The Professional Standards Authority for Health and Social Care v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 27 April 2023 |
| Neutral Citation | [2023] EWHC 967 (Admin) |
| Docket Number | Case No: CO/4796/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 967 (Admin)
Mrs Justice Foster DBE
Case No: CO/4796/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Fenella Morris KC (instructed by Browne Jacobson LLP) for the Appellant
Ms Jenni Richards KC (instructed by GMC Legal) for the First Respondent
Professor Sundara Lingam appeared in person
Hearing date: 20 April 2023
Approved Judgment
This judgment was handed down remotely at 12.00pm on Thursday, 27 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
The layout of this judgment is as follows:
| Introduction and the Issue | paragraphs 1–4 |
| Framework | paragraphs 5–22 |
| Background Facts | paragraphs 23–50 |
| Findings of the Panel | paragraphs 51–57 |
| Challenge | paragraphs 58–70 |
| Consideration and Decision | paragraphs 71–81 |
INTRODUCTION and the ISSUE
Before the court is an appeal by the Professional Standards Authority (“the PSA”) under section 29 of the National Health Service Reform and Health Care Professions Act 2002 (“the 2002 Act”) in respect of a decision of the Panel of the Medical Practitioners Tribunal (“the Panel” or “the MPT”) of the General Medical Council (“the GMC”). The general functions of the PSA under the 2002 Act under section 25(2) include (a) to promote the interests of patients and other members of the public in relation to the performance of their functions by various regulatory bodies and by their committees and officers; (b) to promote best practice in the performance of those functions.
The PSA challenges the imposition of a sanction imposed by the Panel on 12 October 2022. It followed a finding of misconduct against the Second Respondent, Professor Sundara Lingam, and that in consequence his fitness to practise was impaired. The Panel imposed a conditions of practice order for a period of 24 months with a review before the expiry of that period. It was imposed in respect of inappropriate prescribing practice by transcribing, signing and issuing almost 300 private prescriptions between 2 January 2013 and 25 March 2014, purportedly for use outside the UK where insufficient or no relevant information was before the doctor. Evidence that was available to investigators later showed prescriptions were written for patients who did not exist. When he appeared initially before the MPT in 2015, a conditions of practice order had been imposed restricting Professor Lingam's activities, in force for seven years, until the final hearing of the case.
None of the allegations, including as to misconduct and impairment, was contested by Professor Lingam.
Ms Fenella Morris KC appeared on behalf of the PSA. Ms Jenni Richards KC appeared on behalf of the General Medical Council, adopting a neutral stance but making certain observations for the assistance of the court and of Professor Lingam. Professor Lingam appeared on his own behalf in person, as he had done before the MPT. He made no oral contribution to the hearing save to indicate he wished the sanction imposed upon him to remain unchanged. I am grateful to counsel for the economy of their submissions and for their helpful skeleton arguments.
FRAMEWORK
The applicable law was not in dispute. Under section 29(4) of the 2002 Act as amended the PSA may refer a case to the High Court where it considers:
“the decision is not sufficient (whether as a finding or a penalty or both) for the protection of the public.”
Section 29(4A) indicates that whether a decision was sufficient means whether it was sufficient to:
“(a) to protect the health, safety and well-being of the public;
(b) to maintain public confidence in the profession concerned; and
(c) to maintain proper professional standards and conduct for members of that profession.”
The Duties of the Court
Since this is an appeal the provisions of CPR 52 apply to the hearing and CPR 52 r 11 will be read with the provisions of the 2002 Act.
In Council for the Regulation of Healthcare Professionals v GMC and Ruscillo [2005] 1 WLR 717 the correct approach was expressed as follows:
“70. If the Court decides that the decision as to the penalty was correct it must dismiss the appeal, even if it concludes that some of the findings that led to the imposition of the penalty were inadequate. No doubt any comments made by the Court about those findings will receive due consideration by the disciplinary tribunal if, at a later stage, it has occasion to review the standing of the practitioner.
71. If the Court decides that the decision as to penalty was ‘wrong’, it must allow the appeal and quash the relevant decision, in accordance with CPR 52.11(3)(a) and section 29(8)(b) of the Act. It can then substitute its own decision under section 29(8)(c) or remit the case under section 29(8)(d).
72. It may be that the Court will find that there has been a serious procedural or other irregularity in the proceedings before the disciplinary tribunal. In those circumstances it may be unable to decide whether the decision as to penalty was appropriate or not. In such circumstances the Court can allow the appeal and remit the case to the disciplinary tribunal with directions as to how to proceed, pursuant to CPR 52.11(3)(b) and section 29(8)(d) of the Act.
…
76. The test of whether a penalty is capable of appearing unduly lenient [now “not sufficient for the protection of the public”] 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 the disciplinary proceedings, could reasonably have imposed … 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 petition's conduct and the interests of the public.”
An element of restraint is required in the appeal court as recognised in GMC v Jagjivan [2017] 1 WLR 4438 [Div Ct] at paragraph 40:
“ …
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 professions and sanctions, with diffidence …
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 itself and thus attach less weight to the expertise of the Tribunal…”
Further the Court of Appeal in Bawa-Garba v GMC [2019] 1 WLR 1929 characterised a sanction for misconduct at paragraph 61 as:
“… an evaluative decision based on many factors, a type of decision sometimes referred to as “a multi-factorial decision” This type of decision, a mixture of fact and law, has been described as “a kind of jury question” about which reasonable people may reasonably disagree …”
Thus, a specialist body such as the MPT is recognised as having greater experience in the field in which it operates than the appeal court so the latter should only interfere with an evaluative decision of such a body if:
“ (1) there was an error of principle in carrying out the evaluation, or
(2) for any other reason, the evaluation was wrong, that is to say it was an evaluative decision which fell outside the bounds of what the adjudicative body could properly and reasonably decide.” [ibidem [67]]
In this case the PSA argued the conditions order was insufficient to protect the public or uphold public confidence in the profession (see Ruscillo at paragraph [76] above) and alternatively there had been an error of principle in the evaluation such that it is not possible to determine whether the sanction imposed was unduly lenient or not, because the reasoning of the Panel's sanction decision was inadequate (see Ruscillo at paragraph [72] above).
The proposition that failure to provide adequate reasons for a decision constitutes a serious irregularity allowing this court to intervene is well-established and supported by CRHP v GDC and Marshall [2006] EWHC 1870 (Admin); (1) GMC and (2) PSA v Mr Simon Bramhall [2021] EWHC (2109) (Admin) and PSA v (1) The General Optical Council (2) Ms Honey Rose [2021] EWHC 2888 (Admin).
The Duties of the Panel
The overwhelming public protection objective of the GMC and therefore of an MPT Panel operating within the various measures making up the Fitness to Practice Rules is reflected in section 1 of the Medical Act 1983 (“the MA”) which states:
“( 1A) The over-arching objective of the General Council in exercising their functions is the protection of the public.
(1B) The pursuit by the General Council of their over-arching 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.”
It is echoed in the GMC's published Sanctions' Guidance by reference to which a Panel has power under section 35D of the MA to impose sanction on a practitioner upon making a finding of impairment. Paragraph 17 states:
“ Maintaining public confidence in the profession
Patients must be able to trust doctors with their lives and health, so doctors must make sure that their conduct...
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