Striking a balance: adjournments before the Medical Practitioners Tribunal

Webberley v General Medical Council [2022] 12 WLUK 209

Summary:

A doctor’s appeal against the finding of the Medical Practitioners Tribunal (MPT) was dismissed. The court concluded that the MPT had acted reasonably in the refusing the doctor’s application to adjourn, as the doctor had not discharged the burden demonstrating that he was unfit to participate in proceedings.

Background:

Dr W was a consultant gastroenterologist. After retiring from NHS in 2016, Dr W established an online GP clinic called Gender GP, which he co-owned with his wife. Dr W also worked for an online male androgen prescriber called Balance my Hormones (“BMH”).

The General Medical Council (“GMC”) received complaints between 2017-2019 regarding Dr W’s conduct at both Gender GP and BMH.

Dr W faced 89 heads of charge, which can be summarised as follows:

1. Inappropriate prescription of testosterone and other androgen therapy drugs;
2. Dishonestly providing information to 18 male patients;
3. Providing inadequate treatment to 7 transgender patients due to lack of necessary experience and qualifications; and
4. Concerns regarding Dr W’s operation and control of Gender GP, including attempts to circumvent UK regulation by moving clinical care to mainland Europe.

On 9 March 2022, at the commencement of hearing, Counsel on behalf of Dr W sought to make an application to adjourn the MPT hearing in accordance with Rule 29(2) of the GMC (Fitness to Practise) Rules 2004 on the grounds of ill-health, and lack of financial means to obtain legal representation.

The MPT considered that the principal issue was whether the MPT hearing should be adjourned on the basis of Dr W’s ill health. The other subsidiary issues considered by the MPT were Dr W’s financial circumstances, and inability to prepare for the MPT, while supporting a family member also facing MPT proceedings.

The MPT dismissed the application for an adjournment as it was not satisfied that Dr W was unfit to participate in the fitness to practice proceedings. The MPT’s reasoning in the dismissing the application to adjourn can be summarised as follows:

1. Dr W had not provided evidence of his medical condition, and how this affected his ability to participate in the MPT proceedings;
2. Dr W had not produced evidence of his financial status to demonstrate his inability to obtain legal representation. In any case, this would not be a justification for postponing a hearing as many doctors would be able to avoid proceedings by not having adequate insurance or funding;
3. While it was understandable that Dr W wanted to support a family member also facing MPT proceedings, this did not detract from his responsibility to engage with his own MPT hearing, and the GMC as his regulator; and
4. Following the above, it would run contrary to the public interest as reflected in the GMC’s overarching objective if the proceedings were unnecessarily delayed.

The MPT went on to make an adverse finding against Dr W, and ordered his erasure from the GMC’s Register.

Appeal points:

Dr W appealed the MPT’s finding on the basis that the MPT had erred in:

1. Refusing his application for an adjournment;
2. Finding that he had been dishonest; and
3. Unfairly admitting the witness statement of six patients receiving androgen treatment.

Tribunals approach to adjournments and legal principles

Adjournments are considered under Rule 29 of the GMC (Fitness to Practice) Rules 2004. When applications for adjournments are made in absence of the doctor, the MPT must exercise great caution. Fairness to the doctor is the main consideration, but fairness to the GMC and the public interest in concluding matters expeditiously must also be considered - R v Jones [2002] UKHL.

It important to remember that there is a distinction between continuing a criminal trial, and continuing a disciplinary hearing. In the latter, the overarching objective of the GMC, which is the protection of the public as set out in s1 Medical Act 1983, must be remembered. The MPT was clear that it would run counter to the overriding objective if a doctor could deliberately frustrate the process and challenge an adjournment because they had refused to engage. Separately, there is a burden on doctors to engage with the regulator - GMC v Adeogba [2016] EWCA Civ 1652. 

Judgment

The court refused the appeal of Dr W.

The court concluded that the MPT had followed the correct approach in relation to considering Dr W’s application for an adjournment. The MPT were entitled to conclude that Dr W had been frustrating the regulatory process by deliberately refusing to engage with the MPT’s process, and had also failed to cooperate with GMC.

The onus was on Dr W to provide evidence of his ill-health, and the MPT were not required to accept his submissions. Dr W had not provided information as to whether his problems were mental or physical. Likewise, he had not provided detail as to how his ill-health would affect his participation in the proceedings, and what measures, if any, could be taken. Similarly, Dr W had not provided any evidence of his financial difficulties.

The court therefore concluded that Dr W had not discharged the burden of demonstrating that he was unfit to participate in the proceedings.

The court also held that the MPT were entitled to make a finding of dishonesty on the basis that the consent forms for BMH patients receiving testosterone replacement therapy significantly overstated the upper normal range for testosterone.

Likewise, the court also held there had been no unfairness in the admission of the witness statements of the six patients receiving androgen treatment, as Dr W had been offered the opportunity to challenge this evidence, but did not do so.

Commentary

This judgement is useful for doctors and their representatives regarding seeking an adjournment of an MPT hearing.

Firstly, it serves as a sage reminder that the onus is on doctor to demonstrate that they are unfit to participate in the proceedings. The MPT is not under a duty to make enquiries in relation to evidence of the doctor’s ill-health. Therefore, the doctor must ensure that they have independent, up-to-date, medical evidence which demonstrates their diagnosis, any symptoms which prevent their participation in the proceedings, and their prognosis.

Secondly, it suggests that an argument in relation to financial hardship is unlikely to be a successful argument for an adjournment, as it is the doctor’s responsibility to ensure that they have the proper insurance/indemnity in place, which is separate from the obligation in Good Medical Practice (para 63), relating to cover for clinical claims made by patients.

Finally, it highlights that a doctor has a duty to engage with the GMC throughout the investigation and hearing process. Refusal to engage cannot then subsequently be relied on as an argument for an adjournment. This is part of a continual trend in the case law which suggests that closer scrutiny is being applied to applications for adjournment. The MPT are more carefully considering applications to ensure that the correct balance is struck between fairness to the doctor and the public interest. While fairness to the doctor is the prime consideration, this does not prevent the MPT from concluding that it would it would be contrary to the public interest to delay the proceedings, especially where the doctor has previously refused to engage.

Further Information

If you have any questions or concerns about the content covered in this blog, please contact Shannett Thompson, Georgina Woodward or a member of the Regulatory team.

 

About the authors

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals, businesses such as clinics and care homes and students in respect of disciplinary investigations. She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

Georgina Woodward is a trainee solicitor at Kingsley Napley, and is currently undertaking her first seat in the Regulatory team. Georgina investigates fitness to practise cases on behalf of regulators, such as Teaching Regulation Agency (TRA) and the Health and Care Professions Council (HCPC). Georgina also assists in advising regulated professionals who are the subject of investigations, and disciplinary proceedings in the education, healthcare and legal sectors.