General Medical Council v Chandra EWCA Civ 1898
While the Bawa-Garba case has understandably attracted a huge number of headlines, on the same day the Court of Appeal also ruled on another GMC appeal, this time on the test to be applied to the restoration of doctors to the register after a previous erasure decision. In Chandra the Court of Appeal found that there is no 'bright line' between the test to be applied at the sanction stage and for restoration, although the weight given to different factors may change. The overall test must still be the overriding objective to protect, promote and maintain the health and safety of the public.
Dr Chandra, a psychiatry Senior House Officer, had previously been struck off of the GMC's register by the Fitness to Practise Committee in 2008 following a sexual relationship with his patient A whom he knew to be a vulnerable person. He denied the allegations, claiming that A was stalking him and that her allegations were a result of her psychological ill health. As a result of this, A had to give live evidence at Dr Chandra's hearing, including substantial cross-evidence. In August 2016 Dr Chandra applied for restoration to the register; his application was heard by the MPTS in March 2017 and allowed. The GMC promptly appealed to the High Court on the basis that the MPTS had not applied the correct test, but in October 2017 the appeal was dismissed. As a result the GMC appealed to the Court of Appeal.
Lady Justice King gave the judgement in the Court of Appeal and focussed on the importance of the overriding objective, which was added to the legislation of all healthcare professional regulators in 2015. She found that the overriding objective was the background to both decisions on sanction and on restoration, although some factors may be balanced differently in the two types of decision:
"Although certain features may carry different weight at the date of the erasure of a doctor from the register from that which it is given upon his or her application to be restored to the register, in my judgment the balancing act itself is the same in respect of each application namely; against the backdrop of the over-arching objective, is the doctor concerned fit to practice."
As part of this test, and the different weights given to certain factors, key factors in a decision on restoration will be both the passage of time and evidence of remediation. Crucially, Lady Justice King adopted the case law relating to solicitors' regulation and specifically Bolton v Law Society. In Bolton, honesty was found to be crucial of the practice of a solicitor as their client must trust them with their most valuable possessions, sexual probity must be equally important to doctors:
"I find it hard to imagine any feature in relation to any doctor, let alone a psychiatrist, which goes so entirely to the essence, or heart, of his role as medical practitioner as the entitlement of each and every patient, (whether vulnerable or not) to be entirely confident in the sexual probity of their physician. To adopt and adapt the words of [Bolton]: "If a member of the public submits him or herself to a physical or mental examination or consultation by a doctor, he or she is ordinarily entitled to expect that that doctor is a person whose trustworthiness and sexual integrity is not and never has been, seriously in question"."
That being said, while the decision does adopt the solicitors' regulation case law, Lady Justice King was keen to emphasise that exceptional circumstances were not necessarily required to allow restoration as was found in Jideofo v Law Society (no 6 of 2006), partly because doctors cannot apply for restoration for at least 5 years from being struck off, whereas there is no minimum period for solicitors. On this basis the GMC's appeal was allowed and the matter was remitted to the MPTS for the decision to be remade in light of this decision on the principles to be applied.
The GMC's appeal power has been particularly controversial in light of the Bawa-Garba decision and may be repealed if the Government submits to public pressure. However in this case its appeal was apparently an appropriate decision, even if this decision will not receive the same headlines as Bawa-Garba.