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Mountford Chambers delivers a nationwide and international service to clients, who are assured quality advice, advocacy and representation at all levels.
News & Insights
FEBRUARY 2022
General Medical Council v Abdulkhaled Ahmed
Short suspension without review – GMC Appeal – effect of time spent on interim suspension
[91] … It is clear that the fact that a doctor has been subject to an interim suspension order is a factor that the MPT is permitted to take into account when making its multi-factorial decision as to the appropriate sanction. It is also correct as a matter of language, albeit infelicitous in this context, that the imposition of the sanction of suspension would involve for Dr Ahmed a “further” period of suspension from his practice.
[96] … the MPT was entitled to conclude, in all the circumstances, including Dr Ahmed’s having already served an interim suspension of four months, and bearing in mind that this was not a case involving any threat to patient health or safety, that a suspension of two months in this case was sufficient to maintain public confidence in the medical profession and to maintain proper professional standards and conduct for members of the medical profession.
Gidiplus Limited v Financial Conduct Authority
Cryptoasset exchange provider – application for registration refused – suspension pending appeal upheld
Registration refused following concerns relating to: probity; risk assessment; CDD; and transaction monitoring/compliance with Reg28(11) MLRs.
[62] … given the serious concerns identified in the Decision Notice and the lack of evidence as to how Gidiplus would undertake its business in a broadly compliant fashion pending determination of its appeal, I cannot be satisfied that allowing Gidiplus to continue to carry on its activities pending the determination of this appeal will not prejudice those who are intended to be protected by the Authority’s decision to refuse Gidiplus’s application for registration under the MLRs.
General Medical Council v Noor Ahmed
Dishonesty – Erasure – failure to disclose previous FtP history – appeal dismissed
[1] The Appellant, Dr Noor Ahmed, is, in clinical terms, an excellent doctor. He has a long and distinguished record in his specialty of Obstetrics and Gynaecology, is highly regarded by colleagues, particularly in laparoscopic and minimally invasive gynaecological surgery, has a respected body of research work, and is the author of a number of papers published in recognised journals.
[2] It is, therefore, lamentable that a medic of such high ability should find himself having to appeal against the decision of the Medical Practitioners Tribunal […] that his name be erased from the Medical Register. The Tribunal made adverse findings as to the Appellant’s conduct relating to the failure to disclose full details of previous Fitness to Practise (“FTP”) decisions, an ongoing FTP investigation and other matters to a prospective employer in an application form and during a job interview. The Tribunal found such conduct to be dishonest, that the dishonesty was particularly serious and that his FTP was impaired by reason of his conduct. The Tribunal also considered whether FTP was impaired by reason of the Appellant’s health but concluded that it was not.
[91] … Having considered all the material before this court, I unhesitatingly come to the conclusion that the sanction of erasure was appropriate and necessary in the public interest. The allegations found proved against the Appellant were very serious. Although not related to clinical matters, they went to other fundamental aspects of character and probity which the public is entitled to expect of medical practitioners. The alteration of documents, the lack of insight even after an earlier finding of dishonesty in 2008, and the repeated pattern of conduct all lead to the inevitable conclusion that, as the Tribunal found, erasure was the only proportionate sanction.
[92] … The outcome of erasure is a very sad one for such a capable and distinguished doctor, but it was, in my judgment, entirely correct.
Nursing and Midwifery Council v Somerville
FtP committee members – whether ‘workers’ within Working Time Regulations 1998
[61] … the employment tribunal was entitled to find that the claimant was a worker within the meaning of limb (b) of the definition of a worker in regulation 2(1) of the Regulations. He was a person who entered into, and indeed had worked under, a series of individual contracts under which he had undertaken to (and did) perform services (chairing Fitness to Practise Committees) personally. The Council was not a client or customer of a business or professional undertaking carried on by the claimant.
Sawati v General Medical Council
Dishonesty and misconduct – erasure – sanction quashed
Civil Aviation Authority v Ryanair DAC
Regulation (EC) No 261/2004 – compensation for cancelled flights – whether payable following industrial action
[43] “The Judge was right to reject Ryanair’s contention that the flight cancellations at issue were caused by “extraordinary circumstances” in his impressive judgment. The strikes from which the cancellations arose, relating as they did to employment conditions of employees of Ryanair, did not constitute “extraordinary circumstances” whether or not the aims of the strikers were reasonable or achievable and notwithstanding the involvement of trade unions”
JANUARY 2022
Guise v Solicitors Regulation Authority
Dishonesty and misconduct – strike off – Tribunal’s approach to evidence – Art 6 ECHR – written reasons – appeal dismissed
G appealed a decision of the SRA to strike him from the roll. G argued that the SDT had misinterpreted or failed to consider properly evidence before it. The Court disagreed, suggesting the central issue in the case was the SDT’s assessment of credibility. The Court restated, in respect of tribunals’ written decisions, that: “full reasons are not required for every aspect of a decision [17];” and “authorities are replete with dicta which say that it will be rare that an appellate court will diverge from a finding of fact on witness evidence by the trial judge who had the opportunity to hear and assess that evidence. [66]”
Henning v General Dental Council
Impairment – retirement of practitioner – suspension appropriate where conditions not workable due to retirement – appeal dismissed
[112] The Committee concluded that given that the Appellant had retired from clinical practice, it “could not see how it could formulate a set of conditions that would protect the public and address wider public interest considerations”, such that “conditional registration in the circumstances of this case would not be practical or workable”. [124] Moving to the next possible sanction of conditions, the Committee was required to consider whether any conditions were practical and workable. The applicable Guidance makes clear that this applies, even if – as here – difficulties with practicality or workability are due to circumstances such as retirement. [125] The Committee was entitled to conclude, based on the lack of evidence of the Appellant having the necessary structure and support network, that conditions were not, yet, practical and workable in this case. [126] The Committee was therefore entitled to consider that a suspension with review was the appropriate sanction, bearing in mind the twin purposes of protecting individual patients from risk and the wider public interest.
