Oyesanya v General Medical Council

On an appeal from a professional disciplinary tribunal, the appellate court may use robust case-management powers to confine the issues and documentation to matters capable of affecting the outcome. Challenges to the tribunal’s case-management decisions, assessment of evidence and primary findings of fact will ordinarily be excluded or treated with considerable restraint. The court should distinguish those matters from the legal question whether established facts amount to misconduct, serious misconduct or impairment of fitness to practise, and from the proportionality and necessity of the sanction.

The appellant, a consultant gynaecologist, brought a statutory appeal against findings and a three-month suspension imposed by a General Medical Council medical practitioners’ tribunal after a 57-day hearing. The tribunal had found three allegations proved, determined that they amounted to serious professional misconduct, found impairment of fitness to practise and imposed suspension.

Before the substantive appeal, the appellant sought an adjournment to obtain representation. The court granted the adjournment and considered how the appeal should be managed pending that hearing. The central issue was which grounds and documents were properly necessary for determination of the substantive appeal.

1. Adjournment and case management. The application for an adjournment was granted. The court could link its discretionary power to adjourn with the powers and duties under Civil Procedure Rules Rules 1.1 and 1.4, including Rules 1.4(2)(b) and (c), and Rule 3.1(2)(k), to limit issues and exclude matters from consideration.
2. Scope of the appeal. The disciplinary hearing had become wholly disproportionate, and there was a serious risk that the appeal would become similarly uncontrolled. The appeal was therefore to be confined, subject to the discretion of the judge hearing the substantive appeal, to whether the facts found amounted to misconduct, whether any misconduct was serious, whether the appellant’s fitness to practise was impaired, and the proportionality and necessity of suspension.
3. Excluded grounds. Complaints about adjournments, the five-year rule, admission of further evidence and other procedural decisions were quintessentially case-management matters for the tribunal. It would be only very exceptional for the appellate court to revisit or reverse such decisions. Complaints about the weight assigned to witnesses or expert evidence were likewise matters for the tribunal that heard the evidence. The appellate court would not ordinarily get behind primary findings of fact made after the lengthy hearing.
4. Legal characterisation distinguished from factual review. The restraint applicable to primary factual findings did not determine the separate question whether those facts legally amounted to misconduct or serious misconduct, or whether they justified a finding of impairment and suspension.
5. Practical directions. The papers were to be reduced to a core bundle, with permission for one further bundle of no more than 200 pages containing documents essential to disposal of the appeal. Costs of the adjournment hearing were reserved.

• General Medical Council medical practitioners’ tribunal: After a 57-day hearing, found three allegations proved, determined that they amounted to serious professional misconduct, found impairment of fitness to practise and imposed a three-month suspension.
• High Court (Administrative Court), [2017] EWHC 409 (Admin): Granted an adjournment to enable the appellant to seek representation, limited the substantive appeal to specified issues, restricted the appeal papers and reserved costs.