Prashant Sankaye v The General Medical Council

In an appeal from a Medical Practitioners Tribunal, the appellate court must conduct the statutory re-hearing required by section 40 of the Medical Act 1983, while respecting the tribunal’s professional expertise and advantage in seeing and hearing witnesses.

Reasons need to explain why the parties won or lost. In a straightforward factual dispute, it is generally sufficient for a tribunal to identify the facts alleged and state whether they are proved. It need not separately explain the rejection of a denial where acceptance of the complainant’s account necessarily makes that denial untrue. The absence of fuller discussion of expert evidence does not invalidate the decision where the tribunal considered the relevant difficulty and the evidence established that the alleged conduct was difficult but possible.

The appellant, a consultant musculoskeletal radiologist, appealed under section 40 of the Medical Act 1983 against findings by a Medical Practitioners Tribunal dated 3 October 2022. The tribunal found misconduct and impaired fitness to practise arising from an examination of a receptionist, including non-consensual touching and sexually motivated touching of her breast, and suspended him for 12 months.

The appeal was brought by way of re-hearing rather than mere review. The appellant challenged the adequacy of the tribunal’s reasons, its treatment of the complainant’s consistency and alleged mistake, the burden of proof, its treatment of the expert evidence concerning the physical difficulty of the alleged manoeuvre, and its identification of the evidence supporting sexual motivation.

1. Appeal dismissed. The appeal court applied the statutory and procedural framework under section 40 of the Medical Act 1983, paragraph 9 of PD52D and CPR 52.21(3). The appellant had to show that the tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity.
2. The court should defer to the tribunal’s professional expertise and judgment where relevant, and to its findings of primary fact based on oral evidence, recognising the tribunal’s advantage in seeing and hearing the witnesses.
3. Under rule 17(2)(j) of the General Medical Council (Fitness to Practise) Rules 2004, the tribunal had to give reasons. Southall v GMC established that, in a straightforward factual case, identifying the facts to be proved and finding them proved or not proved will generally explain why the parties won or lost. Fuller reasons are required where the case is properly exceptional or complex.
4. This was not a complex or exceptional issue. The central question was whether the complainant’s honest perception of the touching was correct or mistaken. Once the tribunal accepted that she was not mistaken, the appellant’s denial necessarily had to be untrue. A separate explanation for rejecting that denial was therefore unnecessary.
5. The tribunal’s references to the early and consistent nature of the complaint did not undermine its decision. Those matters were relevant principally to honesty, but the tribunal still had to be satisfied of the complainant’s credibility. The determination, read as a whole, showed no reversal of the burden of proof, and the burden was not decisive because the tribunal reached a clear decision on the merits.
6. The tribunal could have discussed the expert evidence about the physical difficulty of inserting a hand beneath a prone patient in greater detail. That omission did not invalidate the determination because the tribunal had the issue in mind and the experts accepted that the manoeuvre was difficult but possible.
7. The tribunal identified the key evidence, namely the complainant’s account, and adequately explained its conclusion. The appeal was dismissed.

• High Court (Administrative Court): Appeal under section 40 of the Medical Act 1983 dismissed.
• Medical Practitioners Tribunal: On 28 September 2022 the tribunal found the factual allegations proved, and on 3 October 2022 found misconduct and impaired fitness to practise and imposed a 12-month suspension.