The Hackitt Review- Two years on
General Medical Council v Adeogba; General Medical Council v Visvardis
 EWCA Civ 162
Hearing date: 24 February 2016
The appeals in these matters were factually unconnected, but raised similar issues in terms of the approach adopted by the General Medical Council (GMC). Specifically, how the GMC responded to Registrants who did not engage with investigations.
Dr A was in Nigeria at the requisite time. He did not respond to correspondence or attend the hearing. Dr A was aware of the investigation, and whilst away in Nigeria failed to access the only mechanisms available to the GMC to communicate with him.
In Dr V’s case, he challenged the disciplinary process and thereafter refused to participate until his concerns had been addressed.
In both cases, arrangements had been made for what were anticipated might be proceedings of substantial length. In Dr A’s case, the hearing was listed for 20 days. In Dr V’s case, the hearing was listed for 7 days.
In both cases the Fitness to Practise Panel of the Medical Practitioners Tribunal Service (MPTS) (the Panel) considered the available evidence and decided to proceed in the absence of the doctor. Both doctors were erased from the medical register.
Each individual doctor appealed against the decision in their case.
On appeal to the High Court
In respect of Dr A, His Honour Judge Graham Wood Q.C. admitted fresh evidence and determined that the Panel was wrong to proceed in his absence ( EWHC 3872 (Admin)). In the case of Dr V, His Honour Judge Bird also decided that the (differently constituted) Panel was wrong to proceed in his absence ( EWHC 4531 (Admin)). In both cases, fresh hearings were ordered; further challenges to the findings of the Panels were not analysed.
Leave for a second appeal was granted in both cases by Pitchford LJ who observed that the grounds raised important points of principle and practice in relation to matters of public interest. In so doing, he directed that the cases should be linked.
The law on proceeding in absence
It is a well-established that a Panel’s discretion to proceed in the absence of a Registrant is “severely constrained” (Tait v The Royal College of Veterinary Surgeons  UKPC 34). Further that it is a discretion which a Panel should exercise with the upmost care and caution. The factors which a Panel must bear in mind when deciding whether to exercise their discretion to proceed in the absence of the Registrant are those as set out in the criminal case of R v Jones (Anthony)  AC 1, HL. These include:
• The nature and circumstances of the Registrant’s behaviour in absenting themselves from the hearing;
• Whether an adjournment would resolve the Registrant’s absence;
• The likely length of any such adjournment;
• Whether the Registrant has voluntarily absented themselves from the proceedings; and
• The disadvantage to the Registrant in not being able to present their case.
In considering the GMC’s overall objective in exercising their public functions “to protect, promote and maintain the health and safety of the public”; it was cited in Zia v General Medical Council  EWCA Civ 743;  1 WLR 504 by Tomlinson LJ at paragraph 46 that:
"Thus I do not, for my part, approach the construction of the Rules on the basis that the various stages described therein should be regarded as prescribed for the protection of the person against whom the allegation is made. I approach the task of construction of the Rules rather on the footing that the Rules are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners."
The relevant provisions of the General Medical Council (Fitness to Practise) Rules Order of Council 2004 (the Rules) considered in both cases were Rule 15, Rule 31 and Rule 40 which relate to the Panel’s consideration of whether all reasonable steps have been taken to service notice of the hearing in accordance with the Rules, whether the Registrant has been served with the Notice of Allegation in due time subsequent to referral to the Panel and the means by which service was effected.
In all the circumstances, there was no dispute that the Panel has to approach their decision under Rule 31 (whether to exercise the discretion to proceed in a Registrant’s absence) by reference to the principles developed by the criminal law in relation to trial in the absence of a defendant.
Sir Brian Leveson P stated as follows as paragraph 17:
In my judgment, the principles set out in Hayward, as qualified and explained by Lord Bingham in Jones, provide a useful starting point for any direction that a legal assessor provides and any decision that a Panel makes under Rule 31 of the 2004 Rules. Having said that, however, it is important to bear in mind that there is a difference between continuing a criminal trial in the absence of the defendant and the decision under Rule 31 to continue a disciplinary hearing. This latter decision must also be guided by the context provided by the main statutory objective of the GMC, namely, the protection, promotion and maintenance of the health and safety of the public as set out in s. 1(1A) of the 1983 Act. In that regard, the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance.
