Case Comment – GMC v Dr Awan [2020] EWHC 1533 (Admin): The GMC’s lingering power to appeal: A spoonful of sugar…?

It’s now June 2020. Two years have passed since the publication of Professor Sir Norman Williams’ review of gross negligence manslaughter in healthcare, prompted in consequence of the sorry saga of Dr Bawa-Garba, in which Professor Williams recommended that the GMC ought to be stripped of its power to appeal determinations of the MPTS, which was immediately adopted by Government. And yet, here we are still.

The GMC’s Appeal

 The GMC sought to appeal the determination of the MPT that Dr Awan should be suspended for a period of nine months for his partially admitted but otherwise proven sexually motivated conduct towards a vulnerable female child via an internet chatroom, text and WhatsApp messages on dates in January 2016. The vulnerable female child in question was in fact an undercover police officer. Criminal proceedings were not pursued.

Before the MPT, Dr Awan admitted the seemingly more benign allegations whilst denying those more serious, including that his conduct was indeed sexually motivated. Dr Awan advanced what Mr Justice Mostyn described, in rather non-sugar-coated language, as an “absurd”, “dogged” and “ridiculous” defence that he had in fact appreciated at all times that this was a “sting” which he sought only to expose by his conduct.

The MPT rejected Dr Awan’s defence absolutely. The doctor did not seek to contest misconduct and impairment at Stage 2 as a consequence of the MPT’s factual findings. As to sanction, the GMC submitted that the established conduct was fundamentally incompatible with registration as a doctor and that consequently Dr Awan ought to be erased from the medical register.

In response, Dr Awan relied upon personal mitigation, his limited although developing insight, his clinical competence and the esteem in which he was otherwise held professionally, in a successful attempt to mitigate the imposition of the ultimate sanction. The GMC’s sought to challenge the MPT’s determination as “wrong” for its alleged failure to take account of a relevant matter, its taking into account an irrelevant matter and for a failure to properly apply the Sanctions Guidance.

The Judgment

 Mostyn J began his judgment with an extremely useful resumé of the authorities touching upon the purpose and objectives of professional disciplinary proceedings; to the deference owed, on appeal, to inferences drawn by primary decision makers and to the knowledge and experience of a specialist adjudicative body. Consistent with established authority, the judge re-stated that the Sanctions Guidance was precisely that: guidance; and re-cautioned against a “narrow textual analysis” approach to the criticism of expressed reasoning.

In rejecting the GMC’s first ground of appeal, which related to the MPT’s failure to have proper regard to the manner in which Dr Awan gave his (“absurd” and “ludicrous”) evidence, the judge found that the MPT had this well in mind from its determinations. He also relied upon established authority in finding that Dr Awan’s prospects of avoiding erasure were not fatally undermined by the strategy he employed (in contesting stage 1).

The GMC’s second ground of appeal was that the MPT took regard of an irrelevant factor – the public interest in not depriving the public of an otherwise competent clinician – by the fact that Dr Awan had since emigrated to Canada and was no longer in practising to the benefit of the UK public. The judge found the MPT’s single sentence in this respect not to be key to its decision making, amongst other reasons, in rejecting this ground.

Finally, the judge rejected the GMC’s suggestion that the MPT had failed to properly apply the Sanctions Guidance on the basis that any such criticisms amounted to “narrow textual analysis” of aspects of a determination which was properly understood in its wider context. Mostyn J considered that the present case was analogous with GMC v Dr X [2019] EWHC 493 and that a comparable disposal demonstrated a consistency of approach in such cases and such that the determination in the present case could not be considered as “wrong.”

Comment

 As an exposition of the relevant legal principles, the judgment is a must read for all professional disciplinary practitioners. Whether it contributes to helping “the medicine go down” in hastening the removal of the GMC’s power to appeal remains to be seen…

To read the full judgment Click here