Salem v The General Medical Council

Issue estoppel applies to findings made by a disciplinary tribunal. A later challenge is permitted only in the special circumstances recognised in Arnold v National Westminster Bank PLC: the new material must put an entirely different complexion on the issue and could not, with reasonable diligence, have been adduced earlier. The two requirements are cumulative.

On a sanction appeal, the court does not re-sentence the practitioner. It asks whether the tribunal’s decision was wrong under CPR 52.11(3). Repeated failure to develop insight or undertake remediation may justify erasure where further suspension would serve no useful purpose and continued registration would undermine public confidence.

The appellant, a psychiatrist, appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal decision erasing his name from the medical register. The erasure followed three successive periods of suspension imposed after earlier findings that his fitness to practise was impaired.

He sought to reopen the 2011 findings, relying on documents not before the original tribunal, and argued that erasure was excessive. The central issues were whether issue estoppel prevented reconsideration of the 2011 findings and whether the later sanction was wrong.

1. Ground 1 dismissed. The 2011 findings were subject to issue estoppel. Under R (Coke-Wallis) v Institute of Chartered Accountants of England and Wales, the doctrine applies in disciplinary tribunal proceedings. The exception identified in Arnold v National Westminster Bank PLC requires both that the further material would put an entirely different complexion on the point and that it could not, by reasonable diligence, have been adduced earlier.
2. The first requirement was not met. The 2006 complaint letter did not undermine the allegations concerning the 2008 incident. The Hempsons advice and Mr Hood’s report supported, rather than undermined, the conclusion that Patient A had been informally admitted and that the use of section 5(2) of the Mental Health Act 1983 was lawful. The documents therefore did not materially alter the issues decided by the original tribunal.
3. The second requirement was met. The appellant had sought the documents before the 2011 hearing, and they were not within his possession or control. Nevertheless, failure of this requirement alone could not overcome the failure to satisfy the first requirement. The original findings remained sound. Patient A had consented to attending the unit, and the appellant’s refusal to examine her, assess her, provide guidance, or accept clinical responsibility was not justified.
4. Ground 2 dismissed. Applying CPR 52.11(3), the court’s task was to determine whether the tribunal’s sanction decision was wrong, rather than to re-sentence the appellant. The tribunal was entitled to conclude that repeated failure, over three periods of suspension, to develop insight or undertake remediation demonstrated a persistent lack of insight. It was also entitled to conclude that further suspension would serve no useful purpose and that continued registration would significantly undermine public confidence. Erasure was therefore neither harsh nor unnecessary in the circumstances.
5. Both grounds of appeal were dismissed.

The judgment describes an earlier appeal against the Medical Practitioners Tribunal’s 2011 findings, which was dismissed by consent under an order dated 22 January 2013 and sealed on 18 February 2013. The present appeal challenged the Tribunal’s erasure decision of 1 June 2016.

• High Court (Administrative Court): Both grounds of appeal dismissed.