The doctor appealed, not against the finding of misconduct, but against the penalty imposed by the Fitness to Practice Panel. Following the decision, matters had come to light concerning the practical consequences of suspending a trainee doctor’s registration. It was said that this cast a fresh light on the determination, making it unduly harsh and disproportionate and that this cannot have been envisaged by the Panel. If this basis succeeded, and the first ground did not, the Appellant invited the court to remit his case for further consideration on the issue of sanction exercising the power under section 40(7)(d) of the Act.
Held: Stewart J allowed the second ground: ‘I rule in favour of allowing the additional evidence and in favour of A’s case on this basis for the following reasons:
(i) Although the first principle in Ladd v Marshall cannot be relied upon by A, the culpability of A is not particularly high in this regard. He was represented. However, there is no evidence to suggest that anybody appreciated the possible consequences of his suspension. It is correct that the Gold Guide then in force made it clear that the NTN would be given up if a trainee was suspended and that (at that stage) there would be a right of appeal; further that it was open to those who had had their training numbers removed to reapply for competitive entry to specialty training at a later date should circumstances change. Nevertheless, whilst paying proper regard to the fact that all the principles in Ladd v Marshall are of relevance and of powerful persuasive authority, I do not regard the lack of compliance with this first principle to be determinative. There is no suggestion that the Postgraduate Dean in any way alerted A or his lawyers to these consequences and no evidence that the Panel was aware of them.
(ii) As to the second principle in Ladd v Marshall, it is difficult for the court, on the basis of the evidence provided, to quantify the risk that A’s GP specialty training may be at an end if he is suspended. Looking at the evidence of Ms Willmott, I nevertheless consider that there is a real risk that this will occur. Nobody was aware of any precedent of a suspended trainee applying to get back on the Register and what the prospects of success were or were not. It will of course be open to the FTPP to come to the same conclusion i.e. that A should be suspended. That said, I do regard the fresh evidence as probably having an important influence on the result of the case. It may indeed not be decisive but that is a matter for a properly informed FTPP to decide.
(iii) Clearly the fresh evidence is credible, especially as in the circumstances I am basing my judgment on Ms Willmott’s testimony.
(iv) Considering the overriding objective this, in my judgment, is one of the perhaps rare cases where, notwithstanding that one of the Ladd v Marshall principles has not been complied with, justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP. Both parties agree, and the order reflects, that this will not be a re-hearing of the case but merely a hearing which takes into account the fresh evidence so as to decide what if any difference it makes to sanctions. That also is a relevant factor, namely that the further disciplinary process will be limited in extent.’
Stewart J
[2014] EWHC 3570 (Admin)
Bailii
England and Wales
Cited by:
Cited – TZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.
Health Professions, Litigation Practice
Updated: 23 December 2021; Ref: scu.538203