He went onto state that in regulatory proceedings it goes without saying that fairness must encompass fairness to the affected Registrant as well as the regulator. By way of analogy, whilst steps can be taken to enforce a defendant’s attendance in the criminal courts, no such powers/remedies are available to a regulator. In addition, the GMC represents the public interest in relation to standards of healthcare. It would be entirely counterproductive to this aim if Registrant’s could aggravate the process and challenge a decision by the Panel to proceed in their absence where they have deliberately failed to engage in the process. Factors such as costs and delay are paramount:
“Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed” (paragraph 19)
Additionally, Registrants have to a duty subject to each regulatory regime to engage with the regulator. This is an inherent part of their responsibility once they are admitted to their respective profession. Thirdly, Sir Brian Leveson P pointed to the regulators duty to keep an accurate and up-to-date record of a Registrant’s address, qualifications and other registered particulars, which requires every Registrant to provide current details, including their registered address. If a Registrant’s fails to provide their current registered address they risk being removed from the register. In all the circumstances, a Registrant who fails to provide the GMC with updated contact details (particularly when they are aware that they are subject to investigation) is:
“unlikely to provide a reasonable explanation for failure to participate in the process, sufficient to require the Panel to adjourn consideration of a fixed disciplinary hearing” (paragraph 21).
Referring to Jatta v Nursing and Midwifery Council  EWCA Civ 824, Sir Brian Leveson P noted that the starting point must be whether all reasonable efforts have been taken to serve the practitioner with notice, against the background of the requirement on the part of the practitioner to provide an address for the purposes of registration, along with methods used by them to communicate (i.e. e-mail). Assuming that the Panel is satisfied about notice, in deciding whether or not to exercise their discretion to proceed, they must do so with regard to all the circumstances of which they are aware bearing in mind fairness to both parties.
As to the issue of fresh evidence, Sir Brian Leveson P reaffirmed that the starting point is the nature of the appeal to the High Court from the Panel under s. 40 of the Medical Act 1983 Act (the Act). By virtue of the Civil Procedure Rules (CPR) 52DPD.19.1(2), it is prescribed to be by way of "re-hearing" and "must be supported by written evidence and, if the court so orders, oral evidence"; which does not mean that the court will hear the matter afresh. Further, whilst it is common ground that fresh evidence cannot be admitted as a matter of course, evidence as to the reasons why a medical practitioner does not appear or engage in a disciplinary hearing is likely to constitute fresh evidence and will require consideration. As an example, if an unforeseen event occurred, such as a car accident, by definition, the practitioner would not have been able to be present at the hearing to advance that information.
Having previously practised in Germany, Dr A obtained registration in the United Kingdom (UK) in order to work as a visiting plastic surgeon at the Birkdale Clinic. For brief periods, he regularly travelled from Germany to carry out procedures at the clinic's locations across England.
The complaints to the GMC in respect of Dr A emanated from two patients who had undergone rhinoplasty procedures and four patients whom had had breast augmentation surgery and/or uplift. A referral was made to the Interim Orders Panel (IOP) which sat initially on 6 July 2011, making no order. In respect of a review hearing on 20 January 2012, which Dr A attended, he confirmed that he had received notice of it through the e-mail address which was registered with the GMC. Additionally, he also confirmed his registered address in Germany was correct.
On 8 February 2012, in the presence of Dr A, the IOP decided that his registration should be suspended for a period of 18 months pending the continued investigations. Given his suspension in the UK and the reduction of work in Germany, Dr A returned home to Nigeria. He did not inform the GMC of this, and/or provide a new mechanism by which they could contact him. Thus, from January 2012, until the notice relating to the hearing before the Panel dated 6 November 2013, all correspondence was delivered to Dr A’s registered address in Germany.
