Nwogbo v General Medical Council

An appeal under section 40 of the Medical Act 1983 is a rehearing, but the High Court must give appropriate weight to a specialist fitness to practise panel, particularly on credibility, primary facts and professional standards. A panel must give sufficient reasons for a finding of dishonesty, including addressing the substance of the defence and identifying the relevant state of mind. Mere knowledge that guidance had been read does not establish dishonesty without a finding that the doctor knew of the relevant obligation at the time. On sanction, the court should respect the panel’s specialist judgment and intervene only where the sanction is clearly inappropriate.

Dr Samuel Nwogbo appealed under section 40 of the Medical Act 1983 against a General Medical Council fitness to practise panel’s findings that he had committed an assault, engaged in dishonest failures to notify the GMC and medical employers of relevant matters, and was impaired. The panel directed erasure from the medical register.

The appeal challenged the factual findings, eight findings of dishonesty, impairment and sanction. The central issues were whether the panel had given a proper reasoned basis for each finding of dishonesty and whether erasure remained appropriate after one finding was set aside.

1. The appeal was allowed in relation to the finding that the appellant had acted dishonestly by failing to notify the GMC without delay of his criminal charge. The panel had not expressly found that he knew at the relevant time that he was required to report the charge. It had also failed to put the allegation of dishonesty clearly to him in cross-examination and had not adequately addressed his defence, including his openness with his permanent employer.
2. The remaining seven findings of dishonesty were upheld. The panel was entitled to find that the appellant had dishonestly failed to notify the Countess of Chester Hospital of his conviction and exclusion, had failed to notify CCO of his planned locum work, and had failed to notify Locum Links and Mid Staffordshire of the interim order and related matters. The panel’s reasons sufficiently addressed the evidence and the appellant’s explanations.
3. An appeal under section 40 is by way of rehearing under CPR Part 52. The court may correct material errors of fact or law, but must respect the specialist tribunal’s expertise and its advantage in hearing live evidence. Primary factual findings, particularly credibility findings, should be disturbed only where shown with reasonable certainty to be wrong.
4. A finding of dishonesty requires reasons demonstrating that the panel applied the correct test and addressed the substance of the defence. A finding that the appellant should have known of an obligation cannot substitute for a finding that he knew of it at the relevant time.
5. The conviction was conclusive evidence of commission of the offence under Rule 34(3) of the General Medical Council (Fitness to Practise) Rules 2004. The conviction and the surviving dishonest misconduct justified a finding of impairment. Erasure was not clearly inappropriate. Even excluding the quashed dishonesty finding, it was the only sufficient and proportionate sanction. The appeal was therefore otherwise dismissed.

The judgment states that the appellant appealed the fitness to practise panel’s decision to the High Court under section 40 of the Medical Act 1983. Hickinbottom J directed that the proceedings continue as a statutory appeal under CPR Part 52. The High Court allowed the appeal on one dishonesty allegation and dismissed it on all other issues.