Rahim v General Medical Council
Dishonesty and misconduct – erasure – procedural irregularity – disclosure – appeal dismissed
No procedural irregularity where cross-examination of expert curtailed. As to disclosure, [60] “the nature of disclosure is that the parties act as gatekeepers, having professional duties to make the relevant disclosure. In this case, the matter of disclosure was considered by the Tribunal and the GMC. It has not been shown that the matter was neglected by either or that there was a wrong test applied or that the matter was not evaluated. It has not been shown that there is an inference that there are or are likely to be documents which have not been disclosed which ought to have been disclosed.” [77] “The Tribunal was well within its powers in approaching the evidence in the way in which it chose to do so.”
R(on the application of Wheeler) v Police Appeals Tribunal
Lack of integrity – dismissal – nexus to profession – application for JR refused
[135] The premise of the Claimant’s argument – that lack of integrity must be linked to the exercise of the profession in question, and safeguarding client money is not part of the role of a police officer – is unsound. The Court of Appeal in Wingate did not say that the conduct in question, in order to lack integrity, had to take place as part of the role of the profession involved.
DECEMBER 2021
White v General Medical Council
Social media usage – conditions of practice – COVID-19 – Art 10 ECHR – appeal allowed
Conditions of practice imposed by interim order included “not [to] use social media to put forward or share any views about the Covid-19 pandemic and its associated aspects” and “ remove any social media posts he has been responsible for or has shared relating to his views of the Covid-19 pandemic and its associated aspects.” The Court found that [23] “the IOT approached the making of the order in this case on what might be described as a conventional assessment of the balance of risk and proportionality, without appreciating and applying the specific provisions arising if they were proposing to restrict the practitioner’s freedom of expression.” [27] “It follows that on this analysis there was an error of law in the IOT’s decision based upon the nature of the conditions which they intended to impose and the impact which they had on article 10. The decision was wrong from a purely procedural perspective.”
PSA v General Dental Council and Amir
Unjustified treatment – misleading claims – three-month suspension – public protection – sanction of erasure substituted
[82] “[The] PCC failed to take a holistic view of the second respondent’s conduct, with the result that it failed to investigate the reasons lying behind the inadequate treatment given by the second respondent to Patient A. Such a conclusion might be said to point towards remittal, rather than substitution of a sanction. However, as is evident from my findings in respect of those grounds, had the PCC not fallen into error in this regard, the only conclusion that it could reasonably have reached was that the treatment of Patient A stemmed directly from the intensely problematic professional stance adopted by the second respondent, as articulated on his website, and in his evidence to the PCC.” [83] “Overall, even without the finding of dishonesty which I have made, I am in no doubt that the only reasonable regulatory response to the facts of this case is that the second respondent should be erased from the register.”
Wray v General Ostepathic Council
Conviction – conditional discharge – unacceptable professional conduct – sanction admonishment – appeal of EHWC (Admin) decision of no UPC – appeal dismissed
[56] “Where (a) an osteopath has been convicted of an offence, and (b) a conditional discharge has been imposed, and (c) the Council brings disciplinary proceedings against the osteopath, it is not open to the Council to rely upon the fact of the conviction as such. In practical terms, that means that the Council may not proceed by a case relating to conviction. However, s. 14(1) does not prevent the Council from proceeding against an osteopath by way of a case relating to conduct, the conduct in question being the conduct which provided the reason for his prosecution and the basis for his conviction. But in a case relating to conduct, it is for the Council to allege and prove the facts that are said to amount to UPC.”
[64] “Where an unequivocal plea of guilty is entered by a person who has the benefit of legal representation, that plea is an admission against interest and is likely to be weighty evidence. On the face of it, a criminal conviction is compelling evidence of guilt in cases where the civil standard of proof is engaged, unless there is some compelling evidence to show that it would be wrong to accept it as such. A person’s evidence about why they pleaded guilty when they did may involve a waiver of privilege and may call for close scrutiny. The Court has a residual discretion and power to refuse to entertain a case that amounts to an abusive collateral attack upon a subsisting conviction: see [31], [32], [35] and [41] of Munir. These principles are not in doubt and are of general application. But what is important for the present case is that they do not involve a black-letter rule that a person may never seek to go behind a conviction even where that conviction was upon their own plea of guilty.”
[118] “The fact that the case was one relating to conduct meant that the Council was obliged to prove the facts it alleged to constitute UPC including, in this case, the facts that had given rise to the prosecution; and, in doing so, it could not rely upon the conviction as such. It was therefore open to the Registrant to “go behind” his conviction in the sense that it was open to him to challenge the underlying facts alleged against him unless to do so amounted to an abuse of process, which is not and cannot reasonably be suggested on the facts of this case.”
[129] To my mind, the Judge’s approach to the issue of UPC as set out at [59]-[61] of her judgment was correct in principle, applied the correct test for UPC, and demonstrates no error of application. She gave due deference to the specialist nature of the PCC and I would hold that she was entitled to reach the conclusion she did on UPC for the reasons she gave. I make plain that I reach this conclusion on the facts of this case, which I hope and believe to be unique: it should not be taken as any form of precedent for other cases, each of which should be treated on their own particular facts.
[130] It follows that, although I disagree with the Judge’s approach to the procedure that was adopted by the PCC, I would uphold the Judge’s conclusion that the Registrant’s conduct did not amount to UPC and would dismiss this appeal.
General Medical Council v Webberley
Interim suspension – application to extend – delay – eight-month extension sought – limited (three-month) extension granted
Bakhare v General Medical Council
Clinical concerns – repeated dishonesty (2011) – lack of insight – erasure – appeal dismissed
[66] “This is therefore a case where seriously dishonest conduct is combined with a lack of insight and an attempt to cover up the dishonesty […] That made suspension an inappropriate sanction. Sullivan J considered in R(Farah) v GMC that nothing short of erasure is likely to be appropriate in such a case, whatever the mitigating factors might be.” [74] “[In] a case such as this personal mitigation should be given limited weight, as the reputation of the profession in such a serious case of dishonesty is more important than the fortunes of an individual member.”
