What is the appropriate measure of diffidence/deference to be accorded to the MPT?

Dr Sastry & Dr Okpara v GMC [2021] EWCA Civ 623

Both Dr Sastry and Dr Okpara appealed against decisions by the Medical Practitioners Tribunal (MPT) to erase their names from the register. Both appeals were dismissed at first instance as the High Court on each occasion was reluctant to interfere with the original tribunal’s decision.

In brief, Dr Sastry’s fitness to practise was found to be impaired due to clinical concerns arising out of complex chemotherapy treatment involving autologous stem cell transplantation of a patient in India. Dr Okpara was found to have acted in a sexually motivated manner towards a colleague over a sustained period and admitted misconduct and impairment. The MPT in both cases found that erasure was the only proportionate sanction, having weighed the mitigating and aggravating factors in each case.

In Dr Sastry’s case before the High Court, the Judge commented that in cases involving sophisticated medical procedures, the court was “totally ill-equipped to arrive at a view of what public protection and reputation of the profession requires” and deferred to the experience of the professional MPT.

Equally, in Dr Okpara’s case, the High Court started with the position that the tribunal was the body best equipped to determine the sanction to be imposed and the court could only intervene if there was an error of principle in evaluating the case, or if the MPT had come to a decision outside of what it could properly and reasonably decide.

The key question for the Court of Appeal was the approach to be taken to appeals brought by medical practitioners against sanction under Section 40 of the Medical Act 1983. In addition, Dr Okpara’s case raised a further issue as to the correct approach in cases involving sexual misconduct.

It was noted that Section 40 grants an unlimited right of appeal to a medical practitioner, whereas Section 40A gives a limited right of appeal to the General Medical Council that the findings and/or sanction imposed were not sufficient for the protection of the public. The general rule is that appeals under Section 40 are by way of rehearing, and not review; the appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity.

The Court of Appeal found that of course the distinction between a rehearing and a review may vary depending on the nature and facts of the case. However, there is a distinction and it is present for good reason; to prevent an undermining of the rights given to medical practitioners by Section 40. Of course the court must pay appropriate deference to the determinations of the MPT in Section 40 appeals but the court must not evade its own duty in deciding whether the sanction imposed was appropriate and necessary in the public interest.

The Court of Appeal also found that in cases involving sexual misconduct or dishonesty an appeal court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the tribunal.

While ultimately both appeals were dismissed and the clinicians’ names remain erased from the register, this case gives a comprehensive account of the relevant law in this area and is particularly helpful for medical practitioners in appeals against findings made by the MPT; while the expertise of the tribunal should be recognised, the appeal court should still carry out its own assessment of the case and sanction imposed.

Laura Bridge, AssociateBLM

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