DR BASHIR AHMEDSOWIDA v GENERAL MEDICAL COUNCIL

An appeal under section 40 of the Medical Act 1983 is a rehearing without rehearing the evidence. The court affords appropriate deference to a specialist tribunal, especially on impairment and sanction, but must intervene where legal error, serious procedural irregularity or material unfairness is shown.

A tribunal must apply the two-stage test for dishonesty correctly. Recklessness or carelessness is not itself dishonesty. A registrant must not be penalised for exercising the right to contest allegations or appeal, unless additional evidence, such as proven lies to the tribunal, demonstrates lack of insight. Where material errors may have affected impairment or sanction, those stages should be remitted.

A tribunal of the Medical Practitioners Tribunal Service found that the appellant doctor had committed serious misconduct, principally dishonesty, and ordered erasure from the medical register with immediate suspension. The doctor appealed under section 40 of the Medical Act 1983 on six grounds, including misapplication of the dishonesty test, an unfair amendment of charges, inconsistent factual findings, impermissible cumulation of misconduct, treatment of recklessness as dishonesty, and an erroneous approach to insight.

The central questions were whether the tribunal had made material errors of law or procedure and, if so, whether its impairment and sanction decisions could stand.

1. Appeal and standard of review. The appeal under section 40 of the Medical Act 1983 was a rehearing without rehearing the evidence. The court gave due deference to the tribunal’s expertise and factual findings, but intervention was required for material legal error, serious procedural irregularity or unfairness.
2. Dishonesty. The tribunal had generally understood and applied the two-stage test in Ivey v Genting Casinos (UK) Ltd. Its repeated reference to a “dishonest state of mind” at the first stage was linguistically unfortunate but did not, by itself, invalidate the findings. However, recklessness or insufficient care about accuracy was not itself dishonesty. The tribunal’s repeated reasoning that the appellant was “reckless … and therefore dishonest” disclosed a material error.
3. Amendment of charges. The late amendments under rule 17(6) of the Fitness to Practise Rules were permissible. The substance of the dishonesty allegations had been clear before amendment, and the amendments could be made without injustice.
4. Cumulation. Schodlok v GMC did not provide carte blanche to cumulate misconduct findings. The tribunal had wrongly elevated one non-serious incident to serious misconduct by combining it with two incidents already found to be serious. Charge 15b should have remained non-serious misconduct.
5. Insight and appeal rights. It was procedurally unfair to treat the appellant’s refusal to admit dishonesty, while contesting the allegations and exercising his right of appeal, as necessarily demonstrating lack of insight. Something more was required, such as a finding that he had told blatant lies to the tribunal. The tribunal had impermissibly held the appellant’s defence against him.
6. Remedy. The court was not satisfied that impairment and sanction would inevitably have been the same absent the errors. The finding of impairment and sanction of erasure were set aside. The impairment and sanction stages were remitted to the Medical Practitioners Tribunal Service, with directions that charge 15b be treated as non-serious misconduct, the conduct found reckless not be treated as dishonest, and the appellant’s decision and manner of contesting the allegations not be taken into account.

The judgment does not state a prior appellate decision. The appeal was brought from determinations of the Medical Practitioners Tribunal Service dated 21 January, 13 April and 16 April 2021.