04 November 2019

A recent case in the Administrative Court in England gives a reminder of the role of the appellate court in hearing appeals from the Medical Practitioners Tribunal.

Background

In October 2015, Dr Nkomo was convicted of three driving offences and in November 2015, he was sentenced to unpaid work and was disqualified from holding a driving licence for 2 years. In May 2017, Dr Nkomo was convicted of fraud following allegations that he had failed to provide accurate details of his income to the Child Support Agency (CSA) in connection with maintenance payments for his child, amounting to around £40,800. In July 2017, he was sentenced to 20 months imprisonment, suspended for 24 months.

Dr Nkomo self-referred to the GMC in respect of both convictions in August 2017. He appeared before the Medical Practitioners Tribunal in December 2018. The Tribunal determined that Dr Nkomo’s fitness to practise was impaired on account of his convictions and his misconduct. Representations were made on behalf of Dr Nkomo that suspension was the proportionate sanction, however, the Tribunal determined that Dr Nkomo’s behaviour was “fundamentally incompatible with continued registration given the serious, deliberate and dishonest nature of the fraud conviction, and the length of time for which he delayed informing the GMC of both the driving and the fraud convictions”. The Tribunal directed that erasure was the only sanction which would maintain public confidence and send a clear message to the profession and the public.

Appeal

An appeal was made by Dr Nkomo to the Administrative Court against sanction only and the judgment was received on 9 October 2019. He appealed on two grounds, firstly that the Tribunal had failed to give due weight to his personal circumstances which lead to his conduct with the CSA and secondly, that the Tribunal failed to adequately distinguish between standards of conduct meriting suspension and erasure. Dr Nkomo submitted that the appropriate sanction was suspension, not erasure.

Mr Justice Knowles explored the relevant principles in relation to sanction appeals, including the recent case of Dr Bawa-Garba in which the Court of Appeal said that the decision of the Tribunal was an evaluative, multi-factorial decision. There is limited scope for an appellate court to overturn such a decision and an appeal court should only interfere with such an evaluative decision if there was an error of principle in carrying out the evaluation or, for any other reason, the evaluation was wrong in that it fell outside the bounds of what the adjudicative body could properly and reasonably decide.

In reaching his decision the judge noted that the Tribunal took into account that Dr Nkomo was convicted of a fraud lasting 2 years 7 months, involving a substantial amount of money and that this was compounded by failing to notify the GMC without delay of his convictions. The Tribunal had found that his behaviour “clearly lies at the ‘top spectrum of gravity of misconduct’”, that Dr Nkomo had developed only partial insight and there was little acknowledgement of the impact his misconduct may have on the profession as a whole.

Dismissing the appeal, the judge found that those findings, taken together, more than entitled the Tribunal to conclude that the dishonesty in this case was fundamentally incompatible with continued registration, justifying sanction of erasure. The Tribunal’s decision was not one which fell outside the bounds of what could properly and reasonably have been decided.

This case highlights that expert Tribunals can take into account many factors when deciding appropriate sanction and that appellate courts will tend to give deference to their decision, unless there are compelling grounds to interfere.

Contact: Jennifer King, Associate jki@bto.co.uk T. 0141 221 8012