Dr Belinda Agoe & Anor v General Medical Council

Mrs Justice Farbey DBE: Introduction

1. The appellants are GPs who practiced in a partnership, with other GPs, at the Staunton Group Practice (“the Practice”) situated in the Morum House Medical Centre in Bounds Green, London (“the Medical Centre”). By an Appellant’s Notice dated 5 April 2024, they appeal under section 40 of the Medical Act 1983 (“ the Act ”) against various decisions of a tribunal of the Medical Practitioners Tribunal Service (“the MPTS” or “the Tribunal”) that led to each of them being suspended from the Medical Register.

2. The proceedings before the Tribunal concerned the appellants’ fitness to practise as doctors. The Tribunal made numerous findings against each appellant and concluded that their fitness to practise was impaired by reason of misconduct.

3. The findings arose from events that took place as long ago as November 2018. The main charge brought by the GMC was that the appellants had, over the course of a number of days, obstructed a third party supplier from taking over responsibility for GP services at the Medical Centre. The transfer of responsibility was the result of a “caretaker” arrangement made by NHS England (“NHSE”). Under that arrangement, an organisation called Federated4Health was assigned to take over and run GP services after the Practice had its registration with the Care Quality Commission (“CQC”) suspended. The MPTS found (among other things) that the appellants had each refused to permit Federated4Health to have unfettered access to the Medical Centre and had themselves delivered patient services in place of Federated4Health.

4. Although there are two appellants, there is only one appeal. The grounds of appeal are advanced on behalf of both appellants by Mr Oluwaseyi Ojo. There are eight grounds. They fall under three headings. i. Grounds 1-5: Race discrimination : Under the first heading, it is submitted that the charges brought against the appellants by the GMC amounted to unjustified difference in treatment on grounds of race. The charges therefore constituted unlawful direct discrimination contrary to section 53 of the Equality Act 2010 (“the EA 2010 ”). Given that the charges were the product of discrimination on grounds of race, the MPTS was wrong and misdirected itself in law by failing to stay the charges as an abuse of process. The target of this aspect of the appeal is the Tribunal’s ruling on abuse of process dated 18 July 2024 (“the abuse of process decision”). ii. Grounds 6-7: Factual findings : Under the second heading, it is submitted that the Tribunal made inconsistent findings of fact and failed to give adequate reasons for its findings of fact. The targets of this aspect of the appeal are the Tribunal’s determinations of the facts dated 7 November 2023 in the case of the first appellant and 8 November 2023 in the case of the second appellant. iii. Ground 8: Sanctions : Under the third heading, it is submitted that the suspension orders imposed on each appellant were arbitrary, irrational and inadequately reasoned. The appropriate sanction in each case would have been the imposition of conditions of practice. The targets of this aspect of the appeal are the Tribunal’s determinations on sanction which are in the case of both appellants dated 8 March 2024.

5. The appellants seek an order allowing the appeal. Despite their submission that the proceedings below should have been stayed as an abuse of process, they seek an order remitting the case to a freshly constituted tribunal to determine the allegations against them.

6. On behalf of the General Medical Council (“GMC”), Mr Rory Dunlop KC (who did not appear below) resists the appeal on all grounds. The GMC has filed a respondent’s notice asking the court to uphold the first appellant’s suspension order on one additional ground which failed below, namely that the MPTS ought to have found that the first appellant gave dishonest and not merely unreliable evidence in proceedings before the First-tier Tribunal (Health, Education and Social Care Chamber) (“the FTT”). Mr Dunlop accepted before me that there was no need for the court to deal with this additional ground. I do not propose to say more about it. Anonymity

7. A GP who had worked in partnership with the appellants was anonymised in the MPTS written documents and in other legal proceedings arising from events that this judgment covers. No application for anonymity was made in relation to the present appeal and I was not shown the terms of any anonymity order made by this or any other court.

8. I asked the parties whether anonymity was sought. Mr Dunlop confirmed that no anonymity was sought and that the principle of open justice should prevail. Mr Ojo made no submissions on the point. I shall therefore use the name of the GP in this judgment. Legal framework for appeals

9. The legal framework governing proceedings before the MPTS and appeals before this court is set out in Mr Dunlop’s skeleton argument and was not in dispute.

10. Section 35 D of the Act provides in so far as relevant: “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…”

11. Section 40 of the Act provides in so far as relevant: “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 35 D 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 35 E(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.”

12. CPR 52.21(3) applies and means that the High Court will allow an appeal where the decision of the MPTS was (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the MPTS. The EA 2010

13. Section 13 of the EA 2010 defines direct discrimination in the following terms: “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.” On a comparison of cases for this purpose, “there must be no material difference between the circumstances relating to each case” ( section 23(1) of the EA 2010 ).

14. Section 53 of the EA 2010 provides in so far as relevant: “(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.”

15. I did not hear argument on whether the MPTS is a qualifications body but I am prepared to assume (for present purposes only) that it is.

16. Under section 136 of the EA 2010 : “(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.” Factual background

17. Turning to the facts, the first appellant has been registered with the GMC since May 2002. She joined the Practice as a GP Trainee in August 2005, becoming a GP partner in 2008. She is of Ghanaian heritage.

18. The second appellant has been registered with the GMC since February 1995. He too was a partner in the Practice. He is of Bangladeshi heritage.

19. The Practice was founded in 2004. On 1 April 2013, it was registered with the Care Quality Commission (“CQC”) to undertake regulated activities under the Health and Social Care Act 2008 . Dr Strommer was the Registered Manager of the Practice. In December 2015, it was made a condition of the CQC registration that the membership of the Practice should comprise Dr Agoe, Dr Ali, Dr Strommer and a fourth GP.

20. In 2016 and 2017, the Practice faced disruption owing to the migration of patient data to a new IT system. In July and August 2017, the CQC carried out an inspection. The resulting report, in October 2017, rated the Practice as “inadequate” overall with specific concerns raised about patient safety and a number of other matters. As a consequence, the Practice was placed under special measures with effect from 19 October 2017.

21. On 18 April 2018, NHSE served a remedial notice on all four partners, alleging breach of their obligations under their General Medical Services Contract (“GMS Contract”) with the NHS. In taking this action, NHSE relied on the CQC report.

