Sastry & Anor v General Medical Council

An appeal by a medical practitioner under section 40 of the Medical Act 1983 is an unrestricted appeal by way of rehearing. The court must exercise its own judgment on whether the sanction was appropriate and necessary in the public interest or excessive and disproportionate. It must give the Medical Practitioners Tribunal appropriate respect, but no more deference than the circumstances warrant.

This differs from a GMC appeal under section 40A, which is by way of review. In dishonesty and sexual-misconduct cases, the court is generally well placed to assess public protection and professional reputation, and is less dependent on the Tribunal’s specialist expertise.

Two doctors appealed against Administrative Court decisions dismissing their section 40 appeals from Medical Practitioners Tribunal orders erasing their names from the medical register.

Dr Sastry had provided clinically inappropriate high-dose chemotherapy and stem-cell treatment to a patient despite knowing that an adequate number of stem cells had not been collected. Dr Okpara had engaged in a sustained and escalating course of sexually predatory misconduct towards a junior nurse colleague.

The appeals raised the proper approach to sanction appeals under section 40 of the Medical Act 1983, and whether sexual-misconduct cases require less deference to the Tribunal. The court considered the decisions below, [2019] EWHC 390 (Admin) and [2019] EWHC 2624 (Admin), together.

1. Appeals dismissed. Although both High Court judges applied an unduly restrictive approach, the Court of Appeal independently concluded that erasure was necessary and appropriate in the public interest in each case.

2. A practitioner’s appeal under section 40 of the Medical Act 1983 is by way of rehearing. It is appellate, rather than supervisory. The court may substitute its own decision and must determine whether the sanction was appropriate and necessary in the public interest, or instead excessive and disproportionate. The court must respect the Tribunal’s judgment to the extent warranted by the circumstances, but must not abdicate its own evaluative function.

3. The review approach in Bawa-Garba v General Medical Council, [2019] 1 WLR 1929, was appropriate to a GMC appeal under section 40A. It did not govern a practitioner’s rehearing appeal under section 40. Limiting section 40 to public-law review would undermine the breadth of the statutory right of appeal.

4. In cases involving dishonesty or sexual misconduct, an appellate court is well placed to assess the measures needed for public protection and confidence in the profession. It is therefore less dependent on the Tribunal’s specialist expertise, though the applicable legal question remains whether the sanction was necessary and proportionate.

5. Dr Sastry knowingly recommended and administered radical treatment which was clinically inappropriate, without disclosing the material deficiency in the stem-cell collection. The gravity of that misconduct, and his persistent lack of insight, justified erasure.

6. Dr Okpara’s sustained, escalating and predatory sexual misconduct against a junior colleague in a clinical setting, together with his lack of insight, was fundamentally incompatible with continued registration. Erasure was the only appropriate sanction.

• Court of Appeal (Civil Division): Both second appeals were dismissed: [2021] EWCA Civ 623.
• High Court, Administrative Court: May J dismissed Dr Sastry’s section 40 appeal: [2019] EWHC 390 (Admin).
• High Court, Administrative Court: Julian Knowles J dismissed Dr Okpara’s section 40 appeal: [2019] EWHC 2624 (Admin).
• Medical Practitioners Tribunal: The Tribunal directed erasure in each case.