Thilakawardhana - Fitness to Practise
The Court of Appeal's January 2018 decision in Thilakawardhana provides useful insight into the issues arising from the termination of a student's medical studies on fitness to practise grounds.
The appellant had completed three years of his medical course and commenced a gap BSc programme when disciplinary proceedings were instigated in connection with a meme he posted on Facebook which was deemed to be offensive and threatening towards another student. Having been sanctioned with a reprimand, the student was then subjected to fitness to practise proceedings, which concluded he was not so fit, a decision upheld by an appeal panel of the university and resulting in the end of his medical career. The appellant referred his complaint to the OIA, which concluded it to be not justified. The appellant then applied for, and was granted, Judicial Review of the OIA's decision, and appealed the unsuccessful claim to the Court of Appeal.
In reaching the conclusion that the appeal should be dismissed, Lord Justice Gross made a number of significant points:
- While the same misconduct may lead to the disciplinary and fitness to practise processes, their purposes are distinct - The disciplinary process defines, deters and punishes behaviour which amounts to improper interference with the proper functioning or activities of the institution or those who work or study in the institution or action which otherwise damages the institution. By contrast, fitness to practise regulations determine whether a student is fit to practise in a particular profession, where evidence emerges that calls that into question.
- The proportionality of sanctions - It is expected that a panel will consider whether any sanctions or remedial actions could be put in place to address shortcomings identified before completion of the student's course. However, this does not mean that a panel cannot conclude that there is a fundamental unsuitability for the profession that cannot be corrected. The test when considering whether the decision of a panel was proportionate (and therefore rational and reasonable) is "whether the decision is one to which no reasonable decision-maker possessed of expertise reasonably to be expected of the defendant could have come". This is deemed to be a high hurdle in this context as it involves professional judgment as to fitness to practise medicine.
- The adequacy of appeal panel reasoning - The court accepted the argument that the appeal panel was entitled to each its decision under the advisory GMC/MSC guidance and that it took the range of potential sanctions and mitigating factors into account before deciding to expel. Whilst the panel did not give reasons for the possible outcomes it rejected (ie sanctions lesser than expulsion) it did give sufficiently clear reasons why it believed expulsion was appropriate. Even where grave consequences for the student are at stake, a lay panel is not required to provide an "elaborate formalistic product of refined legal draftsmanship". The reasons should be intelligible and adequate, such that the parties can understand why the matter was decided as it was, what conclusions were reached on the principal issues and why they have won or lost.
- In dealing with issues of professional discipline or fitness to practise, the reputation of the profession is more important than the fortunes of the individual practitioner or student - As a result, the court should be slow to interfere with the decision of an appeal panel which is attuned to the context in which the student's conduct is to be evaluated, as well as the pastoral issues that arise, and includes amongst its members senior practitioners in the particular profession concerned.
Students on courses leading to registration in professions such a medicine, optometry and pharmacy should expect to be held to a high standard before, as well as after, they qualify. Equally, they can expect fitness to practise proceedings to be rigorous and fair and decisions that may end their choice of career to be proportionate and adequately reasoned, if not legally elaborate or refined.