Panel failed to properly apply the Sanctions Guidance07/08/20
In General Medical Council v Saeed  EWHC 830 (Admin), the Court allowed an appeal by the General Medical Council on the basis that a panel had failed to properly apply the Sanctions Guidance.
In August 2018, Dr Saeed, a neurologist, was sentenced to 22 months’ imprisonment, suspended for two years, after being convicted of controlling and coercive behaviour, and assault occasioning actual harm against his wife. A hearing before the Medical Practitioners Tribunal took place in June 2019. The panel determined that erasure would be a disproportionate sanction and imposed an immediate order of suspension for 12 months.
The GMC appealed. First it argued that the panel had failed to have proper regard to a number of the factors set out in paragraph 109 of the Sanctions Guidance which “may indicate erasure is appropriate”. In particular, the GMC was concerned that although the panel said that it had considered several of the factors as potentially relevant, it only specifically addressed the issue of insight, concluding that Dr Saeed had not demonstrated a persistent lack of insight. The GMC argued that the panel had failed to give any reasons why the factors set out in, amongst others, sub-paragraphs (c) (doing serious harm to others), (e) (violation of a patient’s rights/exploiting vulnerable people) or (g) (offences involving violence) were not sufficient to justify the sanction of erasure. The GMC pointed to the decision of Jay J in General Medical Council v Stone (2017) in which it was said that it is not sufficient to rely on a “generalised assertion that erasure would be a disproportionate sanction”.
The Court accepted that the panel had not given clear and express reasons why none of the factors in paragraph 109 which the panel had found to be present, justified the sanction of erasure. Given the very serious nature of, and harm caused by, Dr Saeed’s offences, it was, the Court held, incumbent upon the panel to deal clearly with factors (c), (d) (abuse of position/trust), (e) and (g) given the domestic context of his violent offending. The Court accepted that the Sanctions Guidance is non-statutory guidance and is not formally binding on the panel and it also acknowledged that paragraph 109 simply sets out a non-exhaustive list of factors that “may” indicate that erasure is the appropriate sanction. However, the panel was obliged (following the decision in Professional Standards Authority v Health and Care Professions Council and Doree (2017)) to have proper regard to the Sanctions Guidance and, when departing from it, to do so for sound reasons and to state those reasons clearly in its decision. The Court held that the panel had failed to do that. The panel had also failed to identify the relevant mitigating factors, to clarify what weight it gave each of those mitigating factors, and to indicate how those factors had the effect of justifying the lesser sanction of suspension in lieu of erasure.
The GMC also argued that the panel had failed to take into consideration paragraph 119 of the Sanctions Guidance which provides that, as a general principle, where a doctor has been convicted of a serious criminal offence, they should not be permitted to resume unrestricted practice until they have completed their sentence. Dr Saeed was not due to complete his suspended sentence until the end of August 2020, but his suspension from registration would expire in mid-July 2020, at which point he could return to full registration. The attention of the panel had been drawn to the principle in Council for the Regulation of Health Care Professionals v General Dental and Fleischmann (2005), on which paragraph 119 was based. In Fleischmann, the Court held that “only circumstances which plainly justify a different course should permit otherwise”. The GMC argued that the panel had failed to give any proper reasons from departing from the principle in Fleischmann.
The GMC also argued that the fact that the panel at a review hearing would have the power to impose a further period of suspension was not a sufficient reason for departing from the principle in Fleischmann. Moreover, it could not do so at the review hearing with the primary purpose of reflecting the seriousness of Dr Saeed’s offending. This was because the Supreme Court in Khan v General Pharmaceutical Council (2016) made it clear that the issue at a review hearing is only whether impairment has been remedied by the date of the review hearing, not the seriousness of the original offending. Dr Saeed, in turn, argued that he would be willing to consent to an extension of a period of suspension imposed by a review panel in order to address the paragraph 119/Fleischmann point.
The Court, however, agreed with the GMC’s submission. The review hearing is not, the Court held, a device by which a violation of the principle in Fleischmann, as reflected in paragraph 119, can be corrected. If the panel is going to depart from the Fleischmann principle/paragraph 119, it needs to have sound reasons for doing so and set those reasons out clearly in its decision.
Accordingly, the Court upheld the GMC’s appeal. It quashed the determination on sanction and remitted the matter to the MPTS for it to dispose of the case having regard to the Court’s judgment.
This article is part of our regular professional regulatory newsletter, read other articles in the August 2020 edition here.