The transcript of the hearing before the Panel showed that notice had been despatched by e-mail (and post), with a copy of the index of documents and a list of the witness statements. The hearing commenced on 9 December 2013 with no word from Dr A.
The case presenter for the GMC took the Panel through a service bundle which included screen prints of Dr A's registered address and other contact information, a Notice of Hearing dated 6 November 2013 together with tracking information. Importantly, it also contained Dr A’s e-mail of 30 January 2012 to the GMC in preparation for the adjourned IOP. The Legal Assessor set out the applicable rules and legislation in relation to service and the steps taken by the GMC as described by the case presenter.
The Panel went into camera and decided on both service and on the issue of proceeding in Dr A’s absence. It decided that there had been good service and that it should continue in Dr A’s absence. Its reasons were:
"It is clear from the correspondence that Dr A was at one time engaging with the GMC but since February 2012 had ceased to do so. Since February 2013, documents sent to him have been returned as undeliverable and he has not engaged since then with the process of scheduling the hearing through the Case Management discussions. The Panel is satisfied that Dr A is aware that he had outstanding fitness to practice proceedings against him, by virtue of his previous engagement……..
In reaching its decision, the Panel has balanced the need for fairness to Dr A including his right to attend and/or be represented, with the public interest in proceeding with this case. The allegation before the Panel is serious and it has determined [sic] that it is in the public interest to hear the case without delay and it will take all necessary steps to ensure that the hearing is fair to all."
Dr A was ultimately erased from the medical register, misconduct and current impairment having been found.
Sometime later, Dr A accessed his e-mails whilst in Germany, and found an e-mail from a former colleague at the clinic in which the outcome of the GMC hearing was mentioned. This prompted him to review his e-mail box noting correspondence in respect of the hearing before the Panel, including the notification. As he was still within the appeal period, he decided to avail himself of the right to appeal.
On appeal to the Administrative Court, the two issues with which Judge Wood was faced were the admission of fresh evidence from Dr A and whether the Panel's decision to proceed under Rule 31 was justifiable. As to the first issue, Dr A submitted that the overriding objective which requires cases to be dealt with justly effectively outdoes the principles in Ladd v Marshall for the admission of new evidence. As such, it would be patently unfair, in view of the fact that there is no other procedure for setting aside a decision in a case where the Panel determined to proceed in the practitioner’s absence, for the court to decline to consider fresh material. In response, the GMC submitted that, on an application of the Ladd v Marshall principles, fresh evidence should not be admitted as it could not be advanced that Dr A was unable to obtain the evidence with reasonable diligence.
On the Panel’s decision to proceed under Rule 31, Dr A submitted that the Panel had appeared to rely upon service as having been sufficient, and as such, the decision was flawed. Alternatively, it was submitted that the Jones principles were not correctly applied; in particular, insufficient weight was given to the unfairness to Dr A in proceeding in his absence or the risk of the Panel reaching the wrong conclusion because of his absence. It was also said that the Panel did not address the possible effect of an adjournment in securing Dr A’s attendance. In response, the GMC submitted that although there is a gateway to pass before the Panel can decide to exercise its discretion pursuant to Rule 31, this required no more than compliance with the Rules in relation to service; to impose an obligation on the regulator to take more stringent steps to “effect service before a hearing could proceed without a practitioner would be intolerable”. As to the Jones principles, the GMC submitted that the Panel was properly advised by the Legal Assessor and its conclusion, in part influenced by the fact that Dr A had disengaged with the process and would not engage even if there was an adjournment, was entirely proper in the circumstances.
