General Medical Council v Walton

This is an appeal brought by the General Medical Council (“the GMC”) under section 40A of the Medical Act 1983 (“the 1983 Act”) against a determination of the Medical

The GMC appeals on the ground that the MPT’s determination is not sufficient for the protection of the public. More specifically, it contends that the MPT erred by:

failing to ask itself the correct question when considering certain of the allegations made against Professor Walton, and

failing to apply the Sanctions Guidance approved for use by MPTs from 6 February 2018 (“the Guidance”).

The GMC seeks an order quashing the relevant parts of the Determination and the remittal of the case to the Medical Practitioners Tribunal Service for them to arrange for the MPT to dispose of the case in accordance with the directions of this court.

Professor Walton opposes the appeal, contending that, applying the appropriate standard of review, no error in the Determination has been shown.

I have concluded that the Determination was wrong, in that the MPT asked itself the wrong question, and/or failed to address the correct question, in relation to allegations 3 and 4. Further, findings on those allegations might affect the question of the appropriate sanction. The case must therefore be remitted to the MPT for further disposal.

The MPT heard the GMC’s case against Professor Walton from 10 to 18 June 2019. Both sides were represented by counsel.

The MPT issued a determination on the facts on 17 June 2019, a determination on impairment on 18 June 2019, and a determination on sanction on 18 June 2019.

At the end of its determination on the facts, the tribunal set out the allegations against Professor Walton and its overall conclusions on them, under the heading “The Tribunal’s Overall Determination on the Facts”:

Summertown Health Centre (“Health Centre”) for up to two days a week; Admitted and found proved

Queen Mary University of London for one day a week. Admitted and found proved

You:

a date unknown between November 2016 and January 2017; Determined and found proved

16 January 2017; Admitted and found proved

make the Application; Determined and found not proved

declare any conflict of interest. Determined and found not proved

Prior to undertaking the work described at paragraph 1, you failed to:

make the Application; Admitted and found proved

declare any conflict of interest. Determined and found not proved

Your action as set out at paragraph 1 and 3 were dishonest by reason of paragraphs 2(a) and 2(b). Determined and found not proved

On 6 October 2017, you informed Professor Frances Griffiths that you had agreed with Dr A that payment from the Health Centre could be paid directly to you, or words to that effect.

On 21 October 2017, you completed the Application which requested approval for one half day per week of private work at the Health Centre. Admitted and found proved

On 16 November 2017, you informed Professor Griffiths that you had been working at the Health Centre for one day per week during your employment at the University, or words to that effect. Admitted and found proved

You knew that:

Professor Kumar had not agreed that the payment from the Health Centre could be paid directly to you; Determined and found proved

you had been working for the Health Centre for up to two days per week during your employment at the University. Determined and found proved

Your action as set out at paragraph 5 was dishonest by reason of paragraph 8(a). Determined and found proved

Your actions as set out at paragraphs 6 and 7 were dishonest by reason of paragraph 8(b). Determined and found not proved in relation to paragraph 6. Determined and found proved in relation to paragraph 7.”

The MPT’s practice, reflected above, where matters are admitted is formally to find them proven (see § 17(1)(d)-(e) of the Order in Council referred to in § 11 below). I have omitted from the above quotation reference to two minor amendments which the MPT allowed to be made to the allegations.

The MPT went on to conclude that Professor Walton’s fitness to practise was currently impaired by reason of misconduct, and that the appropriate sanction was a 6-month suspension.

Section 1(1A) of the 1983 Act provides that the GMC’s over-arching objective in exercising its functions under the Act is the protection of the public. The Act includes provision for cases of alleged misconduct to be brought before Medical Practitioners Tribunals, and the General Medical Council (Fitness to Practise) Rules Order in Council 2004 (2004/2608) makes more detailed provision for proceedings before such tribunals.

Section 40A of the Act provides:

A decision to which this section applies is referred to below as a “relevant decision”.

The General Council may appeal against a relevant decision to the relevant court [the High Court] if they consider that the decision is not sufficient (whether as to a finding or a penalty or both) for the protection of the public.

