The High Court has held that a Court of Appeal judgment in a Civil Contempt sentence appeal involving the Respondent although it did not increase the Respondent doctor’s sentence for contempt but led to a finding of undue lenience should have been put before the Medical Practitioners Tribunal (MPT) when considering the sanction for the admitted Contempt. This is despite the General Medical Council (GMC), which exercised its right of appeal under section 40A of the Medical Act 1983 to bring the case before the High Court, having agreed not to put the judgment before the MPT prior to and during the MPT proceedings.
On 24 May 2019, the Respondent, Dr Zafar, was suspended for a period of 12 months by the MPT following a finding of civil contempt by Garnham J in the High Court on 5 October 2018, where Dr Zafar was found to have been in contempt in ten instances of dishonesty and recklessness in the production of medico-legal reports for personal injury in an RTA claim, for which he was sentenced to six months in prison suspended for two years.
Garnham J gave permission for the sentence to be appealed for consideration whether it was unduly lenient. In a judgment handed down on 19 March 2019, the Court of Appeal allowed the appeal, finding that the sentence was unduly lenient, albeit that it need not be increased as a declaration of its leniency would suffice.
The Court of Appeal’s judgment was not provided to the panel of the MPT determining Dr Zafar’s Fitness to Practise two months later. The judgment was not put before the MPT initially consequent upon agreement by a GMC lawyer and subsequently during the proceedings by an agreement between Counsel acting for the GMC and for Dr Zafar. The MPT ordered Dr Zafar’s suspension for 12 months.
The GMC subsequently appealed the MPT’s decision under section 40A of the Medical Act 1983 to the High Court; the Professional Standards Authority for Health and Social Care (the PSA), who had not been party to the MPT proceedings, intervened.
Counsel for the GMC submitted that the suspension ordered against Dr Zafar was not tenable as the MPT had been deprived, by erroneous concession, of the judgment of the Court of Appeal declaring Garnham J’s sentence unduly lenient. It was submitted that, had the MPT been aware of the appellant judgment, it would not have imposed the suspension and that the High Court should now erase Dr Zafar from the medical register. Furthermore, the GMC submitted that, on public interest grounds, it should not be precluded from bringing the appeal on the basis that it agreed (twice) to the Court of Appeal judgment being withheld from the MPT.
It was submitted on behalf of the PSA that it was not party to the agreement before the MPT not to include the Court of Appeal judgment and therefore was not bound to the agreement and could therefore raise the point before the Divisional Court. The PSA also submitted that the MPT was guilty of a serious procedural error in not having regard to the Court of Appeal judgment and that a sanction of suspension was wholly unjustified. As with the GMC, the PSA submitted that erasure was the only appropriate sanction.
Mary O’Rourke QC submitted on behalf of Dr Zafar that appellate courts should be slow to usurp the function of specialist tribunals when determining sanctions. Ms O’Rourke went on to submit that the Court of Appeal judgment was not relevant evidence as the doctor had been charged on the basis of the Garnham judgment only and the Court of Appeal judgment had rightly not been put before the MPT and, in any event, the GMC should not be permitted to adduce that decision before the Court in the light of Ladd v Marshall  1 WLR 1489 principles. Indeed, it was submitted on behalf of Dr Zafar that it could be an abuse of process for the GMC to now seek to rely on the Court of Appeal decision having previously (twice) agreed not to put it before the MPT, and that the PSA was in no better position. Ms O’Rourke concluded that that the MPT’s decision to suspend Dr Zafar was an evaluative one that was properly open to it and, alternatively, even if the Court of Appeal judgment was now to be taken into account, the matter should be remitted to the same MPT for a further hearing so that Dr Zafar may re-present his case.
The Divisional Court held (Davis LJ and Holgate J) that the Court of Appeal judgment should have been placed before the MPT and that the agreement reached by the GMC and Dr Zafar’s Counsel at the MPT not to adduce the judgment did not bind the PSA nor prevent the High Court from adducing it as fresh evidence given the importance of public protection in disciplinary proceedings.
The Divisional Court also held that though specialist tribunals are normally best equipped to determine matters relating to professional practice, since Dr Zafar’s misconduct related to dishonesty and recklessness, and the MPT’s decision was erroneously determined in any case, it could make a decision on Dr Zafar’s sanction. Accordingly, the High Court ordered that Dr Zafar be erased from the medical register and ordered to pay half of the GMC’s costs and part of the PSA’s, with costs reduced for the former in the light of its error in not putting the Court of Appeal judgment before the MPT.
The implications of the Divisional Court’s decision are two-fold.
Firstly, it would appear that the GMC will not be bound by agreements it reaches with registrants in advance of hearings before the MPT, provided it can show that it is in the public interest to go behind that agreement in later proceedings and subject to any forfeit in costs. When the GMC’s right of appeal under section 40A has already excited controversy, this will surely raise further questions of the regulator – being able to rely upon its own mistakes and correct them with cost to the registrant.
Secondly, the High Court’s judgment leaves the PSA open to appeal a decision of the MPT on the basis of procedural error, even if the GMC consented to that error.
View the full judgment here.
Mary O’Rourke QC was instructed in the High Court proceedings by Simon Gomersall of RadcliffesLeBrasseur on behalf of Dr Zafar.
Case summary produced by Ryan Ross, Pupil Barrister
William Meade (Senior Clerk)