“35D.— Functions of a Medical Practitioners Tribunal … (2) Where the Medical Practitioners Tribunal find that the person's fitness to practise is impaired they may, if they think fit— … (b) direct that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction…”
“40.— Appeals (1) The following decisions are appealable decisions for the purposes of this section, that is to say— (a) a decision of a Medical Practitioners Tribunal under section 35D above giving a direction for erasure, for suspension or for conditional registration or varying the conditions imposed by a direction for conditional registration; … (4) A person in respect of whom an appealable decision falling within subsection (1) has been taken may, before the end of the period of 28 days beginning with the date on which notification of the decision was served under section 35E(1) above, … appeal against the decision to the relevant court. … (7) On an appeal under this section from a Medical Practitioners Tribunal, the court may— (a) dismiss the appeal; (b) allow the appeal and quash the direction or variation appealed against; (c) substitute for the direction or variation appealed against any other direction or variation which could have been given or made by a Medical Practitioners Tribunal; or (d) remit the case to the MPTS for them to arrange for a Medical Practitioners Tribunal to dispose of the case in accordance with the directions of the court, and may make such order as to costs… as it thinks fit.”
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“(1) A qualifications body (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding upon whom to confer a relevant qualification; (b) as to the terms on which it is prepared to confer a relevant qualification on B; (c) by not conferring a relevant qualification on B. (2) A qualifications body (A) must not discriminate against a person (B) upon whom A has conferred a relevant qualification— (a) by withdrawing the qualification from B; (b) by varying the terms on which B holds the qualification; (c) by subjecting B to any other detriment.”
“(1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
“65. In our view the findings of the inspection in May 2018 were very serious: the practice was inadequate in all domains. The range of inadequacies covered basic areas in the safe delivery of clinical care where timely and efficient care is needed to protect the life, health and well-being of patients …. … 67. … We find that the reality is that Dr Agoe and Dr Ali should either have closed the practice on 1 November or allowed the new caretaker in to take on the role of clinical governance moving forward. The effect of the decision made by Drs Agoe and Ali was to ignore the suspension, and not to allow the new caretaker practice to provide the clinical governance that was so very obviously required in the interests of patient safety. In our view it is obvious that the threshold test that 'there will be a serious risk to a person's life, health or well-being' was met. … 81. We have balanced the impact of the decision upon the Appellants’ interests as against the public interest. We consider that the facets of the public interest engaged far outweigh the interests of Dr Agoe and Ali and any other person affected. In our view the decision to cancel registration was (and remains) reasonable, necessary and proportionate.”
“52. We noted that Dr Agoe said in her oral evidence that she was unaware that there was to be a handover to Federation4Health [sic] until 1 November. This assertion only emerged in the course of cross examination. In our view this is inconsistent with her witness statement which makes clear that she knew that the [Forest Road Group Practice] contract was coming to an end and the intention of… NHSE was that Federation4Health (the Haringey Federation) would take over as caretaker… 59. Dr Agoe told us that she was not even aware that an application to cancel registration was to be made to the Magistrates’ Court on 6 November. This is odd given that she was aware that an application was made on her behalf in the High Court to seek an injunction against the CQC restraining any enforcement action. It appears from the Statement of Case provided to the Magistrate that notice had been given. Further, Mr Ojo appeared on her behalf at the hearing at the Magistrates Court (where he also cross-examined [a witness]). If what Dr Agoe is saying is reliable he did so without her knowledge or instructions. This seems very improbable. … 61. We are… unable to accept that most aspects of the factual account that Dr Agoe gave in her oral evidence are reliable. In so far as there is any conflict in the facts, we prefer the evidence of Dr Jowett and Mr Smart.”
“It is surprising that a professional person would act in this manner. It suggests a very poor understanding of the importance of compliance with regulation. Dr Agoe's explanation to Mr Smart on6 November 2018 was that she believed that she was able to continue to work because she was covered by the [Forest Road Group Practice] caretaker arrangements. Her case is that she understood this had been confirmed by Dr Ogunsanya over the telephone. We do not, however, accept that Dr Jowett told Dr Ogunsanya that Dr Agoe was able to continue to work under the Forest Group caretaker arrangement. That contract had ended and had ended at the wish of the [Forest Road Group Practice].”
“The claim is for the declaration of the Court that the Defendant acted contrary to the provisions ofsection 149 Equality Act 2010 in exercise of its public function of investigating the allegations against the Claimants referred to it by the NHS Commissioning Board.”
“The essence of the Claimants’ case is that the decisions of the case examiners recommending referral and the [GMC’s] approval thereof were influenced by the Claimants’ ethnicity. The Claimants say that but for this factor their conduct would not have been referred to the MPT. That would be the position if the Claimants’ conduct was not such as to merit an adverse finding by that Tribunal. If that is the case that will constitute a ground of defence in the proceedings before the Tribunal and on appeal therefrom. If the Claimants’ conduct is properly found by the Tribunal to be worthy of sanction then it cannot credibly be said that the referral was vitiated by reason of reference to the Claimants’ ethnicity. It follows that to the extent that the Claimants are correct to say that the decision to refer their cases to the MPT was flawed they have an adequate alternative remedy and that relief by way of judicial review or otherwise from the court is not appropriate.”
