Case Update: Opening notes do not fix deficiencies of imprecise allegations, High Court re-iterates

25 February 2015

R (on the application of Squier) v General Medical Council [2015] EWHC 299 (Admin)

Transcripts of judgments admissible and relevant in disciplinary proceedings as rebuttable prima facie evidence of underlying facts; sufficient particularisation to be within allegations and not within a draft opening note.

Decision date: 13th February 2015

The registrant faced fitness to practice proceedings relating to allegations that, in 6 cases between 2006 and 2010, she had failed to properly discharge her duties as an expert witness and had misled the courts. In each case she had given evidence as an expert consultant paediatric neuropathologist on the topic of alleged non-accidental head injury to infants (“shaken baby syndrome”).


The approach of the Panel

Five judgments of the High Court and one of the Court of Appeal Criminal Division in which the Registrant had given evidence were admitted in evidence before the Panel. These judgments were admitted to give context to the cases and to understand the evidence. The Panel considered that this was a proportionate means of accomplishing this task rather than essentially re-hearing the entirety of the cases. It directed itself that the findings of the court were not irrefutable. GMC v Meadow [2006] EWCA Civ 1390 supported the propositions that the facts of the case could only be understood in the context of the judgments, and that a proper assessment of a doctor’s misconduct could only be undertaken by having regard to the judgments that led to these allegations of misconduct.

The judgments contained judicial comments adverse to the Registrant. The Panel accepted that these were not admissible as evidence of the validity of the judges’ criticisms. Certain parts of the commentary were to be redacted to prevent the potential for prejudice. 

The Judicial Review decision

It was obvious from the 6 judgments that in each case the Registrant’s evidence (supportive of a conclusion that death was accidental) was rejected.

It was submitted by the Registrant that the judgments were inadmissible and irrelevant to the issue before the Panel. Additionally their admission in evidence would be unfair, as the registrant had not been a party to the relevant proceedings; the parties calling her had no interest in protecting her interests nor any means of so doing; and she had no control over the presentation of facts.

Ouseley J noted that the law of disciplinary tribunals had evolved in such a way that a previous tribunal’s notes of its evidence and judgments might afford prima facie evidence in support of a Panel’s findings of fact.

The judgment in GMC v Meadow [2006] EWCA Civ 1390, and in particular Auld LJ’s judgment at paragraphs 205-208, was cited. In that case the Panel did not consider the two Court of Appeal judgments which would have provided the context for its consideration of whether the registrant had been guilty of misconduct. The Panel appeared in consequence to have misunderstood certain aspects of the Registrant’s evidence and the circumstances in which he came to give it, and to have wrongly exaggerated the heinous effect of what was said and the possible effect on the trial.

The Panel in this Registrant’s case did not act unreasonably in concluding that the judgments would be relevant; they illustrated the scope and nature of the medical issues and the importance of a full description of the limitations and nuances of the Registrant’s report. The background facts would otherwise be time consuming and laborious to prove. This would be a relevant consideration on admissibility, providing that the Registrant had the opportunity to lead evidence about any facts which she wished to contest. The issue, however, was not whether the Registrant was right or wrong in her conclusions, but the basis upon which she gave her evidence, the scope of such evidence and her use of the underlying research papers. The actual outcome of the trials was not relevant to the allegations of misconduct.

Per Ousley J at paragraph 43:

“The crucial point about the role of the disciplinary tribunal is that it should be the decision maker on the issues and evidence before it; it should not adopt the decision of another body, even of several judges, as a substitute for reaching its own decision on the evidence before it, on the different issues before it. None of that precludes the GMC under its Fitness to Practice Rules considering the judgments in a case in which evidence later at issue before the GMC was given. But they are not relevant for the purposes of substituting one judgment for the other, because it is the FTPP's statutory duty to decide the issues before it. The issues before it are not those which were before the courts, and the evidence and parties are also different. It may also be unfair for the judgments to be a significant influence on the mind of the tribunal on the crucial issues before it for those same reasons.”

Judgments admitted in this context would therefore be rebuttable prima facie proof of any fact relied on, and would have to be weighed against any evidence called by the Registrant. The Panel would have to be careful to avoid any actual or inferred findings on the quality of the Registrant’s evidence by another tribunal being used as evidence of the truth of its own allegations, as this would risk substituting the decision of that other tribunal.

As to fairness, a balance would need to be struck between the probative value of the judgments and any prejudicial effect. Here the balance was reasonable: the judgments represented in Ouseley J’s view: “background, context and proof of what I would expect to be often non-contentious matters”. The Registrant would have the ongoing ability to object to any particular passage or finding of fact as being unfair; and the ability to appeal if irrelevant or unfair use were in fact to be made of those judgments.


The approach of the Panel

The allegations as drafted were accompanied by a schedule of evidence and a draft opening statement, presented as an “overview” not binding upon the GMC as to its presentation of its case.

The allegations were framed in a similar way for each of the 6 cases, for example:

“(2) You provided expert opinion evidence outside your field of expertise by:” (sub-particulars with reference to baby A, for example, “(iii) giving an opinion in relation to the likelihood of baby A having had a lucid interval between injury and death”)
“(3) You failed to present your report and the research material you relied upon in a way which was as complete and accurate as possible.”
“(4) You failed to discharge your duties as an expert in that you:” (sub-particulars, for example, “(i), failed to work within the limits of your competence.”)
“(5) Your actions and omissions as described above in paragraphs 2 and 3:” (sub-particulars, for example, “(i), were misleading; (ii) were irresponsible.”)
The registrant argued that she did not know how her conduct was being impugned, and could not mount a defence.

The Judicial Review decision

Ouseley J considered it to be tolerably clear that the “wrap up” allegations in 4 and 5 only covered what was alleged in the factual allegations of 2 and 3, rather than some further as yet unspecified acts. The particularisation was therefore not inadequate. If, however, it were not so, the “wrap up” allegations would be “hopelessly inadequate” in terms of particularisation. There were some other criticisms to be made of the sub particulars of allegation 2, which should be remedied.

Allegation 3, however, was poorly particularised to such an extent as to be “startling”. At paragraph 55: “No fair trial is possible on this allegation without further particulars. These can be short and identify the omissions and inaccuracies which should have been avoided. It should not be difficult to state what the omissions and inaccuracies relied on are… This is not a simple question of identifying evidence by page references; it requires the inaccuracies and omissions from the reports to be identified; the evidence can state why that was an omission.

In particular, a “draft opening” could not supply the deficiency in particulars, as it was subject to change and was not intended to be the full rehearsal of the case. Ouseley J warned about the consequences of using the opening as a substitute for proper particularisation. For example, in this case the opening did not stick to the allegations and thus in fact detracted from the clarity of the case; conversely, if it was intended to provide particulars, the allegations would have to be amended to match these.

Per Ouseley J at paragraph 56: “I cannot see in principle why the necessary task of providing particulars should not be done in the list of allegations themselves, or, to avoid over-burdening them, in a Schedule of particulars."

This case establishes that the context and underlying facts of a particular case may be established by appropriate use of another tribunal’s judgment, providing suitable allowances are made for fairness, but that the Panel should guard against allowing criticism of a practitioner by that tribunal to be substituted for its own decision on the allegations. As to particularisation, this should be within the text of the allegations, or in an annexed schedule where this is necessary for clarity. A draft opening note, which is not binding on the party producing it, is no substitute for properly drafted allegations.

By Ally Wilkes, Barrister, Regulatory and Professional Discipline

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