Professional discipline – Penalty – Mitigation – Delay – ECHR Article 6
Dr S appealed to the High Court pursuant to the Medical Act 1983 against a penalty of erasure imposed on him by the Fitness to Practice Panel of the GMC on 30 March 2006 for a course of dishonest conduct in 1994 – 1996. The Panel had followed the advice of the Legal Assessor in holding that the passage of time since the conduct was irrelevant on the question of penalty.
(1) Whether the delay in bringing the matter before the Fitness to Practice Panel was a relevant consideration on the question of penalty;
(2) If so, whether the Court should substitute its own penalty, remit the issue to the Panel, or uphold the penalty of erasure.
(1) There was no reason in logic, policy or common sense why any delay, particularly unreasonable delay on the part of the prosecutor, was not capable of mitigating penalty. That was one of the ways in which a breach of ECHR Article 6 rights to trial within a reasonable time could be remedied otherwise than by a stay.
(2) However the conduct here was so serious that a suspension would be a manifestly inadequate sanction. The penalty of erasure was upheld.
This case provides welcome clarity for disciplinary bodies (and their advisers) considering whether delay which is not such as to have caused sufficient prejudice so as to merit a stay of the proceedings can nevertheless be taken into account in mitigation of penalty. However it provides a salutory lesson to appellants that errors of law by the domestic tribunal do not necessarily lead to lesser penalties.