Johnson-Ogbuneke v General Medical Council

An appeal under section 40 of the Medical Act 1983 is a rehearing, but appellate intervention requires the tribunal’s decision to be wrong or unjust because of a serious procedural or other irregularity. Appropriate respect must be given to a specialist professional tribunal, particularly on primary facts, witness assessment and evaluative judgments concerning professional standards and sanction. Erasure may be proportionate where serious clinical failings are accompanied by persistent dishonesty, lack of insight, refusal to accept responsibility and an ongoing risk to patients or public confidence.

The appellant, a doctor, appealed against a Medical Practitioners Tribunal determination dated 16 April 2015 which found numerous clinical and professional failings, dishonesty and impaired fitness to practise, and erased her name from the medical register.

She challenged the fairness of the hearing, the admission of deceased-witness evidence, alleged bias, the expert evidence, factual findings, the findings of impairment and the proportionality of erasure. The central issue was whether the Tribunal’s determination was wrong or unjust because of a serious procedural or other irregularity.

1. Appeal dismissed. The appeal under section 40 of the Medical Act 1983 was by way of rehearing. The court adopted the approach summarised in Jayaprakash Gosalakkal v General Medical Council [2015] EWHC 2445 (Admin): the appeal could succeed only if the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. The appellate court had to give appropriate weight to the Tribunal’s specialist expertise and its advantage in hearing and seeing witnesses.
2. The principles from Meadows v General Medical Council [2007] QB 462, Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 and Southall v General Medical Council [2010] EWCA Civ 407 required restraint before overturning primary findings, especially findings based on credibility. Mere personal unease or the possibility that another decision-maker might have reached a different conclusion was insufficient.
3. The Tribunal was entitled to admit the statement of the deceased witness, Mr Rand, as hearsay evidence. The appellant had been given an opportunity to make written representations, and there was no basis for concluding that the Tribunal failed to consider them or failed to accommodate the absence of cross-examination.
4. The Tribunal’s findings were supported by extensive factual and expert evidence. The criticisms of the expert witness’s expertise and methodology, the complaints of witness and Tribunal bias, and the allegation concerning missing x-rays disclosed no material error or procedural unfairness.
5. In accordance with Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46, particular respect was due to the Tribunal’s judgment on sanction, whose purpose included preserving public confidence in the medical profession rather than imposing retributive punishment. The findings of serious clinical incompetence, persistent dishonesty, lack of insight, refusal to accept responsibility and continuing risk justified the conclusion that erasure was proportionate.
6. The appeal therefore failed. The court reserved its decision on costs pending written representations from the appellant.

1. High Court (Administrative Court): The appeal against the Medical Practitioners Tribunal determination dated 16 April 2015 was dismissed. The court reserved costs.