Dr Zoe Sun v General Medical Council

On a statutory appeal from a Medical Practitioners Tribunal, the High Court may substitute its own decision on sanction and must decide whether the sanction was appropriate and necessary in the public interest, or excessive and disproportionate.

Mental health may reduce culpability and constitute personal mitigation, but its weight depends on the nature of the misconduct and the doctor’s relevant state of mind. Where persistent dishonesty consists of knowingly communicating false information, mental illness may not alter the character of the misconduct or make erasure disproportionate. Erasure may therefore be justified to maintain public confidence and professional standards even where the doctor presents no risk to patient safety.

Dr Sun appealed under section 40 of the Medical Act 1983 against the Tribunal’s determinations on facts, impairment and sanction. She had admitted misconduct, 13 incidents of dishonesty and present impairment, while the GMC had withdrawn its case based on adverse mental health. The Tribunal directed erasure, although the GMC had invited suspension.

The appeal challenged the sanction on the basis that Dr Sun’s mental health had materially affected her conduct and reduced her culpability. A procedural issue also arose because the appeal was lodged outside the statutory 28-day period. The central questions were whether erasure was appropriate and proportionate, and whether an extension of time was required by Article 6.

1. Appeal dismissed. The sanction of erasure was appropriate and necessary in the public interest and was not excessive or disproportionate. There was no basis to substitute suspension or remit the case.
2. Under section 40 of the Medical Act 1983, the appeal is appellate rather than supervisory and proceeds by way of rehearing. The Court may substitute its own decision, but must assess whether the sanction is appropriate and necessary in the public interest or excessive and disproportionate, applying the approach identified in Sastry.
3. Mental health evidence may reduce culpability, explain conduct and provide personal mitigation. The Tribunal must assess the nature and effect of the condition and give the factor appropriate weight. It need not treat mental health as materially reducing sanction where the relevant misconduct involved conscious decisions to send communications containing information known to be false.
4. The Tribunal was entitled to distinguish between the existence of mental health as a relevant mitigating factor and the weight ultimately given to it. Persistent, repeated and multifaceted dishonesty over 16 months, causing serious consequences and involving professional communications, was fundamentally incompatible with continued registration. The absence of a patient-safety risk did not prevent erasure where public confidence and proper professional standards required it.
5. The Article 6 extension-of-time test retains both limbs identified in Tolstoy Miloslavsky and Pomiechowski: whether refusal would impair the very essence of access to the court and whether the restriction bears a reasonable relationship to the legitimate aim. The Court considered that, had the substantive appeal succeeded, the exceptional circumstances would have justified an extension. That issue did not affect the result.
6. Applying CPR 52.19, the GMC’s recoverable costs were limited to £2,000 including VAT, payable within six months, having regard to Dr Sun’s means, the circumstances and access to justice.

• Medical Practitioners Tribunal: Determination on the Facts and Impairment dated 23 March 2022 and Determination on Sanction dated 24 March 2022. The Tribunal directed erasure.
• High Court (Administrative Court): The statutory appeal was dismissed. The Court held that erasure was appropriate and proportionate and limited recoverable costs to £2,000.