High Court uphold PSA appeal in PSA v GMC & Anor [2023] EWHC 967 (Admin)

The Professional Standards Authority (PSA) challenged the imposition of a sanction imposed by the Panel on 12 October 2022. It followed a finding of misconduct against the Second Respondent, Professor Sundara Lingam, and that in consequence his fitness to practise was impaired. The Panel imposed a conditions of practice order for a period of 24 months with a review before the expiry of that period. It was imposed in respect of inappropriate prescribing practice by transcribing, signing and issuing almost 300 private prescriptions between 2 January 2013 and 25 March 2014, purportedly for use outside the UK where insufficient or no relevant information was before the doctor. Evidence that was available to investigators later showed prescriptions were written for patients who did not exist.

When he appeared initially before the MPT in 2015, a conditions of practice order had been imposed restricting Professor Lingam’s activities, in force for seven years, until the final hearing of the case.

None of the allegations, including as to misconduct and impairment, was contested by Professor Lingam.  The GMC adopted a neutral stance.

The PSA’s grounds of appeal were as follows:

• the MPT failed to grapple with the seriousness of Professor Lingam’s misconduct when making its decision as to sanction, in particular failing adequately to address the significance of the maintenance of standards and of upholding public confidence in the profession;
• the MPT took an erroneous approach to the mitigating factors and failed to identify or take into account all of the aggravating factors;
• the Panel failed to take into account the registrant’s failure to understand what he had done wrong and to remediate over seven years, it was “irrational wishful thinking” to indicate that his insight would improve when subject to conditions; and
• the Panel departed from the Sanctions Guidance but failed to give reasons for doing so.

Mrs Justice Foster DBE ruled that:

“…the clear conclusion that the decision of the Panel must be quashed and remitted to them for reconsideration on the basis of a serious procedural error in the form of inadequate and unclear reasoning as to sanction.

“The reasoning process is inadequate for the Court to determine whether or not certain important issues were appreciated, and if so, how they were reasoned through. It is therefore not possible to determine whether the sanction imposed was “wrong” in the statutory sense. There has been a serious procedural error engaging the Court’s appellate jurisdiction.”

Cogent analysis at sanction stage

Foster J provided some guidance for circumstances where allegations are wholly admitted and where this leaves the panel and its role to “make judgements that are central to the seriousness of the events in question”, saying:

• Panels are required to make sanction decisions in various situations. The task in a case like the present is the more onerous because there has been no contest on the facts, nor upon impairment. This means the MPT have not had days of evidence including cross-examination in which to acquaint themselves fully with the nuance of the behaviour which is under examination. It is more difficult where a comprehensive plea is entered for a Panel to make the judgements as to context, character and seriousness that they are obliged to make.
• In such cases it is incumbent on the presenting officer to prepare the facts fully (as was done here). However the Ruscillo [80] duty to engage is of paramount importance in these circumstances.
• Any unclearness or lack of clarity should, where central to the task at hand, be resolved by the Tribunal where possible.
• Here, some oral evidence was given. There was some cross-examination, and a few Panel questions. A Panel should feel bold, where the facts have been opened only, (not canvassed thoroughly in evidence), to resolve any material issues they have by questioning as far as they need to do so, to clarify the central issues arising.
• In the criminal jurisdiction (far different from this), the ‘Newton hearing’ [R v Newton (1982) 77 Cr App R 13] has evolved to resolve issues as to the factual basis for a sentence. A decision is necessary because the Court must sentence on a true and proper basis. In the present case, of course, the facts led were all accepted by Professor Lingam. However it underscores the context of establishing carefully the factual basis, context and seriousness of any behaviour which falls to be sanctioned.
• These matters are relevant because the giving of cogent and informative reasons, the duty of a Panel, is rendered much easier when central questions or uncertainties have been resolved. Cogent analysis at sanction stage is easier where the context and the significance of the evidence has been explored. As stated, this exploration may, in a case where the facts are admitted wholesale, and no, or only a short, hearing takes place, need to be accomplished by the Panel itself. They must then, in the reasoning they set out, expose the relevant analysis so the reader understands what the principal issues were, and what the Panel made of them. This is part and parcel of their function in protecting the public interest.