Nduka v General Medical Council

On an appeal under section 40 of the Medical Act 1983, the High Court exercises a distinct but secondary judgment. It must correct material errors of fact or law, while respecting the specialist tribunal’s assessment of evidence, professional standards and sanction. The appeal is not a rehearing of the evidence or an exercise in re-sentencing.

In professional disciplinary proceedings, dishonesty may be established on the balance of probabilities by applying the two-stage Ghosh test, adapted to the professional context. Repeated dishonest omissions in job applications can constitute misconduct and justify suspension where the practitioner lacks insight and a risk of repetition cannot be excluded.

Dr Nduka appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal determination finding that his fitness to practise was impaired by misconduct and suspending him from the register for four months.

The Tribunal found that he had dishonestly failed to disclose an ongoing GMC fitness to practise investigation and interim conditions in several medical job applications. It rejected his explanations concerning typing errors, website defects and misunderstanding. The appeal raised issues concerning procedural fairness, absence from parts of the hearing, a change of legal assessor, further evidence, factual findings, dishonesty, impairment and sanction.

1. Appeal dismissed. The Tribunal’s determination and four-month suspension were upheld on all grounds.
2. The statutory appeal involved a rehearing without hearing the evidence again. Under CPR rule 52.21(3), the High Court could intervene for a wrong decision or serious procedural irregularity. However, the court had to give appropriate weight to the specialist tribunal’s expertise, its assessment of witnesses and its evaluative judgment. The appeal was not an exercise in re-sentencing or substitution of one view of the merits for another. This approach was stated in Meadow v General Medical Council [2007] QB 462 and Raschid v General Medical Council [2007] 1 WLR 1460.
3. The Tribunal acted fairly in granting adjournments, refusing recusal and proceeding in the appellant’s absence after he disengaged from the process. The change of legal assessor was not procedurally unfair because the assessor was not a decision-maker and the applicable rules imposed no restriction on substitution. The principles in Elizabeth Davies v Health Care Professions Council [2016] EWHC 1593 (Admin) supported proceeding where a practitioner sought to frustrate or delay regulatory proceedings.
4. The Tribunal correctly refused to reopen its completed fact-finding stage. The 2004 Rules required separate stages for findings of fact, impairment and sanction, and the general evidential power could not be used to reopen the first stage after the findings had been announced. The approach in TZ v General Medical Council [2015] EWHC 1001 (Admin) was applied.
5. The Tribunal was entitled to find that the appellant knowingly made misleading and dishonest entries. The appropriate test was whether, on the balance of probabilities, his conduct was dishonest by the standards of reasonable and honest doctors and whether he realised that it was dishonest by those standards. The Tribunal’s findings were supported by the evidence and were not displaced by earlier interim-order observations.
6. The findings amounted to misconduct because the conduct was repeated, associated with professional practice, undermined fair recruitment and represented a serious departure from Good Medical Practice. Lack of insight and continuing denial justified a finding of current impairment.
7. The four-month suspension was neither excessive nor disproportionate. The Tribunal had considered the least restrictive sanctions, applied the Indicative Sanctions Guidance and balanced the appellant’s interests against the public interest. Suspension was within the permissible range and, in the circumstances, at its lenient end.

• High Court (Administrative Court): The appeal from the Medical Practitioners Tribunal’s determination dated 15 December 2016 was dismissed. The finding of impaired fitness to practise and four-month suspension remained in force.