A qualified success for the GMC in appeal against MPT decision

In the latest GMC appeal,[1] against the determination of its own Tribunal service, the High Court felt unable ‘to conclude that the Tribunal was wrong to impose a period of conditional registration, and to reject the sanctions of suspension or erasure.’ On appeal the GMC sought the Registrant’s erasure.

The matter was remitted to the same Tribunal for re-determination of the sanction with an indication that the Tribunal should ‘provide full reasons for their findings and conclusions on sanction.’

Case summary

The case had involved wide-ranging performance and conduct concerns in relation to the care provided to a significant number of patients whilst the registrant, an ophthalmologist, was working as a locum optometrist. The Registrant admitted a number of allegations and a significant number of contested allegations were found proved. Both misconduct and deficient professional performance were established. The Tribunal was unimpressed with the evidence of the Registrant’s insight concluding that there was a significant risk of repetition. They imposed conditions, including a requirement for supervision.

Is a failure to remediate an aggravating factor?

In addressing the question of whether a failure to have remediated by the time of the MPT hearing could properly be regarded as an aggravating factor for the purpose of sanction, the Court observed:

‘…I do not consider that the Tribunal was wrong not to include failure to remediate or patient safety as aggravating factors. Neither of these is included in the list in the Sanctions guidance. In my view, although there may be cases where, on the particular facts, the failure to remediate or the risk to patients is so striking that it would be wrong for a tribunal not treat it as an aggravating factor, I do not consider that to be the position on the evidence in this case.’

The nub of the problem

From the Court’s analysis it is clear that an appeal might have been avoided if the MPT’s determination had been supported by fuller reasons. Lang J noted:

‘I have concluded that the flaws which I have identified in the Tribunal’s determination may be a consequence of a defective approach to the case by the Tribunal, or they may merely be a result of poor drafting and inadequate reasons. Without clarification from the Tribunal, I am not able to discern the cause.’

Costs

Given the essential genesis for the appeal lay in defects in the Tribunal’s drafting many would see an unfairness in requiring the Registrant to bear the GMC’s costs of the appeal. Although the GMC’s appeal succeeded, the Court noted that:

‘…the GMC was only successful in establishing that there were flaws in the determination. The GMC failed to persuade the Court that the sanction of conditional registration was not sufficient to protect the public… In those circumstances, I consider that the just outcome is that the parties should bear their own costs.’

Conclusion

The decision in this case demonstrates the problems which can arise when determinations are insufficiently reasoned. In the circumstances, the Court’s decision that it would be unjust to require the Registrant to bear the costs of the appeal is welcome.

Footnote
[1] General Medical Council v Sledzik [2019] EWCH 189


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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