(1) Sastry (2) Okpara v General Medical Council [2021] EWCA Civ 623
The Court of Appeal heard two second appeals challenging orders made by the Administrative Court dismissing their appeals under section 40 of the Medical Act 1983 (‘the 1983 Act’). In each case permission to appeal was granted by Leggatt LJ (as he then was) on similar grounds namely, the correct approach to be adopted to the question of the deference to be afforded by the appeal court to the views expressed by the Medical Practitioners Tribunal (‘MPT’).
Background
The case against Dr Sastry arose from treatment of a female patient whilst he was working as a medical oncologist in a hospital in Mumbai. The MPT found that Dr Sastry recommended that his patient undergo high dose chemotherapy and autologous stem cell transplantation (harvesting and freezing of the patient’s own blood stem cells prior to chemotherapy) when he knew this to be inappropriate as the harvested cells did not contain a sufficiently high proportion of CD34 positive cells. The patient underwent cell harvesting followed by high dose chemotherapy and reinfusion of the harvested cells. She later died.
The MPT found Dr Sastry’s fitness to practice impaired on the basis that he had not remediated his misconduct, lacked insight and had sought to mislead it during his oral evidence. The MPT determined that Dr Sastry’s misconduct was fundamentally incompatible with continued registration and erased his name from the medical register.
The MPT found proved a number of allegations of sexual misconduct against Dr Okpara. It also concluded that his conduct was sexually motivated. It described his conduct as “persistent and predatory”, targeted at a victim who was timid in nature and that it had taken place in a “hierarchical institutional context”. The MPT noted that there was no evidence of remediation, reflection, or expressions of regret or remorse and concluded that erasing Dr Okpara’s name from the medical register was the only proportionate sanction.
Approach of the High Court at the first appeals
The Court of Appeal noted in Dr Sastry’s appeal May J’s reliance on General Medical Council v Jagjivan and Another [2017] 1 WLR 4438 (an appeal by the GMC pursuant to section 40A of the 1983 Act) and Bawa-Garba v General Medical Council [2019] 1 WLR 1929 (a section 40 appeal). At [66] and [67] May J stated:
“The observations in Bawa-Garba, set out above, are of particular relevance here. Where it comes to an evaluation of clinical behaviour and the treatment of patients, particularly in connection with a sophisticated procedure like autologous cell transfer, a court is totally ill-equipped to arrive at a view of what public protection and reputation of the profession requires. It would be wrong to substitute its own untutored view for that of a panel drawn from the profession in question.
The MPT here was not obliged to apply the sanction sought by the GMC. For the reasons which it gave, it came to the view that proper protection of the public and the profession required the more serious sanction. I can see no proper reason for interfering with that decision.”
In Dr Okpara’s first appeal Julian Knowles J also referred to the Court of Appeal’s decision in Bawa-Garba. At [44] he stated:
“At [67] of Bawa-Garba the Court said that this general caution applies with particular force in the case of a specialist adjudicative body, such as the Medical Practitioners Tribunal, which (depending on the matter in issue) usually has greater experience in the field in which it operates than the courts: see Smech Properties Ltd v Runnymede Borough Council [2016] EWCA Civ 42, [30]; Khan v General Pharmaceutical Council [2017] 1 WLR 169 at [36]; Meadow at [197]; and Raschid v General Medical Council [2007] 1 WLR 1460, [18]-[20]. It therefore said that an appeal court should only interfere with such an evaluative decision on sanction if (a) there was an error of principle in carrying out the evaluation, or (b) 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 (citations omitted).”
And at [100]:
“The starting point is, as I have said, that the Tribunal is the body best equipped to determine the sanction to be imposed. The assessment of the seriousness of the misconduct is essentially a matter for the Tribunal in the light of its experience. It is the body best qualified to judge what measures are required to maintain the standards and reputation of the profession: Bawa-Garba, supra, [67] and [94]. I remind myself that I can only intervene if (a) there was an error of principle in carrying out the evaluation, or (b) 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.”
The challenge before the Court of Appeal
In each case the essence of the challenge was that the judge at the first appeal had conducted a judicial review-type review of the sanction decision despite the wording of CPR52.21(1)(a) expressly providing that the appeal be by way of rehearing and not by way of review. Furthermore, it was said that each judge had impermissibly or inappropriately deferred to the decision of the MPT.
Furthermore, Counsel for Dr Okpara sought to identify a tension between sexual misconduct cases such as Jagjivan where the court was willing to decide issues of weight without deferring to the expertise of the MPT and cases such as Bawa-Garba where the court was prepared to defer to the expertise of the MPT.
The decision in the Court of Appeal
The Court reviewed the cases of Ghosh v General Medical Council [2001] 1 WLR 1915, Preiss v General Dental Council [2001] 1 WLR 1926, Meadow v General Medical Council [2007] QB 462, Rashid and Fatnani v General Medical Council [2007] 1 WLR 1460, Cheatle v General Medical Council [2009] EWHC 645 (Admin), Khan v General Pharmaceutical Council [2017] 1 WLR 169, Jagjivan and Bawa-Garba. On the basis of these authorities the Court of Appeal identified the following principles:
- The test on a section 40 appeal is whether the sanction was “wrong”, the approach of the court is appellate in nature, not supervisory and is unqualified and the question for the court is whether the sanction imposed “was appropriate and necessary in the public interest or was excessive and disproportionate” [105].
- By contrast on a section 40A appeal (i.e. an appeal by the GMC) although the task of the court is to determine whether the decision of MPT was “wrong”, the approach of the appellate court is supervisory in nature and “in particular in respect of an evaluative decision, whether it fell ‘outside the bounds of what the adjudicative body could properly and reasonably decide’” [107].
It followed that the judge in Sastry was wrong to conclude “a court is totally ill-equipped to arrive at a view of what public protection and reputation of the profession requires” (see passage at [66] cited above) and that she was required to exercise her own judgment as to whether the sanction imposed was excessive and disproportionate [110].
Similarly, the judge in Okpara who followed Bawa-Garba (i.e. the test appropriate to a section 40A appeal but not a section 40 appeal) was wrong as he did not assess whether the sanction imposed by the MPT was appropriate and necessary in the public interest or was excessive and disproportionate [113]. The Court of Appeal added “We agree that in matters such as dishonesty or sexual misconduct, the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the Tribunal”.
Comment
This was something of a pyrrhic victory for both doctors. The Court of Appeal went on to undertake the task that the judges at the first instance had failed to undertake and was in no doubt that the sanction of erasure was necessary and appropriate, substantially for the reasons given by the MPT in each case.
This is an important and helpful clarification and confirmation of the approach that should be taken by the appellate court in section 40 and section 40A appeals. The Court of Appeal explained the rationale for the difference in approach as:
- The right of appeal conferred by section 40 is without limit. By contrast the GMC may only bring an appeal pursuant to section 40A on the limited basis that “they consider that the decision is not sufficient (whether as to a finding or a penalty or both)” – see section 40A(3) of the 1983 Act.
- CPR52.21(1) provides that “Every appeal will be limited to a review of the decision of the lower court unless (a) a practice direction makes different provision for a particular category of appeal”and 52DPD.22 §19.1(2) that “Every appeal to which this paragraph applies … will be by way of re-hearing”. The list of appeals to which the paragraph applies includes appeals brought under section 40 of the 1983 Act but not appeals brought under section 40A.
