Dr Allen Axornam Ametowotor Demanya v The General Medical Council

On a section 40 appeal, the High Court must apply the statutory appellate test. It must decide whether the Tribunal was wrong or whether serious procedural or other irregularity caused injustice. The appeal is not an opportunity to reargue factual issues or substitute a different view of evidence reasonably open to the Tribunal.

Tribunals are not required to give themselves a prescribed checklist of directions concerning memory, demeanour, documentary evidence, flexibility of the civil standard or cogency. They must assess the evidence fairly and holistically, applying the balance of probabilities. Seriousness alone does not alter that standard; inherent improbability may affect the evidence needed in the particular case.

Persistent dishonesty involving falsified medical records and false evidence may justify erasure to protect public confidence and professional standards, even where clinical risk is low and remediation is advanced.

The appellant, a doctor, appealed under section 40 of the Medical Act 1983 against a Medical Practitioners Tribunal decision erasing his name from the medical register.

The Tribunal had found that he failed to diagnose sepsis in a patient who later died, retrospectively added antibiotics and catheterisation to the patient’s records, crossed out the antibiotic entries, and gave false evidence at the inquest. It found misconduct, impairment of fitness to practise and erasure appropriate.

The appeal challenged the Tribunal’s legal directions, fact-finding, assessment of witness evidence, reasons and sanction. The central issues were whether the Tribunal had applied the correct evidential and appellate principles, whether its findings were legally unsafe, and whether erasure was proportionate and necessary in the public interest.

1. Appeal dismissed. The Tribunal’s findings and sanction were neither wrong nor unjust because of serious procedural or other irregularity. The statutory appeal test under section 40 of the Medical Act 1983 and CPR 52.21 applied.
2. The appeal court’s function was appellate, not supervisory or a general rehearing of the evidence. It could interfere with primary factual findings only where the Tribunal’s advantage in seeing and hearing witnesses could not justify the conclusion, the findings were unsupported, plainly unreasonable or materially out of tune with the evidence. Disagreement about weight, credibility or competing inferences was insufficient.
3. The Tribunal was not required to adopt the directions or checklist suggested in Dutta. The guidance concerning memory, demeanour, documentary evidence and holistic fact-finding was persuasive and fact-sensitive, but did not constitute mandatory legal directions. The Tribunal had considered the evidence globally, including contemporaneous records, witness evidence, expert evidence and probabilities.
4. There remained one civil standard of proof: the balance of probabilities. The standard was not altered by the seriousness of the allegation or its consequences. Inherent probability or improbability was a contextual evidential consideration. Stronger or more cogent evidence might be needed to overcome an inherent improbability, but seriousness alone did not create such a rule.
5. The Tribunal’s findings concerning sepsis, delayed antibiotic prescription, retrospective entries and the crossing out of prescriptions were reasonably open to it. It was entitled to prefer Nurse Usifoh’s account while recognising weaknesses in her reliability and record-keeping. It was not required to explain every subsidiary evidential dispute or psychological motive.
6. For sanction, the statutory over-arching objective included protecting public welfare, maintaining public confidence in the medical profession and maintaining proper professional standards. Persistent and covered-up dishonesty, falsification of patient records and false evidence under oath were fundamentally incompatible with continued registration. Testimonials, previous good character and remediation did not outweigh the public-interest requirements. Erasure was appropriate and necessary.

• Medical Practitioners Tribunal: Findings of misconduct were made on 27 April 2023, impairment was determined on 2 May 2023, and erasure was imposed on 6 December 2023.
• High Court (Administrative Court): The appeal under section 40 of the Medical Act 1983 was dismissed.