General Medical Council v Armstrong [2021] EWHC 1658 (Admin) (23 June 2021)

In this case, the General Medical Council (GMC) appealed against the determination of the Medical Practitioners Tribunal (“MPT”) on 21 January 2020 that the respondent’s (Dr Louise Armstrong) fitness to practise was not impaired. The GMC asked the High Court to quash the MPT’s decision on non-impairment; to substitute a finding of impairment; and to remit the matter of sanction to the MPT.

It was alleged that Dr Armstrong worked as a locum GP at several practices when she was not registered on the required Medical Performers List (“MPL”). It was further alleged that she failed to cooperate with investigations by NHS England despite several requests to do so. The Tribunal did not find the allegation of non-cooperation to amount to misconduct.

After NHS England had raised its initial concerns with the GMC, in October 2017, Dr Armstrong was notified of the GMC’s investigation by a letter dated 30 October 2017. On 14 May 2018, an interim order of suspension was imposed on the respondent’s registration for a period of twelve months. She was notified by an email letter on 15 May 2018. It was alleged that the respondent did not disclose her suspension, when she completed application forms for “Nuffield Health” and “Push Doctor”. Furthermore, in June 2018, when applying for the position of GP at a practice in Australia, it is alleged that the respondent failed to disclose that her registration in the UK was subject to an interim order of suspension.

Medical Practitioners Tribunal

At the Tribunal hearing, Dr Armstrong admitted all of the allegations.  However, whilst accepting that her conduct fell below the standards expected of a registered medical practitioner and amounted to misconduct, it was submitted that the her current fitness to practise was not impaired pointing out that she had “fully engaged with these proceedings and has left her family in Australia to attend this hearing in order to give oral evidence to the Tribunal … This shows great commitment to this process”.  She had “shown genuine remorse” and was “ashamed of the way she behaved and has recognised that she should have sought help and looked for other sources of employment, rather than acting dishonestly”.

Finding that Dr Armstrong’s fitness to practise was not currently impaired, the tribunal acknowledged Dr Armstrong’s full admissions, accepted that she fully understood that her dishonesty had a significant impact on others and that she had endeavoured to demonstrate remediation of her conduct.

The appeal

The GMC submitted that the Tribunal’s decision in the present case is wrong in that the Tribunal failed to have proper regard to the nature and extent of the respondent’s dishonesty which, Lane J said “I am in no doubt that his criticism has force.”

“An impermissibly incomplete engagement with the issue of dishonesty.”

Lane J continued:

“There is a serious disconnect between the bald findings … that the respondent’s “conduct will be considered as deplorable by fellow practitioners and was a breach of a fundamental tenet of the profession. In addition it brought the profession into disrepute”, and the Tribunal’s findings that the respondent’s fitness to practise was not currently impaired. Given this failing, the statement … that the Tribunal “took the view that the confidence of members of the public fully informed of the circumstances of this case, would not be undermined were there to be a finding of no impairment in this case” is unreasoned. For the reasons I shall give, I am in no doubt that such a hypothetical member of the public would take an entirely opposite view.”

Lane J also noted that “… the Tribunal also failed to consider the significance of the fact that the respondent’s dishonesty extended over a period of some two and a half years and of the sheer number of times that she resorted to it.”

The second ground of appeal advanced by the GMC was that the Tribunal placed wholly excessive weight upon factors in favour of the respondent.

To this, Lane J observed:

“This brings me to the issue of exceptionality. As we have seen, the Tribunal in the present case, having regard to Uppal, stressed that its finding was, as in that case, exceptional. Exceptionality is rarely a substantive “threshold” test. Rather, the categorisation of a case as exceptional in the judicial context signifies that the nature of the issues in play are such that it will be only in an unusual or rare case that one set of factors will outweigh others. As I have already mentioned at paragraph 33, in cases such as the present, the consequences of a finding of dishonesty in the professional regulatory context are likely to be so profound, in terms of the overarching regulatory objective, that the factors on the other side, viewed as a whole, will need to be extremely strong, in order for a finding of no impairment to be justified. Competing factors of the required overall strength are unlikely to be frequently encountered.

“In the present case, for the reasons I have given, the respondent’s dishonesty cannot be described as an isolated incident. She lied repeatedly, to different interlocutors over an extended period. She did so for financial gain. She did not do so in a stressful clinical situation. Accordingly, not only do these three cases not serve to support the Tribunal’s conclusions in the present case; properly analysed, they serve only to underscore the deficiencies in the Tribunal’s decision.”

Lane J therefore ruled that

“Accordingly, both grounds of challenge are made out. The Tribunal’s decision that the respondent’s fitness to practise was not currently impaired was not one which a reasonable Tribunal could reach. A finding of impairment was the only rational conclusion that, in the circumstances, could have been made.”

The MPT decision was therefore quashed and remitted on instruction that Dr Armstrong’s fitness to practise is currently impaired.

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