Consideration of whether a decision is sufficient for the protection of the public involves consideration of whether it is sufficient—

to protect the health, safety and well-being of the public;

to maintain public confidence in the medical profession; and

to maintain proper professional standards and conduct for members of that profession.

allow the appeal and quash the relevant decision;

substitute for the relevant decision any other decision which could have been made by the Tribunal; or

remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court,

The Divisional Court set out the approach to be taken on such an appeal in General Medical Council v Jagjivan [2017] EWHC 1247 (Admin); [2017] 1 WLR 4438, at §§ 39-40:

Proceedings under section 40A of the 1983 Act are appeals and are governed by CPR Part 52. A court will allow an appeal under CPR Part 52.21(3) if it is 'wrong' or 'unjust because of a serious procedural or other irregularity in the proceedings in the lower court'.

It is not appropriate to add any qualification to the test in CPR Part 52 that decisions are 'clearly wrong': see Fatnani at paragraph 21 and Meadow at paragraphs 125 to 128.

The court will correct material errors of fact and of law: see Fatnani at paragraph 20. Any appeal court must however be extremely cautious about upsetting a conclusion of primary fact, particularly where the findings depend upon the assessment of the credibility of the witnesses, who the Tribunal, unlike the appellate court, has had the advantage of seeing and hearing (see Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642; [2003] 1 WLR 577, at paragraphs 15 to 17, cited with approval in Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23, [2007] 1 WLR 1325 at paragraph 46, and Southall at paragraph 47).

When the question is what inferences are to be drawn from specific facts, an appellate court is under less of a disadvantage. The court may draw any inferences of fact which it considers are justified on the evidence: see CPR Part 52.11(4).

In regulatory proceedings the appellate court will not have the professional expertise of the Tribunal of fact. As a consequence, the appellate court will approach Tribunal determinations about whether conduct is serious misconduct or impairs a person's fitness to practise, and what is necessary to maintain public confidence and proper standards in the profession and sanctions, with diffidence: see Fatnani at paragraph 16; and Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169, at paragraph 36.

However there may be matters, such as dishonesty or sexual misconduct, where the court "is likely to feel that it can assess what is needed to protect the public or maintain the reputation of the profession more easily for itself and thus attach less weight to the expertise of the Tribunal …": see Council for the Regulation of Healthcare Professionals v GMC and Southall [2005] EWHC 579 (Admin); [2005] Lloyd's Rep. Med 365 at paragraph 11, and Khan at paragraph 36(c). As Lord Millett observed in Ghosh v GMC [2001] UKPC 29; [2001] 1 WLR 1915 and 1923G, the appellate court "will afford an appropriate measure of respect of the judgment in the committee … but the [appellate court] will not defer to the committee's judgment more than is warranted by the circumstances".

Matters of mitigation are likely to be of considerably less significance in regulatory proceedings than to a court imposing retributive justice, because the overarching concern of the professional regulator is the protection of the public.

A failure to provide adequate reasons may constitute a serious procedural irregularity which renders the Tribunal's decision unjust (see Southall at paragraphs 55 to 56).”

Jagjivan was cited with approval by Singh LJ in Hussain v General Pharmaceutical Council [2018] EWCA Civ 22 § 66, and by the Court of Appeal in General Medical Council v Chandra [2018] EWCA Civ 1898 § 81.

The Court of Appeal in Bawa-Garba v General Medical Council [2018] EWCA Civ 1879, (2018) 163 BMLR 43 provided important further clarification of the correct approach:

Specifically as regards allegations of dishonesty:

The Court of Appeal in Raychaudhuri v GMC [2018] EWCA Civ 2027, [2019] 1 WLR 324 indicated that the court should be slow to find dishonesty where the MPT has decided not to do so:

Mostyn J in in Malins v SRA [2017] EWHC 835 (Admin), [2017] 4 WLR 85 stated: “It is elementary, and supported by abundant authority, that if you are accused of dishonesty then that must be spelt out against you with pitiless clarity” (§ 36). See also Salha v GMC [2003] UKPC 80; (2004) 80 BMLR 169 at § 14: “It is a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised”.

