In Sastry & Okpara v General Medical Council [2021] EWCA Civ 623, the Court of Appeal clarified the different tests to be adopted by the court on an appeal by a medical practitioner and on an appeal by the General Medical Council.  The Court of Appeal confirmed that the court has a more extensive role on an appeal by a practitioner than an appeal by the GMC.

Katherine Whittingham looks at the Court of Appeal decision in more detail in this insight.

Background facts

Dr Sastry and Dr Okpara each challenged the decision of the High Court to dismiss their appeals against decisions of the Medical Practitioners Tribunal (MPT) that their names be erased from the GMC’s register. Both appeals were brought under section 40 of the Medical Act 1983 (the Act). In each case, an issue arose as to the correct approach which the court should adopt when determining the appeal.  The two cases were heard together.

The question for the Court of Appeal

In both Dr Sastry’s and Dr Okpara’s section 40 appeals in the High Court, the Court had referred to the decisions in Bawa-Garba v GMC (2019) as setting out the correct approach to be taken on the appeal.  The case of Bawa-Garba concerned an appeal under section 40A of the Act by the GMC.  Dr Sastry and Dr Okpara argued that the High Court had applied the wrong test, effectively confining themselves to a judicial review type review of the decision taken on sanction by the MPT.  The GMC, however, argued that the test to be applied by the appellate court was the same, whether pursuant to section 40 or 40A and that the correct approach was that set out in GMC vJagjivan (also a section 40A appeal) and refined in Bawa-Garba.

Court of Appeal decision

The Court of Appeal noted that section 40 provides an unlimited right of appeal to a medical practitioner, whereas section 40A provides a limited right of appeal to the GMC on the grounds of sufficiency. The CPR makes it clear that section 40 appeals are to be by way of rehearing.  In the absence of any equivalent CPR provision in respect of section 40A, appeals of the GMC under section 40A are by way of review.  There was therefore, the Court of Appeal held, a distinction made between the two appeals from the outset of the appellate process.

Section 40 appeals

The Court of Appeal confirmed that the correct approach of the appellate court to a section 40 appeal is that set out in Ghosh v GMC (2001) as approved in Khan v General Pharmaceutical Council (2017).  The Court of Appeal noted that the appellate court would accord some degree of deference to the judgment of the Tribunal, but the appropriate degree of deference would depend on the circumstances of the case. It stated that the appropriate test on section 40 appeals is whether the sanction was “wrong” and the approach at the hearing (which is appellate and not supervisory) is to decide whether the sanction imposed was appropriate and necessary in the public interest, or was excessive and disproportionate.

Section 40A appeals

The Court of Appeal endorsed the approach of the court in Bawa-Garba as appropriate to the review jurisdiction applicable in section 40A appeals.   The Court of Appeal identified the correct approach of the appellate court as being supervisory in nature, in particular in respect of an evaluative decision.

Although the Court of Appeal noted that a distinction between a “rehearing and a review may vary depending upon the nature and facts” of the case, this distinction remained for a good reason. To limit a section 40 appeal to what is no more than a review, would “undermine the breadth of the rights conferred upon a medical practitioner by section 40” and impose inappropriate limits on the approach set out in Ghosh and endorsed by Khan.

Dr Sastry

Accordingly, the Court of Appeal held that the High Court in Dr Sastry’s appeal had been required to exercise its own judgment as to whether the sanction imposed was excessive and disproportionate.  The High Court had failed to conduct this analysis and had therefore wrongly deferred to the Tribunal.

Dr Okpara

The Court of Appeal also held that in matters such as dishonesty or sexual misconduct, the court is likely to be able to assess what is needed to protect the public or maintain the reputation of the profession itself, and is less dependent upon the expertise of the Tribunal.  Accordingly, it held that the High Court had been wrong in that it had not assessed whether the sanction imposed on Dr Okpara was necessary or appropriate in the public interest or was excessive or disproportionate.

Sanction decision

The Court of Appeal decided that in both cases the sanction of erasure was both necessary and appropriate and dismissed the appeals of both Dr Sastry and Dr Okpara.

How Capsticks can help

We have represented numerous regulators for more than 20 years. With a large team of specialists, we help regulators to deliver the right outcomes, in the right time frame, on the right budget.  We have extensive experience of conducting appeals and judicial reviews in the High Court and Court of Appeal.

For more information on any of the issues discussed in this insight, please contact Katherine Whittingham or any of your regular contacts at Capsticks.