Appeals from GMC and MPTS Decisions

Appeals and Judicial Reviews from GMC / MPTS Decisions

GMC / MPTS APPEALS AND JUDICIAL REVIEWS

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 JR has a different, 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 was unfair, 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.

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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.

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

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 on its own is very difficult to win on, although it should be noted that our lawyers have had success in 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:-

Case Law on the Exercise of a Discretion at the First Instance

In Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB) – a clinical negligence case – the appeal judge summarised the approach in law to appeals relating to the judicial exercise of discretion of a lower court, as follows:-

“V. Appealing discretion

48. At this stage it is important to restate some basic principles concerning appellate challenges to the exercise of a discretion at first instance.

49. I base my summary on a number of well-known cases including G v G [1985] 1 WLR 647(HL), Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311 (CA), Chief Constable of Greater Manchester Police v Carroll [2018] 4 WLR 32 (CA), and Kimathi & Ors v Foreign and Commonwealth Office [2018] EWCA Civ 2213 (the latter two cases being concerned specifically with section 33 of the LA 1980).

50. An appellate court will only interfere with a discretionary evaluation where an appellant can identify one or more of the follows errors:

(i) a misdirection in law;

(ii) some procedural unfairness or irregularity;

(iii) that the Judge took into account irrelevant matters;

(iv) that the Judge failed to take account of relevant matters; or

(v) that the Judge made a decision which was “plainly wrong”.

51. Error type (v) requires some elaboration. This means a decision which has exceeded the generous ambit within which reasonable disagreement is possible.

52. So, even if the appeal court would have preferred a different answer, unless the judge’s decision was plainly wrong, it will be left undisturbed. Using terms such as “perversity” or “irrationality” are merely likely to cause confusion. What is clear is that the hurdle for an appellant is a high one whenever a challenge is made to the outcome of a discretionary balancing exercise. The appellate court’s role is to police a very wide perimeter and it will be rare that a judge who has exercised a discretion having regard to relevant considerations will have come to a conclusion outside that perimeter. I would add that an appellate court is unlikely to be assisted in such challenges by a simple re-argument of the points made to the judge below. It needs to be underlined that an appellate court in an appeal such as the present is exercising a CPR 52.21(1) “review” power. It is also well-established that the weight to be given to specific factors is a matter for the trial judge and absent some wholly unjustifiable attribution of weight, an appellate court must defer to the trial judge.”

(December 2020)

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. Where that is not the case, private fees will be payable to the lawyers that the doctor instructs. 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. 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. 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 (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:

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): ”

“3. The appeal is brought under section 40 of the Medical Act 1983. I can dismiss the appeal, or allow it but only if the decision below was wrong or unjust because of a serious procedural or other irregularity. If I allow it, I can quash the decision, substitute any direction the tribunal could have made, or remit the case for reconsideration. The appeal is a rehearing but without hearing the evidence again. The court will assume, except for good reason, that the tribunal knew its business and will not strive to find otherwise by elevating semantics over substance or applying narrow textual analysis.

4. The court’s judgment is a secondary one, affording the due amount of deference to the tribunal’s expertise and the advantage it has of having seen and heard the witnesses. Particular deference is due to judgments about how best to protect public confidence in the profession. Challenges to findings of impairment or as to the appropriate sanction are therefore to be approached with diffidence. Findings of primary fact, particularly if dependent on credibility, are virtually unassailable, absent any error of law or principle or approach.” (December 2021)

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.)

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. In some cases it may be possible to appeal to the European Court of Human Rights in Strasbourg.

GMC's Power to Appeal an MPT Tribunal Decision

 The GMC (since December 2015) pursuant to s.40A of the Medical Act, being a party to proceedings before an independent tribunal (the MPTS) now has the power to appeal a decision of a tribunal (pursuant to s.40 A (3 and 4) as follows:

(3) The General Council may appeal against a relevant decision to the relevant court if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

(a) to protect the health, safety and well-being of the public;

(b) to maintain public confidence in the medical profession; and

(c) to maintain proper professional standards and conduct for members of that profession.

An appeal brought by the GMC is by way of Review, rather than re-hearing. A doctor, in contrast is entitled to a re-hearing. The scope of the appeal may be affected by this distinction. See Sasty v GMC [2021] EWCA Civ  (April 2021).

It should be noted that both approaches (reviews and re-hearings) are generally done by way of reference to the evidence before the tribunal and the tribunal’s written determination. A re-hearing is not, generally speaking, a fully contested hearing such as that of first instance before the tribunal.

General Medical Council v Ahmed [2022] EWHC 403 (Admin) – The GMC appealed under section “40A(1)(a) of the Medical Act 1983 on the ground that the MPT’s determination of a sanction of two months’ suspension is insufficient to protect the public since it: (i) failed to address adequately the Sanctions Guidance on erasure; and (ii) imposed a sanction that was simply insufficient to reflect the seriousness of Dr Ahmed’s misconduct.”  The appeal was dismissed. (February 2022)

In the General Medical Council v Khetyar [2018] EWHC 813 (Admin) the court explored whether the GMC was out of time in lodging an appeal (paras 6 to 10). The GMC must lodge its appeal within 28 days, as set out in the the Medical Act 1983 (as amended).