On the other hand, the court’s intervention may be appropriate where the tribunal has made an error of principle, for example by applying the wrong test (see, e.g., General Medical Council v Chandra [2019] EWCA Civ 1898 §§ 90-94).

Allegation 3(b) was that “Prior to undertaking the work described at paragraph 1”, Professor Walton failed to make “the Application”, i.e. an application to undertake private work.

The MPT held in relation to that allegation:

Thus the tribunal appears to have understood the words “prior to undertaking the work described at paragraph 1” in allegation 3 to mean prior to the date on which Professor

Allegation 1, quoted earlier, was that:

In my judgment the reference in allegation 3 to “the work described in paragraph 1” is clearly to the “paid private work” referred to in paragraph 1, and not to Professor Walton’s employment with the University. That was the “work” referred to, as such, in allegation 1. It was also the work for which, according to allegation 2, Professor Walton was told he would need to make an application. The obvious meaning of allegation 3, read with allegations 1 and 2, is that before undertaking private work while employed by the University, Professor Walton needed to, but failed to, make an application and to declare any conflict of interest. Moreover, it makes little or no sense to treat allegation 3 as being confined to alleged failures prior to beginning work for the University, given that, as Professor Walton’s counsel submitted to the MPT, “… the allegation can only arrive, surely, once his employment starts”.

The same error affected the MPT’s findings on allegation 4, which was that Professor Walton’s action(s) as set out in allegations 1 and 3 “were dishonest by reason of paragraphs 2(a) and 2(b)”. In other words, Professor Walton’s failure to apply for permission to undertake private work, or to declare any conflict of interest, were alleged to be dishonest because (per allegation 2) he knew from conversations with Professor Kumar and from his terms of employment that he was required to take both those steps. The MPT concluded:

Thus by reading allegation 3 as a whole to relate only to pre-employment failures, the MPT concluded that Professor Walton could not in any relevant sense have failed either to make an application, or to declare any conflict, despite Professor Walton having admitted to the former. On that basis, the tribunal inevitably concluded that the allegation of dishonesty in allegation 4 could not be made out.

I consider that the tribunal’s reading of allegation 3 was incorrect, and it should have proceeded to make further findings under allegation 3(b) as to whether a conflict of interests should have been declared once Professor Walton joined the University, and under allegation 4 as to whether the admitted failure to make an application (allegation

Professor Walton makes the point that the tribunal’s finding, on allegation 2(b), that he did not know the contents of his terms of employment is probably fatal to allegation

Professor Walton submits that the allegations were not clear, and that they should be interpreted in the light of (i) the evidence served in advance of the hearing by the GMC as prosecutor and (ii) the way in which the evidence and allegations were dealt with in opening submissions, during the hearing, and in closing submissions by the GMC. He contends that these matters reinforce the view that allegation 3 related only to steps Professor Walton is alleged to have failed to take before he started work with the University on 2 May 2017. He says the GMC could perhaps have made good any lack of clarity in the allegations during the hearing, but only if the basis of the allegations had been made explicit and Professor Walton had been afforded sufficient time to respond: see Moneim v GMC [2011] EWHC 327 (Admin).

In Professor Walton’s witness statement for the MPT hearing, he stated that he ultimately applied for permission to undertake private work in October 2017, which was in the event towards the end of his tenure at the University, his previous understanding having been that “After my conversation with Professor Kumar in January 2017, I thought it was within his gift to grant approval but after the meeting with Professor Griffiths on 6 October 2017 … I realised that there was a higher level of University process”. Professor Walton admitted that he had failed to make the application referred to in allegation 3(a). His answer to allegation 3(b) was not that no such declaration could have been required before he started work for the University, but rather that he did not see his private work for Summertown or Queen Mary as involving a conflict: “Maintaining both of these external relationships was strongly in Warwick’s interests”.

