Dr Timothy Paul Byrne v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 10 August 2021 |
| Neutral Citation | [2021] EWHC 2237 (Admin) |
| Docket Number | Case No: CO/3017/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2237 (Admin)
THE HONOURABLE Mr Justice Morris
Case No: CO/3017/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ranald Davidson (instructed by DAC Beachcroft) for the Appellant
Peter Mant (instructed by General Medical Council) for the Respondent
Hearing dates: 3 and 16 March 2021
Further written submission 30 March 2021
Judgment Approved by the court for handing down
(subject to editorial corrections)
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
Introduction
This is an appeal from a decision (“the Decision”) of the Medical Practitioners Tribunal (“the Tribunal”) dated 30 July 2020. By the Decision, the Tribunal determined that the name of Dr Timothy Paul Byrne (“the Appellant”) should be erased from the medical register for impairment of his fitness to practise arising out of sexual misconduct. The Tribunal found that the Appellant had engaged in an inappropriate relationship which developed into a sexual relationship with a vulnerable patient, Patient A.
The appeal is brought under section 40 of the Medical Act 1983 and is in respect, principally, of the Tribunal's findings of fact, its consequent findings of misconduct and impairment of fitness to practise and of sanction. The Respondent to the appeal is the General Medical Council (“the GMC”).
Some factual background
The Appellant is a consultant psychiatrist. Patient A is a woman aged 53 and has been treated by mental health services since she was 16. Patient A was a patient of the Appellant between 2007 and 2016. In late 2016 Patient A reported to another therapist that she had had an inappropriate relationship with the Appellant between 2011 and 2013. She made allegations of physical and emotional intimacy, including kissing, touching and more serious sexual acts in 2012. These complaints were reported by the other therapist to the local NHS authority. There was a local investigation, culminating in a warning. The matter was then referred to the GMC who brought proceedings before the Tribunal. After a hearing in July 2019, in March 2020 the Tribunal found a number of allegations of fact proved and went on to find that those findings of fact amounted to misconduct and impairment of fitness to practise. On 30 July 2020 the Tribunal imposed the sanction of erasure.
In this judgment I address relevant legal principles, the facts in more detail, the proceedings before the Tribunal, the Decision, the Grounds of Appeal before finally addressing each ground in turn.
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 (“the Rules”). Other relevant material is to be found in certain case law.
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 by 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, or unjust because of a serious procedural or other irregularity: 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.
I heard substantial argument on the correct approach of the Court on an appeal from a decision of the Tribunal on the facts. This raised a number of particular issues, which I address in the following paragraphs. In this regard I have been referred to the following principal 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); E.I. Dupont de Nemours v S.T. Dupont [203] EWCA Civ 1368 at §§84–98 esp at §84 and §98; Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 at §§13–22, 197; Chyc v General Medical Council [2008] EWHC 1025 (Admin) at §23; Muscat v Health Professions Council [2008] EWHC 2798 (Admin) at §83; Mubarak v General Medical Council [2008] EWHC 2830 (Admin) at §§5, 20; Southall v General Medical Council [2010] EWCA Civ 407 at §47 and §§50–62 (citing Libman v General Medical Council [1972] AC 217 at 221F); Casey v General Medical Council [2011] NIQB 95 at §6; O v Secretary of State for Education [2014] EWHC 22 (Admin) at §§58 to 64, 66; R (Dutta) v General Medical Council [2020] EWHC 1974 (Admin) at §§21–22, 38–43; Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm); McGraddie v McGraddie [2013] UKSC 58; Henderson v Foxworth [2014] UKSC 41 at §§48 and 58–67; Perry v Raleys Solicitors [2019] UKSC 5 at §52, and the US case Anderson v City of Bessemer (1985) 470 US 564 at 574–57;, and Khan v General Medical Council [2021] EWHC 374 (Admin).
(1) The approach of the Court on appeal to a finding of fact, and in particular a finding of primary fact
The issue is as to the circumstances in which an appeal court will interfere with findings of fact made by the court or decision maker below. This is an issue which has been the subject of detailed judicial analysis in a substantial number of authorities and where the formulation of the test to be applied has not been uniform; the differences between formulations are fine. I do not propose to go over this ground again in detail, but rather seek to synthesise the principles and to draw together from these authorities a number of propositions.
First, the degree of deference shown to the court below will differ depending on the nature of the issue below; namely whether the issue is one of primary fact, of secondary fact, or rather an evaluative judgment of many factors: Assicurazioni Generali at §§16 to 20. The present case concerns findings of primary fact: did the events described by the Patient A happen?
Secondly, the governing principle remains that set out in Gupta §10 referring to Thomas v Thomas. The starting point is that the appeal court will be very slow to interfere with findings of primary fact of the court below. The reasons for this are that the court below has had the advantage of having seen and heard the witnesses, and more generally has total familiarity with the evidence in the case. A further reason for this approach is the trial judge's more general expertise in making determinations of fact: see Gupta, and McGraddie v McGraddie at §§3 to 4. I accept that the most recent Supreme Court cases interpreting Thomas v Thomas (namely McGraddie and Henderson v Foxworth) are relevant. Even though they were cases of “review” rather than “rehearing”, there is little distinction between the two types of cases for present purposes (see paragraph 16 below).
Thirdly, in exceptional circumstances, the appeal court will interfere with findings of primary fact below. (However the reference to “virtually unassailable” in Southall at §47 is not to be read as meaning “practically impossible”, for the reasons given in Dutta at §22.)
Fourthly, the circumstances in which the appeal court will interfere with primary findings of fact have been formulated in a number of different ways, as follows:
— where “ any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusions”: per Lord Thankerton in Thomas v Thomas approved in Gupta;
— findings “ sufficiently out of the tune with the evidence to indicate with reasonable certainty that the evidence had been misread” per Lord Hailsham in Libman;
— findings “ plainly wrong or so out of tune with the evidence properly read as to be unreasonable”: per in Casey at §6 and Warby J (as he then was) in Dutta...
To continue reading
Request your trial
-
Abraham Johannes Henning v The General Dental Council
...Meadow [128] (Auld LJ, citing Dupont [96] (May LJ)).” 28 Morris J also addressed this issue in Byrne v General Medical Council [2021] EWHC 2237 (Admin) at [16], observing: “…whilst noting the observations of Warby J in Dutta at §21(1), on the balance of authority there is little or no rele......
-
Dr Shala Imani v General Dental Council
...judgment as to the application of the principles to the facts of the case (para 20)…” 85 In Byrne v General Medical Council [2021] EWHC 2237 (Admin) Morris J reviewed the circumstances in which the Court hearing the appeal would interfere with findings of primary fact (as opposed to findin......
-
Dr Olakunle Arowojolu v General Medical Council
...Parcels Service Ltd [2007] 1 WLR 1325, para 46, and Southall's case at para 47.” 96 Recently, in Byrne v General Medical Council [2021] EWHC 2237 (Admin), Morris J said at [10]–[16]: “10. I heard substantial argument on the correct approach of the Court on an appeal from a decision of the......
-
Dr Nithya Santhanalakshmi Shunmugavel Pandian v The General Medical Council
...role have been provided by Warby J in Dutta v General Medical Council [2020] EWHC 1974 (Admin) at §§20–21, and Morris J in Byrne v GMC [2021] EWHC 2237. 26 In Byrne, Morris J was referred to a large number of authorities 1. Morris J distilled the relevant legal principles as follows: “12… ......