We recently won a landmark appeal at the High Court when judgment was handed down in the case of the GMC v Jagjivan. In this blog, Anthony Omo, our Director of Fitness to Practise and General Counsel, explains this judgment and reflects on its significance.
In 2015 changes to the Medical Act meant that for the first time we could appeal against decisions made by Medical Practitioners Tribunals. This was excellent news for patients because the new law allowed us to appeal in cases where we felt the tribunal had not adequately protected patients. For example, if we felt a doctor should have been struck off the medical register rather than suspended, or given a stronger sanction for serious and persistent breaches of good medical practice.
In May of this year our first appeal reached the High Court. The case was listed before a two judge Divisional Court rather than a single High Court judge because it was the first such hearing of its kind.
The judges upheld our appeal – we succeeded in overturning the original decision made by the tribunal at the hearing of Dr Nilesh Jagjivan in 2016.
The new law allowed us to appeal in cases where we felt the tribunal had not adequately protected patients.
The case related to the doctor’s treatment of a young female patient. After investigating the allegations, our view was that the doctor’s behaviour had been sexually motivated – that he did not preserve the patient’s dignity and privacy, as she remained partially undressed during the 45 minute consultation, and that he had made a number of inappropriate comments of a sexual nature.
At the hearing the tribunal found Dr Jagjivan guilty of some misconduct. But they concluded that his medical practice was not impaired because there was not enough evidence to prove that his behaviour towards the patient was sexually motivated. We disagreed with this decision and we felt it might be a risk to future patient safety, so we decided to submit our first appeal.
At the High Court the judges agreed that the tribunal’s failure to find that Dr Jagjivan’s actions were sexually motivated was ‘wrong and unsustainable’. They quashed that finding and substituted it with a finding of sexual motivation.
The case will now be reconsidered at a further hearing to be arranged by the Medical Practitioners Tribunal Service so that action can be taken to protect patients in light of these serious findings against the doctor.
We will not hesitate to appeal in cases where we think the Tribunal’s decision is insufficient to protect the public.
In its judgment in this case, the court rejected an attempt by the doctor’s lawyers to limit the scope of our power of appeal. They also agreed to adopt some of the well-established principles which have been developed when doctors appeal tribunal decisions. The judgment therefore provides helpful guidance for future judges to use when making decisions on further appeals by the GMC, a number of which are now underway.
The judgment was also an endorsement of the important changes made to the Medical Act, and illustrated how these reforms have further enhanced our ability to protect patients from the very small number of doctors who seriously breach our guidance and who fail to meet the standards which the public are entitled to expect.
While we are confident in the quality of the decision making by the tribunals, we will not hesitate to appeal in cases where we think the Tribunal’s decision is insufficient to protect the public.
And we are hopeful that the government will now make wider legislative reforms so that we can further improve the speed and efficiency of our fitness to practise process.