22. Following further inspections, the CQC on 8 May 2018 suspended the Practice’s registration. The four partners were prohibited from providing regulated activities. NHSE appointed the Forest Road Group Practice to act as a so-called “caretaker.” The Forest Road Group Practice took over the provision of GP services at the Medical Centre. The appellants, Dr Strommer and the fourth partner were permitted to work there on a locum basis. By the end of July 2018, both Dr Strommer and the fourth partner had resigned from the partnership.

23. A further CQC report dated 13 August 2018 again rated the Practice as “inadequate” overall. As regards specific concerns, the report noted (among other things) that: i. 615 out of 14,700 patients had incomplete medical histories within their patient records, thereby putting the patients at serious risk of harm as clinicians would not know their full medical background; ii. Patients’ health was not consistently monitored in relation to the use of high risk medicines; iii. Not all patients with long-term conditions had a structured annual review to check their health; iv. The process for managing cervical screening did not ensure that patients with positive tests were followed up appropriately; and v. Patients with the most urgent needs did not have their care and treatment prioritised consistently.

24. On 19 October 2018, the CQC extended the suspension of the partnership to March 2019. Meanwhile, Forest Road Group Practice had informed NHSE that it did not wish to act as a caretaker beyond 31 October 2018. As a result, NHSE appointed Federated4Health as a new caretaker to start work at the Medical Centre on 1 November 2018. The list of patients for that day shows that (among other GPs) both the appellants and Dr Strommer were due to work there. The appellants held consultations with patients. The evidence before me does not show whether Dr Strommer did so. I shall assume (without finding) that he worked in the Medical Centre on 1 November 2018 in accordance with the patient list.

25. It has at all material times been the GMC’s case that Federated4Health staff were initially not permitted to enter the building, to the extent that they were left outside in the rain. They were then permitted to enter but were confined to one part of the building. As a result, the handover from one caretaker to another could not take place. It is the GMC case that, from 1 to 6 November 2018, the Federated4Health staff and officials from NHSE waited for the handover to take place.

26. On 5 November 2018, the appellants issued a claim in the High Court seeking a declaration as to whether a dissolved partnership survives for the purposes of the CQC registration regime. An urgent application for an interim injunction to restrain the CQC from taking action pending the determination of the claim was refused. I have taken this information from one of the first appellant’s witness statements as I have not been provided with documents relating to the claim or the injunction.

27. On 6 November 2018, the CQC applied to the Magistrates’ Court for an order cancelling the Practice’s registration on the basis that the appellants were in breach of the terms of their CQC suspension by providing regulated activities from 1 November to 6 November 2018. The Magistrates made the order, such that the Practice’s registration was cancelled (“the cancellation order”).

28. The Practice appealed to the FTT against the cancellation order. The appeal was heard over three days in January 2019. The Practice was represented by Dr Ogunsanya, a solicitor advocate in the same firm as Mr Ojo. Dr Ogunsanya confirmed to the FTT that he was instructed by the appellants and not by the other partners in the Practice. The first appellant filed a witness statement and gave oral evidence. The second appellant provided a witness statement that adopted the first appellant’s statement. He declined to give oral evidence.

29. In a careful and detailed judgment, promulgated on 4 February 2019, the FTT (Tribunal Judge Siobhan Goodrich, Specialist Member Caroline Joffe and Specialist Member Wendy Stafford) dismissed the appeal: Staunton Group Practice v Care Quality Commission [2019] UKFTT 0070 (HESC) . In doing so, the FTT made the following findings (among others): i. As at 1 November 2018 it was necessary for a caretaker to be in place to protect patient safety. There “remained significant fragility in the ongoing delivery of safe care” (para 44). ii. The first appellant was unable to acknowledge the depth of concerns held by the CQC and by Dr Jowett (a partner in the Forest Road Group Practice). The FTT was “left with the clear view” that the first appellant did not “have a full understanding of the breadth and extent of the issues that will require effective leadership and management in the interests of patient safety” (para 45). iii. The appellants did not want Federated4Health to be the new caretaker. They wanted to present their own plan to carry on with a partnership (para 50). iv. The appellants had lost sight of the fact that their registration had been suspended. They could not lawfully be in charge of medical services at the Medical Centre. If medical services were to continue, and if the appellants were to work in a locum capacity, it had to be under a caretaker arrangement (para 50). v. On 1 November 2018, staff from Federated4Health had been left outside in the rain owing to a refusal to hand over services to them. Thereafter, staff of Federated4Health and NHSE attended the Medical Centre and waited each working day until the matter was resolved by the cancellation order (para 51). vi. The appellants were prepared to continue to work despite having been advised by Ian Smart (a CQC Inspector) that this was in breach of the suspension, and that they would be committing an offence (para 55). vii. Neither of the appellants had acknowledged that, in the absence of a caretaker, medical services could not lawfully operate at all (para 57).

30. The FTT went on to conclude: “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.”

31. In reaching these strong conclusions against the appellants, the FTT criticised the first appellant’s evidence as follows: “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.”

32. The FTT commented on the first appellant’s conduct as follow (at para 55): “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 on 6 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 GMC proceedings: interim stages

33. In light of the FTT’s findings, NHSE referred the appellants to its Performance Advisory Group (“PAG”) for consideration as to whether they should be referred to the GMC for disciplinary proceedings. PAG recommended that the appellants were referred to the GMC on grounds of failure to provide indemnity details and provision of misleading evidence to the FTT.

34. In July 2019, NHSE referred the appellants to the GMC on the wider basis that (among other things) the appellants had continued to provide care as GPs in a locum capacity from 1 to 6 November 2018 without a caretaker, which they were not permitted to do. NHSE did not refer Dr Strommer.

35. On 16 August 2019, the appellants’ GMC registrations were suspended by the Interim Orders Tribunal (“IOT”) for a period of 12 months. In a judgment handed down on 15 January 2020, Julian Knowles J refused the appellants’ applications that the interim suspensions be revoked: Dr Belinda Agoe & Dr Kausar Ali v General Medical Council ( [2020] EWHC 39 (Admin) ).

