General Medical Council & Ors v Zafar

On an appeal under Medical Act 1983 s 40A or s 40B, the appellate court ordinarily respects a specialist tribunal’s factual and evaluative conclusions. Greater intervention is justified where the sanction concerns misconduct outside professional performance and affects public confidence, or where the tribunal proceeded on a materially incomplete or mistaken basis.

In disciplinary proceedings, dishonesty by a doctor is exceptionally serious. Reckless provision of false evidence by an expert witness may be nearly as culpable as deliberate dishonesty where it abuses the court’s trust and damages the administration of justice. Personal mitigation and clinical competence have limited weight in such circumstances. Where the only proper sanction is erasure, remittal is unnecessary.

Dr Zafar, a doctor who prepared medico-legal reports, was found by Garnham J to have committed ten contempts of court involving dishonest and reckless statements. He received a six-month custodial sentence suspended for two years. The Court of Appeal later allowed the appeal against sentence and declared it unduly lenient, although it did not increase the sentence: [2019] EWCA Civ 392.

The Medical Practitioners Tribunal found impairment but imposed twelve months’ suspension. The judgment of the Court of Appeal had not been placed before the Tribunal by agreement between the GMC and Dr Zafar. The GMC and the Professional Standards Authority appealed under Medical Act 1983 ss 40A and 40B. The central issues were whether the Court of Appeal judgment should be admitted and whether suspension was a lawful and proportionate sanction.

1. Admission of the Court of Appeal judgment. The judgment was formally admitted. The Medical Practitioners Tribunal had been given Garnham J’s findings and sentencing remarks, but not the subsequent appellate evaluation declaring the sentence unduly lenient. The appellate judgment was therefore materially relevant to the gravity of the misconduct and to the limited distinction between dishonesty and recklessness in this context.
2. The Tribunal’s evidential powers under Rule 34(1) of the General Medical Council (Fitness to Practise) Rules 2004 were broad enough to permit consideration of the judgment. The Authority was not bound by the parties’ agreement below. As to the GMC, the public-interest purpose of the proceedings, combined with the fact that the agreement had distorted the Tribunal’s attempt to reach an informed outcome, justified receiving the material under CPR r 52.21(2), notwithstanding the ordinary principles in Ladd v Marshall.
3. Appellate restraint. The court ordinarily interferes with a specialist tribunal’s sanction only for an error of principle or a decision outside the reasonable range. That restraint is reduced where the misconduct does not concern professional performance and the issue is its effect on public confidence. The Tribunal had proceeded on a mistaken and incomplete understanding of the seriousness of the conduct.
4. Sanction. Dr Zafar’s false witness statement involved dishonesty. His sustained reckless production of a revised medico-legal report and subsequent false explanations were only marginally less serious. The conduct abused the trust placed in expert witnesses, interfered with the administration of justice and undermined public confidence in the medical profession. Remorse, remediation, testimonials and clinical competence could not justify suspension. The Sanctions Guidance and the principles in Bolton v Law Society gave personal mitigation limited weight.
5. The appeal succeeded. No reasonable Tribunal, properly directed, could impose a sanction other than erasure. Remittal would serve no purpose. The court directed erasure of Dr Zafar’s name from the Medical Register.

• High Court (Administrative Court): The appeal against the Medical Practitioners Tribunal’s twelve-month suspension was allowed. The Tribunal’s sanction was replaced by a direction for erasure.
• Court of Appeal: The sentence imposed by Garnham J was declared unduly lenient, although it was not increased: [2019] EWCA Civ 392.
• High Court (Queen’s Bench Division): Garnham J found ten contempts of court proved and imposed six months’ imprisonment suspended for two years: [2018] EWHC 2581 (QB).