Lasting Powers of Attorney: recent key developments
Consultant general surgeon successfully judicially reviews decision of the General Medical Council (GMC) to refuse his application for voluntary erasure on medical grounds.
Mr Jackson (J) suffered from a serious medical condition, the exact nature of which was not disclosed publicly during proceedings.
He was served with two notices of allegation. The first alleged that his fitness to practise was impaired on the grounds of deficient professional performance (DPP) or misconduct, with reference to concerns relating to his treatment of 16 patients over an 18-year period.
The second notice alleged that J’s fitness to practise was impaired on the grounds of his health (there being a suggested link between J’s health and the DPP/misconduct allegations).
J was informed that a contested hearing could take 45 days.
The application for voluntary erasure
Extensive expert medical evidence was heard, which was broadly accepted by the Panel, to the effect that J would not be able to partake in a hearing of 45 days, as this would increase the risk of a “fatal outcome”. It was established that not only was J medically unfit to work again, but indeed did not wish to work again.
There was conflicting evidence as to the extent to which J would be able to give instructions to his legal team, were the case to go to a full hearing.
The Panel outlined the “extreme seriousness” of the DPP/misconduct allegations and stated that “there [was] a very significant public interest” in the case “being aired and fully scrutinised”.
On the matter of J’s ability to give instructions for the purposes of a hearing, the Panel stated that “health issues may impact on [J’s] ability to instruct legal representatives”, but did not elaborate further.
Although it accepted that there was little prospect of J attending a hearing because of his health problems, the Panel stated that: “it need not attach undue weight to what might happen to [J’s] health in the event that he were due to attend the hearing”.
The Panel rejected J’s application for voluntary erasure, stating that the complainants’ interests in hearing the case outweighed, inter alia, the potential risk to J’s health.
The present case
J contended (1) that the Panel had made a material error of fact by concluding that he could give instructions to his legal team. He also argued (2) that the Panel had failed to take heed of the expert evidence to the effect that he could not take part in a hearing; both of which meant (3) that the Panel’s decision to refuse voluntary erasure was irrational and unlawful.
Further, J argued (4) that the Panel failed to give adequate reasons for what was effectively a finding, although not explicit, that he could participate in a hearing.
The GMC argued that the Panel was entitled to accept the medical evidence suggesting that J could give instructions, and that although J could not attend a 45-day hearing in person, he may be able to make admissions and then attend a short hearing (or instruct representatives to act in his absence at a longer hearing).
The first three grounds of appeal were rejected. Dingemans J found that although the evidence suggested that J’s ability to give instructions may be affected by his medication, he could deal with the general nature of the allegation; and that the Panel had therefore lawfully concluded that J could give instructions.
As for the expert evidence, Dingemans J cited R v Jones  UK HL 5 and the strong public interest in preventing a hearing from going ahead if a person cannot take place in regulatory proceedings, if “attributable to involuntary illness or incapacity…” Notwithstanding, with respect to its consideration of the expert evidence, he found that the Panel’s decision was not irrational; because it had indicated that a shorter hearing might be possible, if J were able to give instructions.
However, having found that the Panel had lawfully been entitled to treat the allegations as “so serious as to raise a presumption of impaired fitness to practise”, Dingemans J cited paragraph 16 of the GMC Guidance on voluntary erasure applications (the Guidance):
“…voluntary erasure is only likely to be appropriate in exceptional circumstances. These might include situations in which medical evidence…gives a clear indication that the doctor is seriously ill and would be unfit to participate in our fitness to practise procedures”.
As the Panel had accepted the medical evidence of the risk of a “fatal outcome”, were J to attend a long hearing in person, it had not given sufficient reasons as to why it had then ignored the last sentence of the Guidance and concluded that J could participate in a hearing.
Additionally, simply stating: “health issues may impact on [J’s] ability to instruct legal representatives”, but not engaging further with the question as to whether J was in fact capable of doing so was, in Dingemans J’s view, “stunning by its omission”.
The Panel should have explained to J whether or not it felt he could give instructions and, if it was not certain, should have explained that it would not grant voluntary erasure but revisit the issue at a later stage.
Dingemans J noted the Panel’s duty to give reasons “in a form which makes it sufficiently clear to the losing party why he has lost” (as per Southall v GMC  EWCA Civ 407). In his view, the Panel “simply [had] not explained how exactly they [came] to the conclusion that J [was] fit to take part…”
Decision quashed and remitted.
This case demonstrates the importance of Panels giving due consideration to guidance published by regulatory bodies on such matters as voluntary erasure, and giving detailed, coherent reasons when going against such guidance and the bulk of the evidence.
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