36. On 13 February 2020, the IOT varied the interim orders so as to replace the interim suspensions with the imposition of conditions of practise. On 12 August 2020, the GMC’s application to extend the interim orders was heard by HHJ Stephen Davies sitting as a Judge of the High Court. He extended the orders for a further 12 months but removed the condition that the appellants be subject to clinical supervision. The first set of judicial review proceedings: decision by Eyre J

37. By a claim form filed under CPR Part 8 on 30 April 2021, the appellants sought relief against the GMC and (apparently) the NHS Commissioning Board on grounds of discriminatory treatment in the GMC investigation. The claim form described the claim in the following terms: “The claim is for the declaration of the Court that the Defendant acted contrary to the provisions of section 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.”

38. By order dated 10 October 2022, Eyre J ordered that the Part 8 claim was to continue as a claim for judicial review. He proceeded to refuse permission to apply for judicial review. His reasons for refusing permission were as follows: “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.”

39. Eyre J did not, therefore, consider the merits of the discrimination claim but refused permission on the grounds that the appellants had an adequate alternative remedy in the MPTS. The MPTS hearing: Part 1

40. On 3 July 2023, the hearing before the MPTS commenced. The hearing continued until 21 July 2023 and, thereafter, on various dates until 8 March 2024. The common allegations

41. Both appellants faced the following allegations: “1. Between 1 November 2018 to 6 November 2018, whilst your previous practice’s (the Staunton Group Practice) registration with the Care Quality Commission (‘CQC’) was suspended, you: a. obstructed the transfer of provision of patient services at Morum House Medical Centre (the ‘Premises’) to an alternative caretaker provider named Federated4Health (the new caretaker practice) who had been nominated by NHS England to replace the Forest Road Group Practice (the previous caretaker practice) in that you: i. informed [the] Chief Operating Officer at Federated4Health that Federated4Health would not be allowed to commence as the new caretakers… on 1 November 2018; ii. refused to assist in a handover to Federated4Health when requested to do so by representatives of NHS England and/or Federated4Health on 1 November 2018; iii. refused to speak to Ms B, a representative of NHS England, when invited to do so on 1 November 2018; iv. refused to provide computer codes to allow Federated4Health access to patient information; v. refused to permit Federated4Health, its employees or agents to:

1. have unfettered access to the Premises for the provision of patient services;

2. supervise staff and/or operate safe governance systems at the Premises; b. on more than one occasion organised and/or delivered patient services in place of Federated4Health at the Premises.

2. You organised and/or delivered patient services as described at paragraph 1b when you knew it was unlawful to do so.

3. As a consequence of your actions at paragraph 1 you occasioned: a. an application to be made by the CQC to a Justice of the Peace at Highbury Corner Magistrates’ Court on 6 November 2018 pursuant to section 30 Health and Social Care Act 2008 (‘ the Act ’); b. a Justice of the Peace on 6 November 2018 to make an Order pursuant to section 30 of the Act in order to protect the public interest in the protection of the health, safety and well-being of patients and the maintenance and promotion of public confidence in the system of regulation.” Additional allegations against the first appellant

42. The first appellant faced the following additional allegations: “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. until 1 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 on 6 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 to 1 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.” Additional allegations against the second appellant

43. The second appellant faced the following additional allegations: “4. On 26 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.” The course of the proceedings

44. The Tribunal received evidence on behalf of the GMC from Hasmikh Sonigra (Associate Medical Director for NHSE); Patricia Galloway (Deputy Regional Head of Professional Standards at NHSE); Vanessa Piper (Head of Primary Care for Commissioning and Contracting for North Central London Clinical Commissioning Group); Dr Annie Stork and Dr Sally Jowett (who were both GP Partners at Medicus Health Partners working at Forest Road Group Practice); Mr Smart (the CQC Inspector whom I have already mentioned); and Andrew Brown (National Registration Adviser for the CQC).

45. The first appellant provided a witness statement dated 2 March 2023 and a further witness statement dated 11 October 2023. The second appellant provided a witness statement dated 14 April 2023. Neither of the appellants gave oral evidence. Their witness statements (together with a witness statement from Dr Renu Hans) were admitted as hearsay evidence.

46. Between 4 and 18 July 2023, the MPTS made the following decisions (giving written reasons for each of them): i. A preliminary submission, made before any evidence was called, that the appellants had no case to answer in relation to some of the allegations was rejected. ii. A renewed submission of no case to answer in relation to some of the allegations was rejected at the close of the GMC case. iii. An application for a stay of proceedings as an abuse of process was refused at the close of the GMC case. The third of these decisions was the abuse of process decision that I have mentioned above and to which I now turn. The abuse of process decision

47. Mr Ojo made written and oral submissions to the MPTS that the proceedings against the appellants were an abuse of process on a number of grounds. In addition, he submitted orally at the hearing on 12 July 2023 that the proceedings were an abuse because they were tainted by race discrimination. As regards his submissions on discrimination, his key contention was that, as Dr Strommer had worked at the Medical Centre on 1 November 2018, and was not facing the same allegations as the appellants, the question arose as to whether Dr Strommer was not being pursued by the GMC because he was of a different race to the appellants.

48. The transcript of proceedings shows that Mr Ojo made the following submissions about this question: “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.”

49. As Mr Ojo’s submissions were unheralded, Counsel for the GMC was granted time to prepare written submissions on discrimination. At the resumed hearing on 14 July 2023, Mr Ojo made further submissions. He emphasised again that the GMC had decided to take no action against Dr Strommer. He contended that the failure to take disciplinary action against Dr Strommer raised a prima facie case of difference in treatment which shifted the burden to the GMC to establish the reason for the difference. He submitted that the GMC had failed to discharge that burden. He submitted that there was no evidence that the GMC had spoken to Dr Strommer in order to come to the conclusion that he could properly be treated differently to the appellants.

50. Counsel appearing on behalf of the GMC submitted that the GMC had given proper consideration as to whether there were concerns about Dr Strommer’s fitness to practise and had concluded that there were none. By contrast, there were serious concerns identified in relation to the appellants. It was those serious concerns that had caused the GMC to take action. The abuse of process decision records Counsel as having “submitted that information about [Dr Strommer’s] race was not available to the decision maker” who considered Dr Strommer’s case.

51. In its written decision, the MPTS noted (at para 62) that the appellants did not challenge the “submission” that the GMC were not aware of Dr Strommer’s race. It accepted what Counsel said and concluded “on the balance of probabilities there had not been discrimination on grounds of race” in referring the case of each appellant to the MPTS.

