Review or rehearing? Sastry & Okpara v GMC and the difference between s. 40 and s. 40A
What – if anything – is the difference between an appeal brought by the GMC under s. 40A of the Medical Act 1983, and those brought by doctors under s. 40)? Of course, the simple answer is that appeals under s. 40A are by way of review, and appeals under s. 40 by way of rehearing. But what is the practical effect?
In Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, the Court of Appeal dealt with the High Court’s jurisdiction to interfere with a sanction imposed by the MPT. This followed an appeal under s. 40A. The Court of Appeal held that the decision of the MPT to suspend rather than erase was
“…an evaluative decision based on many factors… This type of decision, a mixture of fact and law, has been described as a ‘kind of jury question’ about which reasonable people may reasonably disagree… It has been repeatedly stated in cases at the highest level that there is limited scope for an appellate court to overturn such a decision”
It followed that the High Court should only interfere with a tribunal decision if there was an error of principle, or if it was wrong in the sense of being outside the bounds of what the adjudicative body could properly and reasonably decide.
Whilst the Court in Bawa-Garba recognised the statutory distinction between s. 40 and s. 40A the distinction was given little practical weight:
“That technical difference may not be significant. Whether the appeal from the MPT is pursuant to section 40 or section 40A, the task of the High Court is to determine whether the decision of the MPT is ‘wrong’. In either case, the appeal court should, as a matter of practice, accord the MPT the same respect”.
Doctors, and those representing doctors, might be forgiven then for having concluded that this was a distinction without much of a difference.
This was certainly the approach taken by the High Court in appeals against sanctions of erasure brought by Dr Sastry and Dr Okpara. Both appealed sanctions of erasure; the High Court rejected their appeals applying the narrow approach endorsed in Bawa-Garba.
In Sastry and Okpara v General Medical Council [2012] EWCA Civ 623, however, the Court of Appeal has restated the difference between s. 40 and s. 40A. The GMC had sought to argue that the test to be applied by the appellate court was the same regardless of who had brought the appeal.
Lady Justice Davies disagreed. In her judgment, the Court of Appeal in Bawa-Garba was right in its approach to appeals under s. 40A, which were ‘supervisory in nature’. Appeals under s. 40 should, however, follow the more permissive approach set out in Ghosh v General Medical Council [2001] 1 WLR 1915 and Khan v General Pharmaceutical Council [2017] 1 WLR 169. In other words, s. 40 required a rehearing and the distinction between the two types of appeal was an important one:
“… 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 is there for a reason. To limit a section 40 appeal to what is no more than review would, in our judgment, undermine the breadth of the right conferred upon a medical practitioner by section 40…”
What is required, therefore, is for the High Court in s. 40 appeals to exercise its own judgment:
“Appropriate deference is to be paid to the determinations of the MPT in section 40 appeals, but the court must not abrogate its own duty in deciding whether the sanction imposed was wrong; that is, was it appropriate and necessary in the public interest.”
Again, it remains to be seen if this distinction will have any practical impact.
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