Appeals from GMC and MPTS Decisions

Many doctors are dissatisfied with the outcomes of General Medical Council (GMC) / Medical Practitioners Tribunal Service (MPTS) proceedings and, in particular, the sanction imposed upon them. A number of doctors subsequently seek legal advice about the merits and prospects of success of appealing a decision of the GMC / MPTS.

Doctors Defence Service (DDS) provides legal advice and representation in the appeal courts to doctors where a doctor wishes to appeal. DDS lawyers give clear advice about the strengths of the doctors appeal case, the merits and demerits of an appeal, costs risks, and the overall prospects of success on appeal.

Appeals and Judicial Reviews: A doctor might choose to Appeal or, alternatively, in some limited circumstances, issue judicial review proceedings in order to challenge a decision of the General Medical Council (GMC) or Medical Practitioners Tribunal Service (MPTS). Where there is a statutory right of appeal from a GMC / MPTS decision, the Parliamentary Acts and statutory instruments will set out the appeal route and judicial review will not be available in the alternative to a S.40 Medical Act (as amended) appeal, in most circumstances.

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Judicial Review  Where there is no statutory right of appeal the decision of the GMC/MPTS might be amenable to Judicial Review. Alternatively, where a GMC/MPTS case has reached a procedural stage, prior to the end of the hearing, a decision may be amenable to judicial review. A Judicial Review (JR) will often look at narrower issues than an appeal court can examine.

A JR must be lodged in the shortest possible time after a public body (such as the GMC or MPTS) has made a decision and, in any event, within three months at the latest (in most JR cases). A delay in lodging an appeal promptly, way before the end of the three months given can be used by a judge to refuse permission to pursue a JR. Permission must be sought from a judge to bring a JR to a hearing. A doctor must also send a pre-action letter to the GMC/MPTS before filing a claim in JR.

A JR has a different, much narrower scope than appeals do, and a judge will sometimes be limited in the relief that can be granted. Further, relief is discretionary, even where a public body such as the GMC / MPTS has fallen into error.

Judicial Reviews mostly look at whether a decision of a tribunal, or other administrative decision-maker, was unfair procedurally or otherwise, illegal, unlawful, unreasonable, disproportionate, or irrational.

Where there is a right of appeal, judicial review is often not open to an appellant. Even where it is, it is important for both the lawyers and the doctor to make a careful assessment as to when and if a judicial review is appropriate. Permission has to be sought to bring a judicial review, whereas (in contrast) a statutory appeal is of right because no permission is needed under the statute.

Note: judicial review is not an alternative to a statutory appeal. Where there is a statutory appeal provision in the legislation, governing the GMC, that is the route that must be followed, save in exceptional circumstances – at certain procedural stages within a GMC/MPTS hearing. See, by way of example, the case of R (Squier) v GMC [2015] EWHC 299 (Admin).

Also, the case of GMC v Krishnan [2017] EWHC 2892 (Admin) – confirming that judicial review is the correct approach to challenge facts found proved by a tribunal, and where a tribunal has made a decision to impose a warning. In essence, judicial review may be available in some instances where the GMC case did not proceed to the sanction stage. A case that reaches the formal sanction stage will usually engage the statutory appeal process, in contrast.

Challenging the Imposition of a Warning

As there is no statutory appeal provision where a doctor receives a warning from an MPTS panel, the only way of challenging the issuance of the warning is by way of Judicial Review, except where the GMC case examiners impose a warning at the investigatory Rule 7 stage. In such cases a doctor has a right to ask the GMC’s Investigating Committee to convene in order to determine whether a warning should be imposed. In a sense, this is a type of appeal hearing. For more information on ‘appealing’ the case examiners’ decision that a warning is appropriate, see our article: How to Avoid a GMC Warning. See also Judicial review, above.

Appealing a Review Order

There is no free-standing statutory right to appeal an order of a tribunal that there should be a Review hearing, per Simawi v General Medical Council [2020] EWHC 2168 (Admin) Instead, the substantive order must be challenged and if the challenge is successful the review order may also be quashed or substituted. (August 2020).

A judicial review of a tribunal’s decision may still be possible in some rare instances. Note that the Assistant Registrar may also direct that a Review should take place, in the event that a tribunal has not ordered a review and where the sanction imposed is greater than 6 months duration. Such a decision might be amenable to judicial review. However, in light of the likely length of time that it would take to bring a challenge, it may be more appropriate and more cost-effective to attend the review.

