Sacha v General Medical Council

Disciplinary proceedings before a professional tribunal are not barred by autrefois acquit merely because the same conduct formed part of a criminal trial ending in acquittal. The tribunal is not a court of competent jurisdiction for double-jeopardy purposes, and disciplinary proceedings serve the distinct objectives of maintaining professional standards and protecting the public.

Proceedings may nevertheless be an abuse of process where the disciplinary conduct is in substance the same as the acquitted criminal charge, or where an issue essential to proving misconduct was raised and resolved in the defendant’s favour. The court must examine the precise charges and the issues actually determined by the criminal verdict. A specialist tribunal’s fact-finding and professional judgment receive appropriate respect on appeal.

Dr Bhupinder Sacha appealed under section 40 of the Medical Act 1983 against a General Medical Council Fitness to Practise Panel determination that his fitness to practise was impaired by misconduct and that his name should be erased from the medical register.

He had been acquitted at Leicester Crown Court of an offence under section 2(1) of the Sexual Offences Act 2003 concerning an internal vaginal examination of Patient C. The disciplinary charges also concerned failures to explain the examination, obtain express consent, offer a chaperon and record the examination, together with separate allegations concerning Patient A. The appeal challenged refusal to stay the proceedings, rejection of a no-case submission and findings of fact.

1. Appeal dismissed. The court’s jurisdiction under section 40 of the Medical Act 1983 was by way of rehearing. Under Part 52PD.22.3 and CPR Part 52.11, the appeal could succeed if the Panel’s decision was wrong, or unjust because of a serious procedural or other irregularity.
2. The Panel was a specialist tribunal. Its understanding of professional standards and its assessment of live evidence deserved appropriate respect. The court applied the secondary-judgment approach described in Meadow v General Medical Council [2007] QB 462, [2006] EWCA 1390 and Fatnani and Raschid v General Medical Council [2007] 1 WLR 1460, [2007] EWCA Civ 46.
3. There was no rule of autrefois acquit preventing a Fitness to Practise Panel from investigating conduct which had been the subject of a criminal trial and acquittal. The criminal and disciplinary jurisdictions had different characters, purposes and evidential contexts. The approach in R (Redgrave) v Commissioner of Police for the Metropolis [2003] 1 WLR 1136 supplied useful guidance on abuse of process, but the precise charges and the matters necessarily determined by the criminal verdict remained decisive.
4. The breast-touching allegations were not substantially the same as the criminal charge, which concerned penetration. Although the allegation had been raised at trial, the jury’s directions focused on whether the medical record and diagram were deliberately falsified. The acquittal did not establish that the breast-touching allegation had been resolved in Dr Sacha’s favour.
5. The charges concerning failure to explain the internal examination, obtain express consent, offer a chaperon and record the examination concerned professional standards and were materially less serious than the acquitted criminal offence. They were not sexually motivated charges and did not allege absence of reasonable belief in consent. Their pursuit was therefore not an abuse of process. The criminal second-prosecution authorities relied on by the appellant did not govern disciplinary proceedings.
6. The Panel was entitled to reject the no-case submission concerning Patient A. Despite inconsistencies about timing and surrounding matters, her evidence was capable of proving the allegations to the criminal standard. The court applied the approach in Galbraith [1981] 1 WLR 1039.
7. The criticisms of the legal assessor’s advice and the Panel’s fact-finding did not establish a material error or serious irregularity. The Panel had separately considered the two complainants’ allegations, gave adequate allowance for delay and memory, and was entitled to accept Patient A’s evidence. The findings of impaired fitness to practise and erasure therefore stood.

Costs were awarded to the General Medical Council, with VAT recoverable only if it was not otherwise recoverable by the Council.

The judgment records an appeal to the High Court under section 40 of the Medical Act 1983 from the General Medical Council Fitness to Practise Panel’s determination dated 24 October 2007. The Panel found misconduct, impairment of fitness to practise and ordered erasure. The High Court dismissed the appeal and upheld the consequential findings and order.