R. (On the application of Michalak) v General Medical Council [2011] EWHC 2307(Admin)

Can a new Panel Member be appointed during a Disciplinary Hearing if an existing Panel Member is no longer able to sit?  If yes, what procedures should then be followed?

This was an application by Mr Michalak for judicial review of decisions made by both the Registrar and the Fitness to Practise Panel (the Panel) of the GMC.

The Applicant’s case before a three member Panel consisted of 34 days of hearing during which 28 GMC witnesses were heard.  One panel member then became unwell and could not play any further part in proceedings.  The Registrar substituted another panel member to ensure it remained quorate and the Panel agreed with this approach.  In addition they decided that it would not be fair for the new member to read the transcripts and that rather the full Panel of three members should hear all evidence previously given in full.

The application was on the basis that:

  1. there was no power to make the substitution; and
  2. the procedure followed was not fair and/or rational in the circumstances.

Having considered the relevant GMC rules, Mr Justice Parker held that there was power for the substitution to be made as the rule setting out the membership of the Panel was not limited to the appointment of the Panel at the beginning of proceedings.  Further there were checks on such a power, including that under the rules this should only be exercised “in the interests of justice”; the power would have to be used for a proper purpose; and the Panel itself has a duty to ensure that its procedures are fair.

The Judge was however troubled by the fairness and rationale behind the Panel’s decision to re-hear the evidence in full, which he felt caused serious problems.  That two panel members should hear what was effectively prosecution evidence twice gave rise to the impression of unfairness.  It also put the third panel member in an entirely different position from their colleagues creating a risk which could lead to different impressions of the weight of evidence being formed.  He was not persuaded that there was any advantage in the Panel’s approach compared to a fresh Panel being constituted to hear the case again.

Although it must be right that a panel member can be substituted (subject to a Regulator’s rules), care must be taken by a Regulator when considering how best to proceed once this has taken place.  The safe course for Regulators is for a new panel member to read the transcripts to ensure they have the same kind of information as the original panel members.  Although this is not a perfect solution as the new panel member does not benefit from seeing the witnesses, the advantages for the administration of justice in general outweigh any disadvantages, and it avoids the serious difficulties caused by the approach in this case.

Can a new Panel Member be appointed during a Disciplinary Hearing if an existing Panel Member is no longer able to sit? If yes, what procedures should then be followed?