Civil Fraud Quarterly Round-Up: Q1 2021
Hayat v General Medical Council
 EWHC 1899 (Admin)
The Appellant is a doctor regulated by the General Medical Council (GMC). Before practising in the United Kingdom (UK), he qualified as a doctor in Pakistan in 1986. He qualified as a general practitioner (GP) in 2002.
On 18 October 2012, in respect of a critical illness insurance policy, he stated that he had suffered a heart attack whilst in Pakistan on 8 September 2012. To support his claim the Appellant submitted medical reports from the Faisalabad Institute of Cardiology in Pakistan, where he claimed to have been admitted for treatment. The life insurance company investigated the Appellant’s claim and determined it was false. A referral was thereafter made to the GMC.
A panel of the Medical Practitioners Tribunal Service (MPTS) found proven a number of issues, which it determined, demonstrated misleading and/or dishonest conduct on the Appellant’s part.
Having found the Appellant’s fitness to practise to be impaired, the MPTS concluded that erasure was the appropriate and proportionate sanction.
Whilst there were a number of grounds for appeal, the material one was procedural unfairness. This ground centred on the MPTS’ decision to proceed with the hearing in the Appellant's absence, after refusing his application for an adjournment. In response, the GMC stated that the Appellant voluntarily absented himself from the proceedings and failed to provide medical evidence which attested to his unfitness to attend.
The material facts relevant to this ground are as follows:
The Appellant was notified of the allegations against him in February 2014; he denied them and provided a witness statement dated 21 February 2014.
The Case Examiners determined that a referral to the MPTS was required; this decision was sent to the Appellant by way of a comprehensive letter dated 6 June 2016;
The hearing was listed to commence on 31 October 2016, with a time estimate of 15 days, shortly after disclosure of the Case Examiners decision.
Pursuant to Rule 17 of the GMC (Fitness to Practise) Rules Order of Council 2004 (the Rules), formal notice of the allegations and the date of hearing were sent to the Appellant in late September.
The Appellant made an application for adjournment on 3 October 2016 on the basis that he had insufficient time to prepare. To clarify, solicitors had been instructed since 28 July 2016 but they wished to make further enquiries to prepare the case. Additionally, instructed Counsel was unavailable until 9 November 2016. This application was refused. A further application was made by the Appellant on 27 October 2016, at which stage he stated that he had insufficient funds to pay for his lawyers and he was awaiting the outcome of an application for a loan which had been agreed in principle. This application was also refused.
At the commencement of the hearing on 31 October 2016, the Appellant was represented by Counsel, who applied for an adjournment. Counsel provided the MPTS with a handwritten letter dated 30 October 2016 from an Accident and Emergency (A&E) doctor, which stated that the Appellant needed to be "off work for seven days" due to back pain. The letter additionally provided details of a planned MRI scan. Counsel also addressed the MPTS on the need for the Appellant’s lawyers to sufficiently prepare for the hearing.
The MPTS refused the application on the basis that the medical evidence did not address the potential impact of the Appellant’s pain and discomfort, or how the medication may affect him. The MPTS was also of the view that an adjournment was not proper in the circumstances, as the medical evidence did not state that the Appellant was unfit to instruct a representative or to participate in the hearing.
After lunch, the Appellant was found sitting in a chair, unresponsive. Paramedics attended and attempted to intubate him through the nose, at which stage he became alert and responded. The Appellant was taken to Manchester Royal Infirmary, and the hearing was adjourned overnight.
The following day, the GMC’s solicitor telephoned the hospital, at which stage she was able to speak with the Appellant and his treating doctor. The GMC’s solicitor and the Appellant’s treating doctor discussed whether or not the Appellant had been unconscious, and they agreed that he had been unresponsive, but not unconscious.
In a letter dated 1 November 2016, the doctor’s diagnosis was that the Appellant had suffered an episode of chest pain, which was being treated as angina. The letter stated that investigations had excluded an acute coronary syndrome and there was no evidence of myocardial necrosis. Further, if cardiac monitoring and an echocardiogram showed normal results, the Appellant would be fit for discharge the next day. Specifically in respect of the hearing, the letter stated:
"With regards to fitness to move towards tribunal hearing…I will attempt to obtain the results of his angiography and if this confirms he only has minor plaque disease which does not require any significant intervention at that time I believe [the Appellant] would be fit to undergo the tribunal hearing."
On 3 November 2016, it was confirmed that the Appellant's angiogram had been normal and discharge was anticipated later that day.
On 4 November 2016, the GMC’s solicitor sought the Appellant’s consent to obtain updated medical information and warned him that the hearing might proceed in his absence if it was not provided. Later the same day, the Appellant’s treating doctor confirmed that the angiography showed no evidence of significant coronary artery disease, but there was a complication of pain associated with his arterial puncture site secondary to his angiography, for which he was awaiting a vascular ultrasound. The Appellant was discharged from hospital on 4 November 2016 and travelled home to London. On the same day, the GMC applied for the proceedings to continue in his absence referring to the medical information received. The GMC also relied on a letter from the Appellant to BUPA dated 6 July 2010, in which he admitted that he had contrived chest pains during a hearing concerning access to his children. The Appellant was not represented before the MPTS at this stage. The MPTS refused the GMC's application on the basis that there was unchallenged medical evidence that the Appellant was not fit to attend.
On 5 November 2016, a friend of the Appellant sent an email attaching a letter and the Appellant's written consent to the disclosure of his medical records. The GMC’s solicitor responded the following day (which was a Sunday) asking the Appellant to update the MPTS as to his health, and more importantly, if he was able to attend the hearing the next day. She informed the Appellant that the GMC was considering whether to renew its application to proceed in his absence on 7 November 2016.
