Dr Rinku Sengupta v General Medical Council

An appeal under section 40 of the Medical Act 1983 is by way of rehearing, but the court must respect the specialist tribunal’s expertise to the extent warranted by the circumstances. A tribunal considering restoration after erasure must assess whether the practitioner is now fit to practise and must not restore the practitioner unless the evidence satisfies it. A tribunal considering indefinite suspension of further restoration applications must comply with the procedural requirement to invite representations and evidence specifically on that issue. A material finding of dishonesty made without notice, and contrary to an earlier tribunal’s findings, may render the suspension decision unjust because of serious procedural irregularity. The restoration refusal may nevertheless stand where unaffected findings independently support it.

A Medical Practitioners Tribunal refused a doctor’s third application for restoration to the medical register and separately suspended indefinitely her right to make further applications under section 41(9) of the Medical Act 1983. The doctor appealed against the suspension decision and also sought permission to challenge the restoration decision by judicial review.

The Administrative Court considered the scope of the appeal, alleged procedural unfairness surrounding findings about emails to a former supervisor, and the tribunal’s failure to invite further evidence on the section 41(9) application. It also considered whether the restoration decision should be quashed.

1. Scope and appellate approach. The restoration refusal was not itself appealable in these circumstances, but criticisms of that decision could be raised insofar as the suspension decision incorporated its reasoning. An appeal under section 40 was by way of rehearing. The court could substitute its own decision, while giving appropriate weight to the specialist tribunal’s judgment.
2. Restoration decision. The burden lay on the applicant to satisfy the tribunal of fitness to practise. The tribunal was entitled to assess performance, practical competence, insight and integrity cumulatively against the overarching objective. Its reasons were adequate and its conclusion that the evidence did not establish safe practical competence was open to it.
3. Dishonesty finding. The tribunal should not go behind earlier findings. The 2018 tribunal had characterised the emails to Dr Gee as intemperate and emotionally concerning, not dishonest. The 2021 tribunal had not given notice that dishonesty would be alleged, had misunderstood the doctor’s evidence, and had relied materially on the resulting finding. The defect was procedurally unfair and material to the suspension decision.
4. Section 41(9) procedure. The power to suspend further applications could be considered after a third unsuccessful application even though it had not been exercised after the second. But Rule 24(2)(i) of the Fitness to Practise Rules required the tribunal to invite further representations and evidence specifically on the suspension issue. Telling the doctor that no further evidence could be given breached that requirement.
5. Relief. The suspension appeal was allowed as unjust because of serious procedural irregularity, and the section 41(9) application was remitted for reconsideration. The restoration decision remained in force. Permission to seek judicial review was refused because the unaffected findings made it highly likely that restoration would have been refused in any event.

The judgment describes the Medical Practitioners Tribunal’s restoration and suspension decisions dated 21 January 2022. The Administrative Court allowed the appeal against the suspension decision and remitted the section 41(9) application. It refused permission to claim judicial review of the restoration refusal.