Thilakawardhana, R (on the application of) v Office of the Independent Adjudicator for Higher Education & Anor

In reviewing a university fitness-to-practise decision, the court must respect the specialist judgment of the panel and must not substitute its own view merely because it might have imposed a different sanction. Expulsion may be proportionate where conduct is regarded as fundamentally incompatible with practising medicine. A lay appeal panel need not use a formal checklist or expressly reject every lesser sanction if its reasons, read fairly and in context, make the decisive reasoning clear. Reasons must nevertheless identify what was decided and why. Mitigating circumstances must be considered, and relevant professional guidance should be taken into account. The OIA should give substantial weight to professional judgment, but its review of whether a university decision was reasonable in all the circumstances is not limited to irrationality in the strict Wednesbury sense.

A medical student’s registration at the University of Leicester was terminated after a Fitness to Practise Panel found that a Facebook meme and private message constituted threatening conduct and showed fundamental unsuitability for medicine. The University Appeal Panel disregarded earlier professionalism warnings but upheld termination on the basis of the Facebook message alone. The OIA concluded that the complaint was not justified, and HHJ Milwyn Jarman QC dismissed the student’s judicial review claim in the Administrative Court.

Permission to appeal was granted on the issue of sanction. The appellant argued that the Appeal Panel’s reasons were inadequate, that expulsion was disproportionate, and that mitigation and professional guidance had not been properly considered. The central issues were the proper degree of judicial deference, the adequacy of the Appeal Panel’s reasons, and whether the OIA had lawfully reviewed the decision.

1. Appeal dismissed. The court would not substitute suspension for expulsion. Although it was not necessary to decide that expulsion was the only proper sanction, the court could not say that expulsion was disproportionate or outside the range of sanctions open to the Appeal Panel, particularly given the deference owed to a specialist university panel which had seen and heard the appellant.
2. The Appeal Panel’s reasons were terse but adequate. It found that the Facebook message created a real and justified fear of violence and that the conduct itself rendered the appellant unfit to practise medicine. Read in context, those conclusions explained both what had been decided and why. The Panel had considered the possibility of lesser sanctions, including through its consideration of Regulation 11.165. It therefore implicitly rejected suspension. A formal checklist or express discussion of every alternative was unnecessary in the circumstances. This reflected the approach to adequate reasons in Meek v Birmingham City Council [1987] IRLR 250 and Phipps v General Medical Council [2006] EWCA Civ 397.
3. The Appeal Panel had considered mitigation. It took account of the provocative behaviour preceding the message, the appellant’s unreserved apology, fresh psychiatric evidence, and the fact that the misconduct was treated as an isolated incident. It was entitled to regard the psychiatric evidence as providing no strong mitigation.
4. The GMC and MSC Guidance was advisory rather than mandatory, but a medical school panel should take it into account. The Appeal Panel’s approach was consistent with the guidance that sanctions must be proportionate, that options should be considered from the least severe, and that expulsion may be appropriate where behaviour is fundamentally incompatible with being a doctor. The deference owed to the specialist panel was reinforced by Higham v The University of Plymouth [2005] EWHC 1492 (Admin) and Raschid v General Medical Council [2007] EWCA Civ 46.
5. The challenge to the OIA decision necessarily failed once the Appeal Panel’s decision was upheld. However, although not necessary to the disposition, the court stated that the OIA should not treat professional judgment as beyond review. Under rule 6.2 of the OIA Scheme it may consider whether a university decision was reasonable in all the circumstances, a review not confined to the antithesis of legal perversity or Wednesbury unreasonableness. The OIA should give great weight to professional judgment, but should not adopt an unduly self-denying approach.

• Court of Appeal (Civil Division): The appeal from the Administrative Court was dismissed. Lord Justice Gross gave the judgment, with Lord Justice McFarlane and Lord Justice Sales agreeing.
• Administrative Court, Queen’s Bench Division: HHJ Milwyn Jarman QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim in a judgment dated 13 November 2015.