General Medical Council v Jagjivan & Anor

The General Medical Council may appeal under section 40A of the Medical Act 1983 against a tribunal's decision to give no direction, including where it has found no impairment of fitness to practise. The appeal power extends to an erroneous failure to find impairment. Such appeals follow CPR Part 52: the question is whether the decision is wrong, without an additional requirement that it be clearly wrong. Appellate courts must exercise particular caution when reviewing primary findings dependent on credibility. They are less disadvantaged when reviewing inferences from established facts. Previous good character and an asserted lack of sexual attraction do not preclude an inference of sexual motivation where the conduct found admits no other explanation.

The General Medical Council brought its first appeal under section 40A of the Medical Act 1983 against a determination of the Medical Practitioners Tribunal concerning Dr Jagjivan, a cardiology registrar. The allegations arose from his consultation with patient A, a woman referred to hospital with cardiac symptoms.

The tribunal accepted that Dr Jagjivan had made statements about stimulating patient A's intimate body parts and had placed his hand on her hand near her vagina. It also found that she had performed squats with her breasts exposed. The tribunal found misconduct in relation to the statements and hand placement, but found neither sexual motivation nor impairment of fitness to practise. It imposed no sanction or warning.

Dr Jagjivan challenged the GMC's jurisdiction to appeal because the tribunal had found no impairment. The Professional Standards Authority for Health and Social Care joined as a respondent supporting the appeal. It sought permission to appeal out of time if the GMC lacked jurisdiction. The principal issues were the scope of the GMC's appeal power, the appellate approach to factual findings and inferences, and whether the finding of no sexual motivation was wrong. The court also considered an application to admit evidence alleging sexual misconduct during a later consultation.

1. Appeal allowed. Section 40A(1)(d) of the Medical Act 1983 authorised an appeal against a decision to give no direction under section 35D, including where the tribunal had found no impairment. Section 40A(3) expressly permitted scrutiny of a finding as well as a penalty. Its language required no additional condition that impairment must first have been established. Restricting appeals in that way would frustrate the public-protection objective and exclude erroneous decisions providing no protection (paras 27–35).

2. The interpretation of the materially similar former provisions in section 29 of the NHS Reform and Health Care Professions Act 2002 in Ruscillo v Council for Regulation of Health Care Professionals and others [2004] EWCA Civ 1356 was applied. The presumption stated in Lowsley v Forbes [1999] 1 AC 329, that reused statutory language bears its established judicial meaning in a similar context, also applied (paras 28–34).

3. Appeals under section 40A followed the established approach to section 40 appeals and were governed by CPR Part 52. The court could correct material errors of fact or law. The test was whether the decision was wrong or unjust because of a serious procedural or other irregularity, without a requirement that it be clearly wrong. Particular caution was required over primary findings depending on credibility. Reviewing inferences placed the appellate court at less of a disadvantage. The court also gave guidance on respect for professional expertise, the potentially reduced weight of that expertise in sexual misconduct cases, the limited significance of mitigation, and inadequate reasons (paras 39–40).

4. Sexual motivation was an irresistible inference from the statements and hand placement proved under allegations 2(d) and 2(e). Dr Jagjivan had denied the conduct and supplied no alternative explanation. Previous good character, his evidence about his sexuality and the absence of an intended sexual relationship did not displace that inference. The findings concerning allegations 2(b) and 2(c) remained unchanged: although the court would have reached a different conclusion, it could not say those findings were wrong (paras 42–47).

5. The court had jurisdiction to admit fresh evidence but declined to do so because the appeal succeeded without it. The proposed evidence was disputed and untested. The court left the Article 6 inequality argument unresolved, while observing that any inequality would not justify removing the GMC's statutory appeal right. The PSA's alternative appeal did not arise (paras 36, 38, 49–50).

6. The finding of no sexual motivation concerning allegations 2(d) and 2(e) was quashed and a finding of sexual motivation substituted. Impairment and, if impairment were found, any direction under section 35D were remitted to the tribunal. It could consider whether any proceedings arising from the later consultation should be heard with the remitted proceedings (para 51).

1. High Court (Administrative Court): In [2017] EWHC 1247 (Admin) , allowed the GMC's appeal, substituted a finding of sexual motivation for allegations 2(d) and 2(e), and remitted impairment and any consequential direction. The findings concerning allegations 2(b) and 2(c) remained unchanged.
2. Medical Practitioners Tribunal: The determination dated 24 May 2016 found relevant conduct proved and misconduct established, but found no sexual motivation or impairment of fitness to practise. No sanction or warning was imposed.