52. The MPTS was willing to assume that Dr Strommer was of a different race to the appellants. Nevertheless, the MPTS stated (at para 62) that it “could not conclude on the balance of probabilities that there was discrimination on grounds of race by the GMC and as a result there was no abuse of process, as the GMC were not aware of the race of [Dr Strommer].”

53. The MPTS concluded in addition that Dr Strommer appeared to be in a different position to the appellants on the following basis: i. He was not seeking to challenge, through legal representatives, the CQC decision or the appointment of Federated4Health as the new caretaking practice (para 63). ii. There was no evidence to suggest that Dr Strommer at any time expressed the intention to provide or arrange patient services under the GMS contract while knowing that it was unlawful to do so while the CQC registration remained suspended (para 65). iii. There was no evidence to indicate that Dr Strommer had knowledge of the contractual circumstances in which he was working on 1 November 2018; nor was there any evidence that he was physically present after that date (para 66).

54. Overall, the MPTS found that there was no evidence that the decision to refer the appellants to the MPTS was based on race. It followed that the GMC had not discriminated on grounds of race and the Tribunal proceedings were not an abuse of process (para 70). For these reasons, the application for a stay of proceedings on abuse of process grounds was refused (para 71). Adjournment

55. On 19 July 2023, the Tribunal granted the appellants’ application to adjourn the MPTS proceedings by one day in order to enable the appellants to lodge a claim for judicial review of the abuse of process decision. On the same day, the appellants commenced judicial review proceedings against the MPTS on the grounds that the abuse of process decision was unlawful.

56. On 20 July 2023, the appellants’ application to adjourn the Tribunal proceedings for at least three months pending the determination of this second set of judicial review proceedings was refused. However, the Tribunal then granted an adjournment for the appellants to take independent legal advice as to whether Mr Ojo (who appeared below) could continue properly to represent them when he featured in some of the documents before the Tribunal. The effect was that the MPTS proceedings were adjourned until 30 October 2023. The second set of judicial review proceedings: decision of Mr Paul Bowen KC

57. In the second set of judicial review proceedings, the appellants had the benefit of Leading and Junior Counsel (Jason Coppel KC and Oliver Jackson). The essence of the challenge mounted by Counsel is contained in the introductory section of their grounds for judicial review: “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 dated 18 July 2023 (the “Determination”). This is the decision under challenge in these proceedings…”

58. The grounds for judicial review were expressed in the following terms: “(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 ”).”

59. Pausing there, the grounds were therefore threefold and concerned (i) the burden of proof in a direct discrimination claim; (ii) the reasonableness of the abuse of process decision; and (iii) the position of Dr Strommer who was said to be a suitable comparator for assessing whether the appellants had suffered discriminatory treatment. All three of these grounds are reiterated in the present appeal.

60. In a decision dated 11 October 2023, Mr Paul Bowen KC, sitting as a Deputy Judge, refused permission to apply for judicial review on the papers. In doing so, he considered the merits of the grounds of challenge and refused permission on the basis that the grounds were not arguable.

61. The Deputy Judge’s key conclusion, on which his decision turned, was that the MPTS was unarguably entitled to find that GMC decision-makers did not know the race of Dr Strommer. The Deputy Judge held (referring to the appellants either as “the Cs” or as “the Claimants”): “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.”

62. Dealing with the appellants’ complaint about the burden of proof applied by the MPTS, the Deputy Judge held: “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.”

63. Dealing with the question of whether Dr Strommer was a proper comparator, the Deputy Judge held: “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.”

64. Having found that the grounds for judicial review were not arguable, the Deputy Judge made observations on whether it was in any event appropriate to launch a challenge in the Administrative Court or whether the appellants had an adequate alternative remedy in the MPTS. He said: “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 under s 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.”

65. The Deputy Judge considered of his own motion that another alternative remedy would be a discrimination claim against the GMC under the EA 2010 in the County Court under section 114 of the EA 2010. However, he made no ruling on that issue as the point had not been taken by the GMC and the claim was in any event unarguable.

66. Following the Deputy Judge’s refusal on the papers, the appellants applied on 17 October 2023 to renew their application at an oral hearing. On 27 November 2023, the Administrative Court sent details to the parties about listing the renewal hearing. By letter to the Court dated 13 December 2023, the appellant’s solicitors withdrew the judicial review claim, stating that the renewal application had been overtaken by events. The MPTS proceedings: Part 2

67. Meanwhile, the MPTS proceedings had resumed on 30 October 2023. During this second part of the proceedings, the Tribunal made the following decisions: i. A further application to stay the proceedings as an abuse of process was refused. ii. All bar two of the allegations against the first appellant were proved. The two allegations that were not proved were the allegation that the first appellant had informed the Chief Operating Officer of Federated4Health that it would not be allowed to commence as the new caretaker; and the allegation that the first appellant had given dishonest evidence to the FTT. iii. All bar two of the allegations against the second appellant were proved. The two allegations that were not proved were the allegation that the second appellant had informed the Chief Operating Officer of Federated4Health that it would not be allowed to commence as the new caretaker; and the allegation that the second appellant had been dishonest in his annual appraisal form. iv. The fitness to practise of both appellants was impaired by reason of misconduct. Sanction

68. On 8 March 2024, the MPTS handed down its decisions on sanction. There was a separate decision for each appellant. The first appellant

69. As regards the first appellant, the Tribunal identified a number of aggravating factors, including the fact that she had put her own interests before those of her patients and failed to listen to other governance bodies and doctors when they told her that what she was doing was wrong. She had failed to demonstrate meaningful insight and remediation.

70. The MPTS identified the mitigating factors. There was no evidence of any previous or subsequent fitness to practise concerns. While the Tribunal identified a potential risk of harm to patients, there was no evidence of any actual harm to patients.

71. The MPTS determined that suspension was appropriate and determined that a duration of three months was sufficient to mark the nature and the seriousness of the misconduct. The second appellant

72. As regards the second appellant, the MPTS identified as aggravating factors that he had put his own interests before those of his patients and failed to listen to other governance bodies and doctors when they told him that what he was doing was wrong. He had failed to demonstrate meaningful insight and remediation.

