Nkomo v The General Medical Council

A statutory appeal against a professional disciplinary sanction is a rehearing without rehearing the evidence. An appellate court should defer to the specialist tribunal’s evaluative judgment and intervene only for an error of principle or a decision outside the range of proper and reasonable outcomes. In dishonesty cases, suspension is reserved for conduct falling short of fundamental incompatibility with continued registration. Erasure may be justified by serious dishonesty even outside clinical practice, particularly where it is prolonged, concealed or accompanied by limited insight. The tribunal must assess all circumstances; the Sanctions Guidance imposes no rigid tariff. Personal mitigation may carry limited weight where professional integrity and public confidence are engaged.

Dr Collen Nkomo appealed under section 40 of the Medical Act 1983 against the Medical Practitioners Tribunal’s decision of 20 December 2018 to erase his name from the medical register. He admitted convictions for failing to provide a specimen for analysis and fraud by false representation, together with failures to notify the GMC without delay. He did not challenge the factual findings or the finding of impairment. The appeal concerned sanction only. The central issues were whether the Tribunal had failed to give sufficient weight to his personal circumstances and whether it had wrongly failed to distinguish dishonesty warranting suspension from dishonesty warranting erasure.

The appeal was dismissed.

1. Appellate approach. An appeal under section 40 of the Medical Act 1983 is by way of rehearing, but without hearing the evidence again. The court may intervene where the Tribunal’s decision was wrong or unjust because of serious procedural or other irregularity. A sanction decision is an evaluative, multifactorial decision. As explained in Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, an appellate court should interfere only for an error of principle or where the evaluation falls outside the bounds of what the specialist Tribunal could properly and reasonably decide.
2. Dishonesty and sanction. The Sanctions Guidance draws an important line between conduct fundamentally incompatible with continued registration, for which erasure is required, and serious conduct falling short of that standard, for which suspension may be appropriate. It is not a rigid tariff and must not be construed like a statute. Dishonesty by a doctor is almost always extremely serious. Persistent or covered-up dishonesty, or dishonesty combined with lack of insight, is likely to require erasure. Erasure may also be proper for one-off dishonesty, and the misconduct need not occur in a clinical setting. The principles in Theodoropoulos v General Medical Council [2017] EWHC 1984 (Admin) and the other authorities cited supported that approach.
3. Application. The fraud was serious, deliberate and dishonest, lasted two years and seven months, produced a financial gain of about £40,800, and was aggravated by the failure to report the convictions without delay. The Tribunal also found only partial insight and little acknowledgement of the effect on the profession’s reputation. Those findings entitled it to conclude that the conduct was fundamentally incompatible with continued registration. The Tribunal had considered the personal circumstances relied on, and the weight given to mitigation was for it to determine. Its rejection of a meaningful distinction between sustained and persistent dishonesty was correct. The decision to impose erasure was within the range of decisions properly open to the Tribunal.

1. Medical Practitioners Tribunal — 20 December 2018: found misconduct and impairment arising principally from sustained dishonesty and directed erasure from the medical register.
2. High Court (Administrative Court) — 9 October 2019: heard the statutory appeal under the Medical Act 1983 and dismissed it.