The Citation of Other GMC/MPTS FTP Decisions on Appeal

Citation of GMC FTP Decisions on Appeal Not Considered HelpfulPrevious GMC Panel Cases and Appeals

Many doctors who have faced GMC/MPTS proceedings feel that the panel in their case came to a decision that was disproportionate and not in keeping with a number of other similar cases that have been recently decided. To that end, when looking to appeal they wish the appeal court to look at a number of comparative cases. This approach has been held not to be particularly helpful by appeal court judges. Note that the indicative sanctions guidance referred to in the case law is the previous guidance. For the current indicative sanctions guidance, see our list of GMC publications.

This principle was explored in the case of Moyo v Nursing and Midwifery Council [2015] EWHC 3547 (Admin). Ms Moyu appealed a 12 month suspension order as being disproportionate. She cited another case, the case of Lovie, in support of her submission. The appeal judge in the NMC appeal case (Mrs Justice Lang) held (para 44):

“The Appellant submitted the decision was inconsistent with a similar case – NMC v Lovie – decided by a Panel in Edinburgh in December 2014, in which a caution order was imposed. This submission was also made to the Panel by the Appellant’s counsel and so they had the opportunity to consider Lovie in reaching their decision. Generally, I accept the NMC’s submission that citation of sanction decisions by Panels in other cases does not generally assist as each case turns on its own particular facts and involves a careful assessment of the individual nurse. Moreover, even if another Panel was more lenient, that would not establish that a more severe sanction was wrong. See Oluyemi v Nursing and Midwifery Council [2015] EWHC 487 Admin, per Lewis J. at [52]. Equally, another panel might have decided that a nurse guilty of such dishonest misconduct ought to be struck off. Consistency in decision-making is achieved by application of the “Indicative Sanctions Guidance”: see paragraphs 9 & 10. I note that in Lovie the panel’s assessment of the registrant, and her conduct, was markedly more favourable than in the instant case, and so it does not assist me in assessing whether the sanction imposed on the Appellant was wrong or not. ” (December 2015)

The principles in the above case could be said to equally apply to the citation of GMC FTP cases.

In the case of Brew v General Medical Council [2014] EWHC 2927 (Admin), where an erasure order had been imposed for dishonest conduct, the appellant appealed on the basis that the decision was disproportionate; particularly when compared to other cases of dishonest doctors. The appeal court judge (His Honour Judge Gosnell, sitting as a Judge of the High Court) in that case held (para 28):

“It is clear from this guidance that the decision whether to impose a sanction of erasure or suspension in a case such as this is a matter of judgment for the panel depending on their view of the seriousness of the doctor’s conduct. It is really a question whether the misconduct is such as to be fundamentally incompatible with continuing registration. This is a value judgment to be made in every case depending on the facts of the individual case before the panel. For this reason I do not find the comparable cases before the FTPP produced by the Appellant and the authority produced by the Respondent of Uddin v GMC [2012] EWHC 1763 (Admin) particularly helpful. None of the factual examples produced by the appellant were like the present case and although the facts in Uddin were similar, there were sufficient factual differences for a panel to be able to say that it should make up its own mind on the facts of the case before it using the general principles outlined in the Indicative Sanctions document.” (September 2014)

For advice or representation on appeal and on the citation of cases in GMC appeals, contact Doctors Defence Service on 0800 10 88 739

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