MPTS Tribunals: Duty to Give Reasons for Decisions

Scope of Duty of Tribunal to Provide Reasons for Decisions

A doctor needs to know the reasons a tribunal came to a decision, so that they can feel that justice has been done, determine whether the hearing was fair, and whether they can appeal. There are different responsibilities to give reasons, dependent on whether a tribunal is sitting as an interim orders tribunal – which considers whether to impose an order while the GMC investigates allegations without making factual findings (a risk assessment); or a medical practitioners tribunal – which considers and determines substantive allegations (formal findings 0f fact).

Medical Practitioners Tribunal (MPT) Hearings and the Provision of Adequate Reasons 

In the case of Byrne v General Medical Council [2021] EWHC 2237 (Admin) the High Court reviewed the duty and extent of providing reasons in MPT/GMC cases. Mr Justice Morris observed:

“(5) The extent of the duty to give reasons

1. 1. In relation to the duty to give reasons, I have been referred to a number of authorities, including in particular Selvanathan v GMC [2000] 10 WLUK 307; English v Emery Reimbold & Strick [2002] 1 WLR 2409; Gupta, supra, at §14; Phipps v GMC [2006] EWCA Civ 397 at §106; Muscat, supra at §108; Mubarak, supra, at §§9-12, 35-36; Southall, supra, at §§50-55, 56 and 59 and O v Secretary of State for Education, supra, at §§59 -63.

1. 1. In the present case Rule 17(2)(j) of the Rules requires the Tribunal to give reasons for its findings of fact. In considering the extent and content of the duty to give reasons, the current leading authority is Southall, citing in detail the earlier cases of Selvanathan, Gupta, Phipps (in turn referring to English v Emery Reimbold & Strick). At §54, Leveson LJ (citing Phipps) confirmed that the purpose of such a duty to give reasons is to enable the losing party to know why he has lost and to allow him to consider whether to appeal. It will be satisfied if, having regard to the issues and the nature and content of the evidence, the reasons for the decision are plain, either because they are set out in terms or because they can be readily inferred from the overall form and content of the decision. It is not necessary for them to be expressly stated, when they are otherwise plain or obvious. Leveson LJ then continued as follows:

“55. For my part, I have no difficulty in concluding that, in straightforward cases, setting out the facts to be proved (as is the present practice of the GMC) and finding them proved or not proved will generally be sufficient both to demonstrate to the parties why they won or lost and to explain to any appellate tribunal the facts found. In most cases, particularly those concerned with comparatively simple conflicts of factual evidence, it will be obvious whose evidence has been rejected and why. In that regard, I echo and respectfully endorse the observations of Sir Mark Potter. [in Phipps]

56. When, however, the case is not straightforward and can properly be described as exceptional, the position is and will be different. Thus, although it is said that this case is no more than a simple issue of fact (namely, did Dr Southall use the words set out in the charge?), the true picture is far more complex. First, underlying the case for Dr Southall was the acceptance that Mrs M might perfectly justifiably have perceived herself as accused of murder with the result that the analysis of contemporaneous material some eight years later is of real importance: that the evidence which touched upon this conversation took over five days is testament to that complexity. Furthermore it cannot be said that the contemporaneous material was all one way: Dr Corfield’s note (and, indeed, her evidence) supported the case that it was (or at least could have been) Mrs M’s perception alone. Ms Salem’s note (accepted by Mrs M as 100% accurate so far as it went) did not support the accusation and her evidence was that if those words had been said, she would have recorded them. I am not suggesting that a lengthy judgment was required but, in the circumstances of this case, a few sentences dealing with the salient issues was essential: this was an exceptional case and, I have no doubt, perceived to be so by the GMC, Dr Southall and the panel.

…

59. Further, once providing some reasons, in my judgment, the panel did have to say something about Dr Southall who gave evidence on this topic for some days. If (as must have been the case) they disbelieved him, in the context of this case and his defence, he was entitled to know why even if only by reference to his demeanour, his attitude or his approach to specific questions. In relation to Ms Salem, the position was worse: to say that the panel “did not find her evidence to be wholly convincing” is not good enough. If she did not make a note of the specific challenge of murder (which she said she would have done), it must have been the panel’s view that she decided, at the time of the interview, that she would not do so and so have entered into an implicit agreement with Dr Southall to cover up an overly oppressive interview. That is nothing to do with not being wholly convincing: it is about honesty and integrity and if the panel were impugning her in these regards, it should have said so. (emphasis added)

1. 1. As made clear at §56, the factual issue in Southall was not “a simple issue of fact” of whether the doctor did or did not use particular words; rather it was particularly complex. §56 of Southall is not authority for the proposition that specific reasons for disbelieving a practitioner are required in every case where his defence is rejected. The references to “the circumstances of this case” and “in the context of this case and his defence” in §§56 and 59 imply that there will be cases where such reasons will not be required.”

per Mr Justice Morris (August 2021).

