General Medical Council & Anor v Maxwell Dugboyele

When assessing impairment of fitness to practise, a tribunal must consider all relevant limbs of the statutory overarching objective. Remediation and a low risk of repetition do not by themselves answer whether impairment is necessary to maintain public confidence or proper professional standards. In serious cases involving sexual harassment and abuse of professional power, the tribunal must confront that question expressly and give adequate reasons. Relevant motive should also be addressed where it bears on the seriousness and character of the misconduct. On an appeal under section 40A of the Medical Act 1983, the High Court may intervene where the tribunal’s decision is wrong or unjust because of a serious procedural irregularity. Deference may be reduced where the misconduct is non-clinical and the court is equally well placed to assess its effect on public confidence and professional standards.

The General Medical Council appealed under section 40A of the Medical Act 1983 against a Medical Practitioners Tribunal’s decision that Dr Maxwell Dugboyele’s fitness to practise was not impaired, despite findings of serious professional misconduct involving prolonged sexual harassment of several junior female colleagues. The Professional Standards Authority for Health and Social Care joined the appeal under section 40B.

The appellants argued that the Tribunal had focused excessively on remediation and future risk, failed properly to consider public confidence and professional standards, failed adequately to address relevant guidance and motive, and gave inadequate reasons. The central issue was whether the finding of no impairment was wrong or unjust because of a serious procedural or other irregularity.

Appeals allowed. The Tribunal’s finding of no impairment and its consequential formal warning were quashed. The High Court substituted a finding that Dr Dugboyele’s fitness to practise was impaired and remitted the case to a differently constituted Medical Practitioners Tribunal for consideration of sanction.

1. Under section 40A of the Medical Act 1983 and CPR r 52.21(3), the High Court may allow an appeal where the Tribunal’s decision was wrong or unjust because of a serious procedural or other irregularity. The statutory overarching objective has three limbs: protection of public health, safety and well-being; public confidence in the profession; and proper professional standards and conduct.
2. The Tribunal had concentrated on remediation and the low risk of repetition. It failed properly to consider whether, notwithstanding remediation, a finding of impairment was necessary to maintain public confidence and professional standards. In a case involving years of sexual harassment of junior colleagues, repeated protests, abuse of professional position and a formal warning, that omission was material.
3. The Tribunal also failed adequately to address the GMC’s submissions concerning the seriousness of sexual harassment, sexual misconduct and abuse of power in the Sanctions Guidance. Express consideration of every submission was unnecessary, but proper engagement with the second and third limbs would have required reasons making the treatment of those submissions clear.
4. The Tribunal failed properly to consider motive. On the factual findings, the explanation that the conduct was merely friendly was not credible. The course of conduct was probably sexually motivated, at least in significant respects, and the absence of an intention to take matters further would not prevent conduct from constituting sexual harassment.
5. The degree of deference owed to the Tribunal was inherently lower because the misconduct was non-clinical. The High Court was equally well placed to assess its impact on public confidence and professional standards.

• High Court (Administrative Court): allowed the appeals against the Medical Practitioners Tribunal’s determination dated 16 May 2023. The Tribunal’s finding of no impairment and formal warning were quashed, impairment was substituted, and sanction was remitted to a differently constituted Tribunal.