“4. In January 2019 you gave oral evidence to the First Tier Tribunal (‘FTT’) under oath words to the effect that you were unaware: a. until1 November 2018 that there was to be a handover to Federated4Health as caretaking practice; b. an application to cancel Staunton Group Practice’s CQC registration was to be made to the Magistrates Court on6 November 2018 . 5. You knew your evidence referred to: a. at paragraph 4a to be untrue in that you: i. had provided a witness statement for the purposes of the FTT proceedings in which you acknowledge that Forest Road Group Practice’s contract was coming to an end and that Federated4Health would take over as the new caretaker practice; ii. had instructed solicitors to object to the handover to Federated4Health prior to1 November 2018 ; b. at paragraph 4b to be untrue in that you had instructed a solicitor to appear at the Magistrates Court on your behalf. 6. Your actions at paragraph 4 were dishonest by reason of paragraph 5.”
“4. On26 September 2019 you submitted your annual appraisal form within which you stated that you had ‘nothing to declare’ in relation to ‘suspensions, restrictions on practice or being subject to an investigation of any kind since [your] last appraisal. 5. You knew the declaration referred to at paragraph 4 above to be untrue in that you knew you were under investigation by the General Medical Council. 6. Your actions at paragraph 4 were dishonest by reason of paragraph 5.”
“We say the answer must be yes, that race played a very important role in the referral of these doctors to the MPTS today, and for that reason alone we say the Tribunal is invited or asked to take that into account and come to the conclusion that these doctors have no case to answer. In fact, the Tribunal could not be seen to be facilitating a case where these doctors will be facing disciplinary and regulatory actions in the circumstances where race played a very important role. Mr Brown confirmed in his evidence that if Dr Agoe and Dr Ali were facing any regulatory sanctions or effects as regards the CQC, that would equally apply to every other registrant, in fact the two other doctors who are named on the CQC registration at the relevant time, but we know as a matter of fact that the two other registrants, or at least one of them, who was working on 1 November, is not facing similar proceedings as Dr Agoe and Dr Ali face today. That is as far as my first submission goes. … I say that the rule of law and the administration of justice would be undermined seriously and significantly by the conduct of the GMC if these proceedings were to continue, in that continuing the case will offend the Tribunal’s sense of propriety and justice.”
“2. The GMC has been subject to long-standing concerns that its processes and procedures are susceptible to and enable racial discrimination. As set out below, both an independent report commissioned by the GMC and an investigation by the BBC have established that an ethnic minority doctor is more than twice as likely to be referred to the GMC than a white doctor, and that the GMC is significantly more likely to investigate and sanction ethnic minority doctors. The GMC does not dispute, and indeed has positively accepted, these findings. 3. Against that background, the present claim concerns a determination made by the MPTS in the context of… proceedings brought by the GMC against the Claimants. At the conclusion of the GMC’s case, the Claimants, who are both from ethnic minority backgrounds, applied for a stay for abuse of process on the grounds that the proceedings amounted to direct race discrimination. The GMC had not brought proceedings against a white doctor, Dr Strommer, in respect of whom exactly the same issues applied as the Claimants. Nor had the GMC provided any credible explanation as to why it had not done so. Instead, the GMC resorted to the unlikely arguments that, amongst other things, its officers were not aware of Dr Strommer’s ethnic background, despite them knowing his name at the time of the relevant decisions and that name very clearly indicating his Germanic heritage. 4. The MPTS accepted the GMC’s arguments and dismissed the Claimant’s application in a determination dated18 July 2023 (the “Determination”). This is the decision under challenge in these proceedings…”
“(1) The MPTS applied the wrong legal test in relation to the burden of proof applicable to a claim of direct discrimination. As required by section 136 of the [EA 2010] the MPTS was required to consider whether the Claimants had put forward a prima facie case of discrimination, before then considering whether the GMC could demonstrate that its proceedings against the Claimants did not amount to direct discrimination. It failed to do so (“Ground 1”). (2) The Determination was based on irrelevant considerations, failed to take into account relevant considerations and/or was irrational. In particular, the MPTS was wrong to find that the GMC officers handling the case were not aware of Dr Strommer’s ethnic background… (“Ground 2”). (3) The MPTS was wrong to find that Dr Strommer was not a suitable comparator for the purposes of the discrimination analysis… (“Ground 3”).”
“Ground 2 asserts that the Tribunal made a finding of fact that was irrational, namely that the GMC decision-makers who decided not to proceed with an investigation against Dr. S were unaware of his race. The Cs must succeed on this ground to get anywhere with this claim; if it fails, the claim fails. In my judgment the ground is unarguable… In the present case, the MPTS accepted the evidence of the GMC that its decision-makers did not know the race of Dr. S when they made their decision. That was not challenged by the Cs’ counsel, Mr. Ojo (para 62, 67 of the Determination). The Claimants now assert that it should have been obvious to the GMC decision-makers from his name (which is said to be ‘Germanic’) that Dr. S was of Northern European ethnicity, and that it was ‘equally obvious’ that the Cs’ names revealed they were of African and Asian ethnicity, respectively… Such nominative discrimination is, of course, possible. But in the face of an explicit finding by the MPTS that the GMC decision-makers did not know the ethnicity of Dr. S, which went unchallenged by the Cs before the MPTS, the Claimants fall far short of demonstrating that finding was irrational.”
