by Ward LJ granting permission in Fatnani.

5

4. It is convenient next to describe the facts of the two cases. I will take Raschid first. Dr...

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