General Medical Council v Nour Mohamed Magdy Aly Rezk

On a section 40A appeal, the High Court may interfere with an evaluative tribunal decision where there is an error of principle or the decision falls outside the range of reasonable decisions. In a fitness-to-practise case, a tribunal must identify and assess both aggravating and mitigating factors against the statutory public-protection objective. It must expressly consider whether public confidence and professional standards would be damaged by imposing no sanction. The option of taking no action must be considered first, and requires genuinely unusual, special or uncommon circumstances which justify that outcome. Insight and remediation alone will rarely suffice. Where misconduct is serious but further remedial work is appropriate, proportionate conditions may properly be imposed instead of suspension.

The General Medical Council appealed under section 40A of the Medical Act 1983 against an MPTS determination dated 3 April 2023. The Tribunal found that Dr Rezk had committed serious, sexually motivated harassment of two former nursing colleagues, that his fitness to practise was impaired on wider public-interest grounds, but that exceptional circumstances justified taking no action.

The GMC contended that the Tribunal had failed properly to assess the seriousness of the misconduct, the public-interest limbs of the statutory objective and the exceptional-circumstances test. The central issues were whether the determination was wrong and, if so, what sanction was necessary and proportionate.

1. Appeal allowed. The MPTS decision was wrong under CPR 52.21(3). The Tribunal inadequately identified the aggravating factors, including the seriousness and sustained nature of the sexual harassment, its direction towards more than one nurse, the persistence after an objection, the lack of regard for the recipients’ distress, and the breach of the fundamental professional tenet requiring respect for colleagues.
2. The Tribunal failed expressly to consider whether public confidence and proper professional standards would be damaged if no sanction were imposed. Its earlier finding of impairment did not resolve that distinct sanctions issue. The usual starting point was that, where fitness to practise is impaired, action will normally be necessary to protect the public.
3. The Tribunal also applied the sanctions sequence incorrectly. It rejected conditions and suspension before considering whether exceptional circumstances justified taking no action. That approach risked predisposing the Tribunal to find exceptionality.
4. The circumstances relied upon, including pandemic pressure, loneliness, overseas family, training rotations and extensive internet use, were not unusual, special or uncommon. Nor did the later favourable references, remediation and stress caused by the appeal amount to exceptional circumstances. The case was distinguishable from GMC v Mehta, where exceptional circumstances included educational presentations directed at preventing similar misconduct.
5. The Court considered that conditions were appropriate and proportionate. Dr Rezk had made progress but displayed attitudes requiring further supervised remedial work. Conditions requiring notification, a personal development plan, supervision, workplace reporting and disclosure to relevant bodies would protect the public, maintain confidence and professional standards, and preserve his training. The determination was quashed and conditions were imposed for 12 months.

The judgment does not state an earlier appellate decision. This was a statutory appeal from an MPTS determination dated 3 April 2023.