Fopma v General Medical Council

An appellate court reviewing an MPTS decision under section 40 of the Medical Act 1983 must respect the tribunal’s evaluative judgments unless legal or other appealable error is shown. Fitness to practise is assessed prospectively, but historic misconduct may continue to impair fitness where it remains unremediated or continues to damage public confidence. Persistent dishonesty concerning professional registration may justify erasure, although erasure is not inevitable in every dishonesty case. The tribunal must apply proportionality and the public-interest objective, treating sanctions guidance as an authoritative steer rather than a mandatory code. Personal hardship and possible engagement of article 8 do not ordinarily defeat a proportionate sanction imposed to protect patients and maintain confidence in the profession.

Dr Emke Fopma appealed under section 40 of the Medical Act 1983 against an MPTS decision finding that his fitness to practise was impaired by a Dutch conviction for sexual assault of a young patient and by prolonged dishonest failures to disclose the conviction and false answers in an application for specialist registration.

The tribunal erased his name from the Medical Register. The appeal challenged both impairment and sanction, relying principally on the age of the events, rehabilitation, character evidence, decisions of the Dutch criminal and regulatory authorities, the alleged absence of an explicit reporting duty at the relevant time, hardship, and article 8. The central issues were whether the tribunal’s findings were open to it and whether erasure was proportionate.

Appeal dismissed. The tribunal’s decision to erase Dr Fopma from the Medical Register was upheld, with costs awarded to the GMC.

1. The statutory appellate principles under section 40 were established and required the court to avoid second-guessing the specialist tribunal’s evaluative conclusions absent an appealable error. The tribunal was entitled to proceed on the basis of the subsisting Dutch conviction and to find current impairment from the sexual offence, the conviction, and the continuing damage to professional reputation.
2. Fitness to practise is a prospective, forward-looking assessment. The seriousness and age of misconduct are not, by themselves, determinative. Here, however, the tribunal was entitled to find that the misconduct had not been remediated, that Dr Fopma lacked meaningful insight, and that the public interest would not be upheld without a finding of impairment.
3. The absence of a specific reporting obligation in the version of Good Medical Practice applicable at the time did not excuse the dishonest failure to disclose the convictions. The false registration application and continuing concealment were fundamental to the professional registration under which he practised for more than a decade. The dishonesty was therefore properly characterised as persistent.
4. The sanctions guidance supplied an authoritative steer, but did not mandate any particular sanction. The tribunal properly adopted a proportionate, bottom-up assessment, balancing personal interests against the statutory public-interest objectives. No action and conditions were inadequate; suspension was also inadequate because the sexual abuse, abuse of trust, persistent dishonesty and lack of insight were fundamentally incompatible with continued registration. Each of the conviction and the dishonesty was independently capable of supporting erasure.
5. The Dutch criminal and regulatory decisions did not materially assist the appeal because they arose from different criminal and regulatory purposes and from Dr Fopma’s fuller dealings with the Dutch regulator. Lapse of time, rehabilitation, testimonials and personal hardship had been taken into account and did not compel a lesser sanction. Article 8 did not establish a right to challenge an otherwise lawful and proportionate sanction; any interference served a fundamental public interest.

High Court (Administrative Court): appeal under section 40 of the Medical Act 1983 dismissed. The MPTS finding of impairment and direction erasing the appellant’s name from the Medical Register were upheld. Costs were awarded to the GMC.