Acting to stop harm: the FCA and Appointed Representatives
TZ v General Medical Council  EWHC 1001
The appellant doctor (TZ) was working as a Locum Senior House Officer in the Emergency Department of a hospital in London on 6 February 2010. A female patient (A), who was a young woman, attended the hospital complaining of abdominal pain. She was seen by TZ who examined her. It was alleged that TZ had performed a vaginal examination which was not clinically indicated and using his ungloved hand. It was further alleged that his behaviour was inappropriate in that he asked A for her telephone number, asked her irrelevant personal questions, tried to make arrangements to meet her socially (and at his private clinic in Putney) and made comments of a sexual nature. TZ’s case was that he had examined A in the usual way. Whilst he had examined her on his own and without a chaperone, he had not performed a vaginal examination. He said that he had taken her telephone number only because it was not in the medical notes. It is relevant to note that at the time of this examination and consultation, a Health Care Assistant (HCA) was working in the relevant department. Her evidence was potentially material.
TZ faced a criminal trial on the above conduct in December 2011 and was acquitted. At that trial the defence had called the HCA as a witness.
The GMC hearing
The Panel heard from A, who gave a full account of what she said had taken place. They also heard from TZ as to his version of events. The Panel also had the benefit of an agreed document which summarised the timing of relevant events shown on the CCTV recording of the area of the examination room, which showed the comings and goings in that area.
The Panel, in its written findings of fact, found that A’s recall of various contextual matters was not accurate, for example she had wrongly recalled the colour of the surgical gloves and clothes worn by TZ and whether or not he left her room to call the HCA. However they found that these were ‘incidental features’ and that her inability to recall these details did not undermine her credibility when it came to the substantive account of the consultation. The Panel duly found that TZ had carried out a vaginal examination on A which was not clinically indicated, during a consultation in which TZ’s demeanour made A very uncomfortable by complimenting her body and making inappropriate comments about her sexual relationship with her boyfriend. The taking of the telephone number and attempts to meet A socially were highly suggestive, they said, of sexual motivation.
The ‘embargoed draft’
On day 10 of the hearing (25 April 2014), after the evidence had finished and final submissions had been made on behalf of the parties the Chair of the Panel explained that the Panel were having difficulty drafting a fully reasoned decision in the time they had available and that they proposed to sit the following Monday 28 April 2014 in-camera to deliberate. The parties would not be required. Counsel for TZ asked whether the panel would consider providing their decision, without detailed reasons, at this stage. The panel declined to do so. However, on 28 April 2014 an ‘embargoed draft’ was sent to the parties. It contained the decision outlined above.
On 1 May 2014 TZ wrote to the Assistant Registrar of the MPTS stating that two witnesses who were highly relevant to his case had not been called by the GMC; namely the HCA who was present around the examination and the complainant’s boyfriend (who had been called by the Crown at the criminal trial). He provided the transcript of these individuals’ evidence in the Crown Court. He submitted that this evidence was so important that without them justice could not be done, and suggested that the two witness should be summonsed by the GMC to give evidence under oath.
On 24 June 2014 the hearing resumed, in order that the decision be handed down and the proceedings continue. TZ was now unrepresented and not present at the hearing, however the Panel were shown his correspondence with the MPTS. Counsel for the GMC submitted that the Panel did not have jurisdiction to go back and remake their decision; the remedy now would be an appeal. There was then a further hearing on 26 June 2014 at which the Chair confirmed their determination on facts (save for 2 typographical errors) stating that the Panel did not have the power to re-open its determination and that even if it did, it would not want to do so. The decision on facts stood.
On 26 August 2014 the Panel reconvened. TZ was present but unrepresented. He reiterated his submissions that the two transcripts of evidence should be referred to but the Chair made his position clear, that the stage dealing with misconduct could not and would not be re-opened. The legal assessor’s firm advice was that there was no jurisdictional power to reopen the facts, the Panel having announced its decision. The panel continued to consider impairment and sanction, ultimately erasing TZ’s name from the register.
TZ appealed on a number of grounds, the important one for present purposes was that the Court should have admitted the evidence of the HCA and/or of the patient’s boyfriend, in the absence of which the Panel’s findings were wrong.
