Professional Standards Authority for Health and Social Care v General Medical Council & Anor

In a professional disciplinary appeal, a tribunal must consider the full gravity of the alleged misconduct. Where evidence reasonably indicates that a patient was particularly vulnerable, the issue should be properly charged, explored and adjudicated. Vulnerability is a matter of degree and must be assessed by reference to whether the patient was more susceptible to the misconduct or harm than is inherent in the doctor-patient relationship. Evidence may be relevant both to the practitioner’s culpability and to the harm caused. A failure to address such an issue may constitute a serious procedural irregularity making the tribunal’s decision unjust, particularly where it could materially affect sanction.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002 against a Medical Practitioners Tribunal decision suspending Dr Onyekpe’s registration for six months. Dr Onyekpe had admitted pursuing an improper emotional and sexual relationship with a former patient, including sexual activity while on duty and at hospital premises.

The original charges alleging that the patient was vulnerable, and that Dr Onyekpe knew or ought to have known this, were withdrawn before the hearing. The Tribunal subsequently treated the relationship as consensual and found that the patient was not vulnerable. The central issue was whether the failure to charge and properly consider vulnerability amounted to a serious procedural irregularity making the decision unjust.

1. Appeal allowed. The Tribunal’s decision was quashed and the matter was remitted to a freshly constituted Medical Practitioners Tribunal. The court expressed no concluded view on the appropriate sanction or on the remaining grounds.
2. Under section 29 of the National Health Service Reform and Health Care Professions Act 2002, read with CPR rule 52.21, the High Court may allow an appeal where the decision was wrong or unjust because of a serious procedural irregularity. The court should approach specialist evaluative decisions with caution, but the degree of deference depends on the issue. Less deference is appropriate where the issue falls within the court’s own evaluative competence, including sexual misconduct and the protection of professional reputation.
3. The authorities establish that an appeal may be allowed where undercharging or failure to place relevant evidence before a tribunal prevents the court from determining whether the sanction was unduly lenient or causes the full gravity of the case not to be considered. The relevant questions are whether the further allegation should have been included and whether its omission prevented a proper assessment of sanction.
4. Some vulnerability is inherent in doctor-patient relationships. The GMC guidance concerns patients who are particularly vulnerable, namely those whose circumstances or characteristics make them significantly more susceptible to the misconduct or harm than is inherent in that relationship. Vulnerability is a matter of degree. Evidence of what the doctor knew, ought to have known or believed may bear on culpability, predatory behaviour, repetition, consent and harm.
5. The medical notes and WhatsApp messages provided a realistic evidential basis for allegations that the patient was particularly vulnerable and that Dr Onyekpe perceived, or ought to have perceived, that vulnerability. The GMC’s failure to consider that evidence and the Tribunal’s failure to properly litigate and determine the issue meant that the case was presented as a consensual relationship between healthy adults with no harm. The full gravity of the case was therefore not before the Tribunal. The issue could have been raised and case-managed without injustice to Dr Onyekpe.

• Medical Practitioners Tribunal: imposed six months’ suspension on 19 January 2023, with a review at the end of the suspension.
• High Court (Administrative Court): allowed the appeal on Ground 1, quashed the Tribunal’s decision and remitted the matter to a freshly constituted Tribunal. Grounds 2 and 3 were not determined.