Glasgow doctor recently diagnosed with autism loses appeal against erasure from medical register

About this case:

• Citation:
  [2023] CSIH 13
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

Dr Mina Chowdhury argued that newly discovered facts, namely his diagnosis with Autism Spectrum Disorder, would have had a material bearing on the assessment of facts by the respondent’s Medical Practitioners Tribunal Service.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Turnbull and Lady Wise. P Reid, advocate, appeared for the appellant and Lindsay KC for the respondent.

Unwarranted concern 

The appellant first qualified in 1998 and held a number of paediatric posts within the NHS before setting up his own private paediatric clinic in Glasgow in 2014. It was alleged by the GMC that, between March and August 2017, he had made diagnoses and recommended tests and investigations in respect of three children, Patients A, B, and C, that were not clinically justified and as a result caused anxiety and distress to their parents.

In his evidence before the Tribunal, the appellant sought to characterise the parents as overly anxious and suggested they had misunderstood what he had said to them during consultations. However, the Tribunal preferred the evidence of the parents, and considered it to be very unlikely that all of them had been mistaken in their accounts of what happened during consultations, especially as all three children had very different medical issues.

By the time of the sanction decision, the appellant’s diagnosis of ASD had been made. The psychiatrist who diagnosed him, Dr Shah, gave evidence at the sanctions hearing and expressed the opinion that it was very likely the Tribunal’s perception of the appellant would have been significantly different if the diagnosis was known at the time. The Tribunal nonetheless concluded that only the sanction of erasure would suffice, and the rules of procedure would not allow it to re-open its determination on the facts.

It was submitted for the appellant that the Tribunal, in expressing at the sanctions hearing that it was in a “difficult” position, had accepted that the evidence of his diagnosis had a reasonable prospect of making a material difference to its findings at the earlier stage. For the respondent it was submitted that the diagnosis was not res noviter and was unlikely to alter the factual findings given the cross-admissibility of the parents’ evidence.

Markedly apparent 

Delivering the opinion of the court, Lady Dorrian began: “There is a clear flaw at the centre of the appellant’s approach in this case. That is that the primary focus has been on the mere diagnosis itself, rather than on the manner in which certain features of the condition effect 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 are, found in the appellant does not advance the issue.”

She continued: “It is always important to bear in mind that the new evidence must be examined in the context of the whole proceedings, and the evidence led during the original process. To succeed with an appeal on the basis that this constitutes fresh evidence it is vital to link it 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. A proper and detailed analysis from the viewpoint of the appellant should be the start of this, which may or may not lead to a detailed analysis of parts of the transcripts.”

Addressing whether there was a reasonable explanation for the absence of this evidence at an earlier stage, Lady Dorrian said: “The reports from Dr Shah are redolent of characteristics which have been obviously and markedly apparent for a very long period of time to a wide variety of individuals- colleagues; family; school teachers. One might have expected to see at the very least an affidavit from the appellant and/or his wife stating that no-one had previously raised the possibility that he might have ASD.”

On whether it would have had a material bearing, she added: “A number of sharp conflicts arose between the evidence given by the respective parents and that of the appellant. In each case the Tribunal was able to resolve this conflict for reasons which did not bear on the appellant’s demeanour or method of communication, or other general factors which might be related to the appellant’s ASD, and which was often based on extraneous evidence.”

Lady Dorrian concluded: “In appeals of this sort it is important to observe that there is a danger of ascribing to new evidence more significance than it would have had at the actual hearing. It is important to assess the new evidence in the context of the whole testimony adduced at that hearing. In this context it is 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 therefore refused.