The first appeal brought in Scotland by the General Medical Council has confirmed that the court needs to find the original tribunal decision was ‘manifestly wrong’ before it will interfere with the sanction imposed. The GMC has had powers under section 40A of the Medical Act 1983 since 2015 to take appeals from decisions of the Medical Practitioners Tribunal (the MPT). In the case of General Medical Council v Dr Mehta the Inner House of the Court of Session had its first opportunity to consider such an appeal.
The GMC was not successful, with the court finding that it was not necessary for the MPT to specify in its written decision every part of the Sanctions Guidance it had taken into account.
On 2 March 2018, the MPT issued their decision in the case of Dr Mehta, making the following findings in fact:
Following these findings in fact, the MPT found that the conduct which had been proved was sufficiently serious to find that Dr Mehta’s fitness to practise was impaired. Moving to the question of sanction, the MPT found that Dr Mehta had admitted the allegations at the outset of the hearing and had shown a high level of insight into the matter. In particular, it was noted that Dr Mehta had gone beyond the normal levels of remediation in a case such as this, focusing not only on improving his own behaviour but in providing training to colleagues based on his own experiences in the hope of improving understanding of issues of sexual misconduct within his health board more generally. On the basis of the insight shown, the tribunal stated that Dr Mehta had demonstrated “exceptional circumstances” which justified imposing no sanction.
In terms of section 40A of the Medical Act 1983, the General Medical Council has a power to appeal decisions of the MPT if they deem the decision not sufficient for the protection of the public. Given the nature of the allegations which were found proved, the GMC exercised this power and raised an appeal in the Court of Session regarding the tribunal’s decision to impose no sanction.
In the appeal to the Inner House, the GMC’s position was that in a case where the doctor’s behaviour had been so serious and concerning, it was manifestly inappropriate to impose no sanction. Counsel for the GMC highlighted sections of the Sanctions Guidance available to the MPT which noted that sexual misconduct is conduct which “seriously undermined public trust in the profession” and that where there was “an abuse of the special position of trust a doctor occupies… More serious action, such as erasure, is likely to be appropriate in such cases”. The submissions for the GMC were that the tribunal could not have properly considered and applied these passages of the Sanctions Guidance in choosing to impose no sanction. The GMC invited the court to allow the appeal and thereafter remit the decision back to a newly constituted tribunal to newly consider the issue of sanction.
It was submitted for Dr Mehta that the MPT could not be shown to have erred in their decision and it should therefore stand. While the MPT may not have referred in terms to the passages of the Sanctions Guidance relied upon by the GMC, it was submitted for the doctor that the decision, when read as a whole, clearly noted the seriousness of the allegations. It was said that while another doctor in Dr Mehta’s position may require a sanction to be imposed, the exceptional circumstances of his active role in training others and focusing on improving the behaviour of others justified the decision to impose no sanction.
Delivering the opinion of the court, Lady Dorrian found that there was no reason to interfere with the tribunal’s decision. Following the test established by the Inner House in PSA v NMC, the onus was on the GMC to show that the MPT’s decision was plainly wrong or “manifestly inappropriate”. If the GMC were not able to show this, it was appropriate to defer to the specialist expertise of the original tribunal.
The court found that while the MPT may not have specifically quoted or referred to the passages in the Sanctions Guidance relied upon by the GMC, it was clear that they had recognised the seriousness of the allegations. The court suggested that to require references to specific passages of the Sanctions Guidance posed the risk of turning the decision on sanction into a “box ticking” exercise. The court’s view was that the MPT had recognised the aggravating factors in Dr Mehta’s case and had noted that in similar cases suspension may be required. However, the original tribunal had noted the exceptional circumstances regarding the efforts Dr Mehta had made at remediation following the allegation. While remediation would not normally constitute “exceptional circumstances”, the court found that the numerous presentations and educational activities which he had conducted were enough in these circumstances to be exceptional.
On this basis, the court upheld the tribunal’s original decision.
This was the first Scottish case where the GMC exercised their right of appeal in terms of section 40A of the Medical Act. However, others, such as the Professional Standards Authority for Health and Social Care (the PSA) have similar statutory powers of appeal and the pattern from the Court of Session has indicated a similar approach. In 2017, the Inner House came to a similar decision when faced by an appeal against sanction relating to a nurse. The court again reiterated that deference should usually be shown to the decisions of a specialist tribunal and that a decision will only be interfered with when the decision was ‘plainly wrong’ or ‘manifestly inappropriate’.
The approach of the Inner House in Scotland does appear to be more restrictive than that being shown by the Administrative Court in England and Wales. The GMC has been successful in a number of recent appeals against sanction decisions to the Administrative Court. For example, in GMC v Khetyar, the court found that the decision to impose a 12 month suspension, rather than erasure from the register, was inappropriate with regards to a doctor who had committed acts of sexual misconduct against colleagues and patients. Similarly, in GMC v Stone, the court upheld an appeal to suspend, rather than erase, where a doctor had engaged in an improper sexual relationship with a patient.
The allegations against Dr Mehta were serious and related to sexual conduct and abuse of trust, as in Khetyar and Stone. While the levels of remediation are important, the Sanctions Guidance is clear that allegations of sexual misconduct and abuse of trust are very serious and this seems to be reflected in the recent English case law. However, the decision of the Inner House in GMC v Mehta shows that a decision will have to be manifestly and obviously wrong before the Scottish courts will interfere.