Dr Kalomoira Kefala v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] EWHC 2480 (Admin) |
| Date | 18 September 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3642/2019 |
[2020] EWHC 2480 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Morris
Case No: CO/3642/2019
James Bourne-Arton (instructed by Monarch Solicitors) for the Appellant
Alexis Hearnden (instructed by General Medical Council) for the Respondent
Hearing dates: 9 June 2020
Approved Judgment
Introduction
This is an appeal from a decision (“the Decision”) of the Medical Practitioners Tribunal (“the Tribunal”) dated 9 August 2019. By the Decision, the Tribunal held that the fitness to practise of the Appellant, Dr Kalomoira Kefala (“the Appellant”) was impaired by reason of misconduct and ordered that she be suspended from the medical register for three months. The relevant impairment arose from misconduct, comprising the dishonest failure to disclose a relevant conviction on two separate occasions. The appeal is brought under section 40 of the Medical Act 1983 and is in respect only of the Tribunal's finding of dishonesty. The Appellant does not appeal against the finding of impairment itself nor the sanction. She seeks an order that the Decision be quashed. The respondent to the appeal is the General Medical Council (“the GMC”).
Some factual background
The Appellant is a Greek national and is a paediatrician specialising in neonatal pneumo-allergies. She qualified as a doctor from the University of Athens in 1997 and in 2013 received a Masters of Sciences from the University of Athens.
In 2005 she was involved in a road traffic accident in Greece when a motorcyclist drove into her while she was stationary in a car. There were civil court proceedings in which she was found not liable. In 2012 she discovered that in 2009 she had been found guilty, in her absence, by a court in Thessaloniki of an offence relating to the road traffic accident. She disclosed that decision in an application to register with the GMC. However subsequently when she undertook a post graduate course at the University of Southampton, she failed to disclose it in two forms – described in the Decision as “Form 1” and “Form 2”—that she was required to submit to the University. The GMC contended, and the Tribunal found, that those failures were dishonest and amounted to misconduct, and that by reason of that misconduct her fitness to practise was impaired.
The Legislative Framework and relevant legal principles
The statutory framework for the GMC and the Tribunal is to be found in the Medical Act 1983, as amended (“the Act”), and the General Medical Council (Fitness to Practise) Rules 2004, made under the Act. Other relevant material is to be found in certain case law and in the GMC's own statement of principles of good practice in its publication, Good Medical Practice.
The GMC and the Medical Practitioners Tribunal
Section 1(1A) of the Act provides that “the overarching objective of the General Council in exercising their functions is the protection of the public”. Section 1(1B) expands on this, providing that: “the pursuit of the General Council of the overarching 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”.
Fitness to practise proceedings
The procedure for determination of “fitness to practise” is divided into two stages: an investigation stage and then reference to, and consideration and determination by, the Tribunal. Section 35C(2) of the Act provides that: “a person's fitness to practise shall be regarded as impaired for the purposes of this Act by reason only of – (a) misconduct…”. It is well established that under section 35C the determination of impairment of fitness to practise involves a two-stage process. First the issue of whether there has been misconduct (or other grounds) and, second, whether as a result of such misconduct (or other ground), fitness to practise is impaired.
Appeals
Section 40 of the Act makes provision for appeals from Tribunal decisions to, inter alia, this Court. By s.40(1)(a), appealable decisions include a tribunal decision under s.35D giving a direction for erasure, for suspension, or for conditional registration or varying the conditions imposed by a direction for conditional registration. Under s.40(7), this Court's powers on appeal include the power to dismiss the appeal, to allow the appeal and quash the direction appealed against, to substitute its own direction, or to remit the case to the MPTS for them to arrange for a tribunal to dispose of the case in accordance with the Court's directions.
On appeal, the question for the Court is whether the Tribunal was wrong, either as a matter of fact or law: see CPR 52.21(3). Further, an appeal under s.40 is a full appeal by way of re-hearing (and is thus, in principle, broader than the usual jurisdiction of “review” applicable to most appeals): see CPR 52.21(1)(a) and Practice Direction 52D, §19.
