GMC MPTS Sanctions Guidance

General Medical Council v Mok [2022] EWHC 1651 (Admin) – (the case mentioned above) – the judge undertook a detailed review of the case law on the application of sanctions guidance, from para 32 to 34, and 35 onwards:

“32. the judgment of Collins Rice J. in General Medical Council v Bramhall [2021] EWHC 2109 (Admin) in which she reviewed authorities on applying the GMC sanctions guidance at [24] – [26]:

“24.  The MPT in this case referred to two authorities on how to direct itself to the Sanctions Guidance. CRHP v GMC & Leeper [2004] EWHC 319 was cited for the proposition that the aim of the Guidance is to promote the consistency and transparency of Tribunal decisions – a matter to which it must have regard although each case will depend on its own facts. The Court of Appeal in PSA v HCPC & Doree [2017] EWCA Civ 319 was cited for the principle that departure from the Guidance must be explained. A Tribunal should have proper regard to the Guidance, and apply it as its own terms suggest, unless it has sound reasons for departing from it – in which case it has to state those reasons clearly in its decision. Again, however, a degree of flexibility and fact-sensitivity is acknowledged.

25.  The High Court in GMC v Khetyar [2018] EWHC 813 had before it the particular issue of applying the Guidance in determining suspension rather than erasure. It characterised the Guidance as an ‘authoritative steer‘ as to the application of the principle of proportionality in balancing the public interest against the interest of the individual professional. Accordingly, ‘a proper conclusion that suspension is sufficient cannot be reached without reference to and careful consideration of advice in the Guidance that erasure may be or is likely to be appropriate where that advice is pertinent to the facts of a particular case‘. The Court said this (paragraph 22):

22. Again, of course, it remains advice and not prescription: tribunals must ultimately judge each case on its own merits, and are entitled in principle to depart from that steer. Doing so, however, requires careful and substantial case-specific justification. A “generalised assertion that erasure would be a disproportionate sanction and that the doctor’s conduct was not incompatible with his continued registration”, where the Guidance gives a clear steer towards erasure, properly considering what is says about important features of the case in question, will be inadequate and will justify the conclusion that a tribunal has not properly understood the gravity of the case before it: see GMC v Stone [2017] EWHC 2534 (Admin) at [53].

26.  The error identified in Stone was failure properly to consider the objective features of the case, to demonstrate that their gravity had been fully understood, and then to address and explain how the available mitigation operated to justify the imposition of the sanction of suspension. The court emphasised that this is not elevating form over substance; proper regard to the Guidance is important in its own right, and giving clear reasons for divergence is part of the MPT’s functions in articulating in the public domain how its determinations properly serve the overarching objective.”

33.”Mr Hare QC referred me to the passages of the judgment where the Judge considered the application of those principles to the specific facts of theBramhall case: see [32] – [39] and [53] – [54].

34. In Professional Standards Authority v The Health and Care Professions Council & Doree [2017] EWCA Civ 319, Lindblom LJ (giving the judgment of the Court) gave guidance on the Sanctions Guidance, and said:

“29. I see no basis in the relevant jurisprudence for the contention that it was incumbent on the Panel to “adhere” to the guidance in the Indicative Sanctions Policy if that concept is intended to mean anything more than having proper regard to the guidance and applying it as its own terms suggest, unless the Panel had sound reasons for departing from it – in which case they had to state those reasons clearly in their decision.”

(June 2022)

In General Medical Council v Khetyar [2018] EWHC 813 (Admin) the High Court overturned a sanction of suspension and imposed a sanction of erasure. The case concerned sexually motivated conduct of a serious level. The judge in the case identified failures in the tribunals’ approach to the sanctions guidance, as it related to the factual findings. See para 41 onwards.

(March 2018)

In Giele v General Medical Council [2005] EWHC 2143 (Admin) the High Court overturned the sanction of erasure, holding (at para 15) that:

“15. To assist in deciding what should be the appropriate sanction, the Panel was referred to the Indicative Sanctions Guidance published by the GMC. The edition in force at the time was that of May 2004. As has now been confirmed in a number of decisions of this court, the contents of the Guidance are helpful and will assist to ensure that practitioners know what they may face if they are found guilty of serious professional misconduct and to promote consistency. However, it must always be borne in mind that the Guidance is what it says it is and does not lay down any rigid tariffs: each case will depend on its own facts.”

(14 October 2005)