Mr Justice Morris also touched on the subject of the credibility of witnesses, generally:

“Reasons and credibility

1. 1. As regards reasons concerning the credibility of witnesses

(1) Where there is a dispute of fact involving a choice as to the credibility of competing accounts of two witnesses, the adequacy of reasons given will vary. In English v Emery, Lord Phillips stated that “it may be enough to say that one witness was preferred to another, because the one manifestly had a clearer recollection of the material facts or the other give answers which demonstrated that his recollection could not be relied upon“. On the other hand, Southall at §55, and Gupta at §13 and 14 suggest that even such limited reasons are not necessarily required in every case.

(2) Secondly, whilst Mr Mant accepted that it is a common practice in Tribunal decisions on fact, there is no requirement for the disciplinary body to make, at the outset of its determination, a general comparative assessment of the credibility of the principal witnesses. Indeed such a practice, undertaken without reference to the specific allegations, has been the subject of recent criticism in Dutta at §42 and Khan at §§106 and 107. In my judgment, consideration of credibility by reference to the specific allegations made is an approach which is, at least, equally appropriate.

1. 1. Finally, an appeal court will not allow an appeal on grounds of inadequacy of reasons, unless, even with the benefit of knowledge of the evidence and submissions made below, it is not possible for the appeal court to understand why the judge below had reached the decision it did reach. It is appropriate for the appeal court to look at the underlying material before the judge to seek to understand the judge’s reasoning and to “identify reasons for the judge’s conclusions which cogently justify” the judge’s decision, even if the judge did not himself clearly identify all those reasons: see English v Emery Reimbold §§89 and 118.”

per Mr Justice Morris (August 2021).

Interim Orders Tribunal Hearings and the Scope of the Duty to Give Reasons

An Interim Orders Tribunal (IOT, also known as IOP (interim orders panel) is not required to give the same level of reasons in interim orders cases. In Dr MXM v General Medical Council [2022] EWHC 817 (Admin) the High Court noted:

“30. The approach to giving reasons is addressed in the IOT Guidance at paragraphs 51 to 52:

“Reasons for decisions

51. Rule 27(4)(g) of the Rules makes clear that when announcing its decision the IOT “shall give its reasons for that decision” [emphasis added]. An IOT must therefore ensure that reasons are given for any decision taken, including decisions not to impose an order. The courts do not expect an IOT to give long detailed reasons but the reasons given must be clear and explain how the decisions were reached, including identifying the interest(s) for which the order is considered necessary.

52. Although IOT decisions should be fairly concise, they must include the following information with specific reference to the distinct features and particular facts of each individual case.

a The risk to patients should be clearly identified to support the proportionality of any action it was necessary to take.

b The risk to public confidence in the profession if the doctor continued working without restriction on their registration and the allegations are later proved, to support the proportionality of any interim action taken.

c Where an order is made primarily because it is desirable in the public interest to uphold public confidence and there are no concerns about clinical practice specific reasons should be given for why this is appropriate.

d Reasons for the initial period of time for which an interim order is imposed.

e Where no order is imposed, clear reasons must be given.”

31. In Madan v GMC [2001] EWHC Admin 577 (‘Madan (2)‘), Newman J, considering the adequacy of the reasons given in that case, said at [64]:

“An essential point which, in my judgment, emerges from the cases is that adequate reasons will inform the recipient of the basis for the decision. A reason expressed as a conclusion will frequently not disclose the underlying basis for the decision. It follows that the applicant in this case, who had advanced a specific submission … to the effect that the public interest would be adequately protected and met by a conditional registration order as opposed to a suspension order, was entitled to expect illumination as to why that particular argument had been rejected.”

32. In Abdullah v General Medical Council [2012] EWHC 2506 (Admin) Lindblom J observed at [102]:

“… the GMC’s guidance discourages the giving of “long detailed reasons”. What the IOP [IOT] had to do – no more and no less – was to explain why their decision was the one they had announced. In most cases, probably in every case, this can be done briefly. The IOP were exercising a statutory power framed in simple terms. Three interests are embraced in that provision: first, “the protection of members of the public”, second, “the public interest”, and third, “the interests of a fully registered person”. The IOP had to exercise their judgment within those statutory parameters. And it is in this context that the adequacy of their reasons must be assessed. The parties knew what the contentious issues had been. They could expect to be told how those issues had been resolved and why the decision went the way it did. The losing side could expect to learn why it had lost. But the IOP did not have to provide an elaborate explanation of their decision. Reasons were required, but not reasons for reasons.”

33. Any inadequacy in the IOT’s reasons would not, of itself, provide a ground for terminating an interim order but if the reasoning is inadequate or opaque the weight to be attached to the professional opinion of the IOT will be diminished: Harry at [2]; Hussain v GMC [2012] EWHC 2991 (Admin), HHJ Pelling QC at [12].”

(April 2022) 

Interim Orders Tribunal decisions will therefore be more difficult to challenge than Medical Practitioner Tribunal decisions. The GMC, when making administrative decisions, must also provide adequate reasons. Where the GMC fails to do so, it may be possible to challenge the decision by way of judicial review.

If you are doctor who seeks to challenge a tribunal’s decision, Doctors Defence Service can advise on appeal and on whether a tribunal has provided sufficient reasons. Contact us in strict confidence and without obligation on: 0800 10 88 739