As regards the approach of the Court on such a re-hearing, in relation to findings of fact/misconduct in particular, I have considered a number of authorities (including those cited within authorities): Gupta v General Medical Council [2001] UKPC 61 [2002] 1 WLR 1691 at §10 (citing Thomas v Thomas [1947] AC 484 at 487–488); Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at §§13–22, 197; Southall v General Medical Council [2010] EWCA Civ 407 at §47 and §§50–62; Yassin v General Medical Council [2015] EWHC 2955 (Admin) at §32; Siddiqui v General Medical Council [2015] EWHC 1996 (Admin) at §30(ii); Craig v Farriers Registration Council [2017] EWHC 707 (Admin) at §§27 to 33; General Medical Council v Jagjivan [2017] 1 WLR 4438 at §40; Bawa-Garba v General Medical Council [2018] EWCA Civ 1879 at §§60–67; and Gupta v General Medical Council [2020] EWHC 38 (Admin) at §36. Whilst these cases do not speak with one voice, the following principles emerge.
First, where the appeal court is being asked to reverse findings of fact based on oral evidence, there is little if any difference between “rehearing” and “review”: see Craig §28; Assicurazioni Generali at §§13, 15 and 23. Ultimately the question for this court is whether the decision below was “wrong” or “unjust because of a serious procedural or other irregularity in the proceedings [below]”.
Secondly, on questions of fact, the degree to which the appeal court will show deference to the lower court will depend on the nature of the issues determined by the court below. Much will depend on the extent to which the judge below has an advantage over the appellate court. Greater deference will be shown where the conclusions are based upon the view formed of oral evidence of witnesses: see Assicurazioni Generali at §15.
Thirdly, in this connection, distinctions are drawn between different types or descriptions of finding: findings of primary fact (based on direct perception); findings of inferential (or secondary) fact, being findings of fact based on inferences from primary fact; and findings of “evaluative judgment”. The distinction between the second and third categories is most clearly explained in the judgment of Robert Walker LJ in Bessant v South Cone, cited at §20 in Assicurazioni Generali. Evaluative judgment involve findings which take into account a number of factors, and include, in particular, findings of fact based on the application of a legal standard: for example, findings of negligence, of obviousness in patent law, of the existence of a contract of service, and, as in the present case, a finding of dishonesty: see Assicurazioni Generali §§16 to 18.
As regards findings of primary fact, particularly founded upon the assessment of the credibility of witnesses, the appeal court will be, at least, very cautious about reversing such a finding: see Gupta. In the authorities, there are differences as to the relevant degree of reluctance or caution to be adopted: from “slow to interfere” in Gupta through “extremely cautious” in Jagjivan, to “virtually unassailable” in Southall. In the present case, nothing turns upon these differences. Nevertheless in my judgment, on the basis that Gupta and Thomas v Thomas remain good authority, even in cases of primary fact based on oral evidence, the appeal court may still interfere where the advantage of having seen and heard the witnesses may not be sufficient to explain or justify the conclusion of the court below: see analysis in Craig at §§30–32.
As regards findings of secondary or inferential fact, as stated expressly in CPR 52.21(4), and pointed out in Jagjivan §40 (iv), the appeal court may draw any inferences of fact which it considers justified on the evidence. (If and in so far as §32(vii) of Yassin is addressing such findings (as opposed to evaluative judgments), when it suggests a significant deference to the court below, I do not follow that approach).
As regards findings of evaluative judgment, the approach will vary depending on nature of the evaluation. In general the appeal court will not interfere unless satisfied that the conclusion below lay outside the bounds within which reasonable disagreement is possible. Where the application of a legal standard involves no question of principle, but is a matter of degree on the facts of the case, the appeal court will be reluctant to interfere with the judgment...
To continue reading
Request your trial
-
Benjamin Sayer v General Osteopathic Council
...EWCA Civ 401, and GMC v Meadow [2006] EWCA Civ 1390. I referred the parties to my own summary in the recent case of Kefala v GMC [2020] EWHC 2480 (Admin) at §§9 to 15, where I cited additionally a number of other leading authorities. Counsel agreed with most of that summary. However Mr Ma......