Shah Ali v The General Medical Council

A section 40 appeal is appellate rather than supervisory and proceeds by way of rehearing. The degree of deference owed to a Medical Practitioners Tribunal depends on the issue under challenge. Primary factual findings attract particular caution, but less deference is required where the challenge concerns inferences, evaluative conclusions or legal analysis.

A tribunal must resolve every material issue in dispute and give reasons sufficient to show what it decided and why. Reasons may be implicit, but an appellate court must not construct a finding or reasoning which the tribunal did not make. In a dishonesty case, a material dispute about the circumstances in which a statement was made must be resolved before dishonesty can properly be found.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal determination dated 28 February 2024. The Tribunal had found that he knowingly made a dishonest declaration about whether he was subject to a fitness to practise investigation and ordered erasure from the Medical Register.

The appeal challenged the interpretation of the declaration, the findings of knowledge and dishonesty, the Tribunal’s failure to resolve conflicting evidence about a prior conversation, the specification of the allegation, alleged victimisation, and the treatment of the appellant’s submissions.

1. Approach to the appeal. The appeal under section 40 of the Medical Act 1983 was appellate and by way of rehearing. The court could substitute its own decision, but the degree of deference depended on whether the issue concerned primary fact, inference, or evaluation. The challenge here principally concerned legal analysis and inferences, so reduced deference was appropriate, while recognising the Tribunal’s specialist experience and its opportunity to hear the evidence.
2. Meaning of the declaration. The words “a fitness to practise investigation” in question 7 of the form had to be interpreted in context and having regard to the form’s purpose. They were wide enough to include an investigation connected with the dangerous-driving conviction. They were not confined to a formal investigation under rules 4(4) or 7(2) of the General Medical Council (Fitness to Practise) Rules 2014. The declaration was therefore untrue, and the Tribunal was entitled to find that the appellant knew it was untrue.
3. Failure to resolve a material dispute. The conflicting accounts of the March 2020 conversation with Ms Burbidge were material. If the appellant’s account were accepted, it could affect whether he acted dishonestly and the gravity of his conduct. The Tribunal recorded the competing evidence but made no express or sufficiently inferable finding resolving it. The court could not construct such a finding from general criticisms of the appellant’s evidence. The Tribunal therefore failed to determine a material issue and was not entitled to make the finding of dishonesty without doing so.
4. Other grounds. The allegation was sufficiently understood by the appellant and there was no procedural irregularity. The victimisation ground failed because the Tribunal’s concern was the appellant’s continuing focus on counter-allegations rather than his own conduct, not the fact that he had made allegations of racism. There was no wholesale failure to consider his submissions; brief reasons for attaching limited weight to remedial work were adequate.
5. The appeal succeeded on grounds 1(iii) and 2, and failed on grounds 1(i), 1(ii), 3, 5 and 7. The matter was remitted for reconsideration by a Tribunal.

• Medical Practitioners Tribunal: On 28 February 2024, determined that the appellant’s fitness to practise was impaired by misconduct involving dishonesty and ordered erasure from the Medical Register.
• High Court (Administrative Court): Allowed the appeal on grounds 1(iii) and 2, dismissed the remaining grounds, and remitted the matter for reconsideration by a Tribunal.