This article originally appeared in Issue 3 (November 2019).
The High Court dismissed an appeal of a locum general practitioner against the decision of the Medical Practitioners Tribunal (“the Tribunal”) erasing his name from the register of medical practitioners.
The Appellant locum general practitioner, Dr Nkomo, was convicted on two separate occasions of different offences. The first occasion was in October 2015 in relation to an incident where he was stopped by the police on suspicion of drunk driving and he failed to provide a breath sample at the roadside and in custody. Although he was sentenced to 60 hours of unpaid work and was disqualified from driving for two years, he did not report the charges or convictions to the General Medical Council (“GMC”) at the time. The second was a conviction of fraud by misrepresentation in May 2017 arising from his failure over a period of almost 3 years (including when interviewed under caution) to provide full and accurate details of his income in connection with maintenance payments for his child, which deprived his son and ex-partner of over £40,800 in maintenance.
In August 2017, Dr Nkomo belatedly self-referred to the GMC in respect of both convictions, which led to a hearing before the Tribunal. Dr Nkomo admitted six misconduct matters including the convictions and sentences and the fact that he had failed to notify the GMC without delay. The Tribunal found that Dr Nkomo’s fraud conviction related to sustained dishonesty, and that this amounted to misconduct, which impaired his fitness to practice. As to sanction, the Tribunal held that suspension would not be appropriate because Dr Nkomo’s behaviour lay at the top end of the spectrum of gravity of misconduct given that his fraud had lasted for two years and seven months; it deprived his son and ex-partner of £40,800; he had failed to report his fraud; he only had partial insight; and he had made little acknowledgement of the impact of his actions on the profession as a whole. Having regard to the Sanctions Guidance, the Tribunal found that Dr Nkomo’s dishonesty was fundamentally incompatible with being a doctor and therefore erasure was the appropriate sanction.
Dr Nkomo appealed against the sanction only. He did not seek to appeal the findings of fact or of impairment. His grounds of appeal were that the Tribunal had failed to give due weight and consideration to the circumstances prevailing at the time of the fraud and had failed to distinguish adequately between standards of conduct meriting suspension as a sanction as opposed to erasure.
Julian Knowles J reviewed the principles governing appeals from the Tribunal to the High Court under section 40 of the Medical Act 1983 [33-37]. Although such appeals are by way of re-hearing, he explained that they are in fact a re-hearing without hearing again the evidence (Fish v GMC  EWHC (Admin) 1269).
As to the scope of an appeal under section 40, Knowles J cited Cranston J’s comprehensive summary in Yassin v GMC  EWHC 2955 (Admin) at  of that judgment, of the propositions to be derived from the authorities . Of particular note is the recognition that the Panel is a specialist Tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserves respect (Gosalakkal v GMC  EWHC 2445 (Admin)); The Panel has the benefit of hearing and seeing the witnesses on both sides and questions of primary and secondary facts and the overall value judgment made by the Panel are akin to jury questions to which there may reasonably be different answers (Meadows v GMC , per Auld LJ); findings of primary fact, particularly founded upon an assessment of the credibility of witnesses, will be virtually unassailable (Southall v GMC  EWCA Civ 407 , ); if the court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the Panel, and will only find it to be wrong if there are objective grounds for that conclusion (Siddiqui v GMC  EWHC 1966 (Admin), paragraph (iii)); a principal purpose of the Panel’s jurisdiction in relation to sanctions is the preservation and maintenance of public confidence in the medical profession so particular force is given to the need to accord special respect to its judgment and as an expert Tribunal it is afforded a wide margin of discretion so that the court will only interfere where the decision of the Tribunal is wrong (Fatnani and Raschid v GMC  EWCA Civ 46, , per Laws LJ).
Finally, as to the proper approach of an appeal court to the sanctions determination of a Tribunal, Knowles J referred to the recent decision of the Court of Appeal in Bawa-Garba v GMC  EWCA Civ 1879, -. The Court of Appeal described the Tribunal’s decision as a “multi-factorial decision”, which is a mixture of fact and law that has been described as “a kind of jury question” about which reasonable people may disagree. Again, there is limited scope for an appellate court to overturn such a decision of a specialist adjudicative body.
Turning to the decision under appeal, that Dr Nkomo’s erasure was the appropriate sanction, Knowles J concluded that the Tribunal had not erred in such a way as to allow him to overturn its finding on appropriate sanction as it had reached a conclusion which was open to it. Referring to the Sanctions Guidance, Knowles J explained that dishonesty by a doctor is almost always extremely serious and lies at the top end of the spectrum of gravity of misconduct (Theodoropolous v GMC  EWHC 1984 (Admin)). Where dishonest conduct (as in this case) is combined with a lack of insight, is persistent or is covered up, nothing short of erasure is likely to be appropriate (Naheed v GMC  EWHC 702 (Admin)), even where it occurs in a non-clinical performance. Misconduct involving personal integrity that impacts on the reputation of the profession is harder to remediate than poor clinical performance (Yeong v GMC  EWHC 1923 (Admin)). In such cases, personal mitigation should be given limited weight.
Therefore, the Tribunal was entitled to conclude that Dr Nkomo’s dishonesty was fundamentally incompatible with his continued registration and that erasure was the appropriate sanction.
This case provides a useful overview of the case-law relating to dishonesty in professional disciplinary proceedings and demonstrates the importance of honesty and integrity in the medical profession. Findings of dishonesty will almost always be regarded as extremely serious and doctors who are dishonest, whether in the clinical setting or in their personal life, are at risk of erasure particularly where the misconduct impacts on the reputation of the profession. Moreover, such a doctor will face an uphill struggle in persuading the appellate court to overturn the specialist Tribunal’s decision to erase rather than suspend.