Professor Kumar’s witness statement included evidence that at a meeting with Professor Walton in November 2017 “I told him that he was employed in a full time job with the Medical School and that he was meant to disclose any outside work that he undertook”. That evidence would not naturally be read as relating solely to a failure to make a disclosure prior to beginning work with the University. Similarly, email correspondence from Professor Griffiths to Professor Walton in October 2017, relied on by the GMC before the tribunal, urged him at that stage to follow the University’s procedures relating to outside work as a matter of urgency.

The GMC’s oral opening before the MPT included reference to Professor Walton having made no application between mid January (when he spoke to Professor Kumar) and 2 May 2017 (when he started at the University), but also dealt with later events including the October emails:

During the cross-examination of Professor Walton, he was asked questions about the position in January 2017 after he had received the University’s offer letter, including whether at that stage he had looked at the proposed terms of employment or logged on to the University’s website to see whether there was anything about retaining outside work.

Professor Walton was also cross-examined about an email he received from Professor Kumar dated 16 January 2017. Professor Walton had enquired whether it would be possible, were he to take up the post at the University, for him “to keep my earnings from my practice as my two days a month consultancy which would form part of my employment contract at Warwick”. Professor Kumar’s response included the following:

The cross-examination on this topic included the following passages:

Professor Walton submits that use several times of the phrase “at that stage” in the questions and answers quoted above supports the view that allegation 3 related only to alleged inaction on Professor Walton’s part prior to taking up his post on 2 May 2017. I do not consider that to be a fair reading of the passage as a whole. In particular, the last four questions and answers address steps Professor Walton could have taken but did not take following his arrival at Warwick.

The position following Professor Walton’s arrival at Warwick was also the subject of questions from the tribunal itself:

The GMC’s oral closing submission clearly indicated that it regarded inaction following Professor Walton’s arrival at Warwick as being within the scope of allegation 3:

This was consistent with the GMC’s written closing, § 22 of which said:

There is no indication that the tribunal’s line of questioning, or the GMC’s approach in closing, referred to in §§ 35-37 above, gave rise to any objection on behalf of Professor Walton.

Professor Walton submits that, taken together, the materials summarised above show that the GMC did not clearly put to him a case that he had dishonestly failed to fulfil any obligation than arose on or after, as opposed to before, he started work with the University. He reminds the court that allegations of dishonesty must be clearly alleged and put, and submits that the GMC cannot in this regard rely on questions posed by the tribunal: the process is, he says, prosecutorial rather than inquisitorial.

However, I consider that the essential question I have to address on this appeal is a slightly different one, namely whether the tribunal erred in construing the scope of the allegations made against Professor Walton as quoted in § 8 above. In that context, the relevance of the course of the proceedings is whether or not they demonstrate (as Professor Walton suggests) that allegations 3 and 4 should be read as being limited to pre-employment events. In my judgment they do not. The terms of the allegations are clear in themselves, for the reasons I have set out earlier, and the course of proceedings

Professor Walton submits that the court should not order remittal to the MPT unless the GMC can show that an additional finding of dishonesty on allegation 4 “would have had a material impact on the seriousness of Professor Walton’s conduct”. The GMC’s skeleton argument in this court argues that “Had the MPT found dishonesty, this would plainly have had a material impact on the assessment of the seriousness of Professor Walton’s conduct”. Professor Walton disputes this, and says the tribunal has already taken full account of his conduct (including financial benefit).

The court will allow an appeal if it concludes that the MPT’s decision was “wrong”¸ and section 40A(6) of the 1983 Act provides that the court “may” then quash the decision and remit the case to the MPTS to arrange further disposal of the case. In my view the key question is not whether additional findings “would” impact on sanction, but whether they might do so. In addition, even if sanction were unaffected, additional findings might serve the public protection objective of the disciplinary process: it is notable that section 40A(3) allows the GMC to appeal if it considers the decision insufficient for the protection of the public “whether as to a finding or a penalty or both”.

In the present case the MPT has already taken into account, when considering impairment and sanction, its finding that Professor Walton was dishonest on more than one occasion, so that his misconduct could not be described as isolated. However, as the GMC points out, a finding against Professor Walton on allegation 3(b) and/or 4 would relate to an ongoing failure and might be viewed more seriously.

