PSA appeals undercharging by GMC
28 September 2023
An appeal by the PSA against a decision of the Medical Practitioners Tribunal was upheld in the Administrative Court on the grounds that the charges brought against a doctor by the General Medical Council did not adequately reflect the seriousness of his misconduct: Professional Standards Authority for Health and Social Care v General Medical Council & Anor [2023] EWHC 2391 (Admin) Linden J
The doctor admitted that in June and July 2020 he had a sexual relationship with Patient A which began after he had treated her in his capacity as a locum registrar in the A&E department of a London hospital. The Tribunal found that the charges against him, all of which were admitted, was a course of conduct which amounted to ‘serious misconduct’.
The doctor conceded that his fitness to practise was impaired by reason of misconduct.
His Lordship concluded that the decision making of the GMC and the MPT was fundamentally flawed because it did not give any or any adequate consideration to the evidence of what Patient A told the doctor about her circumstances.
In particular, there was a failure adequately to consider (a) whether she was vulnerable for the purposes of the Sanctions Guidance and, if so, the degree of her vulnerability and, (b) what the doctor knew or ought to have known about these matters and what influence this had on his actions.
These questions should have been raised by the allegations which the MPT was asked to consider, and then fully litigated and considered in the context of the whole evidential picture, but they were not. The court was not persuaded that, had this been done, it would have made no material difference to the sanction which the MPT imposed.
The court did not express a concluded view on grounds 2 and 3 of the appeal which assumed that the appeal on ground 1 failed, albeit they were free standing grounds. Ground 2 was that the sanction of 6 months suspension was unduly lenient and insufficient for public protection in any event. Ground 3 was that the reasons given by the MPT for its decision on sanction were inadequate.
In his Lordship’s view, the public interest and the doctor’s interests were best served by the case being fully considered by the MPT which was a fact finding tribunal constituted for this task, on the basis of all of the evidence, and a decision reached on all of the issues.
A decision by the court on grounds 2 and 3 on the narrower factual basis which was considered by the MPT would also potentially give rise to appeals and cross appeals and result in unnecessary delay and expense. The Court of Appeal would in any event be as well placed to determine those grounds if there were an appeal on ground 1.
The judge added that it was important to note that he was not making findings about whether patient A was vulnerable or whether the doctor perceived her to be, nor about any of the other issues which would need to be considered by the MPT at the remitted hearing. It would be unfair to do so or for his remarks to be interpreted in that way as the doctor had not had an opportunity to give evidence about those issues.
The question which the court addressed was limited to the case which ought to have been put before the MPT for it to consider. The court expressed no view about what it should find and conclude at the remitted hearing.
On the question of undercharging/under prosecuting, the court was referred to R (Council for the Regulation of Healthcare Professionals) v (1) General Medical Council (2) Ruscillo [2005] 1 WLR 717, [2004] EWCA Civ 1356 where the Court of Appeal held that the Council could refer a decision to the High Court if it considered that it was “unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both …”
In R (Council for the Regulation of Healthcare Professionals) v (1) General Medical Council (2) Rajeshawar [2005] EWHC 2973 (Admin) Sullivan J allowed an appeal in a case where examinations of two patients’ breasts by the practitioner were not clinically justified. He held that in the light of the patients’ statements “any reasonable assessment of the totality of the available evidence could have led to only one conclusion: that it was appropriate to allege a sexual assault and/or indecent motivation by way of amendment.”
The approach in Rajeshawar was applied by Beatson J in R (Council for the Regulation of Healthcare Professionals) v (1) Nursing and Midwifery Council (2) Kingdom [2007] EWHC 1806 (Admin) and by Lang J in The Professional Standards Authority for Health and Social Care v (1) General Chiropractic Council (2) Briggs [2014] EWHC 2190 (Admin) who also considered Ruscillo.
Relying on the judgment of Saini J in The Professional Standards Authority for Health and Social Care v (1) Health and Care Professionals Council (2) Wood [2019] EWHC 2819 (Admin) at [51] all counsel commended a passage from Briggs as correctly stating the questions which arose under ground 1 in the present case. Lang J added, in relation to the question whether the charges could be amended:
Plainly any further allegations must arise out of the same episode/s which form the basis of the existing charge and be directly connected to the existing allegations, otherwise it would be unfair to the registrant.
Briggs was also cited with approval by Lindblom LJ in The Professional Standards Authority for Health and Social Care v (1) Health and Care Professionals Council (2) Doree [2017] EWCA Civ 319 where he summarised the law in this way:
An appeal may be allowed where there has been some serious procedural or other irregularity making it impossible to determine whether the decision as to sanction was unduly lenient or not …
Lindblom LJ considered that it was sufficient if charging the matter properly might have made a difference to the sanction.
There were various examples of cases where undercharging had been found to be a serious procedural irregularity because the effect of the failure to make a given allegation had been that the full gravity of the case – the real burden or substance of what had gone wrong – was not brought to the attention of the tribunal.