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On 30 April 2021, in Okpara & Anor v General Medical Council  EWCA Civ 623, the Court of Appeal (Macur, Davies and Lewis LJJ) ruled on the correct test to be applied by the High Court in appeals brought by doctors pursuant to s.40 of the Medical Act 1983, particularly in sexual misconduct appeals. The Court held that the High Court (Administrative Division) had applied the wrong test.
Following a two-day appeal, and a reserved judgment, the Court of Appeal held (Nicola Davies LJ giving the judgment of the court), that there was a line of authority, reflected in Jagjivan which indicates that cases of sexual misconduct fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus give less weight to the expertise of the Tribunal. The Court endorsed that line of authority and held that the High Court had erred in following Bawa-Garba v General Medical Council  1 WLR 1929 in this sexual misconduct case:
 Counsel on behalf of Dr Okpara identifies a tension between the sexual misconduct cases referred to in Jagjivan, which permit the appellate court to decide issues of weight for itself without deferring to the expertise of the Tribunal, and the approach in Bawa-Garba, where the court defers to the expertise of the Tribunal by adopting a restrictive error of principle approach on appeal, akin to a review rather than a rehearing. It is this tension which Leggatt LJ was referring to when granting permission to appeal.
 …We conclude that the judge, in following Bawa-Garba in this case, did fail to have regard to the line of authority reflected in Jagjivan …We agree that in matters such as dishonesty or sexual misconduct, the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the Tribunal. It follows that we find that the approach of the judge to the sanction imposed upon Dr Okpara was wrong in that he did not assess whether the sanction was necessary or appropriate in the public interest or was excessive or disproportionate.
Applying Ghosh v General Medical Council  1 WLR 1915 and Khan v General Pharmaceutical Council  1 WLR 169, the Court of Appeal held that the test on s.40 appeals was whether the sanction imposed by the Medical Practitioners Tribunal was “wrong” and that the approach at the hearing, which was appellate and not supervisory, was whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate. The appeals under s.40 are by way of a rehearing, rather than review, and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality.
The Court proceeded to consider the sanction afresh. It upheld the High Court on the sanction of erasure.
The full Judgment is available here.
ARFAN KHAN and KATHERINE ARCHER, instructed by DCK Solicitors, acted for the second appellant Dr Okpara, who succeeded in establishing the correct test to be applied by the High Court in a sexual misconduct appeal pursuant to s.40 of the Medical Act 1983.