On 26 May 2017 a specially constituted Administrative Court comprised of Lady Justice Sharp and Dingemans J heard the first appeal brought by the GMC against a decision of a Medical Practitioners’ Tribunal under s.40A of the Medical Act 1983 in GMC v Dr Jagvivan  EWHC 1247 (Admin). The PSA joined as a party since, in the event of the Court finding the GMC had no jurisdiction, it wished to argue the same points.
This was a case where the MPT found misconduct but no impairment and did not give a warning. The case was fought on its merits and on the issue of jurisdiction, which is the important aspect.
To place jurisdiction into context it should be remembered that a doctor can only appeal a decision of the MPT if there has been a “direction” of conditions, suspension or erasure under s.35D of the Act. Unless a sanction is “directed” a doctor cannot appeal:
- a finding of fact per se;
- a finding of misconduct per se;
- a finding of impairment but except exceptionally no action is taken; or
- a finding of no impairment but where a warning is imposed.
The only remedy would be a judicial review which imposes a different and more difficult test.
In the consultation to the amendment the GMC argued that it should have the same powers as a doctor. Also the current GMC guidance on appeals reads as if they would only challenge sanctions.
However, in this appeal the GMC argued that it had jurisdiction to appeal all the above aspects of any decision since they involved “a decision not to give a direction under section 35D – s.40A(1)(d)”.
The doctor’s argument was that a finding of no impairment was not a “relevant decision” as defined in the Act nor involved any consideration of “directions” since it was dealt with at stage 2 and not stage 3. This point was illustrated by various alternatives to the s.40(1)(d) wording being suggested. In para 27 the Court suggested: “It also seems to us that Mr Haycroft’s construction of section 40A(1)(d) involves inserting at the end of the relevant subsection words to this effect: “after determining that the person’s fitness to practise is impaired” when those words are not present and do not require to be read into the section.” It is unfortunate that this point was not aired in argument since the same would apply to s.40A(1)(a)-(c) but the natural language shows it is not necessary. As such this point is, with respect, a non sequitur.
In any event the construction argument was rejected: “because at the conclusion of the hearing involving the allegations against Dr Jagjivan, a direction under section 35D had not been given” – para 27. The Court also relied upon Ruscillo v Council for Regulation of Health Care Professionals and others  EWCA Civ 1356 decided in respect of s.29 of the NHS Reform and Health Care Professions Act 2002 and the position of the PSA. Although the wording of that section was criticized by Lord Phillips MR, as he then was, as there was force in the defence construction “as a matter of natural use of language”, this was trumped by a purposive approach given the role of the PSA. In Jagjivan it was argued that there is not the same purposive necessity given the very existence of the PSA and so there should be more equality between the position of the doctor and the GMC as regards rights of appeal. In fact the Court did not need to address this issue in any detail having concluded “We are satisfied that the wording of section 40A of the 1983 Act is sufficiently broad to accommodate the construction contended for by the GMC.” Para 34.
The net effect is that, save for cases where the PSA considers the GMC has under-prosecuted a case, the appeal powers of the GMC are the same as the PSA. This places the GMC in a unique position among all regulators.
There are other practitioners at Serjeants’ Inn who have such appeals pending. A copy of the judgment is available here.
Anthony Haycroft was Counsel for Dr Jagjivan.