General Medical Council v Jonathan Edward Gar-Wai Mok [2022] EWHC 165: Deference and the adequacy of reasons
In a judgment handed down on 29 June 2022, Mr Justice Lang dismissed the GMC’s appeal under section 40A of the Medical Act 1983 against a sanction of 12 months’ suspension imposed by the Medical Practitioner’s Tribunal (“the MPT”). The decision came not long after the GMC’s unsuccessful appeal against sanction in GMC v Abdulkhaled Ahmed [2022] EWHC 403 (Admin) which similarly concerned the MPT’s decision to suspend rather than erase a doctor for sexual misconduct. Perhaps of wider relevance, the decision also considered the standard required of a professional tribunal in the drafting of reasons.
Dr Mok was alleged to have raped his male partner (“Person A”) on the evening of 26 August 2019, having initiated sexual contact when Person A was asleep. The GMC relied in part on a video recording made covertly by Person A in October 2019 in which he confronted Dr Mok with the allegation. The MPT noted that that Dr Mok did not express any surprise when Person A made the serious allegation. More significantly he appeared to admit it and sought to justify his actions before apologising.
The MPT found the facts proved, and perhaps unsurprisingly, they amounted to misconduct and his fitness to practise was impaired. Having considered the Sanctions Guidance “(“SG”), the MPT decided that the appropriate and proportionate sanction was to suspend Dr Mok’s registration for 12 months.
The GMC appealed on three grounds.
Ground 1: MPT’s regard to irrelevant considerations
The GMC submitted that the MPT had regard to irrelevant considerations including an absence of malicious intention, absence of a doctor-patient relationship, and the fact that it was an isolated incident which Dr Mok acknowledged and apologised for in the covert recording.
The appellate court set out the body of case law in which it is repeatedly stated that there is limited scope for an appellate court to overturn a decision on sanction which is necessarily multifactorial and evaluative. As it was expressed in the leading case of Bawa Garba v GMC [2018] EWCA Civ 1879, the decision to suspend a doctor rather than to erase him or her from the register was “a kind of jury question” about which reasonable people may reasonably disagree.
The MPT found that none of the MPT’s considerations were irrelevant as a matter of principle, nor were they outside the bounds of what an MPT could reasonably decide. Moreover, such considerations were not excluded by the SG or any other guidance.
Applying Bawa-Garba, the appellate court concluded that, in the absence of any material error of fact or law, it should not interfere with the evaluative judgments made by the MPT when deciding on sanction and dismissed Ground 1.
Ground 2: Failure to apply SG and give adequate reasons
The GMC’s criticism in respect of Ground 2 concerned broadly the MPT’s alleged failure to cite relevant sections of the SG and therefore have regard to them. The court rejected this. It noted that the SG was a lengthy document and the MPT was not required to set out every paragraph of it. Consistent with earlier decisions in which it has been said that reasons need not be set out in terms if they can be readily inferred, the appellate court found that the reasons were sufficient and intelligible, and the GMC had sought to impose too high a standard for the drafting of reasons by a professional tribunal.
As to the MPT’s alleged failure to follow the SG and the suggestion that any departure from the authoritative steer of the SG should have been better explained, Mr Justice Lang reminded the GMC of the wide discretion afforded to the MPT in the application of the SG and remarked at [97]:
“it is important not to lose sight of the fact that the SG is a guide to decision making by the MPTs, not a tariff which prescribes the sanction to be imposed… the SG envisages that a sanction may be imposed which is higher or lower than that suggested by the SG.”
Ground 3: Sanction outside the range of reasonable decisions
Under Ground 3, the GMC submitted that the order for suspension was unreasonable, as it failed rationally to reflect the gravity of the misconduct and its own findings. The GMC relied on the principle in GMC v Jagjivan [2017] EWHC 1247 (Admin) that, in cases concerning sexual misconduct, the appellate court is likely to feel that it can attach less weight to the expertise of the professional tribunal.
In considering the degree of deference to be afforded to the professional tribunal in this case, the court reminded itself of the judgment in Ahmed in which it was held that notwithstanding Jagjivan, a significant degree of deference should nevertheless be afforded to the MPT which will have had the advantage of hearing all the evidence live. In this case, the MPT, having heard and seen Person A and Dr Mok give evidence, was best placed to weigh the misconduct in that context.
Dismissing Ground 3, the appellate court held that the choice between suspension or erasure was finely balanced in the minds of the MPT and the MPT was reasonably entitled to conclude that suspension was appropriate.
Mok is consistent with the recent case of Ahmed as to the significant degree of deference and discretion to be afforded to the MPT in cases of sexual misconduct and adds to the extensive body of case law which establishes the appellate court’s reluctance to interfere with an MPT’s judgment as to sanction.
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