Ahmedsowida v General Medical Council
Dishonesty – erasure – procedural irregularities – culmination of incidents wrongful dilution of dishonesty test – doctor’s refusal to accept factual findings at impairment stage – decision on impairment and sanction set aside
[157] “ The appeal has exposed three errors in the determinations which I have already identified: (i) erroneous treatment of charge 15b relating to the second incident as serious misconduct; (ii) the findings of recklessness in the provision of certain information in the first and second applications and in the second CV, at impairment stage, undermining the findings of dishonesty in respect of the same conduct, at the fact finding stage; and (iii) holding against Dr Sowida his refusal to admit to dishonesty, at the impairment and sanction stage.” [74] The drafting of the charges left much to be desired, but [Dr Sowida]] did, indeed, know the case he had to meet. I agree with the tribunal’s determination that the amendments could be made without injustice.” [109] “The tribunal appeared to regard Beatson LJ’s obiter observations [in Schodlok] as providing them with carte blanche to cumulate charges considered in clusters. That approach is not supported by Schodlok or any other authority cited to me. While the situation is different from that in Oyesanya because, in this case, the concerns were not merely generalised but specified, there was no clear foundation in authority for the cumulation exercise undertaken.” [111] “The cumulation exercise, if permissible at all, is supposed to involve the cumulation of non-serious with other non-serious misconduct findings; not of one non-serious misconduct finding with two findings of misconduct that is serious in its own right. In the latter context, there is no good reason to cumulate; the quality of the conduct is already correctly expressed, without the need for any cumulation.” [123] “I am troubled by the tribunal’s proposition, repeated three times, that Dr Sowida was “reckless … and therefore dishonest” [124] “I am not willing to overlook the difference between dishonesty and recklessness on the basis that it is just a slip or a linguistic infelicity.” [152] “There was no proper examination by the tribunal of the quality of the evidence given by Dr Sowida, as distinct from his resistance to and refusal to admit the charges.”
NOVEMBER 2021
PSA v General Optical Council & Rose
Optometrist – dishonesty and misconduct – nine-month suspension – impairment and sanction decisions quashed
[82] “The gaps in this FTPC’s analysis, logic and reasoning are too many and too significant for the public to be able to understand why, although it had found that Ms Rose had breached the fundamental tenets of her profession in a number of respects, brought her profession into disrepute, acted dishonestly and put her young patient at unwarranted risk of harm – inevitably failing to make an obvious diagnosis of signs of a life-threatening condition demanding urgent medical referral – there was no basis for fearing future risk to the public in her impaired FtP.” [83] “This determination discloses multiple and serious irregularities and errors of principle. These may be attributable to an overly disjunctive approach to the successive determinations of fact, misconduct and impairment; or possibly to a faulty understanding or application of the ‘personal/public’ approach as being distinctive, rather than complementary aspects of the overall public interest. In any event, the determination of impairment, so far is it relates to future public risk, is insufficiently reasoned to deal with what are otherwise gaps of logic and analysis, and internal inconsistencies. It does not make enough sense, on its own terms. So it does not do justice to the case, and to the public it considered entitled to be ‘extremely concerned’ by the grave misconduct established.”
Narayanasamy v Solicitors Regulation Authority
Dishonesty and misconduct – struck from the Roll – application to adduce fresh expert medical evidence on appeal – application dismissed
[6] “It is argued for the Appellant that had the medical evidence been before the SDT, that tribunal would not have found the Appellant dishonest.” [7] “The SRA opposes the Application.” [47] “This is […]a textbook example of new representatives bringing with them different ideas and second-guessing the judgments of those who came before them. As I said in oral argument, it can be fairly said that this is precisely the sort of “second bite of the cherry” situation which, for almost 70 years, Ladd v Marshall has sought to prevent” [59] “In evidence and through his Leading Counsel, the Appellant specifically and repeatedly confirmed that he did not claim to be suffering from a psychiatric condition and was not seeking to adduce medical evidence. The SDT duly recorded that fact. The Appellant was not a litigant in person – he benefited from expert legal advice and representation. The SDT was perfectly entitled to accept the Appellant’s evidence and Leading Counsel’s submissions.” [60] “As to reliance on Brookman v General Medical Council [2017] EWHC 2400, in my judgment that case is of no relevance. In Brookman, it was found that the GMC should have adjourned for medical evidence. However, this was in circumstances in which (amongst other things): (a) the respondent was a litigant in person; (b) the respondent gave evidence under oath that his judgment and conduct had been affected by psychiatric medication and also claimed to have autistic spectrum tendencies […] The facts are remote from those before me.” [62] “Finally, I reject the submission that the Application should succeed since it is important that a qualified solicitor capable of doing public service should not be struck off. Considerations of “public policy” cannot justify a departure from Ladd v Marshall.”
OCTOBER 2021
R (Mokhammad) v General Medical Council
Versions of events – standard of proof – insufficient reasoning
The claimant was a registered doctor who received a warning for making offensive remarks and using an offensive gesture in a hospital car park. The Tribunal’s findings of fact were on the basis of a version of events that was not put forward by either party. The MPT should have given the parties a reasonable opportunity to address that version of events. Whilst the MPT, in making its findings of fact, was not constrained by the way in which the parties put their cases, the MPT’s obligation to give adequate reasons must nevertheless be viewed in this context. Indeed, the MPT’s reasoning was held not to be legally adequate where there was a finding against the claimant despite multiple issues that the Tribunal had identified with the evidence against him.
The case also features a useful discussion of the status of the standard of proof where there are serious allegations:
“[26] the civil standard of proof does not vary with the gravity of the alleged misconduct. There is, therefore, no legal requirement that the more serious the allegation, the more cogent the evidence needed to prove it, although it is right to consider probability of an allegation in light of the particular circumstances of the case.”
Ukiwa v Bar Standards Board
Relevant facts already determined in legal proceedings – conclusive presumptions
Where an issue to be determined by BTAS have already been determined in civil proceedings, those findings can be adopted by the Tribunal without re-proof. In the case of previous civil proceedings, that is subject to the proviso that if the relevant factual findings are proved to the satisfaction of the Tribunal to be inaccurate – untrue or wrong, so that it would be unfair for the findings to be relied on – the default is disapplied. The fact that BTAS did indeed determine the issue de novo, affording the Appellant greater scrutiny, did not amount to a procedural irregularity.
