Mr Justice Linden found the MPTs decision was “fundamentally flawed” in the case of PSA v GMC & Onyekpe  EWHC 2391 (Admin).
In this case, the Professional Standards Authority for Health and Social Care (“the PSA”) appealed against the decision of the Medical Practitioners Tribunal of the General Medical Council (“the MPT of the GMC”) to impose a sanction of six months’ suspension of the Second Respondent, Dr Onyekpe’s, registration.
That decision was taken on 19 January 2023 and the MPT’s Order came into effect 28 days later, with a review to take place at the end of the six-month period. It followed disciplinary proceedings in which Dr Onyekpe admitted that in June and July 2020 he had had a sexual relationship with Patient A which began after he had treated her in his capacity as a locum registrar in the Accident and Emergency (“A&E”) department at the Whittington Hospital in London. The MPT found that the charges against him, all of which he admitted, amounted to a course of conduct which amounted to “serious misconduct”. Dr Onyekpe also conceded that his fitness to practise was impaired by reason of this misconduct, and the MPT agreed.
The PSA’s challenge to the decision of the MPT was originally on four grounds, three of which were then pursued by Ms Fiona Paterson KC at the hearing before me. These were:
i) First, that the decision of the MPT was wrong and/or unjust because of a serious procedural irregularity, in that the charges against Dr Onyekpe did not adequately reflect the seriousness of his misconduct. The particular criticism which the PSA makes is that there should have been an allegation that Dr Onyekpe knew or ought to have known that Patient A was vulnerable or likely to be vulnerable. The lack of such an allegation meant that the full gravamen of his misconduct was not considered by the MPT (“Ground 1”).
ii) Second, that the sanction of 6 months’ suspension of Dr Onyekpe’s registration was unduly lenient and insufficient for the protection of the public in any event. In particular, nothing short of erasure would have been sufficient to maintain public confidence in the profession, as well as proper professional standards and conduct for members of the profession (“Ground 2”).
iii) Third, that the reasons given by the MPT for its decision on sanction were inadequate (“Ground 3”).
In short, Mr Justice Linden agreed with this PSA’s case, saying:
“…my conclusion on Ground 1 was that the decision making of the GMC and the MPT in this case was fundamentally flawed because it did not give any or any adequate consideration to the evidence of what Patient A told Dr Onyekpe about her circumstances. In particular, there was a failure adequately to consider (a) whether she was vulnerable for the purposes of the Sanctions Guidance and, if so, the degree of her vulnerability and, (b) what Dr Onyekpe knew or ought to have known about these matters and what influence this had on his actions. These questions should have been raised by the Allegations which the MPT was asked to consider, and then fully litigated and considered in the context of the whole evidential picture, but they were not. I am not persuaded that, had this been done, it would have made no material difference to the sanction which the MPT imposed.
“In the light of this, I decided not to express a concluded view on Grounds 2 and 3, which assume that the appeal fails on Ground 1, albeit they are free standing grounds. In my view the public interest and Dr Onyekpe’s interests are best served by the case being fully considered by the MPT, which is the fact finding tribunal constituted for this task, on the basis of all of the evidence, and a decision reached on all of the issues. A decision by me on Grounds 2 and 3 on the narrower factual basis which was considered by the MPT would also potentially give rise to appeals or cross appeals and result in unnecessary delay and expense. The Court of Appeal will in any event be as well placed as I am to determine these Grounds 1 and 2 if there is an appeal on Ground 1.”
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