Motala v General Medical Council

An appeal from a professional disciplinary tribunal is a rehearing without hearing the evidence again. The appellate court must respect the tribunal’s specialist expertise, its assessment of witnesses and its evaluative judgment. Findings about a registrant’s insight are primarily matters for the tribunal, which must weigh the whole body of oral and written evidence. A registrant’s continuing denial of misconduct may be relevant to insight, although it cannot automatically be treated as proof of a lack of insight. At a review hearing, the registrant bears a persuasive burden of demonstrating that the concerns underlying the original impairment finding have been addressed. Conditions may properly remain in force where insight is incomplete and further reflection, supervision or education is required.

Dr Motala appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal decision following a review of conditions imposed on his registration. The tribunal found that his fitness to practise remained impaired and continued conditions for six months, although supervision was reduced from close to ordinary supervision.

The appeal challenged the finding that Dr Motala lacked full insight into earlier sexually motivated misconduct, aspects of a personal development plan, and a condition requiring a chaperone for intimate examinations of female patients. The central issues were whether the tribunal’s assessment of insight was open to it, whether the review process was procedurally fair, and whether the conditions were appropriate.

1. Appeal dismissed. The appeal under section 40 of the Medical Act 1983 is by way of rehearing, but without hearing the evidence again. The court must give appropriate weight to the tribunal’s specialist expertise, its opportunity to see and hear witnesses, and its evaluative judgment. Findings of primary fact, particularly credibility findings, should be disturbed only where the tribunal was plainly wrong or the evidence was misread. The approach in Meadow v General Medical Council [2006] EWCA Civ 390 and Southall v General Medical Council [2010] EWCA Civ 407 was applicable.
2. The extent of a registrant’s insight is classically a matter of fact and judgment for the disciplinary tribunal, which must weigh all relevant oral and written evidence. The tribunal was entitled to find that Dr Motala had made significant progress but had not developed full insight. His evidence suggested that his apparent recognition of the seriousness of the misconduct depended substantially on the continuing regulatory controls, rather than on an independent understanding of the misconduct and its impact. That assessment was supported by his reflective work, choice of professional development courses and view that his need for supervision was similar to that of other junior doctors. The approach in Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 39 supported that conclusion.
3. At a review hearing, the registrant has a persuasive burden to demonstrate that the concerns underlying the original impairment finding have been sufficiently addressed through insight, application, education, supervision or other achievement. The tribunal did not raise hidden concerns or act unfairly. Dr Motala knew that insight was in issue and had ample opportunity to address it in written and oral evidence. The guidance in Abrahaem v General Medical Council [2008] EWHC 183 (Admin) was applied.
4. The tribunal was entitled to take account of Dr Motala’s continuing denial of the misconduct when assessing insight. That denial was not an automatic bar to demonstrating insight, but it was relevant to the evaluation. The tribunal acted consistently with Karwell v General Medical Council [2011] EWHC 826, Amao v Nursing and Midwifery Council [2014] EWHC 147 and Irvine v General Medical Council [2017] EWHC 2038 (Admin).
5. The finding of incomplete insight was open to the tribunal and the conditions addressed the central ongoing concerns. The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs assessed at £7,113.40.

• High Court (Administrative Court): dismissed the appeal against the Medical Practitioners Tribunal’s review decision of 25–26 July 2017. The tribunal’s finding that fitness to practise remained impaired and its continuation of conditions for six months were upheld.