AUGUST 2021
Frensham v Financial Conduct Authority
Withdrawal of approvals – sexual misconduct – fit and proper person
“[7] Mr Frensham contends that the Authority has wrongly applied the fitness and properness test to the facts. In particular, Mr Frensham contends that the Authority allowed irrelevant considerations to affect its judgment and did not have sufficient or any regard to relevant factors. Among those factors are (i) Mr Frensham’s conviction did not relate to his regulated activity (ii) the conviction was not for an offence of dishonesty and (iii) there are no indirect connections between the criminal offence and Mr Frensham’s regulated activity, the criminal offence not being committed at Mr Frensham’s place of work, and his work is not likely to bring him into contact with a minor or put him at risk of breaching the conditions of his SHPO.”
“[174] Our overall conclusion is that whilst we are not satisfied that a decision to make a prohibition order against Mr Frensham based solely on the fact of his conviction could have been reasonably arrived at by the Authority, we are satisfied that when the offence is considered in the light of (i) the circumstances in which it came to be committed and (ii) Mr Frensham’s failure to be open and cooperative with the Authority in a number of different respects following his initial arrest, the decision is one that was reasonably open to the Authority.”
“[185] Mr Frensham’s offence will undoubtedly have resulted in revulsion on the part of right-thinking members of the public […] The Authority is clearly entitled to take into account the nature of the offence in considering the effect it has had on both Mr Frensham’s reputation and the reputation of the industry as a whole. Mr Frensham’s personal reputation has clearly been severely damaged as a result of the offence. But the question is whether the offence affects the reputation of Mr Frensham as a financial adviser and therefore potentially has an impact on the Authority’s integrity objective. Furthermore, as was said at [54] of Beckwith, popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit.”
“[190] […] had we been asked to decide this case on the basis of the conviction alone, then in the light of our findings of fact, it is likely that we would have asked the Authority to reconsider its decision […] However, as we have indicated, there are other factors which point in the other direction.”
“[214] […] it is our experience that it is often the case that it is not the fact that a criminal offence has been committed that is fatal to an applicant’s case but the manner in which he deals with the consequences that follow. In this case, we have found that the way Mr Frensham dealt with those consequences demonstrated a lack of integrity which entitles the Authority to exercise the prohibition power in order to further its statutory objectives.”
“[215] Although we have found some flaws in the Authority’s approach to the relevance of the conviction, in our view those flaws do not justify us asking the Authority to reconsider its decision.”
Byrne v General Medical Council
Erasure – sexual misconduct – test for interfering with findings of fact – delay between hearing and decision
A doctor was erased from medical register due to engaging in an inappropriate sexual relationship with a vulnerable patient.
“[113] This is not a case where there were competing accounts of what had occurred. In respect of most of the allegations, the Appellant’s evidence was a simple denial that the event or events had taken place. In such a case, the credibility of the denial can only be assessed by reference to the credibility of the evidence supporting the allegation which is denied.”
“[115] Rather, the tension is said to be between the oral evidence and the absence of documentary evidence (in particular the absence of any record in the journal or emails of the conduct).”
Considering nature of conduct it was not surprising that there was no reference to it in emails or medical notes. The Tribunal properly considered any inconsistencies in detail and there was no reason to interfere with that.
A delay of 8 months between retirement and when findings of fact were handed down was not a breach of natural justice or an abuse of process. All but one of the decisions were made at the time and there was no reason to think that the Tribunal’s impression of the witnesses would have sufficiently changed.
Metcalfe v Solicitors Regulation Authority
Striking off – dishonesty – exceptional circumstances
Allegations that a solicitor took part in fraudulent financial schemes were found proved before the SDT. SDT held that the conduct was a complete departure from the standards of a solicitor and the protection of the public required he be struck off. The Administrative Court summarised the case law that has held that when dishonesty is found, it requires exceptional circumstances to justify a sanction other than striking off.
R (Mond) v Insolvency Practitioners’ Association
Claimant’s costs liability after a successful appeal
The Appeal Committee of the Insolvency Practitioners’ Association fell into error when, having allowed the appeal and remitted the whole of a case on appeal, it allowed the original costs order for the first instance hearing to stand.
Arowojolu v General Medical Council
Erasure – burden/standard of proof – ancillary allegations
The Appellant was erased from the register due to allegations of sexual assault. The application was to quash the Tribunal’s factual determination as to the credibility of the complainant.
Offers a helpful analysis of the correct approach to ancillary evidence of historic allegations which the Appellant contended were fabrications in addition to the fabricated substantive allegations:
Firstly, the Tribunal should decide whether, on the balance of probabilities, the historic allegations were false.
Secondly, if it concluded they were false, it should have considered whether that proved a propensity to make false allegations. If so, the Tribunal should be directed to take this into account when judging credibility.
Further, not every issue requires a specific direction on the appropriate burden/standard.
Knowles J could not interfere with the Tribunal’s findings of fact.
JULY 2021
Forsyth v Financial Conduct Authority & Prudential Regulation Authority
Lack of integrity – Statement of Principle 1 – financial penalty (limitation) – disclosure
UT allowed references relating to two decision notices, considering that the UT’s factual findings did not support a finding of lack of integrity.
The Tribunal did not need to go on to consider the limitation point, “[435] However, [was] troubled by what the Regulators have now admitted were failures in their duty to comply with the disclosure obligations imposed under the Tribunal’s procedure rules. As a result, the Regulators made disclosure of documentation relevant to the limitation issue just before and during the course of the Tribunal hearing which should have been disclosed not only much earlier in the proceedings in this Tribunal but also in the earlier regulatory proceedings.”
Eve v Bar Standards Board
Inadequacy of reasons – role of review body
The High Court held that the BSB exercises a quasi-judicial function and must give reasons so review body and court can properly scrutinise soundness of decision. It emphasised that this is also a component of good decision-making. The failure to provide adequate reasons in both the Original Decision and in the Review Decision was a serious irregularity. The matter was remitted for fresh determination as the BSB is an expert body, making it right for it to make decisions of this sort.