Going Behind Convictions

Most statutory schemes, such as the Medical Act 1983 (as amended), do not permit a registrant to go behind a conviction. See, by way of example, Achina v General Pharmaceutical Council [2021] EWHC 415 (March 2021)

There may be exceptions to this rule. In Nazari v Solicitors Regulation Authority [2022] EWHC 1574 (Admin) the court reiterated that the criminal appeal process would be the avenue to challenge a conviction, and only if there was new evidence that “entirely changes the nature of the case” could the tribunal look at going behind the conviction. (See paras 48 to 56.)

50. There are sound public policy reasons why criminal convictions are held to constitute conclusive proof of guilt in subsequent proceedings, Hunter v Chief Constable West Midlands Police & Ors [1982] AC 529, per Lord Diplock, at 541H – 542C. A departure from that approach is only justified where there is new evidence that entirely changes the nature of the case. The exceptional circumstances that might persuade a Tribunal to look behind the facts of a conviction must be more than just a submission that the Appellant was wrongfully convicted. The criminal appeal process exists for that reason.

51. The test for exceptional circumstances was considered in El Diwany v Solicitors Regulation Authority [2021] EWHC 275 (Admin), per Saini J. at [35], [38], [50], [51]. In Shepherd v Solicitors Regulation Authority (CO/3076/95), the Lord Chief Justice held that the principles in Hunter applied equally to disciplinary tribunal hearings.

(June 2022)

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Appeals of Interim Orders: Appeals in relation to Interim Orders Tribunal (IOT) decisions are brought by way of Part 8 of the Civil Procedure Rules (CPR). This is a modified form of statutory appeal.

In McCloskey v General Medical Council [2024] NICA 6 the appeal court (court of Appeal) held that an appeal against the interim order was extinguished as a nullity when a substantive order came into effect. (19 January 2024)

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Statutory Appeals, Pursuant to s.40 of the Medical Act 1983 (as amended): The GMC / MPTS imposes sanctions on many doctors in Fitness to Practise (FTP) proceedings. A number of doctors feel that the MPTS sanctions are unfair, disproportionate and have a stigmatising element to them. In some cases, the doctor will be of the view that a tribunal panel has come to the wrong decision on the facts, misconduct, or impairment determinations, as well as the sanction determination. Some doctors therefore choose to bring an appeal, for these reasons. Grounds of appeal need to be identified and lodged within 28 days of the MPTS determination, otherwise the appeal will likely be time-barred. A skeleton argument must also be lodged within a further 14 days, along with a chronology, and summary. Bundles then need to be compiled, and a list (and copies) of case law authorities needs to be provided, too.

When Will an Appeal Court Allow an Appeal?

CPR Part 52.21(3)

…

(3) The appeal court will allow an appeal where the decision of the lower court was—

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

What is the definition of “Wrong” in an appeal?

In XGY v Sussex Police & Anor [2024] EWHC 1963 (KB) the appeal judge set out some of the considerations that fall within the definition of “Wrong”, at para 11:

“11. The standard reasons for a finding that the Court below made a decision in law which was wrong include: failing to give any adequate reasons; getting the relevant law wrong; failing to follow precedent; failing to apply the relevant law correctly; failing to take into account a material matter and taking into account an immaterial matter. There are of course others.”

(29 July 2024)

What is the definition of “serious procedural or other irregularity”?

This is less easy to define, and there may be some overlap with the definitions in wrong.

Example 1

In one case we handled, we submitted that a regulator had failed to obtain a key document, which led to an unjust outcome at a fitness to practise hearing. Our argument for our client was successful, and the case was remitted back to the disciplinary panel for reconsideration. The clinician, who had been struck off, received a period of suspension at the second hearing, instead.

So, in short, if there are steps that should have been taken, which were not, this might form an appeal ground.

