General Medical Council v Krishnan

On an appeal under section 40A of the Medical Act 1983, the court applies the ordinary appellate test of whether the tribunal’s decision was wrong or unjust because of serious procedural irregularity. A tribunal determining dishonesty must apply the test in Ivey v Genting Casinos (UK) Ltd: it must first ascertain the person’s actual knowledge or belief as to the facts, and then assess the conduct by the standards of ordinary decent people. The second limb of R v Ghosh is no longer applicable. Where a tribunal has applied the wrong dishonesty test, the appellate court should ordinarily quash and remit rather than substitute its own conclusion, particularly where the tribunal heard all the evidence.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal’s findings that Dr Kennedy Krishnan was not dishonest in working as a locum doctor while on sick leave and that his fitness to practise was not impaired. The Tribunal had applied the two-stage test in R v Ghosh.

Dr Krishnan’s purported cross-appeal, challenging the Tribunal’s finding that the first Ghosh limb was satisfied, was treated by consent as a rolled-up judicial review application. Before judgment, the Supreme Court decided Ivey v Genting Casinos (UK) Ltd, requiring reconsideration of the dishonesty test. The central issues were the effect of Ivey and the proper disposal of the appeal.

1. The appeal was allowed. The Tribunal’s findings that Dr Krishnan was not dishonest, that his fitness to practise was not impaired, and that a warning should be imposed were quashed. The dishonesty, impairment and sanction issues were remitted to the same Tribunal for redetermination on the facts already found proved and in accordance with the judgment.

2. Section 40A appeals are appeals governed by CPR Part 52. The court may correct material errors of fact or law, but should be cautious before disturbing primary factual findings, especially findings based on witness credibility. It should approach specialist regulatory conclusions with appropriate diffidence, although dishonesty may be an issue on which the court can assess the public-protection implications more readily.

3. The Tribunal had been incorrectly advised to apply the Ghosh two-stage test. Under Ivey v Genting Casinos (UK) Ltd, the fact-finder must first determine the individual’s actual state of knowledge or belief as to the facts. The reasonableness of that belief is evidence relevant to whether it was genuinely held, but is not an additional requirement. The fact-finder must then decide whether the conduct was dishonest by the standards of ordinary decent people. There is no requirement that the person appreciated that the conduct was dishonest by those standards.

4. The first, objective limb of Ghosh was not equivalent to the objective stage of the Ivey test, because the latter requires the fact-finder first to ascertain the individual’s actual knowledge or belief as to the relevant facts. The Tribunal’s findings could not safely be treated as answers to the correct questions.

5. It was inappropriate for the court to substitute its own finding of dishonesty. The specialist Tribunal had heard all the evidence, and dishonesty is a grave conclusion. The judicial review application was dismissed and permission refused. Each party was ordered to bear its own costs.

High Court (Administrative Court): The GMC appeal from the Medical Practitioners Tribunal was allowed. The Tribunal’s relevant findings and warning were quashed and the issues were remitted for redetermination. The judicial review application was dismissed and permission refused: [2017] EWHC 2892 (Admin).