HIGH COURT REVERSES GMC DECISIONS
Case Update: High Court holds that GMC Panel should not have found consultant ophthalmologist to be dishonest
Soni v General Medical Council [2015] EWHC 364 (Admin)
Judgment date 25th January 2015
The Appellant a consultant ophthalmologist appealed to the High Court against the decision of a Fitness to Practise Panel (the “Panel”) of the General Medical Council (the “GMC”) that his fitness to practice was impaired by reason of his misconduct relating to his receiving payment for the treatment on Trust premises of five private patients.,,,
...However the Judge, having considered the terms in which the GMC had formulated the allegations, considered that proof of those allegations required evidence that the fees received by the Appellant included a sum for the use of hospital facilities and that he had deliberately and dishonestly withheld any such payment from the Trust.
The Judge found there was no direct evidence to that effect concluding that:
“the Panel must have started from the finding that Mr Soni knew he should provide a record of treatment of private patients; added its findings that no record was in fact provided of these five private patients; … assumed (without sufficient evidence) that there had been a deliberate failure to account to the Trust for sums which Mr Soni had in fact received in respect of the use of hospital facilities; and then concluded that such conduct must on the balance of probabilities show deliberate dishonesty…
The Panel was wrong to do so, because a finding against Mr Soni of a failing of administration, even of negligent administration, does not without more justify a finding of dishonesty.”
In addition the Judge considered that the Panel had failed to give appropriate weight to both the evidence as to the deficiencies in the system of recording private patients and the evidence of the Appellant’s positive good character.
The Judge concluded that the panel had made a wrong determination against the Appellant.
In considering whether to remit the case to the Registrar the Judge, having regard to the principles in Southall v GMC [2010] EWCA Civ 484 concluded that:
“This court is in as good a position as the Panel was to assess the sufficiency of the evidence; and if the evidence is insufficient, then the public interest cannot be served by a further hearing of it. I conclude not only that the Panel was wrong in the decision which it made, but also that if the case were to be remitted, no future panel could be in any different position.”
The Judge accordingly quashed the decision of the Panel to suspend the Appellant’s registration and did not remit the case to the Registrar.
This case highlights the need for Tribunals to undertake a detailed and objective assessment of the evidence before finding an allegation of dishonesty proved. Panels considering such an allegation should not only pay careful regard to the possible motive for any alleged dishonesty but should also exercise caution when dismissing alternative explanations for a Registrant’s behaviour. The Judge’s ruling in this case to quash the Panel’s decision and his refusal to remit the case for reconsideration evidences the robust approach that can be taken by the High Court in cases were a Tribunal has failed to carry out such an assessment.