AC-2025-CDF-000062 - [2025] EWHC 2619 (Admin)

Section 1(1A) of the Act stipulates that the overarching objective of the GMC in exercising its functions is the protection of the public. By virtue of section 1(1B), the pursuit of the overarching objective involves the pursuit of the following three objectives (which I shall refer to in this judgment as “the three elements”):

“(a)

to protect, promote and maintain the health, safety and well-being of the public,

(b)

to promote and maintain public confidence in the medical profession,

and

(c)

to promote and maintain proper professional standards and conduct for members of that profession.”

Section 35C(2) of the Act provides that a person’s fitness to practise shall be regarded as “impaired” by reason only of various specified matters, including (a) misconduct; (b) deficient professional performance; (c) a conviction for a criminal offence; and (d) adverse physical or mental health.

Section 35D of the Act provides in so far as relevant:

“35D.— Functions of a Medical Practitioners Tribunal

…

(2)

Where the Medical Practitioners Tribunal find that [a person’s]… fitness to practise is impaired they may, if they think fit—

(a)

except in a health case, direct that the person's name shall be erased from the register;

(b)

direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction…”

Section 40 of the Act provides in so far as relevant:

“40.— Appeals

(1)

The following decisions are appealable decisions for the purposes of this section, that is to say—

(a)

a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration;

…

(4)

A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, … appeal against the decision to the relevant court.

…

(7)

On an appeal under this section from a Medical Practitioners Tribunal, the court may—

(a)

dismiss the appeal;

(b)

allow the appeal and quash the direction or variation appealed against;

(c)

substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or

(d)

remit the case to the [Medical Practitioners Tribunal Service] for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs… as it thinks fit.”

CPR 52.21(3) applies and means that the High Court will allow an appeal where the decision of the MPT was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the MPT. By virtue of CPR PD 52D, para 19.1, the appeal is by way of re-hearing. It is now established that the court is required to exercise its own judgment as to whether the sanction was wrong. In considering this question, the court must ask whether the sanction imposed was appropriate and necessary in the public interest, or whether it was excessive and disproportionate (Sastry v GMC [2021] EWCA Civ 623, [2021] 1 WLR 5029, paras 110, 112 and 114).

The court must at the same time give “appropriate deference” to the determination of the MPT as a specialist tribunal which makes decisions within a specialist regulatory framework (Sastry, para 112). I accept for present purposes in the appellant’s favour (without deciding the point) that the court is more equipped to assess the appropriate sanction for itself, and may give less weight to the expertise of the MPT, where the underlying charge found proved against the appellant concerns spousal abuse and violence rather than professional performance. The outcome of the present appeal does not, in any event, depend on some refined analysis of this court’s role.

Both parties referred me to Sayer v General Osteopathic Council [2021] EWHC 370 Admin, para 25, in which Morris J summarised the approach to be taken to a person’s insight into their misconduct when he or she continues to deny misconduct which a disciplinary tribunal has found proved:

“As regards the relationship between contesting the charges and insight, I have been referred to a number of authorities: including Nicholas-Pillai v GMC [2009] EWHC 1048 (Admin) at §19; Amao v Nursing and Midwifery Council [2014] EWHC 147 (Admin) at §§160 to 164; Motala v GMC [2017] EWHC 2923 (Admin) at §§30, 31 and 34; Yusuff v GMC [2018] EWHC 13 (Admin) at §§18 to 20; GMC v Khetyar [2018] EWHC 813 (Admin) at §49; GMC v Awan [2020] EWHC 1553 (Admin) at §38 and Dhoorah v Nursing and Midwifery Council [2020] EWHC 3356 (Admin) at §36. From these, I draw the following principles:

(1)

Insight is concerned with future risk of repetition. To this extent, it is to be distinguished from remorse for the past conduct.

(2)

Denial of misconduct is not a reason to increase sanction: Awan §38.

(3)

It is wrong to equate maintenance of innocence with lack of insight. Denial of misconduct is not an absolute bar to a finding of insight. Admitting misconduct is not a condition precedent to establishing that the registrant understands the gravity of the offending and is unlikely to repeat it: Motala §34 and Awan §38.

(4)

However attitude to the underlying allegation is properly to be taken into account when weighing up insight: Motala §34. Where the registrant continues to deny impropriety, that makes it more difficult for him to demonstrate insight. The underlying importance of insight and its relationship with denial of misconduct was usefully analysed by Andrew Baker J in Khetyar (at §49) as follows:

“Of course, no sanction was to be imposed on him for his denials as such; however, insight requires that motivations and triggers be identified and understood, and if that is possible at all without there first being an acceptance that what happened did happen it will be very rare, and any assessment of ongoing risk must play close attention to the doctor’s current understanding of and attitude towards what he has done.”.

(5)

The assessment of the extent of insight is a matter for the tribunal, weighing all the evidence and having heard the registrant. The Court should be slow to interfere: Motala §§30 and 31.”

As expressed by Yip J (as she then was) in Yusuff v GMC [2018] EWHC (Admin), para 18, it would be wrong to equate maintenance of innocence with a lack of insight. Admitting the misconduct is not a condition precedent to establishing that a person understands the gravity of the offending and is unlikely to repeat it (Yusuff, para 20).