The General Medical Council’s fitness to practise panel, now the Medical Practitioners Tribunal, determined that a doctor’s fitness to practise was impaired because of his misconduct in relation to a vulnerable patient and his name was erased from the medical register pursuant to section 35D of the Medical Act 1983. Eleven years later, on the doctor’s application under section 41 of the 1983 Act, the tribunal directed that his name be restored to the register, concluding that he had shown genuine remorse for his behaviour and had sufficiently remediated the conduct which led to his erasure and it was satisfied that there was a very low risk that he would repeat his sexual misconduct and dishonesty and the over-arching objective in section 1(1A) and 1(1B) of the 1983 Act, and in particular the public interest, would not be compromised through the restoration of his name to the register. The court dismissed the council’s appeal, holding that there was no basis to find that the tribunal had failed to give proper regard to the over-arching objective in general or to the public interest in particular.
On the council’s further appeal—
Held, (1) the test to be applied when considering applications for restoration to the medical register was the same as that to be applied when considering the restoration of solicitors to the Roll of Solicitors, save that in respect of the former a test of exceptional circumstances did not have to be satisfied before a doctor was so restored. The question in both sanction and restoration cases was the same, namely whether, having regard to the over-arching objective in the 1983 Act, the applicant was fit to practise? When considering an application for restoration to the medical register, the tribunal should consider the matters in the Guidance for Doctors on Restoration following erasure by a Medical Practitioners Tribunal, including the circumstances that led to the erasure. It should make findings as to what extent the applicant had shown remorse and insight and remediated himself and satisfy itself that he was no longer a risk. The passage of time would be important. The tribunal should then stand back and have proper regard to the over-arching objective set out in section 1(1A) and (1B) of the 1983 Act (paras 59, 68, 70, 71, 89).
(2) In the present case, the tribunal had applied the wrong test since its focus was limited to issues of the doctor’s acceptance of his wrongdoing, his insight, the risk of repetition and his competence but it had failed properly to understand the central importance of the over-arching objective to its ultimate decision. Therefore the judge below had erred in dismissing the council’s first appeal. Accordingly, while the court intended to allow the appeal in due course with a view to the matter being remitted to the tribunal for rehearing, there were important consequential matters that required further oral argument and a further hearing and therefore no order would be made in respect of the appeal prior to the resumed hearing. Until such time as an order was made, the doctor remained on the medical register and was entitled to continue in his employment as a doctor (paras 90, 92–96).
Eleanor Grey QC (instructed by General Medical Council Legal) for the council.
Mary O’Rourke QC and Nicola Newbegin (instructed by Medical Defence Shield) for the doctor.