General Medical Council v Varaha Vijaya Nageswara Appala Naidu Konathala

On 20 June 2025, I handed down judgment allowing this appeal brought under section 40A of the Medical Act 1983: General Medical Council v Konathala [2025] EWHC 1550 (Admin). My provisional view was that this is a case in which I should exercise the power conferred by section 40A(6)(c) of the Act and direct that the Respondent’s name be erased from the register. However, I thought it right to allow the parties the opportunity to advance further submissions in writing as to the exercise of the powers under sections 40A(6)(c) and (d) of the Act, in the light of my judgment. I am grateful to both Ms Hearnden and Mr Ivill for their further assistance.

For the Appellant, Ms Hearnden submits that the findings of the Tribunal in this case provided a clear and cogent steer under paragraph 109 of the Sanctions Guidance towards erasure as the appropriate sanction. In matters of sexual misconduct this 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: General Medical Council v Jagjivan [2017] 1 WLR 4438 at [40]. The only proportionate outcome, which would properly reflect the gravity of the Respondent’s misconduct, is erasure. No useful purpose would therefore be served by remitting the case to the Tribunal. This court should exercise the power conferred by section 40A(6)(c) of the Act and, pursuant to section 35D(2)(a) of the Act, direct that the Respondent’s name be erased from the register.

For the Respondent, Mr Ivill submits that the court should remit the matter to the Tribunal for redetermination of the appropriate sanction, pursuant to section 40A(6)(d) of the Act. The Tribunal is the specialist body established by the Act and entrusted by Parliament with the task of regulating the conduct of medical practitioners. It is appropriate and fair to reflect Parliament's intention by allowing the specialist tribunal to serve as the decision making body in assessing the appropriate sanction. The Tribunal is best placed to determine what is necessary to maintain public confidence and uphold proper standards within the profession. Its members will be well equipped to evaluate issues such as insight, remediation, and the risk of repetition. Mr Ivill drew attention to Jay J’s observations at [65] in General Medical Council v Chaudhary [2017] EWHC 2561 (Admin) –

“Of course, this court has power to substitute its own decision for one that [the Tribunal] could have made, but in my judgment it should only exercise that power if confident that that is the correct outcome. If there is room for differences of opinion, particularly in the face of further submissions and, if necessary, additional evidence then the right course is to remit”.

Mr Ivill reminds me that, shortly before the expiry of the period of suspension from practice imposed on the Respondent, a differently constituted Tribunal conducted a comprehensive review to assess his fitness to practise at that time, including an assessment of insight, remediation and risk of repetition. Following additional evidence and submissions, the Tribunal determined that the Respondent’s fitness to practise was no longer impaired. Fairness demanded that the Respondent should have further opportunity to present evidence to a differently constituted Tribunal thereby enabling them to assess his current insight, the question of remediation and risk and, in the light of that assessment, to determine the appropriate sanction. He invited the court to direct that the matter be remitted to a newly constituted Tribunal to reconsider the issue of sanction in light of my judgment, and of any further evidence and submissions that the Tribunal may admit in consideration of that issue.

Section 40A(6)(c) of the Act gives this court on appeal the power to substitute for the Tribunal’s decision any other decision which could have been made by the Tribunal. I have no doubt that this court should approach the exercise of that power with caution. I respectfully endorse the observations of Jay J, that the court should only exercise that power if confident as to what is the correct outcome. If there is room for differences of opinion, particularly in the face of further submissions and, if necessary, additional evidence then the right course is to remit. As Mr Ivill correctly submits, the Tribunal is a specialist regulatory and disciplinary body to which Parliament has vouchsafed the determination of cases of professional misconduct by medical practitioners. The Tribunal has the experience and expertise to evaluate not only whether a medical practitioner’s professional misconduct has impaired their fitness to practise, but also the appropriate sanction to impose in a case where that is found to be the position. In particular, in my view, where the professional misconduct relates to matters of clinical practice, this court should exercise restraint in substituting its own judgment for that of the Tribunal.

However, as was stated by the Divisional Court at [40] in Jagjivan, in a case of sexual misconduct, this court may have greater confidence in its own ability to assess the necessary and appropriate sanction in order to protect the public and maintain the reputation of the medical profession.

In [103] of my judgment, I said that sufficiency of sanction for the protection of the public involves consideration of the health and safety and well-being of patients and the public. However, it also involves consideration of the need to maintain public confidence in the profession, and to maintain proper professional standards and conduct for the medical profession. I concluded that when judged properly and reasonably against each of these factors and overall, there was no doubt that, on the Tribunal's findings as to his misconduct and impairment of fitness to practise, the Respondent's behaviour was fundamentally incompatible with remaining in practice as a doctor.

I accept Ms Hearnden’s submission that in the light of that conclusion, no useful or proper purpose would be served in this case by remitting the question of appropriate sanction to the Tribunal. Even if the matter were to be remitted, the only reasonable conclusion open to a reconstituted Tribunal on a proper application of the Sanctions Guidance would be that erasure was the necessary and proportionate sanction. This is accordingly an appropriate case for this court to exercise the power given by section 40A(6)(c) of the Act.

I recognise the devastating impact of my decision on the Respondent after over 40 years of medical practice, particularly given the subsequent decision of the Tribunal following his period of suspension. However, as I concluded in [103] of my judgment, this was a deliberate and opportunistic sexual assault on a patient, an abuse of the doctor's position of trust and power which was undertaken for his own sexual gratification. It is behaviour that cannot properly and reasonably be regarded as compatible with the Respondent's continued registration as a doctor.

I direct pursuant to section 35D(2)(a) of the Medical Act 1983 that the Respondent’s name shall be erased from the register. I shall ask counsel to agree the terms of an order giving effect to that direction and to the agreed position on the costs of this appeal.