Sastry and another v General Medical Council [2021] EWCA Civ 623.
Corporate Crime analysis for Lexis Nexis PSL, by Dennis Hamill, barrister at 5SAH Chambers and the Bar of Northern Ireland. The case of Sastry and another v General Medical Council addresses the apparent tension between the approach taken in practitioner appeals (under section 40 of the Medical Act 1983 (MeA 1983)) and appeals brought by the GMC (under MeA 1983, s 40A). In 2019, in a section 40A appeal (Bawa-Garba), the court indicated that considerable deference should be shown to the decision of the Medical Practitioner’s Tribunal (MPT) as an expert panel, the key question was to what extent should a court defer to the panel’s decision when dealing with a practitioners appeal? The court held that, on appeal by a doctor, the court should approach the question more broadly and was entitled to substitute its own decision, per the reasoning in Ghosh v GMC. This case, therefore, confirms that the court will adopt a more permissive approach to section 40 appeals than the test set out in BawaGarba.
What are the practical implications of this case?
Following the decision in Bawa-Garba v General Medical Council (British Medical Association and others intervening) [2018] EWCA Civ 1879, [2018] All ER (D) 78 (Aug), there was significant concern that the more restrictive approach on MeA 1983, s 40A appeals by the GMC would be extended to appeals by practitioners. This decision addresses any such concern. Those advising doctors will now be able to give clear advice to their clients as to the proper approach of the court in a MeA 1983, s 40 appeal. Practitioners will be able to bring a wide range of arguments on appeal. The court will conduct the case as a rehearing and will not be confined to a supervisory jurisdiction.
The decision also makes it clear that the Court of Appeal views the distinction between the approach taken under MeA 1983, s 40 and MeA 1983, s 40A as proper.
The judgment is also useful as it provides significant analysis of the relevant case law in this area which sets out the evolving approach to the key question—ie to what extent and in what circumstances should the court defer to the decision of the panel?
In Dr Sastry’s case, the decision also confirms that the fact that the misconduct happened abroad (Dr Sastry was working in India) was not relevant. This was despite the fact that there may have been different systems in place and where there was no multi-disciplinary approach. This did not detract from the misconduct. That is clearly a matter that those advising practitioners will need to be alive to.
What was the background?
What was the factual background to the dispute?
The appellants, Dr Sastry and Dr Okpara, had both been erased from the medical register following hearings before the MPT. Dr Sastry was erased following a hearing into failings in his clinical care of a patient in India in 2013–2014. Dr Okpara was erased as a result of a finding that he had engaged in repeated acts of sexual harassment towards a staff nurse at the University Hospital of Wales in 2014– 2016. Both doctors had appealed those decisions to the High Court under MeA 1983, s 40.
What did the High Court find?
In each case, the sanction of erasure was upheld.
In Dr Sastry’s case ([2019] EWHC 390 (Admin), [2019] All ER (D) 41 (Mar)), Mrs Justice May considered the proportionality of the sanction imposed. She stated she was:‘…satisfied that there has been no error of approach by the MPT in this case’.
She also remarked that:
‘It would be wrong [for the court] to substitute its own untutored view for that of a panel drawn from the profession in question.’ In Dr Okpara’s case ([2019] EWHC 2624 (Admin), [2019] All ER (D) 72 (Oct)), Julian Knowles J considered the approach of the Court to an appeal under section 40. He remarked: ‘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…. 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.’
What issues were before the Court of Appeal?
The Court of Appeal had to consider whether to consolidate the approach to an appeal by a practitioner under MeA 1983, s.40 with the approach to a section 40A appeal by the GMC as applied in the Bawa-Garba decision.
What did the court decide?
The Court of Appeal confirmed that the High Court has a more extensive role in a section 40 appeal by a doctor than in a section 40A appeal by the GMC.
In respect of a section 40A appeal, the Bawa-Garba approach called for the High Court to show deference to the decision of the MPT, regarding it as a matter of ‘mixed fact and law’ and a ‘kind of jury question’ with which the court should be slow to interfere. There was ‘…limited scope for an Appellate Court to overturn such a decision’. However, the Court of Appeal decided that in a section 40 appeal, the court should adopt the wider approach set out by the Privy Council in Ghosh v General Medical Council [2001] UKPC 29 and by the Supreme Court in Khan v General Pharmaceutical Council (Scotland) [2016] UKSC 64, [2016] All ER (D) 70 (Dec).
The court observed: ‘Derived from Ghosh are the following points as to the nature and extent of the section 40 appeal and the approach of the appellate court:
i) an unqualified statutory right of appeal by medical practitioners pursuant to section 40 of the 1983 Act;
ii) the jurisdiction of the court is appellate, not supervisory; iii) the appeal is by way of a rehearing in which the court is fully entitled to substitute its own decision for that of the Tribunal;
iv) the appellate court will not defer to the judgment of the Tribunal more than is warranted by the circumstances;
v) the appellate court must decide whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate;
vi) in the latter event, the appellate court should substitute some other penalty or remit the case to the Tribunal for reconsideration.’
The court went on to state that:
‘We endorse the approach of the court in Bawa-Garba, as appropriate to the review jurisdiction applicable in section 40A appeals. We regard the approach of the court in section 40 appeals, as identified in Ghosh and approved in Khan, as appropriate in section 40 appeals which are by way of a rehearing. We agree with the observations of Cranston J in Cheatle that, given the gravity of the issues, it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality. The distinction between a rehearing and a review may vary depending upon the nature and facts of the particular case but the distinction remains and it is there for a good reason. To limit a section 40 appeal to what is no more than a review would, in our judgment, undermine the breadth of the right conferred upon a medical practitioner by section 40 and impose inappropriate limits on the approach hitherto identified by the Judicial Committee of the Privy Council in Ghosh and approved by the Supreme Court in Khan.’
This decision, therefore, has the effect of clearing up any tension as the correct approach to be taken by the Court to appeals by practitioners under MeA 1983, s 40 in contrast to an appeal by the GMC under MeA 1983, s 40A.
This analysis was first published on Lexis®PSL on 11 May 2021 and can be found here (subscription required).
Case details
- Court: Court of Appeal, Civil Division.
- Judges: Lady Justice Macur DBE, Lady Justice Nicola Davies DBE and Lord Justice Lewis.
- Date of judgment: 30 April 2021.
Dennis Hamill is a door tenant at 5SAH and a member of our Professional Discipline and Regulatory Team. Dennis also practises in Northern Ireland in both professional discipline and regulatory alongside his broad civil practice. Dennis mainly represents regulated individuals in the medical and healthcare professions.
