Mubarak v General Medical Council

On a section 40 appeal, the High Court conducts a rehearing but gives appropriate respect to a professional tribunal’s findings, particularly where credibility is central. It may intervene for material factual or legal error, perversity, inadequate reasoning or an unlawful sanction. Reasons need only make clear why the losing party lost; a tribunal need not address every evidential detail or submission. Sanction is a secondary judgment for the appellate court, and professional expertise and public confidence receive substantial weight. Erasure may be proportionate, and even inevitable, where proven sexual misconduct involves a serious abuse of the doctor-patient relationship and is fundamentally incompatible with continued registration. Lack of remorse cannot be treated as an additional penalty for contesting allegations, although acceptance of responsibility may properly affect sanction.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against findings by a Fitness to Practise Panel that his fitness to practise was impaired by misconduct. The Panel found that he had engaged in sexually inappropriate and unjustified conduct towards a patient and ordered erasure from the medical register.

The appeal challenged the factual findings, the adequacy of the Panel’s reasons, and the proportionality of erasure. The central issues were the proper appellate approach to credibility findings, the extent of the duty to give reasons, and the degree of deference owed to the Panel on sanction.

1. Appeal dismissed. The appeal under section 40 of the Medical Act 1983 is by way of rehearing, but the High Court decides the case without seeing and hearing the witnesses. It must therefore be slow to interfere with findings of fact based substantially on credibility. The court retains jurisdiction to correct material factual or legal errors and exercises a distinct, firmly secondary judgment.
2. The Panel’s conclusion that the complainant was truthful and that the appellant’s account was false was open to it on the evidence. The inconsistencies concerned details of varying importance. The Panel correctly applied the criminal standard of proof and had regard to both the complainant’s inconsistencies and the appellant’s good character. The court was not entitled to substitute its own assessment of the witnesses.
3. The reasons were adequate. In a stark credibility dispute, it was sufficient for the Panel to state that it believed the complainant and explain briefly why. The duty to give reasons is a facet of fairness and requires the losing party to understand why he lost. It does not require a disciplinary tribunal to address every aspect of the evidence or every submission, particularly a point without evidential foundation.
4. On sanction, the Panel’s task was not retributive punishment. It was principally concerned with protecting patients, maintaining public confidence and upholding professional standards. The Panel was entitled to give substantial weight to its specialist assessment of the seriousness of the misconduct and the protection required. The appellant’s good character and compliance with interim conditions did not make erasure disproportionate.
5. Lack of insight may be relevant where a professional fails to appreciate that conduct was wrong. It would, however, be wrong to impose an additional sanction merely because a practitioner denied the allegations. Acceptance of responsibility may mitigate sanction in an appropriate case. On the facts, the Panel’s reference to lack of insight did not show that it had penalised the appellant for exercising his right to contest the proceedings.
6. The proven conduct included serious sexual misconduct and a shocking breach of the doctor-patient relationship. In those circumstances, erasure was appropriate, proportionate and, in the judge’s view, inevitable.

The judgment records no earlier appellate decision. The appeal was brought directly to the High Court under section 40 of the Medical Act 1983 from decisions of the GMC Fitness to Practise Panel dated 19 December 2007.