Acting to stop harm: the FCA and Appointed Representatives
Doctor appeals against being struck off on the basis of negligent advice from Counsel at GMC hearing.
Judgement date: 10 September 2014
The appellant doctor (B) appealed against the sanction of erasure made by a Fitness to Practise Panel of the Medical Practitioners Tribunal Service (the Panel) on 21 November 2013.
In 2011, B was employed at Leicester Royal Infirmary as an ST4 trainee in Acute Medicine. On 7 June 2011, B was informed by the Head of School for the East Midlands (South) Postgraduate School of Medicine that his e-portfolio evidencing his experience and training was inadequate. He was told that it would be reviewed on 27 June 2011 and that if it remained inadequate he would be asked to attend an Annual Review of Competency Progression (ARPC) panel on 1 July 2011. Essentially, B then falsified 18 clinical assessment entries on his e-portfolio on four separate occasions giving the impression that the named assessors (mostly supervising consultants) had been involved in the completion of those entries when they had not. When he was asked about the entries at the ARCP on 1 July he falsely informed its members that he had taken a week off work to visit the consultants at his previous hospital and sat down with the assessors in question to obtain their input. B left the ARCP with this false impression; however he then went to his previous hospital to try and meet with the relevant consultants whose assessments he had forged to apologise to them. It was one of those consultants who referred the matter to the General Medical Council.
In the present appeal B was allowed to adduce new evidence, in the form of a statement. In that statement he claims that when he realised he was going to face a Fitness to Practise hearing he engaged a local solicitor and local barrister, neither of whom had experience of fitness to practise hearings. He states that he had always accepted that he had been dishonest, both in completing the e-portfolio entries and in lying to the ARCP, and that he had told his barrister before the hearing that he intended to accept all the charges against him. B claims that on the morning of the hearing the barrister advised him that if he accepted that he had been dishonest then his fitness to practise would automatically be impaired and that he would not be able to explain to the panel what had happened.
He was therefore advised to deny the third charge, namely that the conduct had been dishonest. The hearing continued on a contested basis and, after hearing B give evidence and be cross examined, the Panel decided that his conduct had been dishonest and that his fitness to practise was impaired. It was at this point, B says, that he questioned the tactical advice given by his barrister. Although the barrister continued to represent him, arguing that a short suspension would suffice, the Panel decided to erase him from the Register. After the hearing, the barrister recommended an appeal but felt that he may have a conflict of interest and could not personally conduct it.
It was argued on behalf of B that the sanction of erasure was not proportionate or necessary, that there was inadequate reasoning and that the incorrect advice given by defence counsel adversely affected the overall fairness of the hearing. B contends that the panel’s impression of him was detrimentally affected by the way he had denied the most serious charge relating to dishonesty; the barrister had prejudiced his best point, namely that he was remorseful and showed insight.
The respondent GMC did not necessarily accept that B was given negligent advice but, even if he was, submitted that a party is not obliged to accept advice which is contrary to its own case. In addition, it was argued that, B was not prevented from giving whatever evidence he wished to at the hearing. Further, it was pointed out that by the end of the hearing (at the sanctions stage) B had given the evidence he had wished to give and explained that his earlier decision to contest dishonest was on advice. The decision of the Panel was careful and one that was patently open to them in the circumstances.
Decision The Court outlined the relevant case law on appeals of this sort, namely that the appeal will only be allowed if the decision of the lower court was wrong, or unjust because of a serious procedural or other irregularity.
It was said that there was very little authority on how to approach an appeal brought on the basis of incompetence representation, however the Court looked to the words of Moses J (as he then was) in Aston v Nursing and Midwifery Council  EWHC 2368. In that case it was agreed as between the parties that the court should not allow the appeal unless the incompetence was of such a degree as to be described as Wednesbury unreasonable. It was conceded that this was a difficult test to apply to the competence of an advocate but that the question is whether the conduct of the advocate was such that he or she took decisions and acted in a way in which no reasonable advocate might reasonably have been expected to act. But that is not enough. It must further be shown that the inadequate conduct did affect the fairness of the process. The Court in the present cases adopted that approach; firstly was the advice sufficiently unreasonable and if so, did it adversely affect the fairness of the hearing.
It was pointed out that in this case, unlike is usual in criminal cases of the same sort, there was no evidence from the barrister himself as to the advice he actually gave. Nonetheless, the Court proceeded on the basis that this advice had been given. It was held that if B was advised to dispute the third charge, as this would be the only way for evidence of his conduct to go before the court, this would clearly be negligent advice and Wednesbury unreasonable. But did it make the hearing unjust? The Court held that it had not, when the reasoning was considered and in all the circumstances of the case.
It was noted that any misunderstanding that might have been created by the evidence given by B at the first stage of the hearing was put right by the evidence B gave at sanction stage. When B gave evidence at sanction stage he told the Panel that he had suffered sleepless nights as he had not really said that which he had wanted to say. He said he should not have waited until cross examination before he admitted dishonesty and that he had only done so due to legal advice. The panel clearly did record and accept that evidence as they expressly mention it in their reasoning and make it clear that B’s insight had developed to a ‘slightly greater extent than previously thought but not so fundamentally that it alters the very serious concerns which lie at the heart of these matters’.
The Court noted that that;
‘this seems...to be conclusive evidence that the panel were prepared to accept and take into account the explanation put forward by the appellant about his unwise decision to contest dishonesty and to determine the issue of the appropriate sanction the basis of the totality of his evidence, not just the evidence given on the first few days. The panel dealt with the difficulty in the fairest way that they could, by admitting and accepting the evidence at the third stage of the hearing and then recording in their decision that they had taken it into account’. 
It was further held that the decision was adequately reasoned and expressed, and that the Panel had gone to great lengths to investigate the case thoroughly. It was clear that, given B’s exemplary clinical record, the decision was a finely balanced one, but, ultimately, it was held that the decision to erase B from the Register was one which the panel was entitled to reach on the evidence before them, even if another panel might possibly have reached a different view. Despite the Court expressing some personal sympathy for B, the appeal was dismissed.
The Court here considered what test to apply when deficient legal advice and/or representation is cited on appeal. The Court must firstly consider whether the conduct of the advocate was such that he or she took decisions and acted in a way in which no reasonable advocate might reasonably have been expected to act. That is not the end of the matter. If they do so find, the Court must go on to consider whether that inadequate conduct affected the fairness of the process.
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