The General Medical Council v Dr Shekhar Chandra
| Jurisdiction | England & Wales |
| Judge | Lord Justice Flaux,Lady Justice King,Lord Justice McCombe |
| Judgment Date | 13 August 2018 |
| Neutral Citation | [2018] EWCA Civ 1898 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/3034 |
| Date | 13 August 2018 |
[2018] EWCA Civ 1898
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Queen's Bench Division (Administrative Court)
Mrs Justice Moulder
[2017] EWHC 2556 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice King
and
Lord Justice Flaux
Case No: C1/2017/3034
Eleanor Grey QC (instructed by GMC Legal) for the Appellant
Mary O'Rourke QC and Nicola Newbegin (instructed by Medical Defence Shield) for the Respondent
Hearing date: 18 July 2018
Doctors who have been erased from the medical register following a determination by a Fitness to Practise Panel (“FTPP”), now the Medical Practitioners' Tribunal, (“the MPT”), that their fitness to practise is impaired, may, after a period of five years, make an application to the Tribunal for his or her name to be restored to the medical register (“the register”).
This is a second appeal by the appellant General Medical Council (“the GMC”) from an order made by Mrs Justice Moulder on 19 October 2017 dismissing the first appeal of the GMC from a decision of the MPT to restore the name of the respondent (Dr Chandra) to the medical register.
The appeal raises two issues of importance:
i) (a) Can there properly be said to be an analogy as between cases in relation to solicitors being restored to the roll and doctors being restored to the medical register?
(b) In any event can it be said that a doctor can only be restored to the register if he or she can satisfy the MPT that there are “exceptional circumstances”?
ii) What is the proper approach to be taken by the MPT to the over-arching objective of the GMC when considering an application for restoration to the medical register?
Background
A description of the misconduct on the part of Dr Chandra which led to his erasure from the medical register is best found in the determination of the FTPP on 18 May 2008. The history that follows is taken from their unchallenged findings of fact.
From February 2005 to 6 October 2005 Dr Chandra was working as a Senior House Officer in psychiatry. On 29 June 2005 he had a consultation with Ms A. This consultation was followed by a further consultation on 1 July 2005 when a follow-on appointment was made for 8 July 2005. Dr Chandra was aware that Ms A was a vulnerable patient.
Following the appointment on 1 July, Dr Chandra drove down the hospital driveway stopping adjacent to where Ms A was parked. A conversation took place between Dr Chandra and Ms A, initially through the passenger window and then, for an hour or so, in Dr Chandra's car. Dr Chandra suggested that they should go for something to eat together and it was agreed that he would follow Ms A to her home. On the way to Ms A's house, Dr Chandra stopped and bought a bottle of red wine. When he got to Ms A's home, Dr Chandra spent about two hours with her during which time they drank the bottle of wine and had a takeaway meal. The FTPP found that:
“During this time there was physical contact between you, you put your hand on her leg, touched her hair, commented that her hair looked nice, stroked her hand and kissed Ms A. You then returned to the hospital.”
Later, at 2.05am, Dr Chandra telephoned Ms A on her mobile phone. He arranged to return to her house. During this second visit Dr Chandra went to Ms A's bedroom where they engaged in consensual sexual contact including oral sex.
Dr Chandra made no record of his contacts with Ms A, although he told a night nursing manager that he had undertaken “a home visit”.
Two days later, on 3 July 2005, Ms A was admitted to hospital following an alleged overdose. Dr Chandra knew that Ms A had been admitted, but he did not tell her treating clinicians about his visits or contact with her. On 8 July Dr Chandra told a superior that he had visited Ms A's home; he was instructed to make a record of the visits in her notes and keep a record for himself. Unsurprisingly, Dr Chandra was told that he was not to see Ms A again.
Dr Chandra did not make an entry on the medical notes.
In September 2005, Ms A, during the course of a meeting with her care coordinator, disclosed some of the events of 1 and 2 July 2005. On 21 September, Ms A approached Dr Chandra in the car park of the hospital where they spoke. Dr Chandra then followed Ms A to a garage and from there on to a car park where Ms A got into Dr Chandra's car, they continued to talk and Dr Chandra “touched her”.