“[88] In the case of a person particularly aggrieved by a lack of reasoning, it is unwise to make no attempt either to explain the original reasons, as the review body understands them, or to provide further or other reasons, even if the original decision is being upheld. In fact, an application which is refused will often call for fuller and more cogent reasoning than an application which is granted, because a disappointed party has a particular interest in understanding why they have not succeeded.”
General Medical Council & Anor v Bramhall
Criminal conviction – suspension – insufficient reasons
GMC imposed a 5-month suspension for a surgeon who used a surgical instrument to mark his initials on two patients’ livers. There were multiple factors in the case which could have justified erasure on their own. It was not clear from the decision why a suspension rather than erasure was sufficient to maintain public confidence. This was an unjustified departure from the Sanctions Guidance and a serious irregularity. The case was remitted for a fresh determination by a differently constituted tribunal.
“[43] In a conviction case, particularly where the conviction is for repeated offences of violence against patients in a clinical context, it is also important for a tribunal not to lose sight of what the criminal law, criminal procedure and the principles of sentencing law and practice have already had to say about the public interest considerations which should properly be brought to bear in considering gravity.”
JUNE 2021
General Medical Council v Armstrong
Dishonesty
[50] “As already observed, the Tribunal also failed to consider the significance of the fact that the respondent’s dishonesty extended over a period of some two and a half years and of the sheer number of times that she resorted to it.” … “the Tribunal failed to engage with the weight of the public interest factors tending to a finding of impairment.”
[57] “In the present case, for the reasons I have given, the respondent’s dishonesty cannot be described as an isolated incident. She lied repeatedly, to different interlocutors over an extended period. She did so for financial gain. She did not do so in a stressful clinical situation. Accordingly, not only do these three cases not serve to support the Tribunal’s conclusions in the present case; properly analysed, they serve only to underscore the deficiencies in the Tribunal’s decision.”
General Medical Council v Udoye
Adverse inference – not giving evidence – R (Kuzmin) v General Medical Council [2019] 1 WLR 6660
Newley v General Medical Council
Impairment – sanction – findings of fact
[58] “The review tribunal made no error in rejecting the appellant’s invitation to reopen findings of fact made by the 2019 tribunal. I have carefully considered the transcript of the proceedings before the review tribunal. It is evident that the review tribunal properly applied the guidance given in Yusuff. The review tribunal took into account the evidence on which the appellant relied, but it was entitled to regard the letter from Ms Vaidya, the flowchart and the NICE email as immaterial to the issues that it was considering.”
[60] “The appellant appealed against both the determinations of impairment and sanction, but his appeal against sanction was based on his submission that the review tribunal should have found his fitness to practise was not impaired by misconduct. I have rejected that contention. The appellant did not mount any separate ground of challenge against the sanction imposed and, in my judgment, the review tribunal made no error in directing that the appellant’s registration should be subject to conditions.”
PSA v General Pharmaceutical Council & Anor
Antisemitic and offensive words – misconduct – impairment – intention – appeal allowed
[32] “I therefore agree that the FPC erred in each of the respects suggested in the grounds of appeal. It wrongly took account of Mr Ali’s intention when assessing whether his language was objectively antisemitic. It wrongly took account of his character when assessing whether his language was objectively antisemitic. And it erroneously failed to assess whether the remarks, considered cumulatively, were objectively antisemitic, as opposed to whether each remark in isolation was antisemitic.”
[34] “The wrong approach taken to the question of whether the allegation against Mr Ali was established (and to what extent it was established) amounts, in my judgment, to a “serious procedural or other irregularity in the proceedings in the lower court” within the meaning of CPR 52.21(3)(b) (see paragraph 16 above).”
Ramaswamy v General Medical Council
Health assessment – fitness to practise – adjournment – procedural unfairness – non-compliance – health assessment
Successfully appealed on ground that refusal to adjourn a non-compliance hearing was procedurally unfair:
[125] “In my judgment, the failure to take account of dates of availability coupled with the plain error of fact as to that availability, amount to a serious error. When taken together with the further criticisms set out in paragraphs 117 and 120 above, I conclude that Appellant had put forward “good reason” for the adjournment (see Adeogba at §19) and that the Third Adjournment Decision amounted to a serious procedural irregularity. The unfairness arising from that irregularity was compounded by the subsequent refusal to admit the documents and information specifically in relation to the issue of non-compliance.”
[127] “For the reasons which I set out in my consideration of Ground 2 below, I have concluded that the GMC has not shown that, absent the serious procedural irregularity, the Non-Compliance Determination (and thus the Sanction Determination) “would inevitably have been the same”: see paragraph 154 below. In those circumstances, I conclude that the Non-Compliance Determination and the Sanction Determination were both unjust because of a serious procedural irregularity. I therefore conclude that Ground 1 is established.”
Regarding the Tribunal’s assessment of non-compliance:
[145] “In my judgment, on the basis of the material that was before it, the Tribunal’s assessment in the Non-Compliance Determination was seriously flawed.”
The court’s reasons included ([146] to [147]) the fact that the Appellant’s failure herself to advance a “good reason” could not support the Tribunal’s conclusion in light of the procedural irregularities in respect of the refusal to grant an adjournment. The GMC had argued that they were unable to proceed with a health assessment but the court concluded that the evidence before the Tribunal had not been representative of the full picture.
MAY 2021
PSA v General Medical Council & Anor
Costs
The reasoning in Sarkar and Dighton was described as [17] “compelling and correct”. [17] “They establish two propositions which are of general application:
“(a) The position of the GMC, as the statutory body responsible for the Tribunal, is no different from that of an inferior court or tribunal in judicial review proceedings. The general rule is that no order for costs will be made against it unless it has actively opposed the appeal: Sarkar, [64];
“(b) Although it is open to the court to depart from this general rule, the fact that the GMC could have appealed and did not do so will not, in and of itself, be a reason for doing so. This is because different the GMC and PSA may perfectly reasonably take different views as to the appropriateness of a sanction and as to whether an appeal is justified in the public interest: Sarkar, [59]-[60] and Dighton, [29].”
