R (on the application of Jackson) v General Medical Council

[2013] EWHC 2595

Mr Jackson was a consultant general surgeon facing numerous complaints and allegations that his fitness to practice was impaired by reason of adverse health and by misconduct or deficient professional performance.

It was estimated that a full contested hearing of all the allegations against him would take 45 days.

Medical evidence suggested that Mr Jackson was not medically fit to work again (and it was accepted that he did not want to do so) and that he would not be able to take part in a 45 day hearing without an increased risk of a fatal outcome due to his medical condition. There was dispute as to whether, and to what extent, Mr Jackson would be able to give instructions to those representing him.

Mr Jackson made an application for voluntary erasure, which was refused. Mr Jackson challenged that decision by way of judicial review. (He had previously successfully judicially reviewed a decision not to allow the application for voluntary erasure to be heard in private.)

There were four grounds to his challenge:

  1. That the panel made a material error of fact in determining that Mr Jackson was fit to give instructions.
  2. That the panel failed to act in accordance with expert evidence in concluding that Mr Jackson could take part in a shorter hearing after making relevant admissions or in a longer hearing during which he was not present but had previously given instructions to those representing him.
  3. That as a result of (1) and (2) above, the decision not to allow the application for voluntary erasure was irrational and unlawful.
  4. That the panel did not give adequate reasons for its findings (if there were such findings) on two aspects of its decision in relation to GMC guidance regarding applications for voluntary erasure. These were findings in concluding that Mr Jackson was able to participate in proceedings and deciding to depart from the guidance as to when voluntary erasure is likely to be appropriate.

The relevant parts of the guidance stated that there are more likely to be arguments for refusing an application for voluntary erasure in relation to allegations primarily about misconduct, a conviction or determination regarding the doctor’s conduct, and particularly where the allegations carry a presumption of impaired fitness to practice.

The guidance went on to state that voluntary erasure is only likely to be appropriate in such circumstances where there is independent medical evidence that the doctor is seriously ill and unfit to participate in the fitness to practise proceedings.

Mr Jackson failed in relation to grounds (1) to (3) of his appeal, but succeeded in relation to point (4).

The court accepted the joint submissions of the parties in relation to the duty to give reasons, and the scope of those reasons.

The judgment

In what was called a ‘stunning’ omission, it was held that the panel had not engaged with the question of whether Mr Jackson was fit to take part in the proceedings. Instead, the panel had merely concluded that the public interest in the hearing going ahead outweighed the interest of Mr Jackson in being granted voluntary erasure.

It was found that the panel simply did not explain exactly how it had come to the conclusion that Mr Jackson was fit to take part in fitness to practise proceedings, and that the relevant parts of their decision were ‘difficult to follow’.

The decision to refuse the application for voluntary erasure was quashed, and remitted.