Dr Antonio Metastasio v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 26 July 2023 |
| Neutral Citation | [2023] EWHC 1918 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/154/2023 |
[2023] EWHC 1918 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/154/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Rich (instructed by Weightmans LLP) for the Appellant
Peter Mant (instructed by GMC Legal) for the Respondent
Hearing date: 5 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 26 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
On 8 December 2022, a Medical Practitioners Tribunal (‘the Tribunal’) directed that the name of Dr Antonio Metastasio should be erased from the medical register on grounds of misconduct. Dr Metastasio appeals against that decision pursuant to s.40 of the Medical Act 1983.
Dr Metastasio trained and qualified as a Psychiatrist, becoming a Member of the Royal College of Psychiatrists in 2009. At the relevant time he was practising as a Consultant Psychiatrist for Camden and Islington NHS Trust (‘the Trust’), which ran Highgate Mental Health Centre (‘Highgate MHC’).
On 22 November 2017, a young woman (‘Patient A’), who had diagnoses of Emotionally Unstable Personality Disorder (‘EUPD’) and Bipolar Affective Disorder, was referred by South Camden Crisis Resolution Team (‘the Crisis Team’) to St Pancras Hospital in relation to risk of suicide, alcohol addiction and use of cocaine. Shortly thereafter, Patient A was transferred and admitted to Highgate MHC. She was an in-patient at Highgate MHC between 23 and 30 November 2017. Whilst Patient A was an in-patient, Dr Metastasio was her treating Consultant Psychiatrist. It was in this capacity that he first met Patient A. He had four direct interactions with Patient A whilst she was an in-patient, speaking to her during ward rounds on 23, 27, 28 and 30 November 2017.
The allegations against Dr Metastasio arose from his contact with Patient A after she had been an in-patient at Highgate MHC. Patient A, using a pseudonym (which I shall refer to as ‘M’), was working as a sex worker and appearing in pornographic films. In 2018, Dr Metastasio began following M on social media, he contacted her several times, paid her for sexual services on 14 February 2019, and then sought a further meeting with her in August 2020. Patient A complained to the Trust when Dr Metastasio contacted her again in August 2020. In short, the Tribunal found that Dr Metastasio had engaged in this conduct knowing that ‘M’ was his former patient. The Tribunal concluded that his fitness to practise was impaired by reason of misconduct and that the only appropriate and sufficient sanction was one of erasure.
The grounds of appeal are:
i) Ground 1: The Tribunal's finding of fact that the Appellant knew that M, the sex worker and “ porn star” who he approached for sexual services, was Patient A who he had treated, was wrong and contrary to the evidence. This ground relates to allegations 7(a) and 7(b)(i) and (ii).
ii) Ground 2: The Tribunal's factual findings on allegations 1(a), 4(a)(i) and (ii), 4(b), 4(c)(i) and (iii) and 6(a) were based on the finding referred to in Ground 1. If that finding was wrong, these consequential findings cannot stand. In any event, the Appellant contends that they were wrongly made, given all the evidence before the Tribunal.
iii) Ground 3: If the appeal succeeds on Ground 1 and/or Ground 2, then the finding of current impairment of Dr Metastasio's fitness to practise cannot stand.
iv) Ground 4: If the factual findings and impairment decision are found to have been wrongly made (i.e. if the appeal succeeds on Grounds 1 and/or 2 and 3), then the sanction decision cannot stand.
v) Ground 5: Even if the preceding grounds fail, the sanction of erasure was wrong in all the circumstances. The Tribunal should have imposed a lesser sanction, such as suspension.
At the outset of the hearing I made an anonymity order, pursuant to CPR 39.2(4), that the identity of ‘Patient A’/‘M’ must not be disclosed. This order is necessary to protect her interests given the clear evidence that she is vulnerable by reason of her mental health.
B. The legal framework
The over-arching objective
The “ over-arching objective” of the General Medical Council (‘the GMC’) in exercising their functions is the protection of the public: s.1(1A) of the Medical Act 1983 (‘the 1983 Act’). Section 1(1B) of the 1983 Act provides:
“The pursuit by the General Council of their over-arching objective involves the pursuit of the following objectives—
(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.”
The Tribunal's three-stage approach
Where an allegation is made against a registered medical practitioner under s.35C of the 1983 Act, the Medical Practitioners Tribunal Service must arrange for the Tribunal to consider the allegation. The Tribunal's consideration proceeds in three stages. First, the Tribunal makes findings as to which (if any) of the factual allegations have been proved. Then the Tribunal determines on the basis of the proven allegation whether the medical practitioner's fitness to practise is impaired. Finally, the Tribunal makes a determination as to sanction.
Appeal by way of re-hearing
Medical practitioners have a statutory right of appeal to challenge a decision of the Tribunal. Section 40 of the 1983 Act provides, so far as relevant,
“(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, or section 41(10) below, appeal against the decision to the relevant court.
…
(5) In subsections (4) and (4A) above, “the relevant court”—
…(c) in the case of any other person means the High Court of Justice in England and Wales.
(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 MPTS 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.
(9) On an appeal under this section from a Medical Practitioners Tribunal, the General Council may appear as respondent; and for the purpose of enabling directions to be given as to the costs of any such appeal the Council shall be deemed to be a party thereto, whether they appear on the hearing of the appeal or not.”
CPR r.52.21 provides, so far as relevant:
“(1) Every appeal will be limited to a review of the decision of the lower court unless – (a) a practice direction makes different provision for a particular category of appeal; or (b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive – (a) oral evidence; or (b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the court was – (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence. …”
CPR PD 52D, para 19.1 states:
“(1) This paragraph applies to an appeal to the High Court under … (e) section 40 of the Medical Act 1983; …
(2) Every appeal to which this paragraph applies must be supported by written evidence and, if the court so orders, oral evidence and will be by way of re-hearing.”
In Sastry v General Medical Council [2021] EWCA Civ 623, [2021]] 1 WLR 5029, Nicola Davies LJ (giving the judgment of the Court) observed at [102]:
“Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court: (i) an unqualified statutory right of appeal; (ii) the jurisdiction of the court is appellate, not supervisory; (iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the tribunal; (iv) the appellate court will not defer to the judgment of the tribunal more than is warranted by the circumstances; (v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate; (vi) in the latter event, the court should substitute some other penalty or remit the case to the tribunal for reconsideration.”
In Sastry at [108], the Court of Appeal affirmed that the approach identified by the Privy Council in Ghosh [2001] 1 WLR 1915, and approved by the Supreme Court in Khan [2017] 1 WLR 169, is appropriate in section 40 appeals which are by way of rehearing.
The approach on appeal to the Tribunal's findings of fact and inferences
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