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Time Limits (Statutory Appeals pursuant to s.40 Medical Act 1983 (as amended): An appeal lies to the High Court or its equivalent in the country of the United Kingdom (UK) where the doctor is registered with the GMC. An Appeal Notice must (usually) be lodged within 28 days of notice of a decision being served on a doctor. The time to lodge an appeal is very strict and a doctor who fails to lodge an appeal notice within the limitation period is unlikely to be able to advance an appeal at a later stage. A doctor who wishes to appeal must act quickly so as to protect their position. Case law has now made it clear the circumstances in which the appeal court will extend the time permitted for a doctor to appeal out of time (i.e. after the 28 days limitation period). For more details, read our Doctors Defence Service article: Time Limit for Appeals from GMC/MPTS Decisions are Strict

Where a doctor has attended a hearing and a GMC / MPTS panel has adjudicated upon a matter in many cases the Notice of Decision is served upon the doctor while they are at the hearing. The doctor is often asked to sign confirmation that they have received the determination of the panel. Alternatively, where the GMC / MPTS has not formally served notice of the decision, the decision will be posted and will be deemed to have been served within a couple of days of postage (or, in some circumstances, later, where a doctor can prove that they did not receive notice of the decision until a certain point in time).

View: Section 40 of the Medical Act 1983

The “Jury Question” on appeal: Interpreting when a tribunal has got it “wrong”

The “jury question” is a concept that has been developed by the appeal courts to look at when a tribunal decision is “wrong” or not. It has been explained in various appeal cases.

In (para 32), Yassin v The General Medical Council [2015] EWHC 2955 (Admin) (23 October 2015) -Mr Justice Cranston held:

i) The [Tribunal] Panel’s decision is correct unless and until the contrary is shown: Siddiqui v. General Medical Council [2015] EWHC 1996 (Admin), per Hickinbottom J, citing Laws LJ in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56 at [44];

ii) The court must have in mind and must give such weight as appropriate in that the Panel is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect: Gosalakkal v. General Medical Council [2015] EWHC 2445 (Admin);

iii) The Panel has the benefit of hearing and seeing the witnesses on both sides, which the Court of Appeal does not;

iv) The questions of primary and secondary facts and the over-all value judgment made by the Panel, especially the last, are akin to jury questions to which there may reasonably be different answers:  General Medical Council v Meadow [2006] EWCA Civ 1390 [197], per Auld LJ;

v) The test for deciding whether a finding of fact is against the evidence is whether that finding exceeds the generous ambit within which reasonable disagreement about the conclusions to be drawn from the evidence is possible: Assucurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577, [197], per Ward LJ;

vi) Findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable: Southall v. General Medical Council [2010] EWCA Civ 407, [47] per Leveson LJ with whom Waller and Dyson LJJ agreed;

vii) If the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion: Siddiqui, paragraph [30](iii).

viii) Reasons in straightforward cases will generally be sufficient in setting out the facts to be proved and finding them proved or not; with exceptional cases, while a lengthy judgment is not required, the reasons will need to contain a few sentences dealing with the salient issues: Southall v. General Medical Council [2010] EWCA Civ 407, [55]-[56].

ix) A principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment: Fatnani and Raschid v. General Medical Council [2007] EWCA Civ 46, [19], per Laws LJ.

Also, General Medical Council v Mok [2022] EWHC 1651 (Admin) (29 June 2022) at para 61 also illustrates the jury question, albeit with a slightly different focus, relating to impairment and sanction.

In Khan v General Medical Council (Rev 1) [2021] EWHC 374 (Admin) the High Court reviewed the case law on allowing an appeal on facts stage decisions. (March 2021)

In General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) at 197:

1. 1. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the Court must have in mind and give such weight as is appropriate in the circumstances to the following factors:

i) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;

ii) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;

iii) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.

There will be many cases where a doctor is dissatisfied with the outcome of a tribunal hearing, but that is not enough to persuade a judge that the appeal court should intervene. The jury question gives great latitude to tribunal decision-makers, and something more than an evaluation one way or another, that was open to them, needs to be established. There needs to be some error of approach that is open to objective assessment by an appeal judge.

In Byrne v General Medical Council [2021] EWHC 2237 (Admin) the High Court identified the approach to be adopted by an appeal court, when considering appeals against tribunal factual decisions at paras [12] to [16]:

1. 1. First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. The present case concerns findings of primary fact: did the events described by the Patient A happen?

1. 1. Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge’s more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to 4. I accept that the most recent Supreme Court cases interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of “review” rather than “rehearing”, there is little distinction between the two types of cases for present purposes (see paragraph 16 below).

1. 1. Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.)

1. 1. Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:

– where “any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge’s conclusions“: per Lord Thankerton in Thomas v Thomas approved in Gupta;

– findings “sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman;

– findings “plainly wrong or so out of tune with the evidence properly read as to be unreasonable“: per in Casey at §6 and Warby J (as he then was) in Dutta at §21(7);

– where there is “no evidence to support a … finding of fact or the trial judge’s finding was one which no reasonable judge could have reached”: per Lord Briggs in Perry after analysis of McGraddie and Henderson.

