General Medical Council v Jagjivan & Anor

Under section 40A of the Medical Act 1983, the General Medical Council may appeal a Tribunal decision which finds no impairment and consequently makes no direction under section 35D. Such a decision is capable of being insufficient for public protection as to a finding, a penalty, or both.

The appeal is governed by CPR Part 52. The court must respect a Tribunal’s primary fact findings and regulatory expertise, but may correct material errors and draw its own inferences. In cases of sexual misconduct, the court may be less dependent on specialist expertise. Where proved conduct admits no non-sexual explanation, sexual motivation may be an irresistible inference.

The Medical Practitioners Tribunal found that Dr Jagjivan had made sexually explicit remarks and gestures to a partially dressed patient during a consultation. It found misconduct but no sexual motivation and no impairment of fitness to practise. It gave no warning or section 35D direction.

The General Medical Council appealed under section 40A of the Medical Act 1983. Dr Jagjivan challenged the GMC’s jurisdiction. The Professional Standards Authority for Health and Social Care supported the appeal and sought permission to appeal out of time only if the GMC lacked jurisdiction.

The court had to determine the scope of section 40A, the proper appellate approach to the Tribunal’s factual and regulatory findings, whether fresh evidence should be admitted, and whether the finding of no sexual motivation was sustainable.

1. Appeal allowed. The court rejected the jurisdictional challenge. A Tribunal which finds no impairment and therefore gives no section 35D direction has made a decision not to give a direction within section 40A(1)(d) of the Medical Act 1983. Section 40A(3), read with the GMC’s public-protection objective, permits an appeal against an insufficient finding as well as an insufficient penalty. The construction was supported by the binding interpretation of materially similar language in Ruscillo v Council for Regulation of Health Care Professionals and others [2004] EWCA Civ 1356.

2. Appeals under section 40A follow the established approach to section 40 appeals and are governed by CPR Part 52. The court may allow an appeal where the decision is wrong or unjust because of a serious procedural irregularity. It may correct material errors of fact and law, but must be especially cautious before disturbing credibility-based primary facts. It is less disadvantaged when drawing inferences from proved facts.

3. The court will ordinarily approach the Tribunal’s professional assessments of misconduct, impairment, sanction, public confidence and standards with diffidence. That restraint is reduced where, as with sexual misconduct, the court can itself assess what public protection and professional reputation require. Mitigation has less weight than in retributive sentencing, and inadequate reasons may amount to a serious procedural irregularity.

4. The finding that the conduct in allegations 2(d) and 2(e) lacked sexual motivation was wrong and unsustainable. On the facts found, Dr Jagjivan introduced sexual concepts, referred to intimate body parts and vaginal stimulation, and touched the patient’s hand while it was near her vagina. He gave no alternative explanation because he denied making the statements. Good character evidence, his account of his sexuality, and the absence of similar previous conduct could not displace the irresistible inference of sexual motivation. The court did not find the Tribunal’s different conclusion on allegations 2(b) and 2(c) to be wrong.

5. The court had power to receive fresh evidence, as recognised in GMC v Adeogba [2016] EWCA Civ 162, but did not admit it because the appeal succeeded without it. It quashed the finding that allegations 2(d) and 2(e) were not sexually motivated, substituted the opposite finding, and remitted impairment and any consequential section 35D direction to the Tribunal.

1. High Court (Administrative Court) — The GMC’s appeal was allowed in [2017] EWHC 1247 (Admin). The court substituted findings that allegations 2(d) and 2(e) were sexually motivated and remitted impairment and any section 35D direction under the Medical Act 1983.
2. Medical Practitioners Tribunal — On 24 May 2016, the Tribunal found misconduct but no sexual motivation or impairment, and made no warning or section 35D direction.