On first appeal, Judge Wood QC acknowledged the relevance of the restrictive rule in Ladd v Marshall in respect of fresh evidence, but determined that had the Panel been aware that Dr A had not accessed any form of communication and therefore had not been aware of the hearing, it would have undermined any conclusion that he had voluntarily absented himself. Judge Wood QC opined that the fact that Dr A should have made himself aware of the hearing date close to the expiry of his interim suspension was immaterial. As to whether the Panel were entitled, on the information before it, to exercise its discretion to proceed in Dr A’s absence, Judge Wood QC had no doubt that it was, but criticised the regulator for its failure to do more. In contrast, Sir Brian Leveson P concluded that the GMC were perfectly entitled (and bound) to use the registered address provided by Dr A in addition to his e-mail address. Sir Brian Leveson P stated at paragraph 58:
“……to suggest that his failure to update his address was merely adopting 'an ostrich like attitude' does not start to do justice to the extent of this egregious failure to comply with his regulatory obligations. Dr A knew that disciplinary investigations were in place, knew that his suspension would expire after 18 months and knew about the only means that the GMC had to communicate with him. He made no effort at all to contact them or to ensure that he could be apprised of what was going on”.
In relation to whether the GMC should have taken further steps, such as to make enquiries of the German or Nigerian authorities (on the basis that this was where Dr A came from) would effectively put a burden on the GMC which was far beyond that which is appropriate. Sir Brian Leveson P confirmed that the regulator’s responsibility was very simple:
“It is to communicate with the practitioner at the address he has provided; neither more nor less. It is the practitioner's obligation to ensure that the address is up to date”
In relation to Judge Wood QC’s assertion that it was the first hearing and that an adjournment was unlikely to be highly disruptive or inconvenient to attending witnesses and therefore Dr A must be allowed one (or perhaps more than one) adjournment would be to: “fly in the face of the efficient despatch of the regulatory regime”.
Finally, whilst Sir Brian Leveson P recognised the real significance of the fact that the Panel did not have the Dr A’s input in relation to the facts, the question of impairment, or the ultimate decision of sanction, this is a risk which exists whenever a practitioner does not attend. In the circumstances the Panel made it clear that it would take all necessary steps to ensure that the hearing was fair to all parties.
As to the fresh evidence permitted by Judge Wood QC (which he was entitled to admit), the explanation for Dr A's failure to attend on the basis that he was not aware of the hearing, and therefore could not attend to present the evidence in respect of his absence did not justify reversing the decision of the Panel to proceed.
Sir Brian Leveson P allowed the appeal and restored the order of the Panel in relation to proceeding in the absence of Dr A. He then remitted the case back to the High Court for consideration of the grounds of appeal that were confined to challenges brought within the four corners of the evidence heard by the Panel.
Dr V was notified by the GMC on 18 June 2012 that it was investigating allegations made against him in respect of his application to Huddersfield NHS Foundation Trust (the Trust) for a locum position. The charges related to dishonesty and/or misleading information in applications, a curriculum vitae and an interview.
Through its investigation, the GMC became aware of other allegations of potential misconduct. The GMC sent Dr V a Rule 7(1)(a) and (b) letter in which an assistant registrar set out the allegations in relation to the Huddersfield application as well as the other matters it had become aware of together with the relevant supporting documentation. As is required by Rule 7(1)(c), Dr V was invited to respond within 28 days. In a response dated 19 August 2013, Dr V denied dishonesty or the intention to mislead and set out a set of facts which was materially different to that which was alleged. He offered an apology in respect of some aspects of the aggressive conduct.
In accordance with Rule 8 the case examiners considered the information and decided that, except for the allegations of aggression, the matters should be referred to a Panel of the MPTS for determination. Dr V was
informed of this conclusion in a letter dated 15 October 2013. The letter also informed Dr V that the GMC aimed to hold the hearing within six months ahead of which teleconferences would be arranged.
