General Medical Council v Theodoropolous (Rev 1)

A court hearing a statutory professional-regulation appeal has inherent power to determine it in an absent party’s absence where that is necessary to exercise its jurisdiction effectively. Whether to exercise that power requires a fair assessment of the reasons for absence, prospects of participation after adjournment, prejudice, and the public interest in efficient regulatory disposal.

Deliberately falsifying a medical-registration certificate to evade licensing requirements and obtain work for which the doctor is ineligible is serious dishonesty. Where there is no insight or remediation, the fact that the conduct was non-clinical or involved one calculated attempt does not ordinarily justify suspension rather than erasure.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners’ Tribunal decision of 12 January 2017. The Tribunal had found that Dr Theodoropolous dishonestly altered a certificate so that it appeared he held a licence to practise, and sent it to a locum agency. It found misconduct and impairment, but suspended his registration for 12 months.

The respondent did not attend the Tribunal or the appeal. Shortly after the appeal hearing, an email indicated that he had suffered a serious brain injury and could not communicate. The court sought contact details for a person able to act for him, but received no response.

The issues were whether the court could and should determine the appeal in his absence, and whether suspension was an erroneous sanction which should be replaced by erasure.

1. Appeal allowed. The court had inherent power to determine an appeal under section 40A of the Medical Act 1983 in a party’s absence. Neither the Tribunal’s procedural power nor the identified provisions of the Civil Procedure Rules supplied that power. The necessary incident of the court’s statutory appellate jurisdiction did.

2. It was appropriate to exercise that power. Taking the email at face value, the respondent’s absence was not voluntary. However, there was no prospect that an adjournment would enable him, or a representative, to participate. The appeal concerned the appropriate sanction on facts already found, so the forensic disadvantage was limited. The public interest in the fair and efficient resolution of professional-regulation appeals was substantial. The adapted criteria approved in General Medical Council v Adeogba [2016] 1 W.L.R. 3867 supported that conclusion.

3. The court applied the appellate approach summarised in General Medical Council v Jagivan [2017] EWHC 1247 (Admin). It gave appropriate respect to the Tribunal’s expertise, but was entitled to correct an erroneous sanction. In a dishonesty case, the court was well placed to assess what was necessary to protect the public and maintain confidence in the profession.

4. The respondent’s conduct was a calculated attempt to circumvent a public-protective licensing regime. It compromised the integrity of medical qualifications and job applications, and risked an unlicensed doctor obtaining work. It was a serious breach of the fundamental requirement of honesty and integrity.

5. The Tribunal’s reasons did not justify suspension. The absence of a clinical setting did not reduce the seriousness of dishonesty directed at the qualification and appointment system. Nor was the conduct properly treated as an isolated lapse: it involved planning, falsification and a deliberate attempt to obtain ineligible employment. Given the respondent’s denials and the absence of evidence of insight or remediation, erasure was the appropriate and proportionate sanction.

6. The Tribunal’s suspension direction was quashed and a direction substituted that the respondent’s name be erased from the medical register. The parties had 28 days to seek consequential orders in writing.

• High Court (Administrative Court): The Council’s appeal was allowed. The court quashed the suspension direction and substituted erasure: [2017] EWHC 1984 (Admin) .
• Medical Practitioners’ Tribunal: On 12 January 2017, the Tribunal found dishonest misconduct and impairment, and directed suspension from the medical register for 12 months.