I express no view on whether remittal would or would not be likely to result in additional findings of misconduct, or of dishonesty, against Professor Walton, nor as to whether any such findings would impact the sanction the MPT has to date decided to impose. It is sufficient for present purposes that remittal could result in one or more of those things occurring.

By taking this course, the court is not seeking to substitute any findings of its own for those of the MPT in relation to dishonesty (still less, issues of clinical competence), nor its own view on sanction for the tribunal’s own multi-factorial assessment. Rather, it is quashing the determination and remitting it to the tribunal to the extent that it is affected by an erroneous failure to address material parts of the allegations that (properly construed) have been made against Professor Walton.

Finally under this heading, the GMC pointed out that the MPT did not consider whether the conduct alleged in allegation 1 was itself dishonest, that also forming part of allegation 4. That observation appears to be correct, though because I do not read the GMC’s Grounds of Appeal as raising this additional point, I do not consider it appropriate to make a finding on it.

The Guidance has been said to provide an “an authoritative steer for tribunals as to what is required to protect the public, even if it does not in any particular case dictate the outcome”: see General Medical Council v Khetyar [2018] EWHC 813 (Admin) § 21 per Andrew Baker J, who added:

The Court of Appeal stated in Professional Standards Authority v Health and Care Professions Council and Doree [2017] EWCA Civ 319, [2017] Med LR 301 that a Panel applying the Health and Care Professions Council’s Indicative Sanctions Guidance should have proper regard to it, and apply it as its own terms suggest:

The GMC submits that the MPT does not refer to the Guidance in its determination on sanction, although it was referred to in some detail by counsel for both parties. It says the seriousness of the MPT’s findings on dishonesty (even without the factual error addressed above under Ground 1) and lack of insight indicate that consideration of the sanction of erasure was required. As Mostyn J stated in Khan v General Medical Council [2015] EWHC 301 (Admin) (quoted in General Medical Council v Nyamasve [2018] EWHC 1689 (Admin)):

In cases of proven dishonesty, the balance can be expected to fall down on the side of maintaining public confidence in the profession by a severe sanction against the doctor concerned. See Nicholas - Pillai v GMC [2009] EWHC 1048 (Admin) per Mitting J at [27] where he stated:

Where proven dishonesty is combined with a lack of insight (or is covered up) the authorities show that nothing short of erasure is likely to be appropriate.”

Paragraph 109 of the Guidance states, so far as potentially material: “Any of the following factors being present may indicate erasure is appropriate (this list is not exhaustive):

A particularly serious departure from the principles set out in Good medical practice where the behaviour is fundamentally incompatible with being a doctor.

A deliberate or reckless disregard for the principles set out in Good medical practice and/or patient safety.

Paragraphs 120-128 set out further guidance for tribunals when considering dishonesty, including at § 128:

In the present case, the Guidance was cited to the MPT by both the GMC and Professor Walton. Before retiring to consider its determinations, the tribunal indicated that “[w]e have regard to the GMC Sanctions Guidance and our attention has been drawn to that guidance in submissions”.

When considering impairment, the MPT said:

As to sanction, the MPT said:

The Tribunal noted that Prof Walton has an otherwise unblemished record, his dishonest conduct took place over one and a half years ago and there has since been no repetition. Prof Walton has fully engaged with the GMC investigation and with this hearing. There is an extensive amount of overwhelmingly positive testimonial evidence which attest to Prof Walton’s otherwise good character. The evidence suggests that Prof Walton is a highly skilled academic and clinician who is eminent in his field. The misconduct took place in the context of an environment in which Prof Walton’s line management appeared to be unstructured and it was unclear what was covered in his induction.