The sequence of events which followed thereafter was before the Court of Appeal by way of documents in the bundle or the judgment of the Administrative Court. The key events were as follows:
• On or shortly after 15 October 2013, Dr V telephoned the GMC contact named in the letter of 21 June 2013 to seek advice on whether there was a method to appeal the case examiners’ decision;
• On 18 October 2013, the GMC responded explaining that it was no part of the function of the case examiners to deal with every point raised by the doctor under investigation. The response also advised Dr V that he would have an opportunity to address the Panel on his version of the events;
• Attempts were thereafter made to arrange a teleconference. On 15 November 2013, Dr V raised concern that the concerns he had raised had not been sufficiently dealt with, and that until he received what he perceived to be an adequate response, he would not participate in a teleconference;
• Teleconferences on 22 November 2013 and 17 January 2014 went ahead in Dr V’s absence;
• On 11 February 2014, Dr V was sent via post a copy of the Rules, certain witness evidence, details of every document the GMC were proposing to introduce as evidence and information with regard to calling witnesses to give oral evidence;
• An e-mail was sent to Dr V on 3 March 2014 by the GMC solicitor asking him to confirm the best address to which to send the hearing bundle and whether he objected to anything in the bundle;
• There being no response, on 4 March 2014, she attempted to send the hearing bundle using the Royal Mail's "Track and Trace" service;
• Also on 4 March 2014, an assistant registrar sent notice of hearing to Dr V by post and e-mail;
• Without acknowledging the attempt at service, in an e-mail of 10 March, Dr V repeated his complaints in relation to the procedure both to the Office of the Chair and Chief Executive ("OCCE") of the GMC and to the Chief Executive and Registrar;
• On 17 March 2014 it was suggested that if Dr V wished to pursue complaints about the ongoing process, he might consider making an application to cancel the hearing under Rule 28;
• On 27 March 2014, the package was returned to the GMC solicitor undelivered. A further e-mail was sent to Dr V on the same day;
• Dr V made an application on 24 March 2014 (as suggested to him on 17 March 2014), which was rejected on 3 April 2014, the hearing having been due to start that day. It is noteworthy that Dr V did not become aware of the rejection until the end of the day on 4 April 2014.
At the hearing on the morning of 3 April, the GMC case presenter addressed the Panel as to whether Dr V had been properly served with notice of the proceedings by reference to a bundle which included a number of documents. The Panel retired and decided that notice had been properly effected (which was not contested before the judge in the Administrative Court).
The case presenter invited the Panel to proceed under Rule 31 in the absence of Dr V. The case presenter submitted that, taken together, the correspondence showed that Dr V was aware of the hearing and had: "voluntarily absented himself from today's hearing on the basis that he seeks rather than to attend... to attack and criticise the proceedings themselves".
In relation to Dr V’s application to cancel the hearing, the case presenter stated that if the Panel decided to proceed, an e-mail could be sent to Dr V to the effect that the hearing had not been cancelled and would proceed on the following day.
The Legal Assessor addressed the Panel, reiterating the test set out in R v Jones and the principle that fairness to the practitioner and the GMC is of prime importance. The Legal Assessor directed the Panel to determine whether Dr V's behaviour was deliberate or voluntary, whether if there was an adjournment he would attend an/or arrange representation, whether the bundle was served in adequate time for him to have considered it and to consider the risk to the public if the case was adjourned. The Legal Assessor concluded by drawing the Panel to his main concern which was whether or Dr V was aware that the hearing had not been cancelled. Whilst the Panel was in camera, Dr V was sent an e-mail which reminded him of the cancellation decision and informed him that the hearing had commenced and that the Panel were considering to proceed in his absence.
The Panel took as its starting point the need to balance the discretion to proceed in Dr V’s absence with great caution with the public interest in "hearing cases expeditiously and without undue delay". The Panel concluded that:
"Dr V could reasonably be expected to have understood the distinction between Rule 28 (on cancellation) to which he himself had referred in an e-mail of 24 March 2014, and Rule 29 (on postponement) to which the GMC had drawn his attention on 14 March 2014...
Although Dr V was under no obligation to chase a decision on cancellation... the GMC has had no further communication from [him] since his cancellation application was submitted...
Dr V has at no time indicated that he would wish to attend the hearing, or that he has been making attempts to arrange to be legally represented at this hearing. It is clear from the correspondences between the GMC and Dr V that he has been aware for some time of this hearing, and of the nature of the allegations made against him"
The conclusion was that Dr V had voluntarily waived his right to attend and/or be represented and that the hearing ought to proceed.
