Impairment
40. The first argument I shall address under this heading is that set out in ground 3 of the grounds of appeal, which is that the 2013 Panel was wrong to make another finding of impairment because Dr Obukofe had complied with and evidenced the concerns raised by the 2012 Panel.
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43 … Although an appeal under section 40 is by way of re-hearing there are three reasons why the court may be slow to interfere with such a finding. Those reasons were identified by Auld LJ in Meadow v GMC [2006] EWCA Civ 1390 [2007] 1 QB 462:
‘197. On an appeal from a determination by the GMC, acting formerly and in this case through the FPP, or now under the new statutory regime, whatever label is given to the section 40 test, it is plain from the authorities that the court must have in mind and give such weight as is appropriate in the circumstances to the following factors:
I) The body from whom the appeal lies is a specialist tribunal whose understanding of what the medical profession expects of its members in matters of medical practice deserve respect;
II) The tribunal had the benefit, which the Court normally does not, of hearing and seeing the witnesses on both sides;
III) The questions of primary and secondary fact and the over-all value judgement to be made by tribunal, especially the last, are akin to jury questions to which there may reasonably be different answers.’
44. Each of those factors is relevant in the present case
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Sanction
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50. The next point taken is that the suspension imposed was a disproportionate sanction.
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51. It is important to keep in mind for this purpose the two strands in the authorities which were emphasised by Laws LJ in Rashid v General Medical Council, Fatani v GMC [2007] 1 WLR 1460 at paragraphs 16 to 20. The first strand is to differentiate the function of a Panel imposing sanctions from that of a court imposing retributive punishment. In that respect, Laws LJ quoted from the judgment of Lord Roger in Gupta v General Medical Council (GMC) [2001] UKPC 61 the passage at paragraph 21, as follows:
‘It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] 1 WLR 512, 517H–519E where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment have less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re-establish his practice when the period has passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right.’
52. The second strand is to emphasise the special expertise of the Panel or the committee in making the required judgment. In that respect, Laws LJ in Rashid quoted from the speech of Lord Hope in Marinovich v General Medical Council [2002] UKPC 36, giving the judgment of the Board of the Privy Council, where he said at paragraphs 28:
‘In the appellant’s case, the effect of the committee’s order is that erasure is for life but it has been said many times that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be opposed in the public interest for serious professional misconduct assessment.This is because the assessment of the seriousness of misconduct is essentially a matter for the committee in the light of its experience. It is the body which is best qualified to judge what measures are required to maintain the standards and reputation of the profession.’
53. In the light of those two strands Laws LJ continued at paragraph 24 of the judgment in Rashid to say at paragraph 20:
‘These strands in the learning then as it seems to me constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court’s role in section 40 appeals. The High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case.’
54. Bearing in mind those two strands and applying a judgment which is distinctly and firmly a secondary judgment I see no basis for treating the sanction which was imposed by the 2013 Panel as being in any way unfair or disproportionate notwithstanding the effect which it has on the ability of Dr Obukofe to earn his living …