Sanctions of a foreign regulator
The Administrative Court has held that the General Medical Council's Fitness to Practise Panel did not need to give reasons for imposing a sanction against Dr A which was more onerous than that imposed against him in France.
A was convicted by a French magistrate's court of two offences relating to the deaths of his patients and was sentenced to 12 months' imprisonment (suspended), a EUR4,000 fine, and he was ordered to pay damages to the victims' families. The French Court of Appeal dismissed A's appeal against his conviction, but the fine was reduced to EUR2,000 and he was banned from practising as a surgeon for three years (although not as a general physician). A further appeal in the French Supreme Court was unsuccessful, but the manslaughter conviction was upheld on a different basis.
The French counterpart to the General Medical Council, the Ordre National des Medicins (ODM), did not impose any additional sanctions against A and, seven months after A's appeal in the French Supreme Court was dismissed, the ODM informed the GMC of A's convictions. On 27 January 2011, A was found guilty of misconduct by a Fitness to Practise Panel of the GMC (the Panel) and was struck off. In his appeal in the Administrative Court, A argued that the Panel had failed to give reasons so as to enable him to understand clearly why it had been decided to impose a sanction that was more onerous than that imposed by the French courts and the ODM.
The court rejected this argument on the basis that, in order to explain in detail why it had imposed sanctions which were different to those imposed by a foreign authority, the Panel would need first to fully understand the reasons behind that authority's decision. To understand the decision of a foreign authority would involve investigating the decision-making processes of that body, which was outside the competence of the Panel. The court also had regard to the fact that the sanctions of the French court were at least partly punitive in nature, but that retribution was outside the scope of the Panel, whose primary role was to protect the public and the reputation of the medical profession generally.
The court said that the key question was whether the reasons given were sufficient to enable someone reading the decision to understand why the Panel arrived at the decision it did. It found that the reasons given by the Panel were very full and clear, and although they did not expressly explain why its penalty was different to the French one, 'anyone reading this decision is able to surmise that explanation in any event'.
The court also expressly rejected the suggestion that there was a 'hierarchy' between regulators in different EU member states which would bind regulators in 'host' member states to follow decisions made in 'home' member states.
R (on the application of Stephane Alhy) v General Medical Council EWHC 2277 (Admin)
6th Edition » | Chapter 14