[18] “In this case, I conclude that:
“(a) The GMC did not actively oppose the appeal. Therefore, there should be no order for costs against them absent some special reason for departing from the general rule.
“(b) There is no special reason here. The GMC were not asked to consent to the disposal of the appeal, no doubt because, as Mr Knight submitted, their consent would have been irrelevant while Dr Hanson was not engaging.
“(c) The fact that I found the Tribunal’s decision to be “wrong” does not mean that the GMC’s decision not to appeal it was unreasonable. The GMC is entitled to decide for itself which decisions of the Tribunal to appeal, taking into account its own view of the appropriateness of the penalty, the likely practical effect of an appeal and its own resources and priorities. There is nothing to suggest that the decision not to appeal was unreasonable.”
[19] “I accordingly decline to make any costs order against the GMC.”
Haris v General Medical Council (Rev 1)
State of mind – inference – sexual motive
[57] “In summary, Dr Haris’s apparent lack of interest in a sexual relationship, and the consistency of his claimed asexuality with his recent diagnosis of Asperger’s syndrome, do not begin to explain why he groped a patient’s buttocks and breasts and performed physical examinations of her vagina and (on a different occasion) that of another patient, in each case without any clinical justification, without warning or obtaining prior consent, without giving or recording any reason for it at the time, and without using gloves. In the absence of a plausible innocent explanation for what he did, the facts spoke for themselves. A sexual motive was plainly more likely than not; I would go so far as to say that that inference was overwhelming.”
[58] “Foster J was unquestionably right to find that the only rational conclusion available was that the allegation that the conduct was sexually motivated had been proved. In those circumstances she was justified in substituting a finding to that effect.”
APRIL 2021
Al Nageim v General Medical Council
Delay – aggravating factors – absence of evidence – dishonesty – intention to be dishonest – untrue evidence – erasure
Delay: [89] “I am not persuaded that the Tribunal failed to have adequate regard to the time which had elapsed between the period of the Appellant’s wrongdoing and the date of the sanction determination. At [13] of its determination it specifically referred to the submission in mitigation made by Mr Ivill that the events in question were ‘historic’. True it is that it did not list this specifically as a mitigating factor in [28] but, as the authorities I have cited show, it was not required slavishly to list every factor.”
Absence of evidence as an aggravating factor: [93] “I agree that the Tribunal’s took the wrong approach to this evidence. The testimonials put forward on behalf of the Appellant speaking to his clinical competence and his good character, and stressors in his life between about 2011 and 2015 arising from illness in his family, were not challenged by the GMC, and so they should have been accepted by the Tribunal at face value as mitigating evidence.” [94] However, I do not think that the Tribunal’s error means that its decision on sanction was wrong or was rendered unjust by a serious irregularity.
The Tribunal’s acceptance that it was not the Appellant’s intention to be dishonest: [101] “I do not accept the submission that the Tribunal failed to give this factor sufficient weight. In its decision it carefully considered this factor alongside all of the other matters going to the question of the Appellant’s insight and it reached a conclusion – that he had some, but not yet full, insight into his wrongdoing – which was open to it on the evidence.” Ground of appeal rejected.
Untrue evidence given to the Tribunal: [124] “I do not consider the Tribunal was at fault in having regard to this dishonesty when it came to assess the Appellant’s level of insight. Its approach was in line with what Mostyn J said in Towuaghantse, supra, [72], that dishonesty in knowingly advancing a case of false primary fact certainly ‘say[s] something about impairment and fitness to practise in the future’.”
Sanction of erasure disproportionate: [128] “The nature, scale and extent of the Appellant’s dishonesty in this case meant that, despite his good qualities and clinical competence, an order for erasure was virtually inevitable: cf Bux, supra, [93].”
Chief Constable of Avon and Somerset Police, R (on the application of) v Police Misconduct Tribunal & Ors
Decision to call witnesses – gross misconduct – equality – public sector equality duty
Decision to call witnesses: [90] “In my judgment, the circumstances were not such that procedural fairness required the Chair to call Ms Sasani (or Ms Thompson) before the Tribunal reached their findings of fact. It is a powerful factor that both parties considered that there was no necessity in the interests of justice to call any witnesses. That is particularly so in circumstances where the interests of the party who alleges there was a procedural failure were protected by the fact that he was represented by both Counsel and his solicitor. If they had considered that there was a material dispute on which, in the interests of justice, evidence should be called, the Chair was entitled to place some reliance on the fact that they could and would have said so.”
Finding of gross misconduct: [100] “In my judgment, the Tribunal reached conclusions regarding PC Archer’s mindset and intentions which were supported by the evidence and were within the band of rational findings that were open to them.” [110] “I accept Mr Gold’s submission that PC Archer’s conduct did constitute harassment of Ms Sasani contrary to s.26 of the Equality Act 2010. It would have been open to the Tribunal to make such a finding. But I do not consider that the Tribunal has erred in making no such finding in circumstances where the regulation 21 notice made no allegation of harassment, nor was any such allegation made at any stage of the hearing, and the Tribunal had found that the Equality and Diversity Standard was breached.”
[129] “In my judgment, in the particular circumstances of this case, where gross misconduct was admitted, and having regard to the written and oral submissions made by the parties, the Tribunal did not act unfairly in reaching determinations at stage (iii) regarding the seriousness of PC Archer’s conduct, including addressing her culpability, the harm caused, and aggravating and mitigating factors, so far as those were referrable to the conduct itself.”
Public sector equality duty: [131] “I do not consider that there is any substance to the allegation that the Tribunal itself breached the public sector equality duty. The duty was not to consider the provision itself. The Tribunal’s duty was to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010. In my judgment, in their decision (and recommendation) the Tribunal had due regard to the need to ensure police officers treat all people with respect and courtesy, do not use racist and offensive language, and do not harm others or create a hostile or offensive environment by the use of such language.”