In my judgment, the distinction between these last two formulations is a fine one. To the extent that there is a difference, I will adopt, in the Appellant’s favour, the former. In fact, as will appears from my analysis below, I have concluded that, even on that approach, I should not interfere with most of the Tribunal’s primary findings of fact.

1. 1. Fifthly, I consider that, whilst noting the observations of Warby J in Dutta at §21(1), on the balance of authority there is little or no relevant distinction to be drawn between “review” and “rehearing”, when considering the degree of deference to be shown to findings of primary fact: Assicurazioni §§13, 15 and 23. Du Pont at §§94 and 98 is not clear authority to the contrary. Rather it supports the proposition that there may be a relevant difference when the court is considering findings of evaluative judgment or secondary or inferential findings of fact, where the court will show less deference on a rehearing that on a review. Nevertheless if less deference is to be shown in a case of rehearing (such as the present case), then, again I will assume this in the Appellant’s favour.

(10 August 2021)

Appeals from GMC Non-Compliance Hearings:

A doctor can appeal a decision of a tribunal which makes an order pursuant to the non-compliance hearing rules.

Grounds of Appeal, generally:

Grounds of appeal must be identified and pleaded in a particular form. As the appeal is not a fresh hearing of the evidence, appeal grounds need to be identified and advanced with some care. Proportionality arguments on their own are very difficult to win on, although it should be noted that our lawyers have had success in at least one case, in persuading a judge to reduce a period of suspension by a few months, on grounds that the length of the suspension would cause significant hardship or loss of a business. A ground of appeal might be as follows: that the panel erred in giving too or too much little weight to evidence to a witnesses; or that the panel misdirected themselves on the law; or that the regulator (the GMC) failed to disclose important evidence to the doctor; or that the proceedings were in some way unfair. This list is not exhaustive.

A decision of a tribunal must be either plainly wrong, or unjust because of a procedural or other irregularity, pursuant to Part 52 of the Civil Procedure Rule (CPR). The appeal judge must give due regard to the specialist tribunal that had sight of the witnesses at a hearing, and the ambit of decision making that they enjoy. In relation to the exercise of discretion, for example whether to admit or not certain documents into evidence, the case law on discretion will be a component for the appeal judge to take into account. the following case law, with some caveats, is a good distillation of the legal questions that an appeal judge must ask:-

Citation of others MPTS FTP Cases on Appeal: It is important to note that the fact that other similar cases have led to a different sanction does not necessarily lend support to an appeal. See our article on the citation of other GMC/MPTS fitness to practise decisions in appeal cases.

Lodging an Appeal Notice: The forum (court) for the case to be lodged and heard will usually depend on the part of the UK (England, Wales, Scotland, Northern Ireland, other Island territories) in which the doctor is resident or has practised. The doctor’s registered address is usually the determining factor. The GMC should be consulted where it is not clear to the doctor where they should lodge their appeal.

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Funding: In some circumstances a doctor may be entitled to legal aid but this is now very rarely granted. Private fees will be payable to the lawyers that the doctor instructs, in the absence of legal aid. Many lawyers will no longer do appeals on legal aid rates. Legal aid is means-tested and most doctors have assets or income that take them over the qualifying threshold. Since April 2013 it has become very difficult to obtain legal aid for GMC appeals. There usually have to be prospects of success of at least 51% or greater for any public funding to be granted. An opinion from Counsel will be needed if legal aid is to be obtained. Doctors Defence Service will advise on funding options, on request. Some insurance products a doctor may hold might cover the costs of an appeal, but they too will want to see strong prospects. Alternatively, a doctor’s medical defence organisation may provide indemnity cover for an appeal. In the absence of a formal funding arrangement, the doctor would have to pay their defence costs on a private basis.

Costs Risks: Where a doctor loses all or some of their appeal, they might (and usually would) additionally have to pay the costs of the GMC. If the doctor loses their appeal entirely, they are likely to have to pay all of the GMC’s costs. If the doctor wins on some issues and loses on others they may be able to recover some of their costs but still have to pay some of the GMC’s costs. If they win their appeal, they might recover all or some of their costs. The reasonableness of the parties’ conduct can also be taken into account by the appeal courts, when assessing costs. Costs are solely at the discretion of the court, unless costs are agreed between the parties. In our experience (as at 2015) an appeal will cost around £12,000 plus VAT to bring an appeal to a hearing. If the doctor loses their case they could end up paying the GMC their costs, which could be of a similar level. In simple cases an appeal may cost around £7000 plus VAT for each party (Appellant and GMC) but costs have been known to reach very significant levels, where there have been further appeals.

