Professional Standards Authority for Health and Social Care v General Medical Council and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 14 May 2015 |
| Neutral Citation | [2015] EWHC 1304 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4950/2014 |
| Date | 14 May 2015 |
[2015] EWHC 1304 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/4950/2014
David Bradly (instructed by Capsticks Solicitors LLP) for the Appellant
Fiona Horlick (instructed by Gordons Partnership LLP) for the Second Respondent
The First Respondent did not appear and was not represented.
Hearing date: 28 April 2015
The Professional Standards Authority ("the PSA") has referred to the High Court a decision of the General Medical Council Fitness to Practise Panel of the Medical Practitioners Tribunal Service ("The Panel") made on 19 September 2014, in respect of a medical practitioner, Dr Uppal.
The Panel found Dr Uppal's dishonesty (which was admitted) to amount to misconduct, but went on to decide that her fitness to practise was not impaired, and it was not appropriate to issue her with a formal warning.
The PSA has referred this case to the High Court under section 29 of the National Health Service Reform and Health Care Professions Act 2002 ("the 2002 Act") on the ground that the Panel's decision was unduly lenient and wrong, in particular:
a) The Panel's findings and analysis of Dr Uppal's misconduct were inadequate (Ground 3);
b) The Panel erred in concluding that Dr Uppal's fitness to practise was not impaired and it failed adequately to address her misconduct (Ground 4);
c) In the alternative, the Panel ought to have issued a warning in respect of her misconduct (Ground 5);
d) The Panel failed to give adequate reasons for its decision (Ground 6).
Initially the PSA also alleged, in its grounds 1 and 2, that the General Medical Council ("the GMC") had under-prosecuted the charge, which contributed to the errors made by the Panel. However, shortly before the hearing, the PSA withdrew those grounds and the GMC formally conceded the appeal on the other grounds. The GMC has not played any further part in this appeal.
Allegations and findings
The allegation against Dr Uppal was as follows:
" Allegation and Findings of Fact
That being registered under the Medical Act 1983, as amended:
1. Between December 2011 and January 2012, you were employed as a GP Registrar at the Birchwood Medical Practice.
Admitted and found proved
2. On 13 December 2011, you had a telephone consolation with Baby A's mother following which Baby A was taken to A & E and was admitted to hospital.
Admitted and found proved
3. On 30 December 2011, you informed your GP Trainer that you had spoken to Baby's mother following Baby A's discharge from hospital when you had not in fact done so.
Admitted and found proved
4. Your action as set out at paragraph 3 above was:
a. Misleading,
Admitted and found proved
b. dishonest.
Admitted and found proved
And by reason of the matters set out above, your fitness to practise is impaired because of your misconduct. Found not proved"
The Panel concluded that Dr Uppal's fitness to practise was not impaired as this was an isolated episode and Dr Uppal had demonstrated insight and taken steps to avoid any repetition. She was a GP trainee, and there was evidence of her exemplary professional and personal conduct from her senior colleagues and trainers. A formal warning was not necessary, appropriate or proportionate.
Law
Pursuant to section 29(4) of the 2002 Act, the Authority may refer a case to the High Court where it considers that:
"(a) a relevant decision falling within subsection (1) has been unduly lenient, whether as to any finding of professional misconduct or fitness to practise on the part of the practitioner concerned (or lack of such a finding), or as to any penalty imposed, or both
…
and that it would be desirable for the protection of members of the public for the Council to take action under this section."
Where a case is referred to the High Court, it is to be treated as an appeal (s.29(7)).
In Ruscillo v Council for Regulation of Healthcare Professionals [2004] EWCA Civ 1356, the Court of Appeal held, applying CPR 52.11, that an appeal under section 29 should be allowed if the relevant decision was "wrong" or if there has been "a serious procedural or other irregularity". Lord Phillips MR gave the following guidance on the test of "undue leniency":
"73. What are the criteria to be applied by the Court when deciding whether a relevant decision was "wrong"? The task of the disciplinary tribunal is to consider whether the relevant facts demonstrate that the practitioner has been guilty of the defined professional misconduct that gives rise to the right or duty to impose a penalty and, where they do, to impose the penalty that is appropriate, having regard to the safety of the public and the reputation of the profession. The role of the Court when a case is referred is to consider whether the disciplinary tribunal has properly performed its task so as to reach a correct decision as to the imposition of penalty. Is that different from the role of the Council in considering whether a relevant decision has been 'unduly lenient'? We do not consider that it is. The test of undue leniency in this context must, we think, involve considering whether, having regard to the material facts, the decision reached had due regard for the safety of the public and the reputation of the profession.
…..
75. The reference to having regard to double jeopardy when considering whether a sentence is unduly lenient is not, as we have already indicated, really apposite where the primary concern is the for the protection of the public. More apposite is this passage in …. Attorney General's Reference (No. 4 of 1989) (1990) 90 Cr App. R. 266:
"The first thing to be observed is that it is implicit in the section that this Court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased – with all the anxiety that this naturally gives rise to – merely because in the opinion of this Court the sentence was less than this Court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well-placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature."
76. … We consider that the test of whether a penalty is unduly lenient in the context of section 29 is whether it is one which a disciplinary tribunal, having regard to the relevant facts and to the object of disciplinary proceedings, could reasonably have imposed…
77. … In any particular case under section 29 the issue is likely to be whether the disciplinary tribunal has reached a decision as to penalty that is manifestly inappropriate having regard to the practitioner's conduct and the interests of the public.
78. … Where all material evidence has been placed before the disciplinary tribunal and it has given due regard to the relevant factors, the Council and the Court should place weight on the expertise brought to bear in evaluating how best the needs of the public and the profession should be protected. Where, however, there has been a failure of process, or evidence is taken into account on appeal that was not placed before the disciplinary tribunal, the decision reached by that tribunal will inevitably need to be reassessed."
Ground 3 – inadequate findings of misconduct
The Panel summarised its factual findings in paragraphs 26 to 28 of its determination:
"26. The Panel heard how on 13 December 2011, Baby A's mother telephoned Birchwood Medical Practice for a consultation as her baby had been diagnosed with a viral illness the previous day and his situation appeared to have worsened. You took the call and provided advice to the mother, informing her that there were no routine appointments available, but that if she continued to have concerns she could take the baby to A&E. At no time thereafter did you call Baby A's mother to enquire as to his condition. On 19 December 2011, you received a letter from the hospital informing you that Baby A had been admitted to hospital and had required intubation and ventilation. This was confirmed in a later letter to the practice received by Dr Baur dated 28 December 2011, who discussed the matter with Dr Nelstrop. On 30 December 2011, you told Dr Nelstrop that you had spoken to Baby A's mother following the letter from the hospital which was not true. You said that the mother had told you that baby A's condition had deteriorated after you had provided the on-call advice, and that this had made you feel relieved.
27. On 13 January 2012, you had a meeting with Dr Nelstrop and Dr Vijaykumar, GP Partner at Birchwood. At this point, Dr Vijaykumar had been informed that Baby A's mother had not spoken with you. You still maintained that you had spoken to Baby A's mother. On being told that the practice telephone records could be...
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