General Medical Council & Anor v Dr Andre J Grajn

On an appeal under section 40 of the Medical Act 1983, the court conducts an appellate rehearing and may substitute its own decision, while allowing appropriate deference to the tribunal’s expertise. On an appeal under section 40A, the court should proceed with considerable caution but may intervene where the tribunal is wrong or there has been a serious procedural irregularity.

A professional tribunal must assess every allegation found proved when determining impairment and sanction. Where a regulator has materially under-prosecuted allegations, particularly allegations of dishonesty relevant to state of mind and seriousness, the proper course is to quash the determinations and remit the matter for a fresh hearing so that the practitioner has a full opportunity to respond.

The General Medical Council and the Professional Standards Authority appealed under sections 40A and 40B of the Medical Act 1983 against a Medical Practitioners Tribunal decision imposing a 12-month suspension on Dr Andrej Grajn. The GMC argued that the Tribunal had failed to assess allegations concerning an overseas finding of professional misconduct and had imposed an insufficient sanction. The PSA additionally relied on alleged under-prosecution, including failures to allege dishonesty and earlier failures to disclose an Australian investigation.

Dr Grajn brought a separate appeal under section 40, challenging jurisdiction, impairment, sanction and fairness. The central issues were whether the Tribunal had erred in treating the Australian determination as relevant, whether its impairment and sanction reasoning was lawful, and whether the regulatory prosecution had omitted allegations sufficiently material to require a fresh hearing.

1. Dr Grajn’s appeal dismissed. The section 40 jurisdiction is appellate rather than supervisory and involves a rehearing. The court may substitute its own decision, correcting material errors of fact or law, while exercising a secondary judgment and according such deference as the circumstances warrant. The 12-month suspension was not excessive or disproportionate.

2. The Australian determination fell within section 35C(2)(e) of the Medical Act 1983. The fact that Dr Grajn was no longer registered in Australia when QCAT made its determination was immaterial because the misconduct occurred while he was registered and the determination concerned his professional fitness. The sealed order was conclusive evidence under rule 34(4) of the General Medical Practice (Fitness to Practise) Rules 2004.

3. Paragraph 75(c) of Good Medical Practice required Dr Grajn to notify the GMC without delay of the Australian determination. The duty was engaged because the finding concerned misconduct committed while he was registered and resulted in disqualification from reapplying for registration. The MPT was entitled to find the disclosure allegation proved.

4. The MPT lawfully applied the framework in CHRE v Grant and was entitled to consider insight, remediation, responsibility and the likelihood of repetition. Sawati v General Medical Council did not prevent the Tribunal from evaluating all the evidence bearing on insight merely because Dr Grajn had defended the allegations and raised procedural objections.

5. GMC and PSA appeals allowed in part. The MPT failed properly to take account of allegations 1(a) and 1(b), namely the Australian finding of professional misconduct, when determining impairment and sanction. Further, the case had been seriously under-prosecuted. The omitted allegations concerning failures to disclose the investigation and alleged dishonesty were materially relevant to fitness to practise and sanction, particularly to Dr Grajn’s state of mind and the seriousness of the misconduct.

6. The court declined to substitute a sanction. Dr Grajn was entitled to a full opportunity to respond to all properly formulated allegations. The MPT’s determinations were quashed and the matter remitted to a differently constituted Tribunal for a fresh hearing.

1. Medical Practitioners Tribunal: found the allegations proved and imposed a 12-month suspension with a review hearing.
2. High Court (Administrative Court): dismissed Dr Grajn’s section 40 appeal; allowed the GMC’s appeal on ground 1 and the PSA’s appeal on grounds 1 and 2; quashed the MPT’s determinations and remitted the matter to a differently constituted Tribunal.