Yassin v General Medical Council  EWHC 2955 (Admin)
Case in brief
A doctor who was struck off by a GMC fitness to practise panel sought to rely on new medical evidence on appeal to the Administrative Court. However, the court decided that there was no reason why the new medical evidence could not have been obtained during the GMC proceedings and, in any event, it was not persuaded that the new evidence would have changed the outcome of those proceedings.
The GMC proceedings
Y was a trainee doctor who had appeared before a fitness to practise committee of the GMC in 2011 (the 2011 panel). The 2011 panel made findings of dishonesty and suspended Y for three months.
The 2011 panel had before it evidence about Y's health. In 2004, Y had been admitted to hospital with limbic encephalitis, although the associated seizures cleared up relatively quickly. She had, however, suffered further seizures since that date. Medical reports adduced on Y's behalf in 2011 stated among other things, that:
- Y's epileptic seizures did not impair her ability to work as a doctor in most settings, and she had made a rapid recovery from the encephalitis in 2004
- there was no evidence to suggest that her reasoning abilities or judgment were affected and her family had reported no change in her personality.
Y also relied on a report from Dr A, who reviewed Y's medical history from 2004 and described the seizures suffered by Y as a sensation of nausea occasionally associated with déjà vu. Dr A described how these episodes increased during Y's pregnancy in 2012 and reported that Y may have had occasional episodes since then.
In January 2015, Y appeared before another GMC fitness to practise committee. Following a 16-day hearing, 51 charges were found proved, including nine involving dishonesty.
The sanction hearing was postponed to June 2015 through lack of time. Y adduced further medical evidence for that hearing, including new evidence from Dr A who stated that, on the basis of Y's conduct in recorded footage of patient consultations made for training purposes in March 2015, it was very likely that Y had been having unrecognised temporal lobe complex partial seizures and concluded that "seizures, post-seizure amnesia or confusion, and memory difficulties could have contributed to some of [Y's] problems at work".
Y also provided an email from a consultant neuropsychiatrist, who concluded that Y was unaware of the manifestations of her complex, partial epileptic seizures. She also provided a letter from the consultant neurologist responsible for her care who concluded that Y had been suffering from unrecognised dyscognitive or complex partial seizures during which she may not have been able to process and retain memory normally.
The 2015 panel recorded its surprise at this new evidence, noting that Y appeared to have been successfully managing her condition since 2004 and the evidence before it did not suggest that Y's epilepsy was in any way responsible for her dishonesty. The panel added that it considered it highly likely that Y had pursued and presented the new evidence in order to assist her in a further evasion of her responsibilities and to seek to excuse her conduct.
The panel accepted on the evidence before it that there might have been instances where clinical omissions were the result of Y's medical condition. However, the allegations and findings in 2015 were very similar to those in 2011, suggesting that Y was either unable or unwilling to remedy her conduct. As such, it was not satisfied that Y would not repeat her misconduct and, accordingly, it would strike her off.
Y appealed on three grounds, the first being that a number of the allegations had been insufficiently particularised, in that they failed to identify specific dates, times, locations, individuals or instances. Applying R (Johnson & Maggs) v NMC  EWHC 885 (Admin), the court found that the allegations were sufficiently particularised, apart from one which had an associated allegation of dishonesty.
Referring to the decisions of Foskett J in Sheill v GMC  EWHC 2967 (Admin) and Fish v GMC  1269 (Admin), the court found that the relevant allegation did not meet the fairness standard required in respect of allegations of dishonesty, in that there were missing details, including specific examples of Y acting in the manner alleged.
Ground 2 was that the panel had been wrong to make two findings of dishonesty or had failed to give adequate reasons for those findings. However, the court found that, having heard from many witnesses over a number of weeks, including Y, its conclusions regarding the credibility of witnesses and its findings of fact were unassailable.
Ground 3 was an attempt to rely on new medical evidence which had not been before the 2015 panel, comprising two further letters from Dr A and a letter from a Dr B. Y submitted that this evidence put her conduct in a different light and, as a result, the 2015 panel's findings were flawed.
The new evidence confirmed that Y had been suffering from complex partial seizures during the relevant periods. Dr B confirmed that those who suffered from such seizures were usually aware that something was wrong, as there were gaps in their memory or awareness.
The court considered the three conditions for admitting new evidence on appeal, as set out in Ladd v Marshall  1 WLR 1489, namely that the evidence (i) could not have been obtained with reasonable diligence for the first hearing, (ii) must be such that it would have an important influence on the result, and (iii) must be apparently credible.
The court found that the new medical evidence could reasonably have been obtained for use before the 2015 panel, noting that Y had suffered from epilepsy since 2004, and had been aware that her condition could manifest in various ways. Taking account of Dr B's opinion that epilepsy sufferers were usually aware that something was wrong when they had suffered a seizure, the seizure caught on video in March 2015 should not have been surprising.
The court was also cognisant of the fact that medical reports had been obtained for the 2011 hearing, meaning that the impact of Y's condition on her conduct could have been explored long before the 2015 hearing.
The court was, in any event, not persuaded that the new medical evidence before it would have had an important influence on the outcome of the case. The 2015 panel had found Y's misconduct to be very serious and had made nine findings of dishonesty. In the court's view, epileptic episodes only went partway towards explaining Y's conduct. Although memory loss brought on by such episodes might explain lapses in Y's conduct, it did not explain why she continued to lie about it afterwards.
Notwithstanding its finding that one of the allegations had been insufficiently particularised, the court found that the remaining proved allegations were sufficient to justify a strike-off. Accordingly, the striking off order was upheld.