Okpara v General Medical Council

An appeal under section 40 of the Medical Act 1983 is a rehearing without hearing the evidence again. The court may intervene only where the tribunal was wrong or unjust because of serious procedural or other irregularity.

Primary findings based on credibility attract substantial respect. Serious allegations require appropriately careful assessment, but the civil standard remains a single and unvarying balance of probabilities. A tribunal may assess whether a respondent’s positive account is credible, provided the regulator retains the burden of proof.

Sustained sexually predatory conduct towards a colleague while on duty may be fundamentally incompatible with continued medical registration. Erasure may therefore be proportionate despite good character, professional competence and personal mitigation.

Dr Udodiri Okpara appealed under section 40 of the Medical Act 1983 against Medical Practitioners Tribunal decisions finding sexual misconduct towards a nurse, impairment of fitness to practise and erasure from the medical register.

He alleged reversal of the burden of proof, insufficient scrutiny of serious allegations, failure to account for delay, and error in imposing erasure rather than suspension. The central issues were whether the tribunal had made an appealable legal or procedural error and whether its sanction fell outside the range of decisions it could properly and reasonably make.

1. Appeal framework. An appeal under section 40 of the Medical Act 1983 is a rehearing, but not a rehearing of the evidence. Under CPR PD52D and CPR r 52.21, intervention is justified only where the tribunal’s decision was wrong or unjust because of serious procedural or other irregularity.
2. Fact-finding and proof. The tribunal expressly placed the burden on the GMC and applied the balance of probabilities. Its reference to the appellant’s denials and counter-allegations was clumsy but, read in context, meant that disbelief of his positive account affected the credibility of his remaining account. That was legitimate reasoning and did not reverse the burden of proof.
3. The civil standard is finite and unvarying. Seriousness or inherent improbability may require more cogent evidence and more careful scrutiny, but does not create a heightened standard of proof. The tribunal identified each allegation, summarised the competing evidence and gave sufficient reasons. It was not required to address every forensic submission. Its primary credibility findings were therefore entitled to substantial deference.
4. Delay. The delay between the incidents and complaint was not exceptional. The tribunal had been addressed on the absence of CCTV and other evidential matters. The authority concerning allegations brought decades after the events did not assist the appellant.
5. Sanction. Sanction was a multifactorial evaluative decision for the specialist tribunal. Sustained sexually predatory behaviour towards a colleague while on duty, including conduct in a clinical setting and following deception about discussing a patient, was capable of being regarded as fundamentally incompatible with continued registration. Erasure was therefore open to the tribunal. Its assessment of insight, testimonials, personal circumstances and the public interest disclosed no appealable error.
6. The appeal was dismissed.

The appeal was brought under section 40 of the Medical Act 1983 from Medical Practitioners Tribunal determinations dated 19 September 2018 (facts), 20 September 2018 (misconduct and impairment) and 9 January 2019 (sanction). The High Court dismissed the appeal.