General Medical Council v Professor Robert Thompson Walton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 19 December 2019 |
| Neutral Citation | [2019] EWHC 3537 (Admin) |
| Date | 19 December 2019 |
| Docket Number | Case No: CO/2757/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3537 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Henshaw
Case No: CO/2757/2019
Ivan Hare QC (instructed by GMC Legal) for the Appellant
Nicholas A. Peacock (instructed by Medical Protection Society) for the Respondent
Hearing date: 5 December 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| (A) INTRODUCTION | 2 |
| (B) THE MPT'S DETERMINATION | 2 |
| (C) LEGAL FRAMEWORK | 4 |
| (D) GROUND 1: DETERMINATION ON ALLEGATIONS 3 AND 4 | 9 |
| (E) GROUND 2: SANCTIONS GUIDANCE | 20 |
| (F) CONCLUSIONS | 24 |
(A) INTRODUCTION
This is an appeal brought by the General Medical Council (“ the GMC”) under section 40A of the Medical Act 1983 (“ the 1983 Act”) against a determination of the Medical Practitioners Tribunal (“ the MPT”) on 18 June 2019 (“ the Determination”). By the Determination, the MPT found a number of allegations proven against the Respondent (“ Professor Walton”) and suspended his registration for six months.
The GMC appeals on the ground that the MPT's determination is not sufficient for the protection of the public. More specifically, it contends that the MPT erred by:
i) failing to ask itself the correct question when considering certain of the allegations made against Professor Walton, and
ii) failing to apply the Sanctions Guidance approved for use by MPTs from 6 February 2018 (“ the Guidance”).
The GMC seeks an order quashing the relevant parts of the Determination and the remittal of the case to the Medical Practitioners Tribunal Service for them to arrange for the MPT to dispose of the case in accordance with the directions of this court.
Professor Walton opposes the appeal, contending that, applying the appropriate standard of review, no error in the Determination has been shown.
I have concluded that the Determination was wrong, in that the MPT asked itself the wrong question, and/or failed to address the correct question, in relation to allegations 3 and 4. Further, findings on those allegations might affect the question of the appropriate sanction. The case must therefore be remitted to the MPT for further disposal.
(B) THE MPT'S DETERMINATION
The MPT heard the GMC's case against Professor Walton from 10 to 18 June 2019. Both sides were represented by counsel.
The MPT issued a determination on the facts on 17 June 2019, a determination on impairment on 18 June 2019, and a determination on sanction on 18 June 2019. Together these constitute the Determination.
At the end of its determination on the facts, the tribunal set out the allegations against Professor Walton and its overall conclusions on them, under the heading “ The Tribunal's Overall Determination on the Facts”:
“1. Between 2 May 2017 and 16 November 2017 while employed as a full-time Professor of General Practice at Warwick Medical School, University of Warwick (“the University”) you also undertook paid private work for:
(a) Summertown Health Centre (“Health Centre”) for up to two days a week; Admitted and found proved
(b) Queen Mary University of London for one day a week.
Admitted and found proved
2. You:
(a) were given advice by Professor Kumar that you would need to make an application to undertake private work (“the Application”) on:
(i) a date unknown between November 2016 and January 2017;
Determined and found proved
(ii) 16 January 2017; Admitted and found proved
(b) knew you were subject to terms of employment at the University which required you to:
(i) make the Application; Determined and found not proved
(ii) declare any conflict of interest.
Determined and found not proved
3. Prior to undertaking the work described at paragraph 1, you failed to:
(a) make the Application; Admitted and found proved
(b) declare any conflict of interest. Determined and found not proved
4. Your action as set out at paragraph 1 and 3 were dishonest by reason of paragraphs 2(a) and 2(b). Determined and found not proved
5. On 6 October 2017, you informed Professor Frances Griffiths that you had agreed with Dr A that payment from the Health Centre could be paid directly to you, or words to that effect. Admitted and found proved
6. On 21 October 2017, you completed the Application which requested approval for one half day per week of private work at the Health Centre. Admitted and found proved
7. On 16 November 2017, you informed Professor Griffiths that you had been working at the Health Centre for one day per week during your employment at the University, or words to that effect. Admitted and found proved
8. You knew that:
(a) Professor Kumar had not agreed that the payment from the Health Centre could be paid directly to you; Determined and found proved
(b) you had been working for the Health Centre for up to two days per week during your employment at the University.
Determined and found proved
9. Your action as set out at paragraph 5 was dishonest by reason of paragraph 8(a). Determined and found proved
10. Your actions as set out at paragraphs 6 and 7 were dishonest by reason of paragraph 8(b). Determined and found not proved in relation to paragraph 6. Determined and found proved in relation to paragraph 7.”
The MPT's practice, reflected above, where matters are admitted is formally to find them proven (see § 17(1)(d)-(e) of the Order in Council referred to in § 11 below). I have omitted from the above quotation reference to two minor amendments which the MPT allowed to be made to the allegations.
The MPT went on to conclude that Professor Walton's fitness to practise was currently impaired by reason of misconduct, and that the appropriate sanction was a 6-month suspension.
(C) LEGAL FRAMEWORK
Section 1(1A) of the 1983 Act provides that the GMC's over-arching objective in exercising its functions under the Act is the protection of the public. The Act includes provision for cases of alleged misconduct to be brought before Medical Practitioners Tribunals, and the General Medical Council (Fitness to Practise) Rules Order in Council 2004 (2004/2608) makes more detailed provision for proceedings before such tribunals.
Section 40A of the Act provides:
“(1) This section applies to any of the following decisions by a Medical Practitioners Tribunal—
(a) a decision under section 35D giving—
(i) a direction for suspension, including a direction extending a period of suspension;
…
(2) A decision to which this section applies is referred to below as a “relevant decision”.
(3) The General Council may appeal against a relevant decision to the relevant court [the High Court] if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.
(4) Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—
(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the medical profession; and
(c) to maintain proper professional standards and conduct for members of that profession.
…
(6) On an appeal under this section, the court may—
(a) dismiss the appeal;
(b) allow the appeal and quash the relevant decision;
(c) substitute for the relevant decision any other decision which could have been made by the 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.”
The Divisional Court set out the approach to be taken on such an appeal in General Medical Council v Jagjivan [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438, at §§ 39–40:
“As a preliminary matter, the GMC invites us to adopt the approach adopted to appeals under section 40 of the 1983 Act, to appeals under section 40A of the 1983 Act, and we consider it is right to do so. It follows that the well-settled principles developed in relation to section 40 appeals (in cases including: Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462; Fatnani and Raschid v General Medical Council [2007] EWCA Civ 46; [2007] 1 WLR 1460; and Southall v General Medical Council [2010] EWCA Civ 407; [2010] 2 FLR 1550) as appropriately modified, can be applied to section 40A appeals.
In summary:
i) Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’.
ii) It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are ‘clearly wrong’: see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.
iii) The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).
iv) When the question is what inferences are to be drawn from specific facts, an appellate court...
To continue reading
Request your trial