It was common ground between the parties that the Panel had to follow the procedure in Rule 17; i.e. the following stages are to be carried out sequentially
Counsel for TZ argued that ‘announce’ in Rule 17 means just what it says. The announcement did not, in his submission, occur until the decision on facts had been handed down on 26 June 2014. It follows that the Panel was bound to consider whether to receive the further evidence. Counsel for the GMC argued that ‘announce’ means that the parties are notified, such that sending out the draft on 28 April amounted to an announcement.
Whether panel had jurisdiction to consider hearing further evidence
The Court pointed out that the definition of ‘announce’ in the Oxford Dictionary is ‘make a formal public statement about a fact, occurrence of intention’. The Court held that this ‘suggests strongly that the approach of the GMC requires a distortion of the natural meaning of the word’. The Court reasoned that it would be illogical if a Tribunal which is required to conduct its proceedings in public is then able to issue factual determinations otherwise than in public. It was held that a finding under Rule 17(2) is ‘announced’ so that all interested in the outcome of the hearing (including but not limited to the doctor concerned) know what has been concluded and why . It follows that the Panel was not, despite the submissions made to it, deprived of the ability to consider the evidence submitted by TZ, and it was not prevented from exercising its discretion to receive and consider the evidence . Whilst it is right to say that after the factual decision was announced the Rules did not permit the admission of evidence, a line must be drawn somewhere. It was said that ‘that line is the announcement in Rule 17(2)(i) which had not been reached in this case’.
It was stated that:
“in my view it is very difficult to accept the concept that a fact finding tribunal, whose decision on facts can affect the ability of a professional man or women to practise, and which sends out an embargoed draft, is unable to receive anything other than proposed corrections to its draft, which go to insignificant matters such as typographical correction, a mistaken reference or an infelicity of syntac’ .
Dealing with the GMC submission that an appeal was more appropriate, it was held that;
“such an appeal can only be made after the sanction has been determined and a judicial review application, if it could be entertained, would cause significant delay to all parties. I regard such an exclusionary rule, were it to exist, as inherently unjust. If there is evidence, which is accepted would tend to show that the draft conclusions reached by the Panel were wrong, it is artificial, and wasteful of resources, to insist that in all cases its admissions can only be dealt with if there is an appeal or an application for judicial review’ .
The Court did acknowledge that there are countervailing considerations; it would plainly be undesirable to have a general rule that a panel can hear all the evidence, then still be required to hear more some weeks after sending out its draft findings. That too could produce a waste of resources and lead to the unnecessary reopening of panel hearings and potentially lead to the recall of witnesses who have already had to go through giving evidence. However it was held that “there are no considerations which are of such force that the discretion should not be held to exist in a case before the Panel”.
Whether the panel should have admitted the evidence, if they had appreciated they had jurisdiction
The Court went on to consider at length the case law on the test for allowing new evidence, the traditional test at the appellate stage being that found in Ladd v Marshall  1 WLR 1489:
However, this appellate test was softened by Muscat v Health Professions Council  EWCA Civ 1090, which the present Court considered at great length. The Court found that Muscat was important in its recognition of the factor that it is not in the public interest that a qualified health professional, capable of giving good service to patients, should be struck off his professional register, and that this is a factor which, in an appropriate case, can justify departure from the Ladd and Marshall straightjacket.
However, the above related to appellate cases and this is the appellate test. The Court held that the issue for the GMC Panel on the exercise of its discretion would have been:
a) the need to recall witness;
b) The length of the hearing; and
The Court made clear that:
“it is not to be thought that the existence of the discretion means that it is always or even often to be exercised. The panel like judges in criminal or civil trials, will be astute to avoid the unnecessary prolongation of hearings by those who are simply dissatisfied by the draft factual decisions which have been made. Applications must, and I am sure will, receive anxious scrutiny”. 
Having dealt with the questions posed above, the Court held that there was potential for conflict between the Panel’s findings and the evidence of the HCA witness such that there would have been a real risk of injustice if the Panel refused to permit the calling of evidence. The evidence should have been permitted.
The Court made it clear that under normal circumstances this would not have been the decision where a witness has not been called by a party who is represented by solicitors and counsel, however there were four matters that persuaded the Court to do so on this occasion:
A very detailed and intricate judgement, which deals with various important issues. First, it is authority for the fact that as and until a decision is publically announced (with that word bearing its ordinary meaning) a panel may re-visit its decision and the evidence. However, the Court provides a number of markers to demonstrate that this should not open the floodgates and then lays down a detailed test (outlined above) to be followed. Any such application should involve ‘anxious scrutiny’ to avoid prolonged and expensive litigation.
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