Court of Appeal: exercise of judge’s discretion in doctor’s appeal

A doctor appealed against a decision of the Administrative Court to remit to the Medical Practitioners Tribunal (MPTS) an allegation that whilst providing anaesthetic care to patient A, the doctor slapped patient A on one or more occasions: James v General Medical Council [2026] EWCA Civ 1338 Stuart-Smith, Nugee, Fancourt LJJ

The judge found in favour of the doctor in his appeal under section 40 of the Medical Act 1983 against the decision of the MPT which included, as a finding of fact, that the doctor had slapped the patient.

The judge’s decision to quash the Tribunal’s finding of fact was not challenged. The appeal concerned what should have happened in the light of that decision. The doctor submitted that the judge failed to grasp the nettle and should have declined to remit the allegation to the MPTS, with the result that the proceedings against him should come to an end.

Dismissing the appeal, Stuart-Smith LJ, said that in the court’s judgment it was not arguable that the judge had failed to exercise her discretion. Her reasons, short and concise as they were, made clear that she took into account the submissions that had been made by each of the parties, weighed them and concluded that (a) it was not appropriate to bring the proceedings to a close at that stage and (b) it was appropriate to remit to the MPTS and for any issues of abuse of process or involving the balancing of the public interest and the particular interests of the doctor to be resolved either pursuant to Rule 28 of the Rules or otherwise by the MPTS.

The doctor’s counsel rightly accepted four significant points, both singly and cumulatively: that the MPTS would be able and competent to deal with any issues that the doctor may wish to raise, including the balancing of private and public interest; she accepted that Rule 28 provided an appropriate route and forum for the resolution of arguments about proportionality and the public interest and any submission of procedural unfairness or abuse of process; she accepted that the question of where the balance lay on considerations of utility, public interest and fairness was not so obvious that there could only be one valid answer such that the judge should have decided the issue for that reason; finally, she accepted that if the main issue (slap or no slap) were to be resolved, it should be resolved  by the Tribunal.

The court rejected counsel’s submission that, because the experts were agreed that the incident occurred during a medical emergency, the central issue was simple and no deference to the expertise of the Tribunal was warranted. The better view was that the Tribunal was likely to have experience and understanding that a judge would lack about what the medical emergency would involve, including the calls on the various clinical professionals in their respective roles as the emergency unfolded. And the Tribunal may well be better able than a judge to assess the doctor’s assertion that what he did was professionally proper but could have been misinterpreted by the colleagues who later expressed concern about what happened.

There was no hint in the judge’s reasons that she was mindlessly and automatically deferring to the MPTS or that she did not appreciate that she had a discretion not to refer the matter back to the MPTS. What she gave was a balanced assessment that it was more appropriate for the arguments to be advanced in the specialist disciplinary process, as it was recognised that a degree of deference attached to the Tribunal’s role in assessing arguments of this kind.