“Without a factual finding (step 1) from which an inference of discrimination could be drawn (step 2) then the point is moot. In any event, I accept the Defendant’s submission… that, read fairly and as a whole, the MPTS did have in mind the two-stage approach.”
“As to Ground 3 – that the MPTS erred in its finding that Dr. S was not a proper comparator because he was in a different position – this also is a moot point in light of my conclusion on Ground 2. Again, in any event I accept in substance the Defendant’s points… that the MPTS’ conclusion on this issue was reasonable and lawful.”
“The Defendant also argues that permission should be refused because there is an alternative remedy, namely an appeal against any eventual finding of the MPTS that is appealable unders 40 Medical Act 1983 , for example if the MPTS gives a direction for the erasure, suspension or conditional registration of the Cs. I had no submissions from the Cs on this point and, given my other conclusions, I make no ruling upon it, but it seems to me the argument has some force.”
“I note that during our investigation into [the appellants], their representative provided us with further documentation. This included a copy of an appointment list (‘the Appointment List’) suggesting that Dr Strommer may have consulted with patients at the Practice on1 November 2018 . As regards the implication of this date, I note that on9 May 2018 , the CQC confirmed suspension of the Practice’s registration until23 October 2018 . I understand that the suspension was subsequently extended until31 October 2018 , the date when The Forest Group Practice ceased to be the caretaker practice at the premises. A new caretaker practice was then due to take over from1 November 2018 . In my view, the Appointment List is not, in the absence of further information, new information which may have led to a different decision, had the decision maker been aware of it at the time. This is because I have not been provided with any information as to how Dr Strommer came to work at the premises on1 November 2018 , if in fact he did work there as suggested by the Appointment List. I.e., there is no information about who asked Dr Strommer to work there and why, and what if anything he was told about the current situation. I have therefore seen nothing to suggest that Dr Strommer: • was aware that the Practice’s registration was still suspended as at1 November 2018 ; • knew that The Forest Group Practice had ceased to be the caretaker practice on31 October 2018 ; • knew that the new caretaker practice had not been able to take over on1 November 2018 as envisaged. For the reasons explained above, there is no information to indicate a fitness to practise concern in relation to Dr Strommer.”
“Just as I think that the doctrine of issue estoppel has, as such, no place in public law and judicial review (see Reg. v. Secretary of State for the Environment, Ex parte Hackney London Borough Council [1983] 1 W.L.R. 524, approved by this court [1984] 1 W.L.R. 592), so I think that the decision in Ladd v. Marshall [1954] 1 W.L.R. 1489 has, as such, no place in that context. However I think that the principles which underlie issue estoppel and the decision in Ladd v. Marshall, namely that there must be finality in litigation, are applicable, subject always to the discretion of the court to depart from them if the wider interests of justice so require”
“I find myself in complete agreement, mutatis mutandis, with the judgment of the Divisional Court, given by Gibson J. in Reg. v. Governor of Pentonville Prison, Ex parte Tarling [1979] 1 W.L.R. 1417, 1422-1423, when he said: ‘First, it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court. The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus: . . . There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings…’”
“We reiterated our earlier position and confirmed to Mr Tyrell that from01 November 2018 , our clients will be providing services from the practice pursuant to their obligations under the GMS Contract. We clarified our position that any attempt to prevent our clients from fulfilling their obligations under the GMS Contract would amount to interfering with the Order of the Court and potentially an attempt at terminating the Contract which the Court had ordered not to be terminated… …Our clients have now decided that they are in a position to perform their obligation under the contract and have made arrangements for this to commence on01 November 2018 … …Further, our clients and their partners are the Leaseholders of the premises and they have been advised not to allow any caretaker to attend the premises”
“91. Suspension has a deterrent effect and can be used to send out a signal to the doctor, the profession and public about what is regarded as behaviour unbefitting a registered doctor. Suspension from the medical register also has a punitive effect, in that it prevents the doctor from practising (and therefore from earning a living as a doctor) during the suspension, although this is not its intention. 92. Suspension will be an appropriate response to misconduct that is so serious that action must be taken to protect members of the public and maintain public confidence in the profession. A period of suspension will be appropriate for conduct that is serious but falls short of being fundamentally incompatible with continued registration (ie for which erasure is more likely to be the appropriate sanction because the tribunal considers that the doctor should not practise again either for public safety reasons or to protect the reputation of the profession)…”
“It is important to recognise that an urgent cancellation order lies at the very top of the hierarchy of possible enforcement action that can be taken under theHealth and Social Care Act 2008 . An urgent cancellation order can only be made if it appears that serious risk of harm to life, health or well-being exists” (emphasis added).