The solicitor for the GMC sent an e-mail to Dr V advising him of the Panel’s determination to proceed. She reminded him that he was still able to attend the hearing at any time over the listed dates. The following day, Dr V replied stating that he only became aware of the e-mail dealing with the cancellation decision on the evening of 3 April. He further asserted that the decision not to cancel was flawed, that he was still awaiting the information requested from the GMC and did not have a legal representative. This e-mail was drawn to the attention of the Panel on Monday 7 April 2014. The Panel took advice from the Legal Assessor who advised that it should consider afresh whether Dr V had waived his right to be present at the hearing.
On appeal to the Administrative Court, Counsel on behalf of Dr V submitted that the decision of the Panel to proceed in his absence was wrong or unjust because of a serious procedural error. The particular factors highlighted included that the Panel:
• Failed to properly balance the public interest with the interests of Dr V, and so erred in law;
• Failed to take account of the fact that Dr V had never intimated that he would not attend and further that he vigorously disputed the allegations;
• Failed to bear in mind that the discretion to proceed in the absence of Dr V was one which was "severely constrained"; and
• Had erred in its conclusion that Dr V had waived his right to appear.
The GMC responded by submitting the Panel's approach to the exercise of its discretion was balanced and fair. In so doing, he reminded Judge Bird that there was no suggestion that the Rules had not been complied with. Additionally, Dr V failed to attend the hearing, even after he was aware of the decision on cancellation and of the Panel's decision to proceed in his absence. It is noteworthy that the parties agreed that all reasonable efforts had been made to serve the doctor with notice.
As to the exercise of discretion, Judge Bird stated that the Panel's reference to Dr V not stating an express desire to attend the hearing was a strong indicator that it had misunderstood the task it was undertaking, as the right to attend a hearing exists independently of an express assertion. Further, the Panel's weighing of the competing factors in the exercise of its discretion was flawed because whilst the Panel was correctly directed to consider the "extent of disadvantages to the doctor if he is not able to present his account of events... you should consider the risk of the hearing reaching an improper conclusion [in] the absence of the doctor", there was no reference to this point in the determination. The Judge concluded that the Panel also had no basis on which to conclude that Dr V would not attend in the future if the matter adjourned.
Considering the matter afresh, Sir Brian Leveson P disagreed. In so doing he noted that the Panel were well aware of the seriousness of the allegations and that Dr V contested them. As to Dr V’s intention to attend, whether or not he had so asserted, the reality was that he had done nothing to comply with the directions to disclose documents on which he intended to rely or otherwise to participate in the process:
“Rather, he had embarked on a collateral attack of the process. This was not, as the judge concluded, a "simple fact" of absence; it is clear from the material that this was deliberate disruption on the basis that Dr V felt that he was entitled to challenge the decision to refer the case to a hearing and was not prepared to leave this preliminary issue to be considered as part of his defence before the Panel” (paragraph 104)
Sir Brian Leveson P noted that if Dr V wished to complain about the procedure, it was open to him to do so by means of judicial review:
“What he was not entitled to do was to conduct the case management stages in such a way that failed to deal with the issues which required to be addressed especially in relation to disclosure of documents upon which he intended to rely. In my judgment, the Panel was entitled to conclude that he was not engaged in the process” (paragraph 106)
He thereafter allowed the appeal and restored the order of the Panel, remitting the case to the High Court in the same vein as that of Dr A.
This case will be useful for regulators and Panels alike. It confirms the duties of a regulator in effecting service in accordance with their regulatory regimes, and the considerations which Panels must bear in mind when deciding whether or not to proceed in the absence of a Registrant. It is refreshing to note that Sir Brian Leveson P swiftly dealt with any assertion that regulators must take more steps than that which are required by their rules in order to serve notice, such as liaising with overseas regulators. As long as a regulator has taken all reasonable steps to service notice, the Panel can thereafter decide to exercise its discretion to proceed in the absence of the Registrant, taking into account the particular circumstances of the case, notably the behaviour of the Registrant throughout the investigatory period.
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