Case update: The Queen on the Application of Ahmed -v- General Optical Council [2012] EWHC 3699 (Admin)

Judgment Date - 23 November 2012

The appellant, (A) made an application to appeal an order made by the Fitness to Practise Committee (FPC) of the General Optical Council (GOC) on 16 July 2012. The FPC had found A’s fitness to practise was impaired and imposed a twelve-month suspension from practice.

Case law

His Honour Judge Shaun Spencer QC in referring to the decision in Cheatle v General Medical Council [2009] EWHC 645 (Admin), highlighted that the relevant provision for the GMC had no practical difference from that of the GOC, and as such, an appeal is by way of re-hearing.

The Court in Cheatle re-stated the view that appeals of specialist Tribunals with an understanding of the expectations of medical professionals in matters of medical practice deserve utmost respect. Further, the Tribunal has had the benefit which the Court does not ordinarily have of hearing from the witnesses called by both parties, and lastly that the questions are fact and the over-all value judgment made by the Tribunal are “akin to jury questions to which there may reasonably be different answers”.

Frankston J went on to state in Cheatle that the composition of the Tribunal is highly relevant when considering the regard which must be had to the decision made.

Background

On 16 July 2012, A appeared before the FPC of the GOC. The FPC consisted of five members; three lay and two registered optometrists. The allegations against A were in relation to a conviction in April 2011 that A had driven a motor vehicle in excess of the 40 mph speed limit and further that he had wilfully obstructed the Police Constable in relation to the execution of his duties. 
The facts of the case were set out by Counsel appearing for the GOC.  In short:-

1. A was driving at 54 mph;
2. Upon questioning by the Police Constable, A provided the details for a person who was not him;
3. The Police Constable made checks on the Police National Computer which led to questioning of A as to whether he was insured;
4. A subsequently admitted that he had provided false details;
5. At a later interview, A stated that he had not provided false details but there had been a misunderstanding. Specifically, A stated:- “When I realised you had the wrong details, I corrected you.”
6. Given the denial by A, the matter was heard at the Magistrates’ Court on 17 April 2011, at which point the magistrates found that A had wilfully given the Police Constable an incorrect name and date of birth when asked for his details;
7. Subsequent to the conviction, A entered a notice of appeal dated 23 April 2011 essentially stating that it was a simple misunderstanding between him and the Police Constable, and that at no point did he intend to obstruct the Police Constable in the execution of his duties.

The FPC’s decision was that having heard from A, he had lied to the Police Constable when he was stopped. He repeated those lies in an interview and contrary to the advice of his solicitor, repeated those lies again at the criminal trial. He then lodged an appeal against the Court’s decision and notified the Registrar that he had withdrawn his appeal only on the basis of financial constraints. It followed that the first admission provided by A was before the FPC. The FPC was of the view that A’s explanations for his behaviour indicated a lack of insight and judgement on his part and that his behaviour involved dishonesty over a period of months and was not an isolated incident. The FPC considered that the dishonesty displayed by A would “inevitably tend to undermine the confidence of the public in the profession”.

The appeal

A appealed the decision of the FPC on the following basis:-

1. The FPC in its decision referred to the lack of insight and judgement on the part of A, but did not specify the particular facts which justified that finding. His Honour Judge Shaun Spencer QC, whilst accepting that the FPC had not specifically stated which particular facts could lend to their decision that A demonstrated a lack of insight and judgement, did not feel that it was necessary for them to do so on the basis that they were speaking to an informed audience.
2. Questioning by the lay Chairman of the FPC involved the state of A’s driving licence, the number of points upon that licence, and the reasons for said points. A raised concern about the questioning by the lay chairman as the FPC may have been left with the impression that he was a repeat offender in relation to speeding. In commenting on this strand of A’s argument, His Honour Judge Shaun Spencer QC stated that it was not suggested in opening that the speeding formed any part of the case on impairment, and that whilst the Chair did not specifically state that the extra three points A had received were ignored, he did not regard this omission to be fatal to the finding made by the FPC.
3. The decision by the FPC did not specifically address whether A was currently impaired. On this point, His Honour Judge Shaun Spencer QC stated that he did not regard this particular criticism as influencing the “fairness of the course of the proceedings or the relevance of the deliberations”. 

Decision

His Honour Judge Shaun Spencer QC stated that this case called for scrutiny “not least because the offending is of a character which does not in any way put into question the clinical expertise of the Registrant or his standards of client care”.

The Judge confirmed that conduct, whether or not connected to professional practice can be considered, but the question was whether the false assertion given by A to the Police Constable, which subsequently persisted throughout the court proceedings, is something which is capable of amounting to impairment.  The Judge in commenting on the composition of the FPC stated that to call them a specialist Tribunal would be stretching the definition given that there were three lay members and two registered members. In relation to the case itself, the Judge stated that it was not straightforward, but he took the view that the FPC was not wrong to find impairment.

In dealing with the question of sanction, the argument raised by A in his appeal was that whilst suspension was essentially laid before the FPC as a possible appropriate sanction on his behalf at the hearing, the period of suspension imposed was excessive.

The Judge repeated that like with the finding of impairment, he had to stand back and consider whether the FPC’s decision was disproportionate. Having done so, and considering the mitigating factors, the necessary protection of the public and the maintenance of confidence in the general reputation of the professional as a whole, the maximum twelve-month period for suspension was disproportionate to the finding of impairment and that the appropriate period of suspension was four months.

Costs

A’s solicitors had written to the GOC prior to the High Court hearing to set out a Part 36 offer and offering to substitute suspension of 6 months. That offer was rejected.  It was argued on behalf of A that that meant that he was entitled credit in terms of costs. Other regulators, namely the NMC and GMC, he argued, did engage with Part 36 offers. Counsel for the GOC argued that it would have been inappropriate for the executive of the GOC to override a decision made by a FPC , or to ‘plea bargain’. The learned Judge stated ‘I do not take the view that the considerations of negotiation as to the outcome after a Committee has pronounced, is something which has parallels to the discussions which might take place in an ordinary civil case relating to money’. There was no order as to costs.

This case reiterates the widely held view that decisions of Fitness to Practise Panels are given high regard by the courts, and as such will not be interfered with lightly. Each case must involve consideration as to just how ‘specialist’ a Tribunal is before considering what deference should be afforded to the decision of the Panel.  The issue as to costs is interesting, suggesting that there is far from uniformity in the way in which regulators deal with Part 36-type offers.

Shannett Thompson