73. The Tribunal identified mitigating factors. There was no evidence of any previous or subsequent fitness to practise concerns and no evidence of actual harm to patients. The Tribunal determined that suspension was appropriate and that a duration of two months was sufficient to mark the nature and the seriousness of the misconduct. Dr Strommer’s position

74. In a “triage decision” dated 17 July 2019, the GMC decided not to investigate Dr Strommer on the basis that he had immediately retired from practise when the CQC suspended the registration. The GMC inferred from the timing of his retirement that he had reflected on the CQC decision and on the level of care he was able to offer.

75. In light of further information about Dr Strommer that the appellant’s solicitors provided at a later stage, the GMC reviewed that decision. In a further decision dated 1 April 2021, the GMC declined to change its decision not to investigate Dr Strommer. The reasons for adhering to the original decision were expressed by an Assistant Registrar as follows: “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 on 1 November 2018. As regards the implication of this date, I note that on 9 May 2018, the CQC confirmed suspension of the Practice’s registration until 23 October 2018. I understand that the suspension was subsequently extended until 31 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 from 1 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 on 1 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 at 1 November 2018; • knew that The Forest Group Practice had ceased to be the caretaker practice on 31 October 2018; • knew that the new caretaker practice had not been able to take over on 1 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.” Grounds 1-5: The effect of the previous judicial review proceedings

76. Mr Dunlop resisted all eight grounds on their merits but his primary submission on Grounds 1-5 was that they have already been considered and resolved in the High Court by the Deputy Judge in the second set of judicial review proceedings. As I have mentioned, the target of the first five grounds of appeal is the Tribunal’s ruling on abuse of process dated 18 July 2023. Mr Dunlop submitted in writing and orally that Grounds 1-5 should not be entertained or given substantive consideration because principles of res judicata, cause of action estoppel or abuse of process applied. I shall therefore consider questions of res judicata at this juncture. Res judicata: legal framework

77. It is now well-established that res judicata is a “portmanteau” term used to describe a number of different principles, including issue estoppel and cause of action estoppel ( Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 , [2014] AC 160 , para 17, per Lord Sumption with whom the other members of the court agreed). As set out in Mr Dunlop’s skeleton argument, the Virgin Atlantic case provides an analysis of the principles of res judicata as follows: i. Cause of action estoppel means that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings ( Virgin Atlantic , para 17). Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of the cause of action ( Virgin Atlantic , para 22). ii. Issue estoppel means that, where the cause of action is different to an earlier cause of action but has a common issue, the way that the issue was decided on the earlier occasion is generally binding on the parties ( Virgin Atlantic , para 17). There are exceptions to issue estoppel in special circumstances where it would cause injustice ( Virgin Atlantic , para 22). For example, new material may become available to one party, being material which it could not with reasonable diligence have adduced in the earlier proceedings ( Virgin Atlantic , para 21). iii. In addition, the principle in Henderson v Henderson (1843) 3 Hare 100 is directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before ( Virgin Atlantic , para 24). The principle is juridically different in that it is a “concept which informs the exercise of the court’s procedural powers” ( Virgin Atlantic , para 25) but it serves the same purpose as cause of action estoppel and issue estoppel, namely the giving of finality to litigation. It precludes a party from raising in subsequent proceedings matters which it did not raise in earlier proceedings, but could and should have raised ( Virgin Atlantic , para 24). This principle can apply even where the parties are different (making it different to issue estoppel and cause of action estoppel ( Virgin Atlantic , para 25).

78. I received no written submissions from Mr Ojo on the subject of res judicata. At the outset of his oral submissions, he handed up a copy of R v Secretary of State for the Home Department, Ex parte Momin Ali [1984] 1 WLR 663 . In that case, Sir John Donaldson MR expressed the view (at 669H-670B) that the principles of issue estoppel do not apply within public law: “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 ” (emphasis added).

79. Mr Dunlop had not been given proper notice of Momin Ali but drew my attention to a passage of the judgment, at p.670B-D, in which Sir John Donaldson cited earlier authority, as follows: “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 …’” (emphasis added).

80. Mr Dunlop also undertook a rapid electronic search for recent cases in which Ex parte Momin Ali had been considered. This led him to R (Tomlinson) v Secretary of State for the Home Department [2025] EWCA Civ 253 . In that case, the Court of Appeal considered (among other things) the application of principles of res judicata in the public law context. Giving the lead judgment, Falk LJ (with whom Andrews LJ and Bean LJ agreed) quoted (at para 57) the passage from Ex parte Momin Ali that I have quoted at paragraph 78 above and upon which Mr Ojo relied.

81. However, Falk LJ referred to a number of other authorities that render the legal position more nuanced than Mr Ojo suggested. In particular, she cited (at para 41) the passage in the speech of Lord Bridge of Harwich in Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 in which he stated that the principles underlying the doctrine of res judicata were not confined to litigation in the private law field but had their place in the criminal law and, in principle, in the field of public law. Falk LJ went on to hold (at para 66) that “Lord Bridge’s statement of principle in Thrasyvoulou is of general application.” The appellants’ submissions

82. Mr Ojo submitted that I should not treat Grounds 1-5 as res judicata or as an abuse of process because the Administrative Court had given no substantive consideration to the issues before it. By reference to a small clip of documents handed up at the hearing, Mr Ojo told me that the appellants had withdrawn the judicial review application because of delay by the Administrative Court in listing the renewal hearing. The Court had received the notice of renewal on 17 October 2023. He himself had sent the notice to the GMC on 24 October 2023. The Administrative Court Office processed the notice on 1 November 2023. The MPTS had determined the facts of the case on 7 November 2023 and the Court Office had sent out directions for the renewal hearing on 27 November 2023.

83. Mr Ojo asserted that, by the time that the Court sent out its directions, the renewal application had been rendered academic – and would have been regarded as academic by any judge hearing the renewed application – because proceedings in the MPTS had by then recommenced after the period of the adjournment. He submitted that any hearing of the renewal application would have taken further time during which the MPTS proceedings would have been too far advanced to enable any meaningful claim for judicial review to be made. The appellants had in effect been forced to withdraw their claim at an early stage before any final or substantive consideration of the issues that it raised.

