Failure to Sign Appeal Form: Different Sauce for Goose and Gander

Before dealing with this appeal brought by the General Medical Council under s40A Medical Act 1983 against a decision of the Medical Practitioners Tribunal, the court had first to deal with the validity of the appeal itself: General Medical Council v Konathala [2025] EWHC 1550 (Admin)    Mould J

This was the second case in a few months where the validity of the appeal rested on section 14 of Form N161 which stated “The notice of appeal must be signed here”, but the box was not signed. In the recent case of Nathadwarawala v General Medical Council [2025] EWHC 459 (Admin) (“N”) an appeal by a doctor failed because the signed version of the appeal form was not received by the court office in time.

During the procedural stages of the present appeal neither the court nor the parties raised the fact that section 14 of the appellant’s notice had not been signed. Alexis Hearnden who appeared for the GMC in each case, as the judge commented, rightly drew the attention of her opponent to the earlier decision, as a result of which, Scott Ivill, for the doctor, submitted a brief supplementary skeleton argument raising the question whether the lack of a signature in section 14 of the submitted Form 161 rendered the GMC’s appeal invalid, with the result that the Administrative Court lacked jurisdiction to hear appeal.

After hearing argument, and considering the Court of Appeal decision in Walton v Pickerings Solicitors and Brophy [2023] EWCA Civ 602; [2023] 1 WLR 3545, his Lordship distinguished the present case from the earlier decision on the basis that in N the appeal proceedings had not been begun within the 28-day period laid down by section 40(5) of the Act. The appellant’s notice filed on 28 June 2023 was returned by the court to the appellant unsealed. In the present case, however, the court sealed and thereby issued the GMC’s appellant’s notice on 11 March 2024 at which time the appeal proceedings began.

Exercising the general power given by CPR 3.10 to remedy the GMC’s omission to sign the box in section 14 of Form N161 (Jennison v Jennison [2023] EWCA Civ 1682; [2023] Ch 225 at [59]), the court observed it was right to do so: firstly, although the GMC’s failure to sign the box in section 14 of Form 161 was a significant omission, the sealed appellant’s notice included full details of their proposed appeal, including the grounds on which the appeal was brought, which had been verified by the GMC’s legal representative who signed the statement of truth on their behalf.

Secondly, the Respondent raised no objection to the validity of the appeal until shortly before the substantive hearing. Nor had the Respondent argued that he suffered any prejudice in preparing or arguing his response to the appeal as a result of the GMC’s omission to sign the box.

Finally, the appeal raised matters of considerable importance not only to the parties but also to the wider public interest which spoke strongly in favour of the court exercising its powers under CPR 3.10.  Accordingly, the court concluded that the GMC’s appeal was begun within the period of 28 days provided by section 40A(5) of the Act.

The regulatory proceedings, the basis of the substantive appeal, arose from allegations as to the doctor’s conduct in respect of patient A during a consultation on 28 June 2019. Patient A had attended the appointment complaining of ankle pain and also requested contraception. The GMC’s case against the doctor was that during the course of the consultation he performed an examination of Patient A’s breasts, back and chest during the course of which he lifted her top, touched her back, turned her around from her hips, pushed her breasts out of her bra and squeezed her breasts.

The allegations were that the doctor failed to obtain informed consent or to offer a chaperone, failed adequately to communicate with Patient A and to explain his reasons, did not ask Patient A about her repeat contraceptive prescription, and failed to record the examination of Patient A or his findings of that examination.  The GMC asserted that the examination was not clinically indicated and the doctor’s examination was sexually motivated.

The Tribunal suspended the doctor from practice with immediate effect for a period of 12 months and directed a review.

What had been found proven by the Tribunal was a sexually motivated, purported examination of a young female patient which lacked any clinical justification, was gratuitous, carried out opportunistically, without the patient’s consent and fell seriously below the standard of care expected of an experienced general practitioner.

On the Tribunal’s own findings, it was not properly open to them to be satisfied that the doctor had gained insight. Any real risk of repetition of the behaviour found proven by the Tribunal must, on any proper and reasonable assessment be regarded as significant.

In his Lordship’s judgment, this was clearly a case in which erasure was the appropriate sanction. The only proper and reasonable conclusion to be drawn by the Tribunal was that the doctor’s behaviour during the consultation was fundamentally incompatible with his continued registration as a doctor.

The Tribunal’s decision was quashed. His Lordship’s provisional view was that this was a case in which he should exercise the power conferred by section 40A(6)(c) of the Act and direct that the doctor’s name be erased from the register, but he adjourned his decision for 14 days to allow the parties a short time to make submissions in writing.