Case Update: Determination of Fitness to Practise Panel to proceed in practitioner’s absence quashed on appeal

22 January 2015

Dr Olufemi Adeyinka Adeogba v General Medical Council [2014] EWHC 3872 (Admin).
Decision date: 7th May 2014

The Appellant (A) faced fitness to practise proceedings before the General Medical Council. He had engaged with an Interim Order determination in February 2012 but thereafter had not responded to correspondence dealing with case management issues in the run-up to the final hearing. 28 days’ notice of the final hearing was given in accordance with the Rules via post to A’s registered address in Germany (which was returned as undeliverable) and via email. He did not respond and did not attend the final hearing. An application was made to proceed in his absence, which was granted. The hearing continued and the Panel went on to order his erasure from the medical register. A then contended, on receiving notice of this decision, that he had not in fact been aware of the hearing.

On appeal, A sought to rely on fresh evidence which demonstrated that he was in fact unaware of the hearing. It demonstrated that he had returned to Nigeria and had not informed the GMC of this fact. It was stated on appeal by his counsel that he had adopted an “ostrich-like” attitude to proceedings and failed to access his email when he was in Nigeria.

The court considered the principles in Ladd v Marshall [1954] 1 WLR 1489 on the introduction of fresh evidence on appeal. On a strict application of those principles, a non-attending and non-engaging party would never be able to adduce fresh evidence on appeal to demonstrate that the decision to proceed in absence was wrong. As such, the court should not adopt a rigid approach. The primary consideration must be to ensure fairness, which would demand consideration by the court of the material sought to be adduced.

A submitted that the Panel failed to consider whether “all reasonable efforts” had been undertaken as to service. This should be seen as a gateway through which the Panel was required to pass before considering its discretion whether to proceed in A’s absence. Even if this were satisfied, the Panel in this case had erred in its application of the principles in R v Hayward [2001] EWCA Crim 168 and R v Jones [2002] UKHL 5.

The court found that there was no definition of the phrase “all reasonable efforts” other than that in Rule 31, i.e. “to serve the practitioner with notice of the hearing in accordance with these Rules”. If the Panel was required to consider more than simple Rule compliance, this would be set out: accordingly Rule compliance was the only gateway through which a Panel must pass. As the Panel in this case considered the service and notice procedure, they were entitled to proceed to consider their discretion to proceed in absence.

His Honour Judge Wood QC noted that whether the appellant was aware of the hearing was a very important consideration in the exercise of that discretion. This is different from the issue as to whether rules of service had been satisfied.  It was said that “If a panel making a decision as to whether or not to proceed in the absence of the practitioner had every reason to be confident that the practitioner was aware, and was ignoring the proceedings out of lack of interest or apathy, this would undoubtedly be a very significant factor in the exercise of the discretion.

In A’s case, if the Panel had been aware of the fresh evidence establishing that he was unaware of the hearing, and considered this alongside important factors such as the absence of previous adjournments; the lack of live evidence; and the importance of the practitioner’s input into the outcome of the case; it would not have exercised its discretion to proceed in absence. Alternatively, if it had, that decision would have been irrational. A’s interests significantly outweighed the public interest of expediency, especially where the witnesses were not caused any inconvenience.

His Honour Judge Wood QC provided important guidance on how to treat an Appellant’s conduct when determining whether to proceed in absence. The fact that an Appellant should have made himself aware of a likely final hearing is immaterial. The focus should not be on the Appellant’s conduct in disengaging but whether an effective and fair hearing could be achieved:

Even where non-engagement in the proceedings is a reasonable conclusion, in a case which is likely to have very significant consequences, and where the absence of a doctor means that only lip service is being paid to the adversarial process, nevertheless before ruling out an adjournment a panel should consider whether other steps have been taken which might ensure attendance, such as contacting the former practice or colleagues, or making enquiries of overseas registration authorities. Clearly if there is evidence that all this has taken place, and it is a second or third hearing, then a panel can proceed with more confidence that a determination in the absence of the practitioner is appropriate.

An important factor would be the length of notice. Where it was only 28 days in the case of an overseas registrant, it would be “not beyond the realms of possibility” that the practitioner had returned to his country of origin.

Especially at hearings which have not previously been adjourned to indulge the practitioner, extreme care needs to be exercised before proceeding in his or her absence if the highly likely consequence is the severe sanction of erasure. If a decision is made to proceed, condensing such a hearing into little more than three days (save for consideration and delivery of decisions) with barely any testing of the evidence or close scrutiny of the available material, will not give an impression of fairness to the absent practitioner.

Obviously every case is different, and where suspension or erasure appears to be an unlikely consequence, and live witnesses have travelled from a great distance causing some disruption, then a decision to proceed in absence is one which is likely to be justifiable. This case, however, was at the other end of the spectrum.”

This case highlights an important distinction between a practitioner who is aware of the hearing but failing to engage, and one whose lack of engagement may demonstrate that he/she is unaware of the hearing. It confirms the principles set out in Jones and Hayward to the effect that the decision to proceed in absence should only be made with the most careful scrutiny of all the circumstances. The practitioner’s own interests will be all the more significant in serious cases.

By Ally Wilkes, Barrister, Regulatory and Professsional Discipline

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