84. Mr Ojo submitted that a refusal of permission to apply for judicial review on the papers had not provided the Administrative Court with an opportunity to hear the arguments in a fully ventilated form. The underlying purpose of the principles of res judicata was to achieve finality in litigation. The point of finality had not been reached in the second set of judicial review proceedings as the procedure in the Administrative Court had become static before the completion of the full procedure for judicial review had been allowed to take its course.

85. Mr Ojo submitted that even if principles of res judicata applied, the wider interests of justice (as mentioned by Sir John Donaldson in Momin Ali at paragraph 78 above) required that Grounds 1-5 be determined. The appellants were entitled to exercise their statutory appeal rights after a false start in the judicial review proceedings. Statutory appeal rights were a suitable forum for the ventilation of the issues. The respondent’s submissions

86. Mr Dunlop replied to Mr Ojo’s oral submissions by observing that the authorities did not suggest that res judicata applied only if a party had pursued previous litigation beyond an early stage. There was no reason why an adverse outcome early in proceedings should be treated any differently to an adverse outcome later in litigation; otherwise res judicata might not apply until every possible step (such as an appeal to the Supreme Court) had been attempted.

87. Mr Dunlop submitted that, having raised a cause of action or issue in one set of proceedings, the same cause or issue could not as a matter of principle be raised again. He submitted that, in any event, the wider public interest in preventing the abuse of the processes of the court meant that the court should not allow the same issue to be litigated twice.

88. Mr Dunlop submitted that I should not consider Grounds 1-5 at all. He contended that, by doing so, I would be encouraging duplicate litigation with a concomitant burden on the court. Discussion

89. The contention that the Administrative Court listing procedures thwarted an otherwise meritorious claim for judicial review loses force in the absence of any evidence to suggest that the appellants’ solicitors asked the court to expedite the claim. The appellants knew on 20 July 2023 that the MPTS would resume proceedings on 30 October 2023. They could at the time of lodging the judicial review claim form – or at any time thereafter – have applied for urgent consideration of the claim on the grounds that there were proceedings pending in the MPTS. I regard the complaint about Administrative Court delay as legally irrelevant to the question whether the principles of res judicata apply and (in the alternative) as carrying little weight in answering the question whether the wider interests of justice require me to depart from enforcing those principles.

90. As Mr Dunlop emphasised, the Deputy Judge considered the merits of the grounds for judicial review and rejected them as unarguable. There is force in Mr Dunlop’s submission that it is an abuse of process to seek to resurrect in this appeal those matters found unarguable in judicial review proceedings. Irrespective of the law at the time of Momin Ali , the developments highlighted in Tomlinson suggest that there may no longer be any principled reason for treating an earlier judicial review claim as incapable of generating an issue estoppel. The same may be said about the application of Henderson v Henderson : it is difficult to see why parties to judicial review proceedings should be immune from findings of abuse of process if the same arguments are made again in later proceedings.

91. However, I did not hear full argument on the effect of Tomlinson and was not asked by either party for an adjournment or further time in order to address it fully. Nor did I hear full argument on whether the exercise of a statutory appeal right from a regulatory tribunal (as in the present case) should be curtailed by principles of res judicata or abuse of process because an appellant has in the past extricated himself or herself from judicial review proceedings at the permission stage. I am reluctant to reach firm conclusions on a matter of law that has not been fully argued. I decline, therefore, to make a determination in relation to res judicata. It follows that I must consider Grounds 1-5 substantively.

92. Against that background, I turn to consider Grounds 1-5 on their merits. Grounds 1-5 : The abuse of process decision Grounds 1 and 3

93. Departing from the structure and, at times, the substance of his skeleton argument, Mr Ojo argued Grounds 1 and 3 together. Under Ground 1, he submitted that the abuse of process decision was flawed in so far as the MPTS failed properly to investigate the appellants’ allegation of less favourable treatment on grounds of race. The failure to investigate this central part of the appellants’ case undermined “the fairness and integrity of the Tribunal and the determinations on the facts.”

94. Under Ground 3, Mr Ojo submitted that the MPTS was wrong to find that the GMC officers handling the case were not aware of Dr Strommer’s Northern European ethnic background, as compared to the appellants’ BAME backgrounds. He submitted that the MPTS was in no position to make findings as to the knowledge of the GMC’s decision-makers when no evidence of their knowledge had been adduced by the GMC.

95. In support of Grounds 1 and 3, Mr Ojo submitted that the essential plank of the appellants’ application for the proceedings to be stayed as an abuse of process was that the appellants had been the victims of race discrimination. Given the centrality of the arguments on discrimination, the MPTS had failed to give adequate reasons for the abuse of process decision.

96. Mr Ojo referred to the judgment of HHJ Stephen Davies in which the judge had commented that any concerns about discrimination on grounds of race had to be investigated further. He submitted that, from the date of that judgment, it ought to have been obvious to the GMC that the question of race discrimination should be investigated properly. He submitted that, in any proceedings before the MPTS, there would need to be a thorough investigation of a complaint of race discrimination with witnesses and cross-examination.

97. Mr Ojo emphasised that the MPTS knew that Dr Strommer had not been investigated. The GMC Case Examiner who had determined that he should not be investigated did not make adequate inquiries. In light of the very serious allegation of race discrimination, the Case Examiner ought to have ascertained Dr Strommer’s race. In any event, it should have been obvious from Dr Strommer’s name that he was not the same race as the appellants.

98. Mr Ojo criticised the MPTS for finding that the Case Examiner did not know Dr Strommer’s race without any evidence to support that finding. He submitted that the MPTS ought to have heard evidence from the Case Examiner as to what he did, or did not, know of Dr Strommer’s race. He complained that the Case Examiner had not been presented for cross-examination. Mr Ojo criticised the MPTS for taking the written decision of the Case Examiner at face value which he submitted was unfair.

99. I do not agree that the abuse of process decision is flawed on these grounds.

100. The MPTS heard submissions on abuse of process over the course of more than one day. During that time, the appellants had ample opportunity to request that the submissions should be adjourned in order for the MPTS to make some further investigation, whether about the state of knowledge of GMC decision-makers or Dr Strommer’s race or ethnicity, which remains unevidenced. I have been provided with no authority and no reason of principle to suggest that, absent any request by the appellants, the MPTS should have initiated an inquiry of its own. In the absence of any request by the appellants, the MPTS cannot be criticised for proceeding to hear and determine the arguments on the evidence before it.