Examples of Costs Awards:

Khan v General Medical Council [2023] EWHC 3189 (Admin) at para [43]:

“First, I will make an order for Dr Khan to pay the GMC’s reasonable costs, which I will summarily assess at £7,500. The GMC has succeeded in full and costs should follow the event (CPR 44.2(2)(a)). It is no answer that Dr Khan says she is unable to pay. The appeal was brought at clear costs risk, and it caused the GMC to incur the legal costs. I have made a broad-brush reduction from £8,121.60 in the costs schedule, to reflect the fact that I am not ordering costs on an indemnity basis.”

(15 December 2023)

El-Baroudy, R (on the application of) v The General Medical Council [2013] EWHC 2894 (Admin) at para 92 – £12,000 plus VAT costs awarded to the doctor who was successful on appeal (August 2013).

General Medical Council v Khetyar [2018] EWHC 813 (Admin) – the GMC applied for their costs in the sum of £15k, where the doctors’ costs were £10k. The court awarded the GMC £5k. The doctor had contested the appeal but at the same time was somewhat forced to where the GMC has a right of appeal. The judge held that the costs should be reduced in the circumstances but that the decision was not to set a precedent. (see paras on costs at the end of the judgment) (March 2018)

Bakare v General Medical Council [2021] EWHC 3278 (Admin) at para 87 – the appellant was ordered to pay the GMC’s costs in the sum of £8,854.55. (December 2021)

General Medical Council v Patel [2018] EWHC 171 (Admin) – GMC awarded their costs in sum of £12,954.56 (January 2018))

Role of the Appeal Judge in a Statutory Appeal (pursuant to the Medical Act 1983): Under Part 52.11(3) Civil Procedure Rules (CPR) the appeal court may interfere with the decision of a lower court or tribunal (such as the GMC) where the decision is (a) wrong, or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court. However, guidance from the higher appeal courts makes it plain that it is only significant errors that may lead to such a judgment by an appeal court. In R (M) v Criminal Injuries Compensation Panel [2001] EWHC (Admin) 720 [44], Hooper J (as he then was) stated: “It is well established that a[n appeal] court when considering reasons given by a decision-maker, must be careful not to construe them “in a pedantic and nit-picking spirit“. The court should be careful “not to seize on occasional omission and infelicities” as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in paragraph 46 of R (Oyston) v The Parole Board and Others)” [Read Full Law Report (External Link)].

The scope of an appeal of a GMC decision is set out in the case of Gosalakkal v General Medical Council [2015] EWHC 2445.

See also the words of Mr Justice Kerr in Ahmedsowida v General Medical Council [2021] EWHC 3466 (Admin) (para 3-4): ”

Rehearing:

Fish v The General Medical Council [2012] EWHC 1269 (Admin) (May 2012):

“28. Whilst the appeal constitutes a “re-hearing”, it is a re-hearing without hearing again the evidence.”

Merits of an Appeal: An appeal must have sufficient merit to succeed. Appeal courts will not easily interfere with a decision of the MPTS. In Brew v General Medical Council [2014] EWHC 2927 (Admin) a doctor appealed an MPTS erasure order. The doctor argued that the sanction of erasure was manifestly excessive. The appeal court judge dismissed the appeal, holding that:

“30. I suspect that this decision was finely balanced. On the one hand the doctor was a man of good character with an otherwise exemplary clinical record. On the other hand, these were serious allegations of professional misconduct and the panel were well conscious of the need to uphold the robust standards of medical training and protect the reputation of the profession. My reading of the transcript of the tribunal hearing revealed that the panel had gone to great lengths to investigate this case thoroughly. They asked a number of telling questions which were particularly well-directed to the important issues in this case and I was impressed with the thoroughness with which they approached their task. They gave the appellant every opportunity to impress them but, as I have found, their decision that he did not show full insight into his wrongdoing cannot be impugned. It is possible to argue that this case could qualify on its facts for either suspension or erasure applying the considerations set out in the Indicative Sanctions document. Which side of the line it falls is a matter of judgment for the tribunal concerned having considered all the facts and their experience of applying professional standards to those facts.

