Restoration to the medical register – a balancing act
The recent case of General Medical Council v Chandra [2017] EWHC 2556 (Admin) explores the fine balance to be struck between ensuring public confidence in the medical profession and taking into account steps undertaken by those applying to have their name restored to the medical register to show that they have remedied their conduct and reduced or eliminated future risk.
Background
The Respondent, a psychiatrist, was found to have engaged in sexual activity with a vulnerable patient. The incident occurred in 2005 and in 2008 his name was erased from the medical register.
In 2017, Mr Chandra applied for restoration to the medical register. The Medical Practitioners Tribunal ("the Tribunal") determining the matter considered various factors including the fact that he had accepted his wrongdoing and reflected on it; and decided to restore his name to the register.
Appeal
The GMC ("General Medical Council") appealed against the decision of the Tribunal, submitting that there was a failure to give proper regard to the overriding public interest and to promoting and maintaining public confidence in the medical profession.
The GMC argued that there had to be "exceptional circumstances" before a doctor struck off for sexually improper conduct should be placed back on the register and that consideration ought to be had to the gravity of the original conduct, the public interest in the decision, and the difficulties of remediating dishonest actions or other serious misconduct. It is worthy of note that Mr Chandra was found to have lied during the original hearing and continually denied that the incident had occurred.
Decision
The GMC's appeal was dismissed and the decision of the Tribunal was upheld. The correct test to be applied in the circumstances was not one of "exceptional circumstances" and there should be no greater weight placed on the need to maintain the public confidence and uphold professional standards than there should be on an individual's remediation.
Moulder J explained her decision as follows:
- The Medical Act 1983 ("the Act") gives a Tribunal broad discretion, subject to the overarching objective of the protection of the public. The Act provides a framework for restoration and it is not for the court to rewrite this or impose a higher threshold.
- Decisions to erase someone from the register following fitness to practice proceedings are "significantly different" from decisions to restore someone to the register. Each require a different balancing exercising, taking into account different factors.
- The primary focus of this case was sexual misconduct, not dishonesty, and the Tribunal had correctly considered the dishonesty of Mr Chandra when making their determination. Moulder commented that "sexual misconduct is as fundamental to the medical profession as dishonesty is to the solicitors profession", however, there is no different or higher test to be applied than is set out in the Act.
- Finally, there was nothing in the GMC guidance which called for "exceptional circumstances" in the context of restoration.
Wider significance
The decision reflects a departure from a recent string of successful appeals by the GMC under s40A of the Act in relation to cases where the GMC advanced arguments based on public protection, and provides clarity to the approach to be applied in determining restoration to the register.
It is clear that a balancing act needs to be undertaken between meeting the overarching objective of the protection of the public whilst also recognising the passage of time and any evidence that would support a person's application for restoration, including their insight and fitness to practice. Even if in many cases this will result in a decision not to restore a registrant, the High Court has made clear that this does not give rise to a de facto "exceptional circumstances" requirement.