Changes to the SRA’s Reporting Obligation
On 13 December 2018, the Court of Appeal handed down its judgment in an appeal by the General Medical Council (the GMC) against a decision made by the High Court to allow an appeal by Dr Hayat. Dr Hayat had been erased from the medical register in February 2017. You can access our blog on the previous High court decision here.
In September 2012, Dr Hayat travelled to Pakistan. He returned to the UK and claimed that he had suffered a heart attack abroad and experienced chest pain on the return flight. Dr Hayat made a claim on his insurance policy. The claim was investigated by the insurance company who declined the claim and referred the matter to both the GMC and the police. The GMC investigated the matter and Dr Hayat’s case was referred to a hearing before the Medical Practitioners Tribunal Service (MPTS).
A 15 day hearing was listed to commence on 31 October 2016. Dr Hayat applied for an adjournment on 3 October 2016 on the basis that he had had insufficient time to prepare for the hearing. His application was unsuccessful and on 22 October 2016 he made a further application to adjourn the hearing. This application was on the basis of not having sufficient funds to appoint a legal team. This application was also refused.
At the outset of the hearing, Counsel on behalf of Dr Hayat made a further adjournment application. He provided a letter from an A&E doctor that stated that Dr Hayat should be off work due to back pain. The Tribunal refused the application to adjourn and stated that the handwritten letter was insufficient to justify an adjournment. The Tribunal handed down the determination.
That afternoon Dr Hayat was found sitting in a chair, appearing to be unconscious. He was taken to hospital and the hearing was adjourned.
The following day, 1 November 2016, the GMC spoke to Dr Hayat’s treating doctor at hospital. The treating doctor advised that it was his belief that Dr Hayat had not been unconscious the previous day and that there was no evidence of any cardiac event. He further advised that Dr Hayat would be fit to attend a hearing on discharge, which was scheduled to be the next morning.
On 2 November 2016, Dr Hayat underwent an angiogram. The results of that were described as “perfectly normal”. Dr Hayat remained in hospital due to a “pain complication” as a result of the arterial puncture site from the angiogram. On 4 November 2016, Dr Hayat was discharged. He did not attend the hearing and the GMC applied for the hearing to continue in his absence. The Tribunal refused that application. The hearing was adjourned until 7 November 2016.
The GMC wrote to Dr Hayat to advise that in the absence of medical information that he was unfit to attend a hearing, or for any other good reason for non-attendance, they would invite the Tribunal to proceed in his absence.
Dr Hayat wrote to the GMC on 5 November 2016 giving consent for them to contact his treating doctor. He did not provide any update on his health at that stage. The GMC obtained further written evidence from two of Dr Hayat’s treating doctors, who essentially suggested that Dr Hayat was fit to engage with the proceedings.
The Tribunal reconvened on 7 November 2016 and Dr Hayat did not attend. He provided a pre-printed “Statement of Fitness for Work for Social Security or Statutory Sick Pay”. This advised that Dr Hayat was not fit for work and contained limited information about Dr Hayat’s current health.
The Tribunal considered the information from Dr Hayat’s two treating doctors and the Statement of Fitness for Work. They determined that the Statement of Fitness for Work did not suggest that Dr Hayat was not fit to attend the hearing and that the Statement essentially reiterated the information from the hospital doctors.
The hearing proceeded on 7 November 2016. A number of the allegations were found proved. The case adjourned part-heard and reconvened on 14 February 2017. Dr Hayat attended at the hearing and made submissions on impairment. The Tribunal made a finding of impairment and decided to erase Dr Hayat from the register.
At the High court, Lang J held that the Tribunal was not entitled to disregard the Statement of Fitness for Work merely because it did not also say that Dr Hayat was unfit to attend the hearing, and she remitted the matter for a re-hearing before a fresh panel.
The GMC were granted permission to appeal the decision of the lower court and the case was considered in December 2018. The Court of Appeal held that Lang J had failed to apply the relevant principles, which meant that she came to “demonstrably the wrong conclusion”. The Court of Appeal held that Lang J was wrong to suggest that the Statement of Fitness to Work trumped the evidence of the hospital doctors and that the relevance of the Statement depended on its contents and not its date. Further, the Statement did not say that Dr Hayat was unable to participate in the hearing.
The Court of Appeal held that the Statement of Fitness to Work was “wholly insufficient” to warrant an adjournment and that it failed to meet the test set out in Levy v Carr Ellis on the required standard for medical evidence. In this case, the Court of Appeal held that the Statement did not identify who had prepared it, did not explain what Dr Hayat’s medical condition was or how and why any particular features of the condition meant that he was unable to take part in the hearing and there was no prognosis. Further, it was incorrect to suggest that it was up to the Tribunal to carry out further investigations into Dr Hayat’s health. The Court of Appeal affirmed that the onus was on Dr Hayat to provide complete information to the Tribunal.
The Court of Appeal summarised that the decision to refuse to adjourn the hearing was a discretionary matter, properly made by a specialist Tribunal and the Tribunal’s decision to proceed with the hearing was a decision to which they were entitled to come. The Court of Appeal allowed the GMC’s appeal. Dr Hayat’s appeal has been remitted to the High Court to deal with Dr Hayat’s other grounds of appeal.
The decision of the Court of Appeal reaffirms that if a practitioner is seeking an adjournment on medical grounds, then they must provide detailed and adequate evidence to the Tribunal. A failure to provide such evidence means that there is a very real possibility that a hearing will continue without the practitioner participating in the hearing. The case also confirms that the onus is primarily on the practitioner to obtain and provide the evidence; it is not strictly necessary for the regulator to seek additional information itself.
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