101. The observations of HHJ Stephen Davies make no difference. Mr Ojo alighted on a turn of phrase in the judge’s judgment – that the question of discrimination had to “be investigated further” by the MPTS. However, Mr Ojo gave those words a meaning that, in context, they cannot bear. HHJ Stephen Davies did not say that the MPTS was under a legal duty to investigate matters that were not properly evidenced. He meant that questions of race discrimination were a matter for the MPTS to consider at the final hearing and not for him to determine at that stage.

102. As to the conduct of the GMC, I have been directed to no evidence that the Case Examiner was aware of Dr Strommer’s race. Counsel for the GMC informed the MPTS that the Case Examiner did not know Dr Strommer’s race. There is no evidence to suggest that the Case Examiner or anyone else at the GMC knew his race. Even at this appellate stage, I have been directed to no evidence on the point.

103. Counsel who represented the GMC in the MPTS proceedings did not adduce evidence from the Case Examiner but stated on instructions that Dr Strommer’s race was not known. The MPTS accepted what Counsel said but also relied on the fact that the appellants had not made any challenge to what Counsel for the GMC had stated. It was open to the appellant to make such a challenge. In the absence of any challenge, the MPTS was in my judgment entitled to treat a statement by Counsel as correct.

104. The MPTS considered the question of race discrimination in detail and came to a reasoned conclusion in its written decision. The contention that the MPTS gave inadequate reasons cannot be sustained.

105. In short, the Tribunal’s conclusion that the Case Examiner did not know Dr Strommer’s race is not open to criticism in this court. As the GMC were unaware of Dr Strommer’s race, the MPTS was entitled to conclude that the GMC did not discriminate against the appellants by refraining from investigating Dr Strommer. I would agree with the reasoning of Mr Bowen KC in this regard.

106. Grounds 1 and 3 have no merit. They are dismissed. Grounds 2, 4 and 5

107. Mr Ojo argued Grounds 2, 4 and 5 together. He submitted that the abuse of process decision was flawed because the MPTS applied the wrong legal test in relation to the burden of proof applicable to a claim of direct discrimination. He emphasised that, by virtue of section 136 of the EA 2010 (quoted above), the MPTS was required to consider whether the appellants had put forward a prima facie case of discrimination and then whether the GMC could demonstrate that its proceedings against the appellants did not amount to direct discrimination. He contended that, instead of applying this two-stage approach, the MPTS determined only that it “could not conclude on the balance of probabilities that there was discrimination.” By applying a one-stage test, the MPTS made a material error of law by shifting the entire burden of proof to the appellants.

108. Under Ground 4, Mr Ojo submitted that, in reaching the abuse of process decision, the MPTS erred in its finding that a Northern European doctor (such as Dr Strommer was said to be) was not a proper comparator. Mr Ojo contended that part of the basis for this finding was that, unlike the appellants, Dr Strommer had not instructed legal representatives. This could not constitute a legitimate reason to justify the GMC bringing fitness to practice proceedings.

109. Under Ground 5, Mr Ojo submitted that the MPTS further erred in so far as it found that the lack of evidence of (i) Dr Strommer’s knowledge of the suspension of the CQC’s registration and (ii) that he had been present on the premises after 1 November 2018 was not material to the question of whether an investigation should have been opened by the GMC. The absence of this evidence could not be used to justify not opening an investigation.

110. It was not in dispute that, by virtue of section 136 of the EA 2010 , the appellants were required to prove, on the balance of probabilities, acts from which the MPTS could conclude in the absence of an adequate explanation that an unlawful act of discrimination had taken place. If the appellants could not discharge that burden, the claim of discrimination was bound to fail (stage 1). Otherwise, the burden moved to the GMC to explain the alleged discriminatory treatment and satisfy the MPTS that race played no part (stage 2).

111. I accept that the MPTS could have set out the two stages more clearly. However, on a full and fair reading of the Tribunal’s decision, it did consider and make findings on whether it had been established that the GMC were aware of Dr Strommer’s race (in context, stage 1) and also whether the GMC had established clear and cogent reasons for treating him differently (in context, stage 2). I am therefore not persuaded that the Tribunal made a material error in this regard.

112. In the absence of evidence that the GMC knew Dr Strommer’s race, the appellants were unable to prove acts from which the Tribunal could conclude that an unlawful act of discrimination had occurred. The appellants could not, therefore, discharge their burden under stage 1. The discrimination claim was accordingly bound to fail.

113. In any event, the Tribunal was entitled (and correct) to conclude that Dr Strommer was not a proper comparator for the purposes of section 23(1) of the EA 2010 . As I have indicated above, I proceed on the basis that he worked at the Medical Centre on 1 November 2018. There is, however, no reason to suppose that he did the same things as the appellants, either on that day or after that day. In particular: i. There is no evidence that Dr Strommer knew that one caretaker had to take over from another caretaker after the arrangements with the Forest Road Group Practice ended. Nor is there evidence that he knew that the changeover was due to take place on 1 November 2018. ii. The appellants were warned by Mr Smart on 1 November 2018 that it was a criminal offence to work without a caretaker in place. Ignoring his advice, they continued to work. There is no evidence that Dr Strommer was warned or that he defied any warning. iii. There is no evidence that Dr Strommer obstructed Federated4Health from commencing its caretaker role on 1 November 2018 or on any day thereafter. iv. Dr Strommer took no part in the FTT proceedings. He played no part in the presentation of untrue evidence to a tribunal. The FTT made no adverse findings about his conduct at any material time.

114. Mr Ojo pointed to the Tribunal’s finding, at paragraph 63 of the abuse of process decision, that Dr Strommer appeared to be in a different position to the appellants since he was not seeking to challenge through legal representatives the CQC decision or the appointment of Federated4Health as the new caretaking practice. He submitted that seeking legal advice and utilising the legal system were rights that the appellants were entitled to exercise and could not be treated as a relevant difference between the appellants and Dr Strommer.

115. I accept that this part of the Tribunal’s phrasing was infelicitous and, taken on its own, can give the impression that the appellants were to be blamed for seeking legal advice. It must however be read in context. In the next paragraph, the Tribunal quoted from an email sent by Mr Ojo to NHSE’s solicitors on 31 October 2018 as follows: “We reiterated our earlier position and confirmed to Mr Tyrell that from 01 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 on 01 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” (emphasis added).

