David James v General Medical Council

A statutory appeal under section 40 of the Medical Act 1983 is appellate rather than supervisory. The court may substitute its own decision, but an appeal challenging primary findings of fact faces a high threshold. Intervention is justified where the tribunal’s findings are plainly out of tune with the evidence or result from a flawed approach.

A fitness-to-practise tribunal must assess disputed evidence as a global picture. It must not consider allegations in rigid silos while ignoring material credibility problems, inconsistent accounts, rejected allegations, or contextual evidence. It must explain why it preferred one account over another on the facts necessary to the finding. Good character may be directly relevant to whether the alleged conduct occurred, particularly where contact is admitted but its purpose and character are disputed.

Dr David James appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal decision finding that he had slapped Patient A during anaesthetic care and imposing a three-month suspension without review.

The Tribunal withdrew or found unproved several related allegations, including allegations concerning abusive words, the administration and clinical justification of midazolam, motivation, and an attempt to prevent reporting. It nevertheless found the slapping allegation proved and found misconduct and impairment.

The central issues were whether the Tribunal had properly evaluated inconsistent witness accounts, the effect of its findings on other allegations, the Appellant’s evidence and good character, and the evidence of discussions between witnesses.

1. Appeal allowed. The Tribunal’s finding that the Appellant slapped Patient A was wrong because its reasoning did not provide a rational and sufficiently particular basis for that finding. The decision appealed against was quashed under section 40(7)(b) of the Medical Act 1983.
2. Under section 40, the High Court exercises an appellate jurisdiction. It may rehear the matter and substitute its own decision, and must determine whether the sanction was appropriate and necessary in the public interest or excessive and disproportionate. The appeal remains subject to the recognised caution applicable to primary factual findings.
3. The Tribunal failed to identify which disputed facts it found proved. It did not resolve material issues including the number and location of the alleged slaps, when the incident occurred, the Appellant’s alleged state of mind, or his position in the operating theatre. It did not explain which witness account it accepted and why. Given the conflicting evidence, this amounted to finding that “something happened”, which was insufficient.
4. The Tribunal directed itself to assess reliability globally, but its reasoning showed a rigidly siloed approach. It failed to consider how its rejection of parts of Dr Singh’s and ODP Cousins’ evidence on other allegations affected their reliability on the slapping allegation. It also failed to address how the withdrawal or rejection of the wider narrative of frustration, aggression and concealment affected the allegation.
5. The Tribunal failed to explain why it rejected the Appellant’s account, despite accepting that his hands had made contact with Patient A while he attempted to maintain the mask and prevent movement. It did not reconcile the alleged assault with its finding that his focus was Patient A’s wellbeing. The Appellant’s good character and professional standing were relevant to whether the contact was clinically necessary or an assault, but the Tribunal did not explain what weight it gave that evidence.
6. The challenge based solely on witness discussions was rejected. The Tribunal had considered contamination and its conclusion that the evidence remained reliable was not shown to be irrational.
7. The matter was remitted under section 40(7)(d) to the fitness-to-practise proceedings at the stage after referral to the MPTS under Rule 8 of the General Medical Council (Fitness to Practise) Rules 2004, but before the hearing opened under Rule 17. The Respondent retained discretion whether to proceed or seek withdrawal under Rule 28.

• High Court (Administrative Court): The appeal against the Medical Practitioners Tribunal’s decision of 18 July 2024 was allowed. The finding and sanction were quashed, and paragraph 1a was remitted to the fitness-to-practise process.