The General Medical Council v Maher Khetyar
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE ANDREW BAKER,Mr Justice Andrew Baker |
| Judgment Date | 19 March 2018 |
| Neutral Citation | [2018] EWHC 813 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5469/2017 |
| Date | 19 March 2018 |
[2018] EWHC 813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Andrew Baker
CO/5469/2017
Ms J Richards QC (instructed by GMC Legal) appeared on behalf of the Appellant (MS A HEARNDON appeared for judgment).
Ms F Horlick and Ms P Maudsley (instructed by Bankside Law) appeared on behalf of the Respondent (MR L GLEDHILL appeared for judgment).
Introduction
This is an appeal brought by the GMC under s.40A of the Medical Act 1983 in respect of a decision of a misconduct tribunal of the Medical Practitioners Tribunal Service (respectively “the Tribunal” and “the MPTS”) on 26 th October 2017. The Tribunal imposed a sanction on the respondent, Dr Khetyar, of suspension of his registration for 12 months, with a requirement for review by another tribunal prior to expiry. The Tribunal decided not to direct that Dr Khetyar's name be erased from the register.
Erasure from the registry (in layman's terms, ‘striking off’) was the most serious sanction available to the Tribunal under s.35D of the 1983 Act, the Tribunal having found that Dr Khetyar's fitness to practise was impaired. It was submitted to the Tribunal on behalf of the GMC that the proper sanction in this case was erasure, because nothing short of erasure would be sufficient to satisfy the overarching objective of protecting the public. That overarching objective as stated at s.1(1A) of the Act involves the three particular objectives stated at s.1(1B), namely (a) protecting, promoting and maintaining the health, safety and well-being of the public, (b) promoting and maintaining public confidence in the medical profession, and (c) promoting and maintaining proper professional standards and conduct for members of that profession.
The GMC's contention on appeal is that the Tribunal's decision that suspension was a sufficient sanction is seriously flawed and wrong by reference to any or all of three grounds of appeal. By a fourth and final ground of appeal, the GMC contends that, standing back, the sanction of suspension did not reflect adequately the nature and seriousness of the misconduct the Tribunal had found proved. It therefore asks the court to quash the decision and substitute a sanction of erasure, or alternatively to remit the matter to the MPTS for a fresh decision as to sanction.
The Tribunal was urged on behalf of Dr Khetyar to conclude that the imposition of conditions on his registration was a sufficient sanction. He did not bring any appeal himself – that is to say he has not challenged and does not challenge the Tribunal's rejection of that contention and its decision to direct suspension of his registration – but he resists any suggestion that suspension did not go far enough.
I pay tribute at the outset to the clear, careful and helpful submissions addressed to me, both in writing and orally, by Ms Richards QC for the GMC and Ms Horlick, appearing with Ms Maudsley, for Dr Khetyar.
Out of time?
Before turning to the substance, I deal briefly with an argument raised by Ms Horlick that the appeal is out of time. Section 40A(5) of the 1983 Act provides that the GMC “may not bring an appeal under this section after the end of the period of 28 days beginning with the day on which notification of the relevant decision was served on the person to whom the decision relates.” The relevant notification for that purpose does not refer to the handing down of its determination by the Tribunal, which in this case occurred on 26 th October 2017, but the written notification of the outcome to Dr Khetyar by the MPTS, which in this case occurred by email on 27 th October 2017: see as to that GMC v Narayan [2017] EWHC 2695 (Admin).
This appeal was brought on 23 rd November 2017, the 28 th day of the 28-day period referred to by the Act if 27 th October 2017 was the first day of that period. It was therefore in time. The MPTS notification letter to Dr Khetyar incorrectly informed him that it was deemed served on 26 th October and that therefore any appeal had to be lodged on or before 22 nd November. That error cannot deprive the GMC of the full 28-day period granted to it by statute in which to bring this appeal; nor would an appeal by Dr Khetyar have been out of time, had he wished to appeal, if lodged on 23 rd November.
Ms Richards QC submitted if necessary that the statutory 28-day period should be construed as a period of 28 clear days consistently with the rule in CPR 2. for periods of time specified by the CPR, Practice Directions, or judgments or orders of the court. On that basis, the appeal would have been in time even if the decision notification was served on 26 th October 2017. Ms Richards QC told me in that regard that the GMC routinely calculates time for filing an appeal under the 1983 Act in that way, whether the GMC or the doctor in question is appealing. Appeals by doctors are brought under s.40 of the Act and the language of the 28-day period provision there is identical.
I do not have proper evidence of that routine practice on the part of the GMC. On the face of things, it is not supported by the notification letter in this case. Be that as it may, the submission by reference to CPR 2.8 does not arise and I decline in those circumstances to express any view upon it having not heard full argument.
Finally, Ms Richards QC referred me to the decision of the Court of Appeal in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818; [2013] 1 WLR 3156 for the proposition that I would have power to grant an extension of time if required. She accepted that the court's jurisdiction in that regard is a very narrow one. Indeed, it is not so much a power to extend time in any ordinary sense; rather, it is a duty not to enforce the apparently absolute bar on appeals brought only after the end of the statutory 28-day period if enforcing that bar would infringe the appellant's rights under Art.6 of the ECHR as enacted into English law by the Human Rights Act 1998. As the Court of Appeal in Adesina emphasised, that makes the scope for departure from the 28-day time limit extremely narrow. It will be a rare case indeed where it is overridden by Art.6. This is not such a case.
The approach on appeal
The correct approach to be adopted for s.40A appeals was set out by the Divisional Court in GMC v Jagjivan and PSA [2017] EWHC 1247 (Admin) at [40] as follows:
“In summary:
(i) Proceedings under s.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 para.21 and Meadow at paras.125 to 128.
(iii) The court will correct material errors of fact and of law: see Fatnani at para.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 paras.15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at para.46, and Southall at para.47).
(iv) When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).
(v) In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at para.16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at para.36.
(vi) However there may be matters, such as dishonesty or sexual misconduct, where the court ‘is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …’: see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep Med 365 at para.11, and Khan at para.36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court ‘will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer...
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