116. As Mr Dunlop submitted, the underlying point made by the Tribunal in these and subsequent paragraphs was that the appellants had used lawyers to threaten to provide their own services from the Medical Centre rather than accept Federated4Health as a caretaker. This intransigence was a clear sign that they knew that there was to be a new caretaker and wanted to block it. The Tribunal was entitled to conclude that there was no evidence to suggest that Dr Strommer had similar knowledge or that he wanted to block a new caretaker.

117. In these circumstances, the MPTS was entitled to conclude both that Dr Strommer was not an appropriate comparator and that there was no reason to bring proceedings against Dr Strommer. The arguments relating to the EA 2010 fail. Grounds 2, 4 and 5 are dismissed. Ground 6

118. Under Ground 6, Mr Ojo submitted that the Tribunal had made a number of factual findings that were inconsistent with other parts of its factual findings or conclusions, or that were unreasonable. These factual errors meant that the Tribunal’s determination of the facts was inadequately reasoned.

119. In this aspect of his submissions, Mr Ojo relied on his skeleton argument and so I shall deal with the findings that the appellants seek to impugn in the order in which his skeleton argument takes them.

120. First. Mr Ojo referred to the Tribunal’s conclusion that each of the appellants had on one or more occasions organised or delivered patient services in place of Federated4Health. Mr Ojo submitted that there was no evidence to support such a conclusion which was inconsistent with the lawful work that the appellants had undertaken as locums for the Forest Road Group Practice. Any work undertaken by the appellants on 1 November 2018 was work carried out in accordance with the pre-organised rota for that day, which had been drawn up and given to the appellants not by Federated4Health but by the Forest Road Group Practice.

121. This submission lacks merit. On any fair reading of the Tribunal’s determination of the facts, it was entitled to find that each of the appellants obstructed Federated4Health from taking over patient services on 1 November 2018 and thereafter. The Tribunal was entitled to conclude that (i) both appellants had on 31 October 2018 been notified by Dr Stork that there would be a new caretaker, so that they were aware of what was to happen; (ii) they proceeded in the subsequent days to behave as if the Practice was entitled to offer services; and (iii) they did carry out services themselves. Not least, that is what Mr Ojo said they intended to do in his email of 31 October 2018 when he said (as I have set out above) that “our clients will be providing services from the practice pursuant to their obligations under the GMS Contract.” The Tribunal’s conclusion that they organised or delivered patient services cannot be impugned.

122. Secondly, Mr Ojo challenged the Tribunal’s finding that, during the course of 1 November 2018, the appellants refused to speak to Ms Piper (known as Ms B in the list of charges) when invited to do so which (it was submitted) contradicted the later conclusion that this proved fact did not in itself amount to misconduct. In my judgment, there is no contradiction. The Tribunal concluded that the refusal to speak to Ms Piper “did not amount to misconduct in and of itself.” It was entitled to reach that conclusion, which benefitted the appellants and which is separate from the factual findings that underlie it.

123. Thirdly, Mr Ojo submitted that the Tribunal had failed to refer to a particular piece of evidence in determining the facts: that on 30 October 2018, Ms Piper invited Dr Jowett and Dr Stork not to inform the appellants of the identity of the new caretaker. Mr Ojo submitted that, if the MPTS had properly considered the effect of this evidence, it would have concluded that the appellants were obviously not part of the arrangements for installing a new caretaker and could not possibly be regarded as delivering patient services.

124. This line of argument gets the appellants nowhere. It is plain that the appellants had instructed solicitors prior to 1 November 2018 in relation to the arrangements for a new caretaker – so that it cannot be plausibly maintained that they did not know that there would be a change. The first appellant had said in her witness statement for the FTT proceedings that she knew that the role of the Forest Road Group Practice was coming to an end and that the intention was that Federated4Health would take over as caretaker. It cannot possibly be said that a conversation that Ms Piper held with Dr Jowett and Dr Stork makes any difference to any of the Tribunal’s factual findings – whether in relation to the appellants’ state of knowledge as at 1 November 2018 or in relation to their permissible or actual role on or after that date. Nor was the Tribunal’s determination of the facts inadequately reasoned for this or any other reason.

125. Ground 6 cannot succeed. Appeal against sanction: Grounds 7 and 8

126. The final two grounds constitute an appeal against the sanction imposed by the MPTS, which was (as I have said) suspension from the medical register. Under Ground 7, Mr Ojo submitted that the MPTS order on sanction was arbitrary and irrational. The Tribunal ordered that the second appellant be suspended for two months and the first appellant for three months. Mr Ojo submitted that there was no logical basis for the disparity in sanction and no adequate or proper reasoning for these determinations.

127. Under Ground 8, Mr Ojo contended that the MPTS erred by making a punitive order. The Tribunal determined that conditions of practice were not workable but gave inadequate reasoning for this decision, particularly in circumstances where the IOT had revoked the suspension and replaced it with an order of conditions which had been sufficient to prevent any further complaints.

128. I am able to deal with these two grounds together. The Tribunal’s decisions in each case expressly state that the sanction for each appellant was separately considered. That was the proper approach to take: it would have been wrong for the Tribunal to treat two different cases as calling for the same sanction. As Mr Dunlop submitted, the sanctions were different because different allegations were proved against each appellant. The Tribunal was entitled to conclude that the first’s appellant’s misconduct was overall more serious than the misconduct of the second appellant and to reflect that distinction in its sanctions. I have been provided with no real argument on disparity that could lead me to interfere with the Tribunal’s decision in either case.

129. In determining whether it was appropriate to suspend the appellants, the Tribunal had regard to the relevant GMC guidance which stated: “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)…”

130. There can be no realistic room for doubt that the misconduct of both of these doctors was “so serious that action must be taken to protect members of the public and maintain public confidence in the profession.” I can express the seriousness of what they did no better than the specialist FTT which considered (at para 40 of its judgment) the need for an urgent cancellation order: “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 the Health 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).

131. In such circumstances, suspension rather than erasure may be considered generous. There are certainly no grounds for this court to interfere. Grounds 7 and 8 fail. Conclusion

132. For these reasons, the appeal is dismissed.