Hannah, R (On the Application Of) v The Taxation Disciplinary Board Ltd
Judicial review
[79] “For all these reasons, the CIOT’s decision to refer a complaint about one of its members to the TDB is not amenable to judicial review and the claim must be dismissed.”
Sastry & Anor v General Medical Council
Correct approach to appeal against sanction – erasure – deferral to panel – review – rehearing
Achina v General Pharmaceutical Council
Dishonesty and misconduct – removal from register – fairness and absence of legal representation – admissibility of evidence – findings of fact – criminal conviction – racial bias
[68] “A reading of the transcript of the Committee proceedings shows quite plainly that the Committee took full account of the fact that the appellant was not legally represented and that they provided him with all appropriate assistance. In this respect, I am entirely satisfied that the proceedings were fair.”
Paragraphs 72-78 deal with the appellant’s arguments that evidence was wrongly excluded.
[84] “These important policy considerations in my view inform the way in which the court should approach the final nine words of rule 24(4). In framing those words, the legislature is, I find, treating as conclusive, not only the “bare” facts to be found in the Certificate of Conviction, but also the broader factual matrix on which the convicted person has been sentenced. One finds that factual matrix in the sentencing remarks of the judge.”
[94] “The final ground relates to the composition of the Committee. There is no merit in this ground. The appellant made no complaint about the composition of the Committee during the proceedings. Nor did he complain about the Legal Adviser. There is nothing in the transcript that begins to suggest any hostility on the part of the Committee or any of its members towards the appellant. Applying the well-known dictum in Porter v Magill [2002] 2 AC 357, the facts are not such as to raise, in the mind of a fair-minded and informed observer, the perception that the Committee, or some of its members, or the Legal Adviser, were racially or religiously biased against the appellant.”
Bux v General Medical Council
Erasure – conflict of interest – dishonesty – duty of disclosure – expert witness
The court upheld the Medical Practitioners Tribunal’s findings of dishonesty, conflict of interest and improper diagnoses, noting [93] that “Having made the findings of dishonesty, the finding of impairment of fitness to practise and the sanction of erasure were inevitable: Bolton v The Law Society [1993] EWCA Civ 32 at [14] – [16]; Tait v Royal College of Veterinary Surgeons [2003] UKPC 34 at [13].”
Garaffa v General Medical Council
Misconduct – suspension – sanction upheld
[61] “The MPT was not just entitled, but required, to have regard to patient safety and patient confidence. By doing so it was not adopting a “device” to circumvent such insight and remediation as had been demonstrated. Rather, it considered the evidence of insight and remediation in the context of its statutory obligation to assess the appropriate sanction with regard to the objectives of protecting the public, including promoting and maintaining public confidence, and proper professional standards. That was the correct approach.”
General Medical Council v Donadio
Dishonesty and misconduct – departure from Sanctions Guidance – erasure – sanction quashed
[68] “While I have some sympathy with a conclusion that the Sanctions Guidance’s provisions on dishonesty are not a straightforward fit with the facts and issues of this case, I cannot conclude that a gravity determination based on the conduct alone is a satisfactory explanation for the sanction imposed, since it does not fully address the prima facie case of gravity raised by the fact of regulatory breach in its own right in this case.”
[69] “I remind myself of the appropriate diffidence I must show before thinking of interfering in an MPT decision. I consider this sanction determination susceptible to appellate intervention, for a reason which is squarely within the appellate jurisdiction. It discloses not only an insufficiency of reasoning, but an error of principle. It is an error similar to that in Stone, namely a failure properly to assess the gravity of conduct before it, and hence correctly to apply itself to the question of sanction – in this case, by failing fully to address the quality of that conduct as a regulatory breach.”
Khan v General Medical Council (Rev 1)
Good character – absence of good character direction – tribunal’s approach to the evidence – finding and sanction quashed
Good character direction: [92] “From these authorities I derive the following. Whilst a disciplinary Tribunal must take good character evidence into account in its assessment of credibility and propensity, Donkin, supra, and Bryant, supra, show it is an error not to do so, it is not required slavishly in its reasons to give a self-direction to that effect (although if it does do so, there can be no room for argument – a proposition Ms Hearnden did not disagree with). It is sufficient, where the matter is raised on appeal, if the appeal court is able to infer from all the material that the Tribunal must have taken good character properly into account. That is the conclusion I reach in this case. It would be simply unrealistic to suppose that the Tribunal overlooked it, given what it had received orally and in writing including, most importantly, a clear direction from its legally qualified Chair, who was a constituent member of the Tribunal. In Donkin, supra, Maurice Kay LJ said at [25] that, ‘I am not satisfied from the text of the stated Reasons that [good character] played any part in its consideration of dishonesty.’ That, it seems to me, was a conclusion on the particular facts of that case. I have concluded that is not the situation here.”
Consideration of the evidence: [106] “I have concluded that the Tribunal’s reasons betray significant errors of reasoning. I emphasise that I am not substituting my own view of the facts for that of the Tribunal. I am not concluding that the Tribunal should have concluded that Miss C was not capable of belief about anything. What I have concluded is that the Tribunal adopted a fundamentally erroneous methodology in its approach to the evidence, such that its Determination cannot stand.”
The reasons included a failure to resolve conflicts in the evidence, that [108] “the Tribunal was, in effect, beginning its analysis by asking ‘Do we believe her … ?’, which is the very thing which Warby J said in Dutta, supra, at [42] should not be done”, that [110] “The Tribunal’s language shows that its reasons were based in significant part on the twin fallacies that ‘the more confident another person is in their recollection, the more likely it is to be accurate’ and ‘because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth’ (per Gestmin, supra). I also consider its reasons violated Warby J’s second stricture in Dutta, supra, [42], that ‘Reliance on a witness’s confident demeanour is a discredited method of judicial decision making’.”
