General Medical Council v Udoye

On an appeal under section 40A of the Medical Act 1983, the court may quash a tribunal decision affected by an error of law. Allegations must be interpreted objectively according to their wording; a tribunal must not add a qualification which the allegation does not contain. The Kuzmin criteria concern procedural fairness in deciding whether an adverse inference may be drawn from a practitioner’s silence. They must not be conflated with the tribunal’s ultimate assessment of the evidence or merits. A no-case submission is assessed at the close of the presenting party’s case and must not be confused with the final determination. Regulation 24 of the National Health Service (Performers Lists) (England) Regulations 2013 concerns inclusion in the medical performers list and does not dispense with GP-register requirements.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal decision dismissing allegations against Dr Udoye and finding no misconduct. The allegations concerned his statement that he was on the GMC’s GP Register, his practice as a GP during an NHS induction and refresher placement, and claims for financial support.

The GMC argued that the Tribunal had misunderstood the allegation concerning practice as a GP and had misapplied the principles governing adverse inferences from a practitioner’s failure to give evidence. Dr Udoye relied on the no-case submission and regulation 24 of the National Health Service (Performers Lists) (England) Regulations 2013.

1. Appeal allowed. The Tribunal’s determinations on allegations (2b), (3), (5), (6), (7), (9), (10) and misconduct were quashed. The matter was remitted to the Medical Practitioners Tribunal Service for redetermination by a differently constituted panel.
2. Allegation (5), read objectively and in context, meant practising as a GP under the GP Induction and Refresher Scheme, including under supervision. The Tribunal wrongly read into it a requirement that Dr Udoye had practised as an independent GP. That interpretation was inconsistent with the GMC’s case and the plain wording of the allegation.
3. Under Kuzmin, an adverse inference may be drawn from silence where the required procedural safeguards are met. The tribunal must separately identify any circumstances making the inference unfair, decide whether to draw it, and determine its weight. It must not decide that procedural question by conducting the final evaluation of the allegation or by treating the possibility of an innocent explanation as equivalent to procedural unfairness.
4. An adverse inference does not reverse the burden of proof and is not determinative. It is one factor in the final assessment of whether the allegation is proved.
5. The Tribunal was entitled to find at half-time that there was a case to answer. The test at that stage is whether, on one possible view of the evidence taken at its highest, a reasonable tribunal could find the allegation proved. That exercise is distinct from the evaluation of all evidence at the end of the hearing.
6. Regulation 24 of the National Health Service (Performers Lists) (England) Regulations 2013 creates a limited dispensation from inclusion in the medical performers list. It does not dispense with the separate requirement of inclusion in the GMC’s GP Register. The Tribunal was also entitled to find that the induction and refresher scheme was not a GMC-approved post-registration programme within regulation 24(3) and (4).

• High Court (Administrative Court): appeal allowed under [2021] EWHC 1511 (Admin); the relevant Tribunal determinations were quashed and remitted for redetermination by a differently constituted panel.
• Medical Practitioners Tribunal: decision dated 31 January 2020 dismissed the disputed allegations and found no misconduct.