The allegations subsequently made by Ms A led to a lengthy hearing before the FTPP. A serious aspect of the case was that both before the FTPP and throughout a subsequent High Court appeal, Dr Chandra maintained that Ms A was a “stalker” and that her evidence was dishonest and brought about by her own psychological ill health. As a consequence, Ms A was extensively cross-examined before the FTPP on this basis, which included detailed reference to her own private medical records.
The panel found that:
“[Dr Chandra's] conduct and behaviour towards Ms A was inappropriate, unprofessional and not of the standard expected of a medical practitioner. Further the panel found that your conduct was sexually motivated, indecent and an abuse of your position of trust as a doctor.”
The panel went on:
“The panel has taken into account the public interest. The public interest includes the particular need to protect the individual patient, and the collective need to maintain the confidence of the public in their doctors…Doctors occupy a position of privilege and trust in society and are expected to act with integrity and uphold proper standards of conduct. That trust is not simply the trust that patients place in doctors, but also extends to colleagues and members of the public. This misconduct is serious as you abused a special position of trust, which you occupied, with a female patient whom you knew to be vulnerable. In particular while your first car park meeting with Ms A and subsequent visit to her house may have been initiated with some encouragement from Ms A, the second visit to her home after 2am was procured by you in the knowledge that you had already transgressed your professional boundaries. This was within the intention of continuing a relationship which the panel is satisfied you realised had become improper…
…The panel is also concerned about your failure to disclose your contact with Ms A to her treating clinicians after her admission to hospital following an alleged overdose. This behaviour was misleading and placed this vulnerable patient at a particular risk. In addition you should not have subsequently met with Ms A in… the car park in September which placed you both at risk.”
It was in those circumstances and against this background that Dr Chandra's name was erased from the register. A subsequent appeal to the High Court was dismissed.
The application to be restored to the Register
Eleven years later, on 22 August 2016, Dr Chandra made an application to restore his name to the medical register. The matter came before the MPT in March 2017 with a ruling dated 24 March 2017. The MPT directed that his name be restored to the Register.
The GMC appealed and on 19 October 2017, Mrs Justice Moulder dismissed the appeal.
On 16 March 2018, Lord Justice Singh determined that the issues satisfied the second appeal test and gave permission to appeal.
In the event, as this second appeal hearing progressed, it became clear that contrary to what appeared to be the case at an earlier stage, there is in fact little between counsel as to the proper test to be applied when considering an application to restore to the Register. The principal issue has become whether the MPT was wrong in that it made an error in principle in failing properly to apply the correct test when considering Dr Chandra's application to be restored to the Register and, whether Moulder J, therefore fell into error in dismissing the GMC's first appeal.
The Law
Before considering the approach and findings of either judge, it is useful to consider the law in relation to applications to restore a doctor to the medical register.
The Medical Act 1983 is the statute which created the GMC and provides for medical education, licensing and registration together with fitness to practise and professional conduct. Section 1(1) creates the GMC:
“1. — The General Medical Council.
(1) There shall continue to be a body corporate known as the General Medical Council (in this Act referred to as “the General Council”) having the functions assigned to them by this Act.”
In 2004, a section 1(1A) was added, which sets out the objectives of the GMC as follows:
“(1A) The over-arching objective of the General Council in exercising their functions is to protect, promote and maintain the health and safety of the public.”
In 2015, a section 1(1B) was added to flesh out this over-arching objective as follows:
“(1B) The pursuit by the General Council of their over-arching objectives involves the pursuit of the following objectives—
(a) to protect, promote and maintain the health, safety and well-being of the public,
(b) to promote and maintain public confidence in the medical profession, and
(c) to promote and maintain proper professional standards and conduct for members of that profession.”
Ms Grey QC, on behalf of the GMC, emphasises that each of the three limbs are aspects of protection of the public and assist a tribunal in their analysis. She went on to clarify that section 1(1B) (a) (“to protect, promote and maintain the health, safety and well-being of the public”) usually has as its focus issues of risk. Sections 1(1B) (b) and (c) (“to promote and maintain public confidence in the medical profession” and “to promote and...
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