Phipps v General Medical Council

A second appeal requires more than an arguable factual challenge or a real prospect of success. Permission is available only where the appeal raises an important point of principle or practice, or there is another compelling reason to hear it.

A professional disciplinary tribunal must give reasons sufficient to make clear why the losing party has lost. The necessary detail depends on the issues and evidence. Reasons may be express or may be apparent from the decision as a whole. Fairness may require reasons for factual findings where that clarity would otherwise be absent.

The appellant, a surgeon, obtained retrospective accreditation for higher surgical training and later a consultant post. The General Medical Council’s Professional Conduct Committee found that he had made dishonest and unprofessional misrepresentations about the nature and duration of his training posts. It suspended him from practice for 12 months.

His appeal under section 40 of the Medical Act 1983 was dismissed by Newman J in the Administrative Court. He sought permission for a second appeal, principally alleging error about his entitlement to accreditation, inadequate reasons by the Committee, unfairness under article 6, and procedural defects in the disciplinary referral.

The central issues were whether the statutory threshold for a second appeal was met and whether any proposed ground had a real prospect of success.

1. Permission for a second appeal was refused unanimously. The application raised no important point of principle or practice and disclosed no other compelling reason within section 55(1) of the Access to Justice Act 1999 and CPR r 52.13. It was a fact-specific challenge after a lengthy disciplinary hearing and a full High Court appeal.

2. The merits provided no basis for permission. The evidence established that the appellant had described locum posts as substantive senior registrar posts and had misstated their duration and status. The accreditation bodies treated a substantive, recognised senior registrar post as crucial. Had they known the true position, they would not have recommended accreditation. The Professional Conduct Committee and Newman J were therefore entitled to find that the accreditation had been obtained through dishonest and unprofessional misrepresentations.

3. The Committee’s adjudication gave adequate reasons. It identified why the Royal Marsden post was not substantive and why the appellant’s later presentation of his career history was misleading. Applying English v Emery Reimbold & Strick [2002] 1 WLR 2409, the reasons made plain why the appellant had lost.

4. Lord Justice Wall’s wider observations on reasons were obiter, because the application failed on the statutory threshold and on its merits. He considered that a judicial or quasi-judicial tribunal, including the Committee, should ask whether its decision enables the parties to understand why they won or lost. Lady Justice Arden cautioned against treating the law in Gupta v GMC [2002] 1 WLR 1691 as displaced. Sir Mark Potter P agreed that Gupta and English were materially consistent: reasons need not be express if they are otherwise plain.

5. The article 6 complaint failed because fairness had to be assessed across the proceedings as a whole. Any alleged deficiency at the disciplinary hearing was addressed by the funded rehearing before the High Court. The late procedural grounds were also unarguable: rule 6(7) was not in force when the matter was referred to the Preliminary Proceedings Committee and, in any event, concerned referral to that committee.

• Court of Appeal (Civil Division): Permission for a second appeal was refused: [2006] EWCA Civ 397.
• High Court, Administrative Court: Newman J dismissed the appellant’s statutory appeal from the Professional Conduct Committee on 21 July 2005.
• Professional Conduct Committee of the General Medical Council: On 28 October 2004, it found serious professional misconduct and imposed a 12-month suspension.