“6. Section 40A(5) of the 1983 Act provides that the GMC “may not bring an appeal under this section after the end of the period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates.” The relevant notification for that purpose does not refer to the handing down of its determination by the Tribunal, which in this case occurred on 26th October 2017, but the written notification of the outcome to Dr Khetyar by the MPTS, which in this case occurred by email on 27th October 2017: see as to that GMC v Narayan [2017] EWHC 2695 (Admin).”

(March 2018)

General Medical Council v Jagjivan [2017] EWHC 1247 (Admin) – the finding by the panel that touching of a patient by a doctor was not sexually motivated was overturned and a new hearing was ordered (May 2017).

General Medical Council v Theodoropoulos [2017] EWHC 1984 (Admin) – the appeal court upheld the appeal brought by the GMC and ordered that the doctor’s name should be erased from the register. The tribunal had determined that that suspension was a suitably proportionate sanction to impose on a doctor who had been found to have been dishonest in amending an online certificate, held by the GMC, and they using a copy of the amended certificate for the purposes of obtaining work. (July 2017)

General Medical Council v Dr Robert Stone [2017] EWHC 2534 (Admin) – A suspension order of 12 months was quashed and substituted with an erasure order, where a doctor had entered into a lengthy relationship (of around two and a half years) with a vulnerable patient. (October 2017)

Absence of Appellant at Appeal Hearing

In General Medical Council v Armstrong [2021] EWHC 1658 (Admin) the power of the court to deal with an appeal where an Appellant was absent at the appeal hearing was clarified. (June 2021)

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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:-

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 case 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.

Some Example Appeal Decisions

Arunachalam v The General Medical Council [2018] EWHC 758 (Admin) – Erasure order overturned and suspension of 12 months substituted. Relating to sexually motivated conduct. Mr Justice Kerr stated: “

    1. On balance, it seems to me likely that a reasonable, informed member of the public might well not take a harsher view than did the GMC of the pathetic and disgusting sexual pestering of the kind that occurred in this case. There are some who would regard erasure as appropriate; that would represent almost a complete zero tolerance approach to sexual harassment, which would mean that any transgression, even from a first time offender, would nearly always lead to erasure.
    1. In our system of justice, the law jealously guards the rights of women workers to protection against predatory, ignorant men who feel entitled to prey on female colleagues in the way that this doctor did; but our system is not so inflexible that every transgression of this kind must be met with erasure. This appellant’s conduct was not at the very bottom of the scale; it was very serious, but it was not anywhere near the top of that scale. The mitigation, for what it was worth, was there. No patient’s safety was endangered. The appellant was of previous good character. He had some insight into his offending behaviour, although it was given slight weight and came late. He had a long record of unblemished service, which included about two and a half years after the second incident without any further offending.
    1. In the circumstances, I am clear that the decision was flawed and cannot stand. I have the power to remit the matter to the same or a differently constituted tribunal or to substitute a different sanction. In the unusual circumstances of this case, I am persuaded after reflection to substitute the sanction of suspension which both parties plainly considered appropriate when the case was argued before the tribunal.”

(February 2018)

Veeravalli v General Medical Council [2022] EWHC 747 (Admin) – appeal against imposition of conditions of practice by a tribunal at MPT level rejected. This was an obstetrics case. (March 2022)

Ramaswamy v General Medical Council [2022] EWHC 732 (Admin) – an adjournment was granted in relation to a Part 8 application. (March 2022)

Ahmed v General Medical Council [2022] EWHC 424 (Admin) – appeal from erasure dismissed. (February 2022)

Bakare v General Medical Council [2021] EWHC 3278 (Admin) – Appeal dismissed. Erasure upheld. (Dishonesty) (December 2021)

Poor Reasons of the Tribunal

In Sawati v General Medical Council [2022] EWHC 283 (Admin) the High Court set aside a sanction decision of the MPT tribunal. The tribunal had directed erasure from the register. The appeal court judge was of the view that the tribunal had insufficiently explained their reasons. She stated that the next tribunal might still erase but could take a different approach. (February 2022)

In Abbas v General Medical Council [2017] EWHC 51 (Admin) the appeal court upheld a GMC/MPTS strike off order where the doctor had been found to have committed misconduct in a clinical setting. (January 2017)

Causation

In R (El-Baroudy) v General Medical Council [2013] EWHC 2894 (Admin) – a doctor’s name was erased from the register for failures to properly examine a patient in custody, who later died. The panel misdirected itself by finding causation of death (as a consequence of the doctor’s failures) when causation had not been formally alleged as an allegation. The case was remitted back for a re-hearing, with a direction that the panel was not to engage in an assessment of causation, in the particular circumstances of the case. At para 30: “If the GMC had wanted to allege such an outcome, it should have been alleged specifically”. (August 2013)

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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)

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)

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