Interfering with the Tribunal’s discretion?
PSA v GMC and Dighton [2020] EWHC 3122 (Admin)
Before the Medical Practitioners’ Tribunal Dr Dighton faced allegations that – despite lacking the expertise to do so – he had prescribed a number of addictive medications to a vulnerable patient without informing her GP, and had failed to adequately assess her or refer her to mental health services. The conduct had occurred over a six-year period despite Dr. Dighton receiving an advice letter and a warning from the GMC in 2011 and 2016 respectively.
The facts were found proved and right up until the finding of impairment Dr Dighton did not accept any wrongdoing and asserted that he considered himself able to make his own judgment about his expertise in this area. In making its finding on impairment the Tribunal concluded that Dr Dighton’s lack of insight was “intractable.” Nonetheless, it went on to impose a twelve month suspension order.
On 3 January 2020, the PSA launched an appeal of the sanction, on the basis that the suspension did not adequately protect the public even if it was coupled with Dr Dighton’s desire for voluntary erasure. The PSA asserted that a court-imposed erasure was necessary to uphold confidence in the profession and to maintain standards. On 27 February the GMC case examiners granted Dr Dighton’s application for voluntary erasure but subsequently stayed this decision until the outcome of the appeal was known.
The PSA submitted that (1) the only reasonable conclusion was that Dr Dighton’s behaviour was incompatible with his remaining on the register; (2) that the Tribunal had failed to properly apply the Sanctions Guidance; (3) The Tribunal had acted irrationally in concluding on the one hand that Dr Dighton’s lack of insight was “intractable” whilst on the other imposing a period of suspension which inferentially meant that remediation was a possibility.
At the appeal hearing the GMC’s position was that voluntary erasure would adequately protect the public interest. Dr Dighton did not attend the appeal hearing but, in correspondence, he submitted that voluntary erasure was sufficient to protect the public because if in time he applied for re-admission onto the register the burden would be on him to demonstrate that he had fully remediated. The court was invited to direct that the appeal was otiose.
In granting the appeal and erasing Dr Dighton from the register, the court unequivocally rejected the argument that the appeal was otiose. Such an approach would enable doctors to circumvent the appeal process by applying for voluntary erasure.
Mrs Justice Farbey concluded that the Tribunal had been unreasonable and its decision making flawed in not erasing Dr. Dighton. The doctor’s assertion that he was willing to give up practice could not be sufficient to weigh in favour of suspension as opposed to erasure.
In particular, the court was concerned that despite the robust and unequivocal findings of the Tribunal that Dr Dighton lacked insight and was resistant to the regulatory regime, the Tribunal had still concluded his conduct was capable of remediation.
Mrs Justice Farbey took great care to explain why the court was able to interfere with a Tribunal finding in the particular circumstances of this case. She considered the court was not interfering with the territory reserved by Parliament for the Tribunal because its findings were not dependent on any specialist clinical judgment or an assessment of oral evidence.
The case does not alter the starting point for appeals, namely that a Tribunal is better placed to assess oral evidence and understand clinical issues than the High Court. Rather, in coming to its decision in this case, the court based its reasoning on a conflict between the Tribunal’s robust findings of facts and the sanction imposed. The Tribunal’s findings of fact and judgment on impairment were simply inconsistent with any possibility of remediation.
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