“31. The fact that this decision was, in my view, finely balanced makes it much more difficult for the appeal to succeed. Where a case falls truly on the cusp of two alternative results it is very difficult for an appellate court to say that the original tribunal was wrong to reach either decision. In my view the decision to erase the appellant from the Medical Register was one which the panel was entitled to reach on the evidence before them even if another panel might possibly have reached a different view. For myself I cannot find that the decision was wrong and so I am bound to dismiss the appeal although not without expressing some personal sympathy for Dr B.” (Read the full law report.)

In Appeal by Dr Muhammad Rashid Masood against the GMC (Court of Session) [2024] CSIH 27 – a Scots law case – held that the appeal court could not “simply remake the decision according to its own views of the case” (para 59).

Further Appeals: A doctor or the GMC can appeal a decision of the High Court to the Court of Appeal and Supreme Court, but only with permission if there is sufficient merit. In some cases it may be possible to further appeal to the European Court of Human Rights in Strasbourg.

Khan v General Medical Council [2023] EWHC 3189 (Admin) at Para [43]

“…I refuse Dr Khan’s application for permission to appeal. As her notice of appeal recognises … this would be a second appeal. That means permission to appeal is solely a matter for the Court of Appeal: see s.55 of the Access to Justice Act 1999 and CPR 52.7. To avoid misunderstanding, I am not saying that Dr Khan’s permission to appeal skeleton argument – which repeats features of her case – raises any ground with a real prospect of success, any important point of principle or practice, or any other compelling reason for the Court of Appeal to hear an appeal.”

(15 December 2023)

Remittal: 

Soni v The General Medical Council [2015] EWHC 364 – Where an appeal court is of the view that an appeal should succeed, it will remit the case back to the GMC to be reconsidered, unless the appeal court considers there would be no value in that. In the appeal judge determined that it would not be appropriate to remit an appealed case back to the GMC, where he had quashed the findings of the panel/tribunal. He did so on the basis that (para 70):

“the determination of this appeal does not involve any departure from the Panel’s assessment of the credibility of the witnesses, all of whose evidence was accepted by the Panel. It does not turn on matters which engage the Panel’s specialist knowledge of medical matters. This court is in as good a position as the Panel was to assess the sufficiency of the evidence; and if the evidence is insufficient, then the public interest cannot be served by a further hearing of it. I conclude not only that the Panel was wrong in the decision which it made, but also that if the case were to be remitted, no future panel could be in any different position.”

Contrast Southall v GMC [2010] EWCA Civ 484, (quoted in Soni, also at para 70)

“in which Leveson LJ (as he then was) expressed doubt as to whether the public interest was served by a rehearing of an allegation relating to matters some 12 years earlier, but nonetheless concluded that protection of the public interest was primarily a matter for the GMC and that it would not be appropriate to remove the responsibility of making that decision from them: see paragraph 8 of his judgment.”. (Holroyde J, February 2015)

Professional Standards Authority Appeals

There is a super-regulator called the Professional Standards Authority. It regulates the regulators, to varying degrees. It has amongst its powers the right to challenge the outcome of a fitness to practise panel/tribunal outcome. The original legislation enabled the Professional Standards Authority (PSA) to appeal decisions of the MPTS to the High Court, where the PSA was of the view that the MPTS tribunal was unduly lenient in the sanctioning of a doctor. (For an example of a Professional Standards appeal see: Professional Standards Authority for Health And Social Care v General Medical Council & Anor [2015] EWHC 1304)

The PSA pursuant to new legislation (of 2015) enjoys a remit to appeal GMC decisions that are considered in their opinion to not be sufficient for the protection of the public. The powers are contained in s.29 of the National Health Service Reform and Healthcare Professions Act 2002, as amended by the Professional Standards Authority for Health and Social Care (References to Court) Order 2015.