However, the Tribunal has already found that Prof Walton’s conduct was a clear departure from a number of principles of GMP, and that acting dishonestly is a serious matter which undermines the trust in the medical profession. Prof Walton was dishonest on two occasions, albeit in relation to common circumstances, namely his external earnings from private outside work. Prof Walton benefitted financially from his dishonest actions. The Tribunal has already found that, given his denial of dishonesty, there is no evidence before the Tribunal to indicate that Prof Walton has reflected on, or taken steps to remedy, his misconduct.

The Tribunal took into account that Prof Walton was dishonest on more than one occasion, so his misconduct cannot be described as isolated. However, it noted the instances of his dishonesty were in relation to common circumstances, namely his external earnings from private outside work. It was not persuaded that the dishonesty was persistent such that it necessitated or warranted erasure from the Medical Register.

In its previous determination, the Tribunal stated that it could not be satisfied that there is no risk of repetition of his dishonest conduct. It took into careful consideration the testimonials provided on Prof Walton’s behalf. It was of the view that these provided a wealth of good quality evidence of Prof Walton’s otherwise good character, the majority of the authors of the testimonials being aware of the allegations. The testimonial evidence satisfied the Tribunal that Prof Walton’s dishonest conduct was wholly out of character. It was of the view that, based on the evidence, it would be likely that Prof Walton would revert back to his usual good character should similar circumstances arise in the future. As such, it was satisfied that the risk of repetition was minimal.

Having had regard to the circumstances of this case, the Tribunal was satisfied that Prof Walton’s misconduct is not fundamentally incompatible with continued registration. It was of the view that erasing Prof Walton’s name from the Medical Register would be disproportionate, punitive and not in the public interest.

The Tribunal determined that a period of suspension would be an appropriate and proportionate sanction that would protect the public confidence in the medical profession and promote and maintain proper standards and conduct for the members of the profession. At the same time, a period of suspension would also mark the gravity with which the Tribunal viewed such misconduct.”

The GMC submits that the MPT thereby not only failed to go through paragraph 109 of the Guidance, but also did not grapple with the factors mentioned in it, instead providing no more than a “generalised assertion that erasure would be disproportionate sanction” (see General Medical Council v Stone [2017] EWHC 2534 (Admin) § 53 per Jay J).

I am not persuaded by that submission. The MPT did in my judgment consider, in the passages quoted above, the substance of paragraph 109 of the Guidance, which had been fully cited to it. The tribunal specifically took account when addressing impairment of its findings that Professor Walton’s dishonesty was serious and constituted a breach of a fundamental tenet of the profession, namely acting with honesty and integrity; and that he had continued to deny that he acted dishonestly. When addressing sanction the tribunal specifically took account of its findings that his conduct was a clear departure from a number of principles of Good Medical Practice; that acting dishonestly is a serious matter which undermines the trust in the medical profession; that he was dishonest on more than one occasion, so that his misconduct could not be described as isolated; that given Professor Walton’s denial of dishonesty, there was no evidence before the tribunal to indicate that he had reflected on or taken steps to remedy his misconduct; and that, conversely, it was not persuaded that the dishonesty was persistent such that it necessitated or warranted erasure from the Medical Register. In my view the MPT did give proper consideration to the substance of the relevant matters set out in paragraph 109.

If on remittal the MPT makes further findings in relation to allegations 3 and 4, then the question of sanction will need to be reconsidered in any event. However, on the basis of the tribunal’s current findings in relation to the allegations, the GMC’s challenge to its conclusions as to sanction does not succeed.

As a result, the GMC’s appeal will be allowed on Ground 1 and dismissed on Ground 2. I shall hear counsel as to the appropriate relief, but my provisional view is that I should:

quash the MPT’s factual findings in respect of allegations 3(a), (b) and 4;

remit the matters of fact in respect of paragraphs 3(a), (b) and 4, impairment and sanction to the MPT to be determined in light of this judgment; and iii) quash the MPT’s determinations on impairment and sanction.

Element (iii) appears appropriate on the basis that the result of (i) and (ii) may or may not lead to a need for the MPT to reconsider its findings on impairment and/or sanction; and in case they do, it is necessary to quash the determinations on impairment and sanction.

I am grateful to both parties’ counsel for their helpful written and oral submissions.