On 7 November 2016, a letter from the A&E doctor stated:
“ ….I can confirm he was discharged…… on 04/11/16.
……Postoperatively he had complications of pain at the vena puncture site and there is no evidence of aneurysm or false aneurysm at site of puncture on vascular Dopplers.
….. I can comment on similar cases and if there is no evidence of flow rate limiting disease and no evidence of significant arrhythmia I would assume in similar cases patients would be safe to undergo court proceedings."
The consultant cardiologist stated:
“He had some discomfort in the right arm following the procedure; although there were no clear signs of any acute pathology we arranged a Doppler scan to exclude any vascular injury which was normal.
The only abnormal finding of note was of asymptomatic nocturnal sinus pauses on his ambulatory ECG, which was performed less than 24hrs after stopping betablockers. This in itself is not an indication for a pacemaker………
In summary, we found no significant cardiac pathology which should stop the GMC proceedings from continuing."
On 7 November 2016, the Appellant submitted a Statement of Fitness for Work for Social Security or Statutory Sick Pay completed and signed by his GP which stated that he was unfit to work. The MPTS resumed the same day, granting the GMC’s application to proceed in the absence of the Appellant, on the basis that the Appellant, who sought the adjournment, had to provide sufficient evidence that he was not fit enough to attend. The document provided by the Appellant’s GP related only to his ability to work and did not suggest that he was unfit to attend and fully participate in the hearing.
The Tribunal continued thereafter with the hearing until 18 November 2016, when it made its determination on the facts. The hearing went part-heard, resuming in February 2017. The Appellant attended in February 2017 when he made an unsuccessful application to the MPTS to admit three documents and make submissions in relation to the findings of fact.
Mrs Justice Lang considered the Rules on adjournment and proceeding in absence, specifically Rule 29 and 31. She noted that the discretionary powers are limited by the duty to act fairly, as required at common law and under Article 6 ECHR. She opined that the MPTS was entitled to exercise its discretion to refuse the Appellant's application on 31 October 2016. The MPTS having been properly referred to Mahmood v GMC  EWHC 474 (Admin), R v Jones  1 AC 1, Brabazon-Drenning v UKCC  HRLR 6, GMC v Adeogba & Anor  EWCA Civ 162, R v Hayward  EWCA Crim 168 and Tait v Royal College of Veterinary Surgeons  UKPC 34 by the Legal Assessor.
As to the MPTS’ decision to proceed on 7 November 2016, Mrs Justice Lang concluded that the Legal Assessor had properly directed them on the relevant legal principles, but they had failed to properly apply them based on the evidence. Notably, the MPTS had taken into account evidence from the hospital that the Appellant was fit to be discharged and fit to attend the hearing on Friday 4 November 2016 to support its decision to proceed on 7 November 2016. The Appellant's case was that, following discharge, the repercussions of the angiogram were such that he needed to see his GP on the morning of 7 November. His GP concluded that he had "developed post angiography right arm bruising +/- infection", and declared him unfit for work.
Mrs Justice Lang concluded that the GP's form was adequate to require the MPTS to conduct further investigations as to the Appellant's condition, if it was not prepared to adjourn the hearing on the basis of the GP's report only. At paragraph 52 to 54 she stated:
“The Tribunal had before it unchallenged evidence of a medical condition, as at 7 November 2016, of sufficient severity for a doctor to certify that he was unfit to work, based on a medical examination that very morning. The GP's evidence raised a new issue……….
Applying the authorities, such evidence ought generally to result in an adjournment, to give effect to the common law duty of fairness, and to avoid a violation of Article 6, by depriving the registrant of the opportunity to present his defence to serious charges which threatened his professional career.
The Tribunal was not entitled to disregard the GP's certificate that the Appellant was unfit for work merely because it did not also say that he was unfit to attend the hearing. Whilst there may be occasions where a registrant is fit enough to attend a court hearing, even though he is certified unfit for work, that will depend upon an evaluation of the individual circumstances of the case”.
She concluded that the Appellant “was deprived of the opportunity to give his evidence, and to challenge the evidence of the regulator's witnesses at the fact-finding stage. In this appeal, the fact-finding stage was of critical importance as the Tribunal had to determine whether or not the Appellant had made false claims on the policy, and whether he had acted dishonestly. If the Tribunal found against him on those issues, he would be at risk of findings of misconduct and impairment, and order of erasure”.
Having concluded as such, she determined that the Appellant had not been afforded a fair hearing, and that the appeal ought to be allowed.
This decision provides helpful guidance to Panels who are tasked with considering adjournment applications. The Court determined that the Panel missed a key step in its decision making, which was to consider the most up-to-date medical evidence as being sufficient to justify an adjournment in the circumstances of the case. Whilst the medical evidence as at the date the Appellant had been discharged from hospital stated that he was fit to attend a hearing, his symptoms had developed over the following days, such that he needed to see his GP. The application to adjourn had to be considered in light of the most up-to-date medical evidence.
Another important issue in this case was the wording of the form provided by the GP. The Panel placed reliance on the fact that the form made no mention of the Appellant’s ability to attend a hearing, it only related to his fitness to attend work. This again caused the Court some concern; causing Mrs Justice Lang to opine that the Panel had failed to properly consider the individual circumstances of the case.
For those who represent registrants in regulatory proceedings, this case serves as a helpful reminder to ensure that medical evidence submitted in support of adjournment applications is clear and uncontroversial as to the registrant’s ability to participate in the proceedings at hand.
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