General Medical Council v Adeogba / Visvardis [2016] EWCA Civ 162

In these joined cases the Court of Appeal (CA) has given guidance on the approach to be taken when considering whether to proceed with a fitness to practise (FTP) hearing in the absence of the respondent. Although the cases relate specifically to General Medical Council (GMC) matters, the principles are likely to have broader application to fitness to practise proceedings brought by other regulators.

The law – proceeding in absence

The CA reviewed the state of the law in respect of proceeding in the absence of registrants, and held that the guidance given by the House of Lords in R v Jones ([2002] UKHL 5) was a useful starting point. However, Jones was a criminal case and the CA noted that there were important differences between proceeding in the absence of a criminal defendant and proceeding with an FTP hearing in the absence of a practitioner pursuant to Rule 31 of the GMC (Fitness to Practise) Rules 2004 (“the Rules”).

Rule 31 provides that a panel may proceed in the absence of a respondent or his/her representative “if they are satisfied that all reasonable efforts have been made to serve the practitioner with notice in accordance with these rules”.

The CA stated that a Rule 31 decision must be guided by the main statutory objective of the GMC, as set out in s. 1(1A) of the Medical Act 1983, namely the protection, promotion and maintenance of the health and safety of the public. Accordingly, the task of interpreting the Rules should start on the footing that they are intended to provide a framework for the fair, economical, expeditious and efficient disposal of allegations made against medical practitioners, rather than as a protection for the respondent in such proceedings (Zia v GMC [2011] EWCA Civ 743 applied).

The CA stressed that the analogy between criminal and regulatory proceedings should not be taken too far. Crucially, steps could be taken to enforce attendance at a trial by a criminal defendant, whereas the GMC has no such powers. Further points of difference include:

  1. it would run counter to the public interest if a practitioner could frustrate disciplinary processes by deliberately failing to engage
  2. there is a burden on regulated professionals to engage with their regulator in relation to conduct investigations, and (iii) the GMC requires medical practitioners to provide a current registered address in order to enable it to comply with its duty under s. 31(4) of the Medical Act to keep its registers up to date. In relation to point
  3. the Court stated that “the fact that a practitioner has not updated contact details with the GMC (particularly when he is aware that he is then subject to disciplinary investigation) is unlikely to provide a reasonable explanation for failure to participate in the [disciplinary] process, sufficient to require the Panel to adjourn...”.

The CA summarised the approach to be taken by medical practitioners tribunals (MPTS) panels as follows: the first question to address is whether all reasonable efforts had been made to serve the practitioner with notice of the hearing. This must be considered against the background of the requirement for the practitioner to provide an up to date address to the GMC.

Assuming it is satisfied that proper notice has been given, the panel must then consider whether to proceed by reference to all the circumstances of which it is aware, with fairness to the practitioner being of prime importance, but fairness to the GMC and the public interest also being taken into account. The principles derived from criminal cases must be considered in the context of the different circumstances and responsibilities of the GMC and the practitioner.

The law – the introduction of fresh evidence on appeal

The CA also reviewed the state of the law in relation to the introduction of fresh evidence on appeal, and in particular, the introduction of fresh evidence in relation to a respondent's reasons for failing to attend an FTP hearing. The CA found no reason to depart from the well-recognised principles as set out in Ladd v Marshall [1954] 1 WLR 1489.

The CA concluded that evidence as to the reasons why a practitioner did not appear or engage in a disciplinary hearing was likely to constitute fresh evidence and would require consideration on appeal, at least de bene esse. However, even if there was good reason for non-attendance, this would not necessarily extend to fresh evidence going to the merits of the disciplinary complaint which would have been available to be deployed at the time of the hearing.

Decision on appeal – Dr A

Following interim order (IO) hearings, which resulted in Dr A being suspended for 18 months, Dr A returned to Nigeria. He did not provide the GMC with an up-to-date contact address, with the result that the GMC continued to write to him at his registered address in Germany (the letters were returned) and his email address (which he had used to communicate with the GMC in relation to the IO hearings).

Dr A did not attend the FTP hearing and the panel proceeded in his absence, concluding that he knew that FTP proceedings were under way and that, in view of his failure to provide the GMC with updated contact details, there was no evidence that adjourning would cause him to engage. He had voluntarily absented himself.

Dr A subsequently returned to Germany and, upon checking his emails, discovered the outcome of the FTP hearing. He filed an appeal in the High Court (HC), which resulted in the panel's decision to proceed in his absence being overturned. The GMC appealed the HC's decision.

The CA criticised the HC's suggestion that, although the GMC had complied with its service obligations pursuant to the Rules, it should have taken further steps such as contacting overseas authorities in an attempt to reach Dr A. The GMC had been entitled and indeed bound to use Dr A's registered address and his failure to provide updated contact details in the circumstances (i.e. where he knew about the FTP proceedings) was “egregious”.

Any suggestion that the GMC should contact Nigerian authorities would put an inappropriate burden on the GMC, whose responsibility was very simple: to “communicate with the practitioner at the address he has provided; neither more nor less”. The CA also stated that, although it recognised that the panel did not have Dr A's input when making its decisions, this was always the case when a practitioner did not attend a hearing. This difficulty could not override all other considerations because, if it did, it would “provide a premium on non co-operation”. Accordingly, the HC's decision was overturned.

Decision on appeal – Dr V

There was no dispute that the disciplinary panel had made “reasonable efforts” to serve Dr V in accordance with the Rules, such that the panel was entitled to exercise its discretion whether to proceed in his absence pursuant to Rule 31. However, in the course of the disciplinary proceedings, Dr V had attempted to mount what the CA characterised as a “collateral attack” on the proceedings by, in effect, refusing to engage substantively until his concerns about the GMC's investigations and process had been addressed.

He then applied for an adjournment shortly before the hearing and was notified of the panel's decision to refuse that application on the morning that the hearing had been due to start (although he claimed not to have received the panel's email until the following evening). The panel concluded that he had voluntarily absented himself from the hearing and proceeded in his absence. Dr V then successfully appealed against that decision in the HC and the GMC, in turn, appealed against that decision.

The CA found that, on the facts, Dr V had done nothing to engage substantively with the FTP process, instead choosing to mount a collateral attack on the process, and there was no reason why he could not have attended the hearing. Having been notified of the panel's decision not to cancel the hearing, he could have attended subsequently and renewed his application or otherwise engaged with the proceedings. There was no basis on which to interfere with the panel's decision and the HC's judgment was overturned.