High Court allows appeal of trainee doctor against suspension, having heard new evidence of the practical effect it would have.

Judgement date: 31 October 2014

Background

On 2 March 2012, the appellant doctor (D), who was in his first year of training (ST1), was working a half day at the Bugbrooke Medical Practice in Northampton (the Practice).  He was due to fly to Australia that evening to visit his parents. He had that morning been asked by his GP supervisor to complete a Death Certificate and Cremation Certificate for Patient A, who had recently died.

The Cremation Certificate required that D examine the body of the deceased.  D had other patients to see that morning and given that he had limited time to get to Heathrow for the afternoon, he telephoned the funeral parlour.  D asked them whether it was strictly necessary for him to attend or whether it was sufficient that he could complete the task on the basis that he had seen her days before her death.  D was advised that he had to attend.  Despite this unequivocal advice, D completed the Cremation Certificate, falsely stating that he had seen Patient A at 1pm on 2 March 2012 and had conducted an external examination.   He called the funeral parlour and told them that he had seen the patient’s body after her death. He then left the Practice, to embark upon on his annual leave.

As a result of telephone calls between the funeral parlour and the Practice, it quickly became clear that the Certificate was wrongly made out and invalid due to D not having examined Patient A.   At 3.44 that afternoon, the Practice Manager telephoned D and asked him whether he had seen the deceased.  D answered that he had, however a few minutes later he called back and told the truth.  The Cremation Certificate was not used and the cremation was delayed.  On his return to the UK, D met the family of Patient A and apologised for his actions.  The apology was accepted and the family expressed their wish that matters were not taken any further, however the East Midlands Deanery referred the case to the GMC.   An Interim Conditions of Practice Order was imposed.

D continued to work as a Trainee GP passing his Applied Knowledge Testing in May 2013 and satisfying the requirements of his Annual Review of Competence and Progression in January 2014.  If no GMC proceedings had followed, D would have completed his training and qualified as a GP in November 2014.

The GMC Hearing

D faced a number of charges before a Fitness to Practise Panel (FTPP) of the General Medical Council (GMC), the main thrust of which pertained to the conduct outlined above.  Most of the charges were admitted and all found proved.  The FTPP found that D’s fitness to practice was impaired and that his registration should be suspended for a period of six months.

The Appeal

The first ground of appeal was that, on the basis of the evidence and information before them, the FTPP imposed an excessive and disproportionate sanction.  The High Court rejected this submission; it was for the FTPP to assess the weight of the competing aggravating and mitigating features and their decision was not ‘wrong’ such that they could intervene.

The second, more successful, ground of appeal was that since the FTPP’s decision, matters had come to light concerning the practical consequences of suspending D’s registration.  It was argued that this cast a fresh light on the determination, making it unduly harsh and disproportionate. D provided a witness statement in support of this aspect of the appeal.  He stated that when he was handed the six months suspension it was his belief that he would simply be able to return to his training after the suspension had been served.  When the FTPP made their decision in March 2014, D was in the final six months of his GP (ST3) and making good progress.  Upon notifying Health Education East Midlands of the sanction imposed by the FTPP, D was shocked to find out that the effect of it would be that his National Training Number (NTN) would be removed when the suspension came into force. The effect of this is that his current training will cease at that point, despite the fact that he has only a few more months to go before finishing it.

D stated that the likely effect of the suspension sanction will be to bring his current training as a doctor to an end with no certainty that he will be able to enter an alternative programme once the suspension has been served. Dr Helen Mead, the GP Dean of Health Education East Midlands, confirmed to the Court that suspension did mean that the NTN would be removed, that there was no appeal against this and that there was no absolute certainty that D would not lose all of the training so far and would get an opportunity to complete his exams.

The Court first dealt with the test for adducing fresh evidence in appeals of this nature, as laid down in Ladd v Marshall [1954] EWCA Civ 1, namely that it can only be admitted if;

  1. the evidence could not have been obtained with reasonable diligence for use at trial
  2. the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive
  3. the evidence must be such as is presumed to be believed; it must be apparently credible, though it need not be incontrovertible

It was held by the Court that the information about the practical effects of the suspension could have been obtained with reasonable diligence to be used before the FTPP.  Given that D was admitting dishonesty charges, those representing him must have been aware that suspension was on the cards.  However, it was said that the culpability of A in this regard was not particularly high.  There was no evidence to suggest that anyone appreciated the possible consequences of his suspension.

It was held that; ‘whilst paying proper regard to the fact that all the principles in Ladd v Marshall are of relevance and of powerful persuasive authority, I do not regard the lack of compliance with this first principle to be determinative.  There is no suggestion that the Postgraduate Dean in any way alerted D or his lawyers to these consequences and no evidence that the Panel was aware of them’.

The Court distinguished the case of Abrahaem v GMC [2008] EWHC 183, in which the Court refused to allow a report addressing the employment prospects of Dr Abrahaem under the conditions imposed by the FTPP to be admitted on appeal.  In that case the fresh evidence was contested and would have required an adjournment (it being provided 3 days before the hearing of the appeal).

In relation to the second principle, it was held that there is a ‘real risk’ that D’s speciality training may be at an end if he is suspended.  Whilst it may be that a new Panel would believe that suspension is still appropriate, the fresh evidence would have an important influence on the result of the case; ‘It may indeed not be decisive but that is a matter for a properly informed FTPP to decide’.

It was held that;

Considering the overriding objective this, in my judgement, is one of the perhaps rare cases where, notwithstanding that one of Ladd v Marshall principles has not been complied with, justice requires the fresh evidence to be admitted and for the matter to be considered by the FTPP.

It was agreed that there will not be a rehearing of the case but merely a hearing which takes into account the fresh evidence so as to decide what, if any, difference it makes to sanctions.   It was said also that the fact that the judgement only led to this limited further disciplinary process was also relevant in the decision to allow the fresh evidence.

In this case, where Abrahaem is distinguished, the Court allowed fresh evidence despite not all the individual criteria in Ladd v Marshal being made out.  That being said, those defending would be prudent to ensure, if suspension or conditions is on the cards, that their client obtains up to date and detailed evidence if they wish to suggest that a particular sanction would have an unduly harsh effect in the circumstances of the case.