Newsletters 30th Nov 2018

Bolton Reaffirmed – Again

GMC v Chandra [2018] EWCA Civ 1898

Lord Bingham’s dictum in Bolton v Law Society [1994] 1 WLR 512 concerning the overriding importance of public confidence in the profession remains the cornerstone for any proper consideration of the issue of sanction or restoration. In the recent case of GMC v Chandra [2018] EWCA Civ 1898 the Court of Appeal rejected any attempted dilution of this principle in strident terms.

Dr Chandra had been erased from the register for sexual misconduct towards a patient. He had then lied during his hearing and his unsuccessful appeal by continuing to deny the incident. At his restoration hearing, however, he accepted what he had done, and was able to satisfy the Tribunal he had insight and had “sufficiently” remediated his practice. On appeal last year, in GMC v Chandra [2017] EWHC 2556 (Admin), Moulder J rejected the GMC’s argument that only in “exceptional circumstances” should a dishonest doctor be restored to the register. Reflecting on the well-known dicta in Bolton v Law Society [1994] 1 WLR 512, she considered there was a clear distinction between Fitness to Practise 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.

The Court of Appeal emphatically rejected this distinction. Indeed, the court took the opportunity to reaffirm the principles set out in Bolton:

In my judgment not only do the Bolton principles apply equally to doctors as solicitors, but the same principles and approach apply equally to both sanctions and restoration… The question in each case is the same namely, having regard to the over-arching objective [to protect the public, maintain public confidence and maintain proper professional standards], is the doctor/applicant fit to practise?

The court accepted that the emphasis or weight attached to various factors in a case may be different at the point of sanction or five years later at a restoration hearing. Equally, when considering the issue of restoration, there may be a proper distinction to be drawn between cases of clinical negligence as opposed to dishonesty or sexual misconduct. But no matter the case the same test applied.
There was, however, no need to adopt the judicial gloss found in solicitors’ regulatory case law – that only in “exceptional circumstances” would a dishonest practitioner be readmitted – even though this may be the practical reality. The test remained: “whether having regard to the over-arching objective, the applicant is not fit to practice”.

In considering this question, a tribunal:

must consider the matters in the guidelines including the circumstances which led to the erasure. They must make findings as to what extent the applicant has shown remorse and insight and remediated him/herself and satisfy themselves that he or she is no longer a risk. The passage of time (here now twelve years) will be important. The MPT must then stand back and have proper regard to the over-arching objective.

It is not merely a question of remediation, nor should the five year erasure be considered a “tariff” which has adequately marked the public interest. In this instance the tribunal failed to consider whether public confidence would be damaged by the restoration of such a doctor who had “fundamentally fallen short of the necessary standards of probity and good conduct”.

The matter was remitted to a new Tribunal.

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