The Proper Approach to Restoration Hearings
The High Court has handed down its judgment in the latest GMC appeal. GMC v Chandra [2017] EWHC 2556 (Admin) concerned the case of a doctor seeking restoration to the register after his erasure for sexual misconduct towards a patient. He had lied during his hearing and his unsuccessful appeal in continuing to deny the incident. The GMC sought to establish that only in “exceptional circumstances” should a doctor struck off for serious misconduct – whether dishonesty or sexual misconduct – be allowed back onto the register. It drew heavily upon the well-known principle in Bolton v Law Society [1994] 1 WLR 512: the need to protect the reputation of the profession may be such that it is necessary to expel – and deny re-admission – to those guilty of serious lapses. In Thobani v SRA [2011] EWHC 3783 (Admin) the High Court had reiterated that only in exceptional circumstances would a solicitor struck off for dishonesty be readmitted to the roll. It sought to apply this principle to medical regulatory hearings.
Moulder J rejected this argument. She highlighted the comment in Giele v GMC [2005] EWHC 2143 (Admin) that it is likely to be “unhelpful” to consider cases in terms of “exceptional circumstances”. She considered it inappropriate to import such a test for restoration hearings, and wrong to suggest that greater weight should be placed on the public interest as opposed to the remediation undertaken by the individual. She commented that the Tribunal had a “broad discretion” subject to its overriding objective. This provided a framework for considering the issue of restoration and it was unnecessary for the court to rewrite it by imputing a higher threshold. In addition, there is a clear distinction between FTP hearings and applications for restoration. If matters of personal mitigation are subordinate to the public interest at the former, it does not follow the same is true of the latter. After a five year period of erasure, a different balancing exercise may be appropriate. The GMC moreover had included no reference to this exceptionality threshold in its guidance to doctors seeking restoration or its “Aide-memoire for the chair of a Medical Practitioners’ Tribunal”.
On the facts the Tribunal had applied the correct test and had properly weighed the evidence of remediation and insight as against the public interest. There was no basis upon which to say the decision was wrong.
Christopher Geering
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