The PSA’s cases to date (as of September 2017) are as follows:-

• PSA v GMC & Jagjivan
• PSA v HCPC & Doree Court of Appeal
• PSA v NMC & Judge
• PSA v NMC & Dalton
• PSA v HCPC & Geary
• PSA v GDC & AB
• PSA v GDC and Todd
• PSA v HCPC and Ajeneye [2016] EWHC 1237 (Admin)
• PSA v NMC and Silva
• PSA v GMC & Igwilo
• PSA v HCPC & Williamson
• PSA v NMC & Wilson
• PSA v GMC & Uppal – Professional Standards Authority for Health And Social Care v General Medical Council & Uppal [2015] EWHC 1304 (Admin) (May 2015)
• PSA v HCPC & Doree
• PSA v NMC & Jozi
• PSA v NMC & Macleod
• PSA v NMC & Chawo-Banda
• PSA v GPhC & Onwughalu
• PSA v GCC & Briggs
• PSA v HCPC & Gaffer
• CHRE v NMC & Harley
• CHRE v NMC & Grant
• CRHP v GMC & Khanna
• CRHP v NMC & Kingdom
• CRHP v GMC & Biswas
• CRHP v HPC & Harrison
• CRHP v GDC & Marshall
• CRHP v GMC & Rajeshwar
• CRHP v NMC & McDonnell
• CRHP v GMC & Southall
• CRHP v GDC & Fleischmann
• CRHP v GMC & Mulhem
• CRHP v GMC & Leeper
• CRHP v GMC & Solanke
• CRHP v NMC & Truscott;
• Ruscillo v CHRP & GMC

For an up to date list, see the PSA Website

Many such appeal cases are based on a failure of a tribunal to apply the statutory overarching objective of the Medical Act 1983, and in particular a wholesale failure to apply the sanctions guidance properly, or where there has been a failure to explain why the tribunal departed from the sanctions guidance.

The PSA’s predecessor was the CHRE: the Commission for Healthcare Regulatory Excellence. For more information about PSA appeals, see the PSA Webpage on Appeals

Discussion about Appeals Generally: Many doctors will be of the view that their GMC/MPTS case outcome warrants interference by an appeal court. However, numerous appeals (by far the majority, in our view) are unsuccessful where appellant doctors have such a view, whatever the competence and skill of the advocate who is instructed to represent the doctor. Appeal grounds therefore must be chosen with care. They should be arguable and have merit, and be likely to lead to some form of relief (such as the matter being remitted back to the GMC / MPTS for further consideration or a rehearing of parts of all of the case; or for a sanction to be substituted). When it comes to appealing a sanction, such as an erasure order, we must bear in mind that we live in a pluralist society where members of the public will have a difference of opinon as to when a doctor should be struck off. MPTS panels are given a wide ambit in decision making, as a consequence, because they are members of the public. An MPTS panel decision may seem harsh to some but that does not mean that the decision is manifestly excessive, such that the appeal court should interfere with the sanction by substituting a lower sanction. The GMC will, most of the time, robustly defend the decision of the MPTS panel in appeal proceedings. If a doctor loses their appeal (if the ‘appeal is dismissed’) they would usually be liable to pay the GMC’s costs of defending the appeal, as well as any defence costs, that the doctor has incurred, in bringing the appeal. Doctors Defence Service can advice on all of these matters. Note that a GMC/MPTS warning can only be challenged by way of Judicial Review.

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A large number of appeals are brought each year by doctors against decisions of the GMC/MPTS. Only a few of those appeals are successful. Identifying the strengths and weaknesses of an appeal (weighing up the merits) is an important step in bringing an appeal. Often, a notice of appeal has to be lodged (as a safeguarding measure, so as not to be out of time) without all of the information being available to Counsel. Later, a full merits assessment will need to be undertaken, once the transcripts of the hearing become available, along with any other evidence that needs to be considered.

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Matters Heard in Private at a FTP Hearing Can be Kept Private at a High Court Appeal (Subject to a Successful Application):

Williams v The General Dental Council (Rev1) [2022] EWHC 1380 (Admin) – Judicial Opening Remarks

“Parts of the hearing below were heard in private pursuant to Rule 53 of the General Dental Council (Fitness to Practise) Rules 2006 on the basis that reference was made to the Appellant’s private life at the date of the index events. On that basis parts of the PCC’s determination are redacted and are contained in a confidential private determination. That includes parts of the determination that are subject to this appeal. The Appellant also relies upon material that was received into evidence in private session for the purposes of this appeal.

At the outset of the hearing an application was made by the Appellant, which was supported by the Respondent, for non-disclosure. The Appellant sought an order that there shall not be reported, disseminated or otherwise disclosed to the public any copy of the private determination (or transcript of the private hearing) of the Professional Conduct Committee or the contents of the expert evidence referred to exclusively therein whether or not mentioned in court or contained in a document referred to in court, without the permission of the court or the written agreement of both parties (or their solicitors). I made an order in those terms.

It follows that that the public version of this judgment has been redacted as appropriate where I refer to material that was referred to in private session below.”

