Newley v General Medical Council [2021] EWHC 1538 (Admin) (08 June 2021)

Doctor Kevin Newley appealed against a MPTS finding that his fitness to practise remained impaired and imposed conditions for a period of 24 months.

In 2019 (the 2019 tribunal) Dr Newley’s fitness to practise had been found to be impaired by reason of misconduct and his registration was suspended for a period of nine months.  The allegations against him, considered by the 2019 tribunal, related to his care of eight patients (known as A to H) in respect of matters such as obtaining an appropriate history from patients, record-keeping, undertaking diagnostic tests, making referrals to hospital when required and communicating with patients appropriately.

The 2019 tribunal made a direction for a review by another tribunal prior to the expiry of the period of suspension. In accordance with that direction, the review hearing which is the subject of this appeal.

Dr Newley’s appeal alleges that a number of findings (made by the 2019 tribunal) are in error as listed in paragraph 26 of the judgement.  Broadly speaking, these relating to allegations of performance that is “seriously below the level of a competent GP.”

Dr Newley applied to the High Court to adduce and rely on new evidence in support of his appeal. There were four pieces of “new” evidence:

  1. an email to him from the National Institute for Health and Care Excellence (“NICE”)
  2. a “Urological cancers – prostate” flowchart extracted from the National Collaborating Centre for Primary Care (NCC-PC) Referral Guidelines for Suspected Cancer
  3. a letter from an Advanced Nurse Practitioner who was employed by Dr Newley from 2001 to 2016
  4. a letter from the GMC (Following the 2019 tribunal, the appellant made a complaint to the GMC regarding Dr Burton, one of the expert witnesses who gave evidence before the 2019 tribunal. The GMC made a determination under rule 4 that the complaint did not reveal any fitness to practise issues that warranted investigation. Under rule 12, the appellant sought a review of the rule 4 decision. The letter of 9 October 2020 is the rule 12 determination upholding the rule 4 decision.)

Mrs Justice Steyn rejected Dr Newley’s application to admit this fresh evidence saying:

“The first part of the appellant’s grounds of appeal is an attempt to appeal (again) against the 2019 tribunal’s determination. The appellant focused, almost exclusively, in his written and oral submissions, on his contention that the 2019 tribunal made errors in finding that his fitness to practise was impaired by reason of misconduct.

“This part of his appeal fails, fundamentally, because this is not an appeal against the 2019 tribunal’s determination. First, it is not the decision appealed against identified in the Appellant’s Notice. Secondly, an appeal against the 2019 tribunal’s decision filed on 20 May 2020 would have been long out of time. Thirdly, the High Court has already considered and dismissed the appellant’s appeal against the 2019 tribunal’s decision.”

Dr Newley’s second grounds of appeal is that the review tribunal was wrong not to correct the alleged errors in the 2019 tribunal’s determination by reference to the evidence to which I have referred.

In my judgment, this submission misapprehends the statutory scheme. It was not the role of the review tribunal to act as if it were an appellate tribunal with powers to revisit findings made by the 2019 tribunal and upheld on appeal by the High Court.

Steyn J however pointed out that “It was not the role of the review tribunal to act as if it were an appellate tribunal with powers to revisit findings made by the 2019 tribunal and upheld on appeal by the High Court.”

Steyn J concluded that “There is no basis for overturning the decision of the review tribunal in relation to impairment or sanction. This appeal fails and is dismissed.”

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