PSA v General Medical Council & Anor
Misconduct – suspension – erasure – insufficient sanction
Appeal of insufficient sanction successful. Court found the Tribunal was in error in five respects ([22]-[27]): (1) it failed to recognise how serious the misconduct was, (2) there was insufficient focus on whether there was a basis to conclude that the sexual misconduct was unlikely to be repeated, (3) neither the absence of evidence of past misconduct nor the length of the description of the event were properly to be regarded as mitigating factors, (4) it failed to identify the significance of the lack of evidence of insight, (5) [27] “in all the circumstances, the Tribunal should have concluded that Dr Hanson’s conduct engaged all of sub-paras 109(a)-(d) of the Sanctions Guidance and was fundamentally incompatible with continued registration. Suspension might potentially have been appropriate if there had been strong mitigation providing a basis for concluding that repetition was unlikely. But no such basis was advanced or apparent.”
Reddy v General Medical Council
Other proceedings – adequacy of reasons – standard of proof – bias
Other proceedings: [76] “The Tribunal was engaged in the exercise of evaluating the credibility of Professor Reddy. This was of central importance to the case. In my judgment, the Tribunal was fully entitled to take into account an apparently evasive answer that was given by Professor Reddy to the question from Mr Gilbart. The Tribunal was entitled to take the view that his credibility was damaged by his stated inability to recall the explanation that he had given to the UCL disciplinary panel on this point of central importance.”
Adequacy of reasons: [86] “In the present case, the Tribunal gave detailed and thorough reasons for its conclusion that Professor Reddy’s evidence that he had not acted dishonestly was not credible. I have summarised them above. The Tribunal went considerably further than providing a few sentences dealing with the salient issues. It is true that the Tribunal did not specifically refer to the fact that Professor Reddy volunteered the name of Mr Ford in August 2016, but that does not mean that the Tribunal failed to give adequate reasons. The duty to give reasons does not require a Tribunal to deal with every matter that has been canvassed in the evidence or in the submissions.”
Standard of proof: [89] “At paragraph 20 of the Determination on Facts, the Tribunal reminded itself that “The standard of proof is that applicable to civil proceedings, namely the balance of probabilities. Applying this standard, the Tribunal must ask itself whether it is more likely than not that the events in question occurred.” At paragraph 21, the Tribunal stated that it had accepted the advice of the Legal Assessor, which is a matter of record. The Legal Advisor had advised the Tribunal that cogent evidence is required in cases concerning allegations of dishonesty. In the vast majority of cases it is inherently less likely that something will be the result of fraud or dishonesty, rather than negligence or simple error. There is nothing, anywhere in the main body of the Determination, to suggest that the Tribunal applied a different standard of proof.”
Bias: [106] “In my judgment, the criticisms made by Mr Ramasamy KC of the Tribunal’s treatment of him and his client do not come close to giving rise to the appearance of bias, or to demonstrating that the Tribunal engaged in prejudicial or procedurally unfair conduct. Nor do these criticisms serve to bolster or support the other grounds of appeal. Indeed, I am dubious whether allegations of apparent bias, prejudice, or procedural unfairness can ever have the limited function simply of providing support for other challenges. Either a Determination or judgment is vitiated by apparent bias, prejudice, or procedural unfairness, or it is not.” [111] “There is nothing at all unfair in expecting a party to give his evidence as soon as the previous witness’s evidence has come to an end […] There is no possible valid cause for complaint about the timing of the Stage 2 Determination […] There is nothing improper in a court or tribunal deciding not to ask questions of a party, or indeed of any witness.”
Towuaghantse v General Medical Council (Rev 2)
Admissibility of evidence – bias – evidence omitted – fact that proceedings in Coroner’s court contested – appeal partially allowed
Citing R (on the application of Squier) v General Medical Council [2015] EWHC 299 (Admin) paras 43-48, [34] “This impeccable analysis should be followed by me. It confirms that the relevancy principle does not apply to inquisitorial regulatory proceedings. The Coroner’s narrative conclusion in this case was thus plainly admissible, and was rightly admitted. It was weighed with all the other evidence in determining the facts. But the MTP must not have made unfair use of the Coroner’s narrative conclusion. Were it to have done so, then its decision would be appealable.”
[42] “I am fully satisfied that the MPT rendered a correct ruling in response to the challenge by the appellant to the independence of Mr Alizai. The strength of his feeling does not betray the existence of a direct personal interest in the outcome. There was thus no basis to find that there existed actual bias. As for apparent bias, it was inevitable that the appellant and the witness would know each other; the pool of paediatric surgeons in this country is small and there is much common acquaintanceship. The fact that Mr Alizai knew some of the consultants at the RVI is neither here nor there. Nor is the fact that he did some of his training there. The MPT was right to conclude that there was no real danger of actual bias.”
[50] “In my judgment the MPT dealt with this issue entirely correctly. Specifically, I agree that production of a letter incorporating Dr Lall’s advice given orally on 4 June 2013 (if it existed) would not have thrown any further light on the contested allegation that the appellant failed to discuss with the baby’s parents the options for his management. Further, this aspect of the appellant’s conduct did not specifically feature in the impairment decision (see paras 27 – 36) although it was taken into account generally for that purpose as misconduct (see para 27). I am not satisfied that if the missing letter in fact existed and had been produced it would have made any difference to that process of reasoning.”
[75] “In my judgment, in the absence of findings of blatant dishonesty, the MPT should not have used against the appellant in the impairment and sanctions phases his decision to contest the allegations made against him in the Coroner’s court. Nor should the MPT have used against the appellant in those phases his failure to accept those findings in circumstances where they were soon replicated by charges brought against him by the GMC before the MPT. It is in this sense that the conclusions of the Coroner were unfairly deployed against him.
Young, R (On the Application Of) v General Medical Council
Time elapsed – public interest – judicial review unsuccessful
Decision by a subsequent Assistant Registrar to overturn a prior determination not to proceed on an allegation under rule 4(5) of the General Medical Council (Fitness to Practise) Rules 2004 (SI 2004 No 2608) challenged by way of judicial review. [149] “[T]here is no legal basis upon which the court could possibly interfere with the decisions of AR2 dated 9 January and 23 March 2020 under rules 4(5) and 12 of the 2004 Rules. Accordingly, the claim must be dismissed.”
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