Raychaudhuri v General Medical Council

Section 40A of the Medical Act 1983 gives the GMC a right to appeal against a Medical Practitioners Tribunal decision not to direct a sanction where the Tribunal has rejected an allegation that fitness to practise is impaired. That jurisdiction extends to findings underpinning the impairment decision. The statutory right is compatible with Article 6, particularly because the practitioner has equivalent avenues of challenge, including judicial review where appropriate.

On dishonesty, an appellate court must give substantial weight to the Tribunal’s evaluative assessment, especially where it heard the witnesses and understood the professional context. A Tribunal may legitimately find that misleading and knowingly evasive conduct was not dishonest when viewed in its full factual and moral context. The appeal was therefore allowed on dishonesty, and the Tribunal’s decision restored.

The appellant, a doctor, faced disciplinary proceedings before a Medical Practitioners Tribunal concerning entries made on a paediatric assessment form and later explanations given to colleagues. The Tribunal found certain statements false, misleading and, in one respect, knowingly false, but rejected dishonesty and found no impairment of fitness to practise. It issued a warning.

The GMC appealed under section 40A of the Medical Act 1983. The Administrative Court accepted jurisdiction, substituted a finding of dishonesty, found impairment and remitted the matter for sanction: [2017] EWHC 2116 (Admin). The appeal concerned the scope of section 40A, the propriety of substituting dishonesty, and the resulting impairment and sanction issues.

1. Jurisdiction. The appeal on Ground (1) was dismissed. Section 40A(1)(d), read with section 40A(3) and (4), naturally covers a decision not to give a direction under section 35D where the Tribunal rejects the GMC’s charge that fitness to practise is impaired. The GMC may also challenge findings of fact forming the foundation of that decision. This construction is supported by the parallel appeal and reference regimes, the statutory objective of public protection, and the legislative background.
2. Article 6. The construction was compatible with Article 6. In this case the GMC’s right of appeal was the mirror image of the practitioner’s ability to challenge an impairment finding and underlying facts. Judicial review would also be available for relevant factual challenges. Section 3(1) of the Human Rights Act 1998 therefore provided no basis for a strained construction.
3. Dishonesty. The appeal on Ground (2) was allowed. Although Ivey v Genting Casinos (UK) Ltd had replaced the two-stage approach in R v Ghosh, the Tribunal’s findings remained relevant under the new approach. It was entitled to distinguish between the doctor’s understanding of the serious allegation that he had completed the form without intending to examine the patient, and his deliberate but short-term evasiveness about the precise entries made.
4. The Tribunal had heard the witnesses, understood the pressures of the clinical setting and made a finely balanced evaluative judgment. The Administrative Court treated the matter too mechanically and gave insufficient weight to the Tribunal’s assessment and to the doctor’s earlier full and honest account to other colleagues. The substituted finding of dishonesty was quashed and the Tribunal’s finding restored.
5. Ground (3) did not arise. The GMC’s appeal to the Administrative Court should have been dismissed, and no sanction under section 35D(2) arose.

1. Administrative Court: Sweeney J accepted jurisdiction under section 40A of the Medical Act 1983, allowed the GMC’s appeal, substituted a finding of dishonesty and impairment, and remitted the case for sanction: [2017] EWHC 2116 (Admin).
2. Court of Appeal (Civil Division): Ground (1) dismissed, but Ground (2) allowed. The substituted finding of dishonesty was quashed, the Tribunal’s decision restored, and the GMC’s appeal dismissed. Ground (3) did not arise.