(June 2022)

Fresh Evidence:

New Evidence: Where a doctor relies on new (‘fresh’) evidence it must usually pass the test as laid down in Ladd v Marshall [1954] EWCA Civ 1. However, on grounds of fairness there may be exceptions to these rules that enable to appeal court to admit evidence that is favourable to the doctor; see by way of example the (November 2014) case of: Jasinarachchi v General Medical Council [2014] EWCH 3570 (Admin)

In General Medical Council v Adeogba [2016] EWCA Civ 162 (at para 24) the Court of Appeal examined Fresh Evidence principles in the context of GMC/MPTS regulatory proceedings, with discussion of the well established principles elucidated in Ladd v Marshall [1954] 1 WLR 1489, quoting Lord Denning:

“[F]irst, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;

thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

The appeal court in Adeogba also examined the legal concept of admitting medical evidence for non-attendance, opining that such evidence would not inevitably enable new evidence to be admitted that should have been used at the hearing. The merits would have to be examined. The opinion was summarised as follows:

(At Para 35):

“It is clear that evidence as to the reasons why, in any case, a medical practitioner does not appear or engage in a disciplinary hearing is likely to constitute fresh evidence and will require consideration, at least de bene esse. Thus, if a practitioner was taken ill or involved in an accident or had suffered some unforeseen and unforeseeable disaster, that fact would be very relevant to the exercise of discretion whether or not to adjourn and would not have been available at the hearing because, by definition, the practitioner would not have been able to be present to advance it. If there is a good reason for non-attendance, however, it would not necessarily extend to fresh evidence going to the merits of the disciplinary complaint which would have been available to be deployed at the time of the hearing.”

See also Jasinarachchi v General Medical Council [2014] EWHC 3570 (Admin) for an example of how arguments about new evidence (or fresh evidence) were dealt with by the court, even though each strand of Ladd and Marshall was not met. ( October 2014)

LIMITATION

In Stuewe v. Health and Care Professions Council [2022] EWCA Civ 1605), the High Court held that the limitation period cannot be waived by a regulator not taking the point. At para 54: “the central and only question for the court is whether or not “exceptional circumstances” exist, namely where to deny a power to extend time would impair the very essence of the right of appeal. Any gloss is unhelpful. Answering the question may or may not include consideration of whether or not the litigant has done everything possible to serve within time, depending on the facts of the case. Once the discretion (or duty) arises, it must then be exercised to the minimum extent necessary to secure compliance with Article 6 rights.” (December 2022) See the case of Adesina for more details of the exceptional circumstances test.

Technical Points

Judgments and Finality

Where a judge has handed down judgment but the court has not yet sealed it, it may be permissible to reopen a case (see para 264 to 274 and further 274): Regen Lab SA v Estar Medical Ltd & Ors [2019] EWHC 63 (Pat) (January 2019)

Barring Further Appeals and Challenges

A civil court may bar a practitioner from bringing further legal challenges by way of a general civil restraint order (GCRO): Nursing And Midwifery Council & Anor v Harrold [2022] EWHC 1048 (QB) (May 2022)

Challenging Factual Determinations of a Tribunal

An appeal court cannot overturn facts merely because the appeal judge would have found differently. Due deference needs to be given to the tribunals’s decision, save for where it came to a conclusion that it was not entitled to. For analysis of when an appeal court will interfere, see paras 39-40 of Grizzly Business Ltd v Stena Drilling Ltd & Anor [2017] EWCA Civ 94 (February 2017)

Duty for Case to be Put to Registrant

In some rare instances, it might be possible to challenge a factual finding on the basis that the case found was not put to the registrant. In Byrne v General Medical Council [2021] EWHC 2237 (Admin) it was noted that:

“(3) The requirement “to put your case”

21. Where the court below is considering reaching a conclusion on a case theory, or basis of facts or a version of events, not based on the oral or documentary evidence before it and not put forward by either party, it must give the parties a reasonable opportunity to address that basis before reaching such a conclusion; and not to do so amounts to procedural unfairness: Dutta §§34 to 36. However there is no rule that every ground for doubting the evidence of a witness must be put to the witness. The question is whether the trial viewed overall was unfair: Chen v Ng [2017] UKPC 27 at §§52-56.”

(August 2021)

To discuss your potential GMC appeal or appeal options, call Doctors Defence Service on: 0800 10 88 739 or use our Contact Form to receive a call back.

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