Doctor’s Diagnosis of ASD Between Impairment and Sanction

14 March 2023

A doctor who was diagnosed with Autism Spectrum Disorder between an impairment hearing of the Medical Practitioners Tribunal Service and the sanctions hearing which ordered his name to be erased from the register, appealed to the Inner House of the Court of Session: Dr Mina Mohiul Maqsud-Chowdhury v The General Medical Council [2023] ScotCS CSIH_13 Lord Justice Clerk, Lord Turnbull, Lady Wise

It was asserted on the doctor’s behalf that his diagnosis was newly discovered information which was likely to have had a material bearing on the Tribunal’s assessment of fact and decision on impairment.

The allegations by the General Medical Council were that the doctor failed to provide proper clinical care to three children in that he made diagnoses which were not clinically justified and as a result caused anxiety and distress to the parents of the patients.

It was also alleged that he recommended certain tests or investigations for which there was insufficient clinical justification.

By the time of the sanction decision the doctor’s diagnosis of ASD had been made following concerns expressed by counsel instructed to appear for him at the sanctions hearing (who had not previously been instructed in the case), who had family experience of the condition, and by an occupational therapist. This led to investigation and ultimate diagnosis of the condition.

It was not disputed that the diagnosis was a genuine one. Dr Premal Shah, the psychiatrist who made the diagnosis, produced several reports and gave evidence at the sanctions hearing where he stated that the doctor suffered from ASD to a “moderate” extent (having previously considered the extent to be “extreme”).

The psychiatrist’s summary was “It is very likely that [the doctor’s] communication difficulties and his less than average ability to appreciate other people’s perspectives produced a disproportionate negative effect with those involved with him, including the parents of patients, the Tribunal and both legal teams. It would likely have a disproportionately large negative influence both in the perception of parents, but also of the Tribunal and legal team members.”

At the sanctions hearing it was acknowledged that the rules of procedure did not allow the Tribunal to reopen its determination on the facts, so the condition was relied on in relation to the appropriate sanction and, in particular, the issue of remediation. Having made a finding of impairment, the Tribunal concluded that only the sanction of erasure would suffice.

Giving the judgment of the Court, Lady Dorrian, Lord Justice Clerk, said there was a clear flaw at the centre of the appellant’s approach in the case. It was that the primary focus had been on the mere diagnosis itself rather than on the manner in which certain features of the condition affected the appellant in specific ways related to the subject matter, conduct and outcome of the proceedings.

The diagnosis itself, and a recital of common characteristics which may be, or even were, found in the appellant did not advance the issue. It was always important to bear in mind that new evidence must be examined in the context of the whole proceedings, and the evidence led during the original process.

To succeed on appeal it was vital to link the fresh evidence closely to the conduct and outcome of the proceedings in a way which might persuade the court that it could have a material effect on the decision.

The only evidence on which the appellant sought to rely was that of Dr Shah. There was no suggestion that the appellant’s evidence at any reconstituted Tribunal would differ from the evidence given at the original hearing. The Court had not been furnished with any statement or affidavit from the appellant.

Dr Shah’s report came with a rider: “It must be stressed that the nature of impairment in ASD varies between individuals and depends on individual circumstance. Those with significant ASD can be extremely productive individuals who contribute significantly in their chosen line of work.”

The material must be capable of enabling the court to conclude that it was likely to have had a material bearing on or part to play in the determination of critical issues in the proceedings. That was not what had occurred in this case.

There was a need for an appellant to explain why the proposed new evidence had not been heard in the original proceedings: see B v HM Advocate 2014 SCCR 376.

The Court was not in any event persuaded that the new evidence would have made a material difference to the Tribunal’s decision. The Tribunal’s decision centred on the assessment of the evidence of the parents against that of the appellant. The issue was one narrowly focused on the credibility and reliability of the competing accounts.

In appeals of this sort it was important to observe that there was a danger of ascribing to new evidence more significance than it would have had at the actual hearing.

It was important to assess the new evidence in the context of the whole testimony adduced at that hearing. In this context it was of relevance to note that there was no submission on behalf of the appellant as to how the diagnosis of ASD would bear on the conflicts of fact which arose and which the Tribunal resolved in favour of the relevant parents.

The appeal was dismissed.