GENERAL MEDICAL COUNCIL v JONATHAN EDWARD GAR-WAI MOK

On a section 40A appeal, the High Court reviews rather than rehearses the tribunal’s decision. It should respect a specialist tribunal’s evaluative judgment, particularly where the decision depends on multiple factual and legal factors. Intervention is justified for an error of principle, a material procedural or legal error, or a conclusion outside the range of decisions reasonably open to the tribunal.

The GMC Sanctions Guidance is an important guide but is not a tariff. A tribunal must have proper regard to it, begin with the least restrictive sanction, and give adequate reasons for departing from its indications. Sexual misconduct may justify erasure, but the presence of a factor indicating that erasure may be appropriate does not make erasure mandatory. The appeal was dismissed.

The GMC appealed under [2022] EWHC 1651 (Admin) against a Medical Practitioners Tribunal’s decision to suspend Dr Mok’s registration for 12 months. The Tribunal had found that he had sexually penetrated his male partner while the partner was asleep and had not consented, and that the conduct was sexually motivated misconduct impairing his fitness to practise.

The GMC argued that the Tribunal had relied on irrelevant considerations, failed properly to apply the Sanctions Guidance or give adequate reasons, and imposed a sanction outside the range of reasonable decisions. The central issues were the proper appellate approach, the significance of the Guidance, and whether suspension rather than erasure was reasonably open to the Tribunal.

1. Appeal dismissed. The appeal under section 40A of the Medical Act 1983 was governed by CPR Part 52 and proceeded by way of review. The question was whether the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The Tribunal’s choice of sanction was a multi-factorial evaluative decision. The court should interfere only for an error of principle, a material error of fact or law, or where the decision fell outside the bounds of what the specialist tribunal could properly and reasonably decide. Although less weight may be given to the Tribunal’s expertise in cases involving sexual misconduct, significant respect remained appropriate because the Tribunal had heard and assessed the evidence.
3. The Tribunal was entitled to consider the absence of malicious intent, the history of sexual activity between the couple, the absence of a doctor-patient relationship, the isolated nature of the incident, and Dr Mok’s acknowledgment and apology in the recording. These matters were relevant to the assessment of seriousness, harm, insight and risk of repetition. The Tribunal also identified lack of insight, absence of remorse, failure to acknowledge the impact on the victim and presenting himself as the victim as aggravating features.
4. The Sanctions Guidance was a guide to decision-making, not a tariff. The Tribunal was required to have proper regard to it, apply its proportionate approach and explain any departure. It was not required to reproduce every relevant paragraph or address every listed factor expressly where its reasoning showed that the relevant matters had been considered.
5. The Guidance stated that erasure may be appropriate for specified features of serious misconduct. It did not prescribe erasure whenever one such feature was present. The Tribunal was entitled to conclude that the misconduct fell just short of being fundamentally incompatible with continued registration and that 12 months’ suspension was the least restrictive sanction sufficient to protect the public and maintain confidence in the profession.
6. The Tribunal’s reasons were adequate and intelligible. Its decision was reasonably and properly open to it on the evidence.

• Medical Practitioners Tribunal: On 23 December 2021, found misconduct and impairment of fitness to practise, and suspended Dr Mok’s registration for 12 months subject to review.
• High Court (Administrative Court): The GMC’s appeal under section 40A of the Medical Act 1983 was dismissed.