General Medical Council v Awan

On an appeal under section 40A of the Medical Act 1983, the appellant must show that a disciplinary tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. Sanction is an evaluative judgment, and appellate intervention requires caution, particularly where a specialist tribunal has heard oral evidence. Reasons should be read as a whole; the tribunal need not repeat every submission or cite every passage of non-binding guidance. A professional who denies misconduct must receive a fair trial without facing enhanced sanction merely because the defence fails. An irrelevant consideration does not invalidate a sanction unless it was material.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners’ Tribunal decision suspending Dr Awan for nine months, followed by review. The Tribunal had found sexually motivated inappropriate online communications with a person whom Dr Awan believed to be 13, and had found his fitness to practise impaired. The GMC argued that the Tribunal failed to assess his rejected defence properly, relied on an irrelevant public-interest consideration because he had emigrated to Canada, and failed to apply relevant provisions of the Sanctions Guidance on erasure. The central issue was whether the sanction was wrong in the appellate sense.

1. Disposition and jurisdiction. The appeal was dismissed. On an appeal under section 40 A of the Medical Act 1983, the appellant had to establish either that the Tribunal’s decision was wrong or that it was unjust because of a serious procedural or other irregularity. Only the former ground was relied upon.
2. Purpose of sanction. Disciplinary sanctions are protective rather than penal. The overarching objective is protection of the public, including health, safety and well-being, public confidence in the profession, and proper professional standards. The court applied the approach in General Medical Council v Meadow [2006] EWCA Civ 1390 and Bolton v The Law Society [1993] EWCA Civ 32.
3. Appellate restraint. Sanction is an evaluative judgment. An appellate court must exercise caution or diffidence, especially where oral evidence has been heard or the decision is made by a specialist tribunal. That principle applies to clinical error and personal misconduct alike. The court applied Bawa-Garba v The General Medical Council & Ors [2018] EWCA Civ 1879, Beacon Insurance Company Ltd v Maharaj Bookstore Ltd [2014] UKPC 21, Biogen Inc v Medeva Plc [1996] UKHL 18 and Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64.
4. Reasons and guidance. Tribunal reasons must be read as a whole and in context. They need only explain the result and permit effective appellate review. The Tribunal was not required to restate every evidential point or slavishly reproduce the Sanctions Guidance. That Guidance is non-statutory and non-binding: it should be consulted, but operates as signposts whose application depends on the circumstances. The court relied on Phipps v General Medical Council [2006] EWCA Civ 397, Re F (Children) [2016] EWCA Civ 546, SP v EB and KP [2014] EWHC 3964 (Fam) and Piglowska v Piglowski [1999] 1 WLR 1360.
5. Rejected defence and insight. A professional is entitled to advance and receive a fair trial of any defence without facing additional charges or enhanced sanction merely because the defence is disbelieved. Where there is no significant hiatus between fact-finding and the impairment or sanctions stages, a full admission of culpability cannot reasonably be demanded. The Tribunal was entitled to treat insight as limited without treating the rejected defence as a separate aggravating factor. The court applied Misra v. General Medical Council (GMC) [2003] UKPC 7 and considered the comparable reasoning in General Medical Council v X [2019] EWHC 493.
6. Application. The reference to preserving the public’s access to an otherwise competent doctor was not a material element of the decision, even if the statutory public were understood as the UK public. The Tribunal’s failure expressly to cite every relevant paragraph of the Guidance did not demonstrate error. Its nine-month suspension was carefully considered and sufficient to protect the public and maintain confidence in the profession. The decision could not be characterised as wrong.

1. High Court (Administrative Court): The GMC’s appeal under section 40 A of the Medical Act 1983 was dismissed. [2020] EWHC 1553 (Admin).
2. Medical Practitioners’ Tribunal: On 15 November 2019, the Tribunal imposed nine months’ suspension followed by review.