Appeals from FTP Panel
In the case of Nagiub v General Medical Council [2011] EWHC 366 (Admin) Foskett J set out the parameters for hearing appeals from a decision of a Fitness to Practise panel as follows:
"An appeal under these rules does not require
permission to appeal. The appeal is technically
by way of rehearing, but in reality involves a
review of the evidence and material before the
Panel in accordance with the parameters set out
in Gupta v GMC [2001] and Ghosh v
GMC
[2001] 1 WLR 195, conveniently summarised by
Stanley Burnton J, as he then was, in
Threlfall v General Optical Council
[2004] EWHC 2683 (Admin) at paragraph 21
where he said this:
"Because it does not itself
hear the witnesses give evidence, the court must
take into account that the Disciplinary Committee
was in a far better position to assess the
reliability of the evidence of live witnesses
where it was in issue. In that respect, this
court is in a similar position to the Court of
Appeal hearing an appeal from a decision made by
a High Court Judge following a trial. There is,
however, an important difference between an
appeal from a High Court Judge and an appeal from
a Disciplinary Committee. The Disciplinary
Committee possesses professional expertise that a
High Court judge lacks ….
This court appreciates that such a Disciplinary
Committee is better qualified to assess evidence
relating to professional practise, and the
gravity of any shortcomings, and it therefore
accords the decision of the Committee an
appropriate measure of respect, but no more: see
Ghosh v General Medical Council
[2001] UKPC 29 and Preiss v General Dental
Council
[2001] UKPC 36. These decisions make it clear
that the court should be more ready to overrule a
disciplinary tribunal than previously appeared to
be the case. It however remains the position that
an Appellant must establish an error, of law or
fact or of judgment, on the part of the
tribunal."
Although I have referred to that convenient
summary, I should, I think, quote what was said
in Gupta v General Medical Council
[2002] 1 WLR 1691, where the following
appears:
"[T]he obvious fact [is] that the
appeals are conducted on the basis of the
transcript of the hearing and that, unless
exceptionally, witnesses are not recalled. In
this respect, these appeals are similar to many
other appeals in both civil and criminal cases
from a judge, jury or other body who has seen and
heard the witnesses. In all such cases the appeal
court readily acknowledges that the first
instance body enjoys an advantage which the
appeal court does not have, precisely because
that body is in a better position to judge the
credibility and reliability or the evidence given
by the witnesses. In some appeals that advantage
may not be significant since the witnesses'
credibility and reliability are not in issue. But
in many cases the advantage is very significant
and the appeal court recognises that it should
accordingly be slow to interfere with the
decisions on matters of fact taken by the first
instance body.
This reluctance to interfere is not due to any
lack of jurisdiction to do so. Rather, in
exercising its full jurisdiction, the appeal
court acknowledges that, if the first instance
body has observed the witnesses and weighed their
evidence, its decision on such matters is more
likely to be correct than any decision of a court
which cannot deploy those factors when assessing
the position. In considering appeals on matters
of fact from the various professional conduct
committees, the Board must inevitably follow the
same general approach. Which means that, where
acute issues arise as to the credibility or
reliability of the evidence given before such a
committee, the Board, duly exercising its
appellate function, will tend to be unable
properly to differ from the decisions as to fact
reached by the committee except in the kinds of
situation described by Lord Thankerton in the
well known passage in Watt or Thomas v
Thomas [1947] A.C. 484 , 484–488."
The
passage from Lord Thankerton's opinion is as
follows:
"I do not find it necessary to review
the many decisions of this House, for it seems to
me that the principle embodied therein is a
simple one, and may be stated thus:
I. Where a question of fact has been tried by a
judge without a jury, and there is no question of
misdirection of himself by the judge, an
appellate court which is disposed to come to a
different conclusion on the printed evidence,
should not do so unless it is satisfied that any
advantage enjoyed by the trial judge by reason of
having seen and heard the witnesses, could not be
sufficient to explain or justify the trial
judge's conclusion;
II. The appellate court may take the view that,
without having seen or heard the witnesses, it is
not in a position to come to any satisfactory
conclusion on the printed evidence;
III The appellate court, either because the
reasons given by the trial judge are not
satisfactory, or because it unmistakably so
appears from the evidence, may be satisfied that
he has not taken proper advantage of his having
seen and heard the witnesses, and the matter will
then become at large for the appellate court. It
is obvious that the value and importance of
having seen and heard the witnesses will vary
according to the class of case, and, it may be,
the individual case in question."
In relation to the sanction imposed, and the
approach to reviewing it in this court, my
attention has been drawn to the case of
Fatnani Raschid v General Medical Council
[2007] EWCA Civ 46 where Laws LJ (with whom
Chadwick LJ and Sir Peter Gibson agreed) said
this:
"As it seems to me the fact that a
principal purpose of the Panel's jurisdiction in
relation to sanctions is the preservation and
maintenance of public confidence in the
profession rather than the administration of
retributive justice, particular force is given to
the need to accord special respect to the
judgment of the professional decision-making body
in the shape of the Panel."
Categories: 6th edition, Chapter 18, updates