In a landmark decision ( CSIH 69 (15 November 2018)), the Inner House has refused an appeal by the General Medical Council against a decision of the Medical Practitioners Tribunal (MPT) under s 40A of the Medical Act 1983. This is the first such appeal in Scotland.
Under s 40A(3), the GMC may appeal an MPT decision if they consider that the decision “is not sufficient for the protection of the public”.
The GMC appealed against a decision of the MPT finding that a doctor’s fitness to practise was impaired by reason of inappropriate and sexually motivated conduct but imposing no sanction on the doctor.
MPT hearing: exceptional circumstances
At the original MPT hearing, the tribunal found that Dr Mehta acted inappropriately towards a junior doctor by moving his chair towards her so their knees were touching, making prolonged eye contact, hugging her on more than one occasion, pressing their chests together, kissing her shoulder and making inappropriate comments. The tribunal determined that his conduct was sexually motivated.
The tribunal found that Dr Mehta’s conduct was such that it brought the medical profession into disrepute and breached a fundamental tenet of the profession. The tribunal considered that Dr Mehta’s fitness to practise was impaired by reason of his misconduct.
In terms of sanction, the tribunal found that there were significant mitigating factors amounting to “exceptional circumstances” in terms of para 68 of the Sanctions Guidance issued by the GMC. Mitigating factors included his previous good character and the significant remorse and high level of insight he had shown through his exceptional remediation efforts. Dr Mehta had also engaged in restorative work by publicly involving himself in presentations and discussions specifically based on his own inappropriate behaviour. He held himself out as an example from which other doctors might learn.
The tribunal determined that no sanction should be imposed.
Appeal to the Inner House
The GMC appealed this decision, arguing that it was not sufficient for the protection of the public.
The GMC proffered three arguments:
- The tribunal failed to refer to specific paragraphs of the Sanctions Guidance and failed to give proper effect to it.
- Proper consideration of the Sanctions Guidance would have led the tribunal to appreciate that sexual misconduct involving a breach of trust was conduct of a severity that required a significant sanction.
- The Tribunal failed to recognise that the reasons given for not imposing a sanction related mainly to insight and remediation, which would already have been taken into account in deciding the question of impairment, and as indicated in para 69 of the Sanctions Guidance, were unlikely on their own to justify taking no action.
Decision: no basis to interfere
The Inner House held that there was no requirement on the tribunal to make specific reference to paragraphs of the Sanctions Guidance, as to do so could result in the process being a “box ticking” exercise rather than an evaluation of the complaint within its own factual matrix.
It further held that the tribunal recognised that the serious nature of the conduct was such that the sought after remedy of suspension, which the tribunal did consider, would otherwise be considered appropriate, and that not to impose such a sanction for conduct of this kind was an exceptional step.
The court agreed with the GMC that the remediation and insight on their own could not constitute “exceptional reasons” in terms of para 69 of the Sanctions Guidance. The court was, however, clear that in this case, insight and remediation were influencing factors but were by no means the only factors taken into consideration by the tribunal at the MPT hearing.
It determined that the tribunal had taken account of factors which it considered to be important steps towards the maintenance of public confidence and of proper standards within the profession, and had considered that in the whole circumstances, to impose a sanction would not serve either of these ends or the wider public interest.
The court could find no legitimate basis for concluding that the tribunal was not entitled to reach the decision it did, and refused the appeal.
What the decision means for doctors
This is a welcome decision for doctors facing regulatory proceedings brought by the GMC.
It reaffirms the court’s reluctance to interfere with determinations of a specialist tribunal which, the court acknowledges, is experienced in the particular practice area and has had the benefit of seeing and hearing the witnesses first-hand.
Since 2015, the GMC has been given powers to challenge fitness to practise decisions by appealing to the relevant court. Recently, there has been intense discussion on whether that power should be taken from the GMC in a bid to boost patient safety and ease the “mistrust” with doctors in the aftermath of the Bawa-Garba case. This decision will undoubtedly have an impact on this debate.
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- 2018: a paralegal view
- ... and the SPA looks back, and ahead
- Ask Ash